[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2025 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 20
Employees' Benefits
________________________
Parts 400 to 499
Revised as of April 1, 2025
Containing a codification of documents of general
applicability and future effect
As of April 1, 2025
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 20:
Chapter III--Social Security Administration 3
Finding Aids:
Table of CFR Titles and Chapters........................ 1359
Alphabetical List of Agencies Appearing in the CFR...... 1379
Chapter III Index....................................... 1389
List of CFR Sections Affected........................... 1399
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 20 CFR 401.5 refers
to title 20, part 401,
section 5.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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, 2025), 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
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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.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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to materials already published elsewhere. For an incorporation to be
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
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contacting the agency, you find the material is not available, please
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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 Authorities
and Rules. A list of CFR titles, chapters, subchapters, 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.
[[Page vii]]
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.
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
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INQUIRIES
For a legal interpretation or explanation of any regulation in this
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For inquiries concerning CFR reference assistance, call 202-741-6000
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The eCFR is a regularly updated, unofficial editorial compilation of
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the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
April 1, 2025
[[Page ix]]
THIS TITLE
Title 20--Employees' Benefits is composed of four volumes. The first
volume, containing parts 1-399, includes 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 parts 500 to 656, includes
current regulations issued by the Employees' Compensation Appeals Board,
and the Employment and Training Administration. The fourth volume,
containing part 657 to End, includes the current regulations issued by
the Office of Workers' Compensation Programs, the Benefits Review Board,
the Office of the Assistant Secretary for Veterans' Employment and
Training Service (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, 2025.
An index to chapter III appears in the second volume.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 20--EMPLOYEES' BENEFITS
(This book contains parts 400 to 499)
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Part
chapter iii--Social Security Administration................. 401
[[Page 3]]
CHAPTER III--SOCIAL SECURITY ADMINISTRATION
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Part Page
400
[Reserved]
401 Privacy and disclosure of official records
and information......................... 5
402 Availability of information and records to
the public.............................. 26
403 Testimony by employees and the production of
records and information in legal
proceedings............................. 44
404 Federal old-age, survivors and disability
insurance (1950- )...................... 48
405
[Reserved]
408 Special benefits for certain World War II
veterans................................ 728
411 The Ticket to Work and Self-Sufficiency
Program................................. 769
416 Supplemental security income for the aged,
blind, and disabled..................... 809
418 Medicare subsidies.......................... 1190
422 Organization and procedures................. 1236
423 Service of process.......................... 1303
424-428
[Reserved]
429 Administrative claims under the Federal Tort
Claims Act and related statutes......... 1304
430 Personnel................................... 1314
431 Protection of human subjects................ 1315
432-437
[Reserved]
438 Restrictions on lobbying.................... 1333
440-497
[Reserved]
498 Civil monetary penalties, assessments and
recommended exclusions.................. 1342
499
[Reserved]
[[Page 5]]
PART 400 [RESERVED]
PART 401_PRIVACY AND DISCLOSURE OF OFFICIAL RECORDS AND INFORMATION-
-Table of Contents
Subpart A_General
Sec.
401.5 Purpose of the regulations.
401.10 Applicability.
401.15 Limitations on scope.
401.20 Scope.
401.25 Terms defined.
Subpart B_The Privacy Act
401.30 Privacy Act and other 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 Access to medical records.
401.60 Access to or notification of program records about more than one
individual.
401.65 How to correct your record.
401.70 Appeals of refusals to correct records or refusals to allow
access to 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 written 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 Government Accountability Office.
401.180 Disclosure under court order or other legal process.
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
[[Page 6]]
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) Access. Sections 401.30 through 401.95, which set out SSA's
rules for implementing the Privacy Act, apply to records retrieved by an
individual's name or personal identifier subject to the Privacy Act. The
rules in Sec. Sec. 401.30 through 401.95 also apply to information
developed by medical sources for the Social Security program and shall
not be accessed except as permitted by this part.
(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 Sec. Sec. 401.100 through 401.200 of this part.
These regulations also apply to the disclosure of other Federal program
information which SSA maintains. That information includes:
(i) Health insurance records which SSA maintains for the Health Care
Financing Administration's (HCFA) programs under title XVIII of the
Social Security Act. We will disclose these records to HCFA. HCFA may
redisclose these records under the regulations applying to records in
HCFA's custody;
(ii) Black lung benefit records which SSA maintains for the
administration of the Federal Coal Mine Health and Safety Act; (However,
this information is not covered by section 1106 of the Social Security
Act.) and
(iii) Information retained by medical sources pertaining to a
consultative examination performed for the Social Security program shall
not be disclosed except as permitted by this part.
(2) Nonprogram records. Section 401.110 sets out rules applicable to
the disclosure of nonprogram records, e.g., SSA's administrative and
personnel records.
[62 FR 4143, Jan. 29, 1997, as amended at 65 FR 16812, Mar. 30, 2000; 72
FR 20939, Apr. 27, 2007]
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.
[[Page 7]]
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 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
[[Page 8]]
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 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 and other 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.
(d) Privacy Officer. The Privacy Officer is an advisor to the Agency
on all privacy policy and disclosure matters. The Privacy Officer
coordinates the development and implementation of Agency privacy
policies and related legal requirements to ensure Privacy Act
compliance, and monitors the coordination, collection, maintenance, use
and disclosure of personal information. The Privacy Officer also ensures
the integration of privacy principles into information technology
systems architecture and technical designs, and generally provides to
Agency officials policy guidance and directives in carrying out the
privacy and disclosure policy.
(e) Senior Agency Official for Privacy. The Senior Agency Official
for Privacy assumes overall responsibility and accountability for
ensuring the agency's implementation of information privacy protections
as well as agency compliance with federal laws, regulations, and
policies relating to the privacy of information, such as the Privacy
Act. The compliance efforts also include reviewing information privacy
procedures to ensure that they are comprehensive and up-to-date and,
where additional or revised procedures may be called for, working with
the relevant agency offices in the consideration, adoption, and
implementation of such procedures. The official also ensures that agency
employees and contractors receive appropriate training and education
programs regarding the information privacy laws, regulations, polices
and procedures governing the agency's handling of personal information.
In addition to the compliance role, the official has a central policy-
making role in the agency's development and evaluation of legislative,
regulatory and other policy proposals which might implicate information
privacy issues, including those relating to the collection, use,
sharing, and disclosure of personal information.
(f) Privacy Impact Assessment. In our comprehensive Privacy Impact
Assessment (PIA) review process, we incorporate the tenets of privacy
law, SSA privacy regulations, and privacy policy directly into the
development of certain Information Technology projects. Our review
examines the risks and
[[Page 9]]
ramifications of collecting, maintaining and disseminating information
in identifiable form in an electronic information system and identifies
and evaluates protections and alternate processes to reduce the risk of
unauthorized disclosures. As we accomplish the PIA review, we ask
systems personnel and program personnel to resolve questions on data
needs and data protection prior to the development of the electronic
system.
[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20939, Apr. 27, 2007]
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 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,
[[Page 10]]
(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) Electronic requests. If you make a request by computer or other
electronic means, e.g., over the Internet, we require you to verify your
identity by using identity confirmation procedures that are commensurate
with the sensitivity of the information that you are requesting. If we
cannot confirm your identity using our identity confirmation procedures,
we will not process the electronic request. When you cannot verify your
identity through our procedures, we will require you to submit your
request in writing.
(4) Electronic disclosures. When we collect or provide personally
identifiable information over open networks such as the Internet, we use
encryption in all of our automated online transaction systems to protect
the confidentiality of the information. When we provide an online access
option, such as a standard e-mail comment form on our Web site, and
encryption is not being used, we alert you that personally identifiable
information (such as your social security number) should not be included
in your message.
(5) Requests not made in person. Except as provided in paragraphs
(b)(2) of this section, if you do not make a request in person, you must
submit a written request to SSA to verify your identify or you must
certify in your request that you are the individual you claim to be. You
must also sign a statement 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.
(6) 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.
(7) 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.
[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20939, Apr. 27, 2007]
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
[[Page 11]]
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 Access to medical records.
(a) General. You have a right to access your medical records,
including any psychological information that we maintain.
(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 Sec. Sec. 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 will be willing to review the record and inform you of its contents.
Following the discussion, you are entitled to your records. The
representative does not have the discretion to withhold any part of your
record. 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) Request by the minor. You may
request access to your own medical records 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 Sec. Sec. 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. The representative will review the record, discuss
its contents with the parent or legal guardian, then release the entire
record to the parent or legal guardian. The representative does not have
the discretion to withhold any part of the minor's record. We will
respond in the following similar manner 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.
[[Page 12]]
(3) 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.
[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20939, Apr. 27, 2007]
Sec. 401.60 Access to or notification of program records about more
than one individual.
When information about more than one individual 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.
[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20940, Apr. 27, 2007]
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 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.
[[Page 13]]
Sec. 401.70 Appeals of refusals to correct records or refusals to
allow access to records.
(a) General. This section describes how to appeal decisions we make
under the Privacy Act concerning your request for correction of or
access to your records, those of your minor child, or those of a person
for whom you are the legal guardian. This section describes how to
appeal decisions made by SSA under the Privacy Act concerning your
request for correction of or 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 Freedom of Information Act (see part
402 of this chapter). To appeal a decision under this section, your
request must be in writing.
(b) Appeal of refusal to correct or amend records. If we deny your
request to correct an SSA 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.
(1) We will review your request within 30 working days from the date
of the receipt. However, for a good reason and with the approval of the
Executive Director for the Office of Privacy and Disclosure, we may
extend this time limit 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.
(2) If, after review, we determine that the record should be
corrected, we will do so. However, if we refuse to amend the record as
you requested, we will inform you that--
(i) Your request has been refused and the reason for the refusal;
(ii) The refusal is our final decision; and
(iii) You have a right to seek court review of our final decision.
(3) We will also inform you 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 to 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 Office
of the General Counsel, Office of Privacy and Disclosure, Social
Security Administration, Attn: Executive Director, 6401 Security
Boulevard, Baltimore, MD 21235, within 30 days after you receive 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.
(d) Filing your appeal. If you file an appeal, the Executive
Director or his or her designee will review your request and any
supporting information submitted and then send you a notice explaining
the decision on your appeal. The time limit for making our decision
after we receive your appeal is 30 working days. The Executive Director
or his or her designee may extend this time limit up to 30 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.
[72 FR 20940, Apr. 27, 2007, as amended at 88 FR 1329, Jan. 10, 2023]
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 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
[[Page 14]]
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 Sec. Sec. 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.
(F) Anti-Harassment & Hostile Work Environment Case Tracking and
Records System, SSA.
(G) Social Security Administration Violence Evaluation and Reporting
System, SSA.
(H) Anti-Fraud System, SSA.
[[Page 15]]
(iii) Pursuant to subsection (k)(5) of the Privacy Act:
(A) Security and Suitability Files.
(B) [Reserved]
(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 Sec. Sec. 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.
[62 FR 4143, Jan. 29, 1997, as amended at 82 FR 16510, Apr. 5, 2017; 83
FR 63416, Dec. 10, 2018; 84 FR 45901, Sept. 3, 2019; 87 FR 25141, Apr.
28, 2022]
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.
[[Page 16]]
(2) Copying records not susceptible to photocopying (e.g., punch
cards or 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 Sec. Sec. 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 written consent of the
subject of the record.
(a) General. Except as permitted by the Privacy Act and the
regulations in this part, or when required by the FOIA, we will not
disclose your records without your written consent.
(b) Disclosure with written consent. The written consent must
clearly specify to whom the information may be disclosed, the
information you want us to disclose (e.g., social security number, date
and place of birth, monthly Social Security benefit amount, date of
entitlement), and, where applicable, during which timeframe the
information 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).
(c) Disclosure of the entire record. We will not disclose your
entire record. For example, we will not honor a blanket consent for all
information in a system of records or any other record consisting of a
variety of data elements. We will disclose only the information you
specify in the consent. 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.
(d) A parent or guardian of a minor is not authorized to give
written consent to a disclosure of a minor's medical record. See Sec.
401.55(c)(2) for the procedures for disclosure of or access to medical
records of minors.
[72 FR 20940, Apr. 27, 2007]
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, the Privacy Act
applies. To the extent that SSA has physical custody of personnel
records maintained as part of the Office of Personnel Management's (OPM)
Privacy Act government-wide systems of records, these records are
subject to OPM's rules on access and disclosure at 5 CFR parts 293 and
297. 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.
[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20940, Apr. 27, 2007]
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,
[[Page 17]]
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 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 duties of the
Government Accountability Office.
(k) Pursuant to the order of a court of competent jurisdiction.
[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20940, Apr. 27, 2007]
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 of
personal information that we keep. We disclose information in the
program records only when a legitimate need exists. For example, we
disclose information to officers and employees of SSA who have a need
for the record in the performance of their duties. We also must consider
the laws identified below in the respective order when we disclose
program information:
(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.
[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20940, Apr. 27, 2007]
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,
U.S. Citizenship and Immigration Services to carry out its duties
regarding aliens, the Railroad Retirement Board for its benefit
programs, and to Federal, State and local
[[Page 18]]
agencies administering Temporary Assistance for Needy Families,
Medicaid, unemployment compensation, food stamps, and other programs.
[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20941, Apr. 27, 2007]
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 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
[[Page 19]]
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
maintained in a system of records without your consent to any other
party if such disclosure is pursuant to a routine use published in the
system's notice of system of records. A ``Routine use'' must be
compatible with the purpose for which SSA collected the information.
(b) Notice of routine use disclosures. A list of permissible routine
use disclosures is included in every system of records notice published
in the Federal Register.
(c) Determining compatibility--(1) Disclosure to carry out SSA
programs. We disclose information for published routine uses necessary
to carry out SSA's programs.
(2) Disclosure to carry out programs similar to SSA programs. We may
disclose information for the administration of other government
programs. These disclosures are pursuant to published routine uses where
the use is compatible with the purpose for which the information was
collected. These programs generally meet the following conditions:
(i) The program is clearly identifiable as a Federal, State, or
local government program.
(ii) The information requested 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 Department of
Veterans Affairs for its benefit programs, to worker's compensation
programs, to State general assistance programs and to other income
maintenance programs at all levels of government. We also disclose for
health maintenance programs like Medicaid and Medicare.
(iii) The information will be used for appropriate epidemiological
or similar research purposes.
[72 FR 20941, Apr. 27, 2007]
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. The Privacy Act allows us to disclose information if
the head of the law enforcement agency makes a written request giving
enough information to show that the conditions in paragraphs (b) or (c)
of this section are met, what information is needed, and why it is
needed. 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.
(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.
[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20941, Apr. 27, 2007]
[[Page 20]]
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 other Federal or State income-
maintenance or health-maintenance programs; or is used for research that
is of importance to the Social Security program or the Social Security
beneficiaries; or an epidemiological research project that relates to
the Social Security program or beneficiaries; 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.
[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 20941, Apr. 27, 2007]
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 Sec. Sec.
401.35 through 401.60.
[[Page 21]]
Sec. 401.175 Government Accountability Office.
We disclose information to the Government Accountability Office when
that agency needs the information to carry out its duties.
[72 FR 20941, Apr. 27, 2007]
Sec. 401.180 Disclosure under court order or other legal process.
(a) General. The Privacy Act permits us to disclose information when
we are ordered to do so by a court of competent jurisdiction. When
information is used in a court proceeding, it usually becomes part of
the public record of the proceeding and its confidentiality often cannot
be protected in that record. Much of the information that we collect and
maintain in our records on individuals is especially sensitive.
Therefore, we follow the rules in paragraph (d) of this section in
deciding whether we may disclose information in response to an order
from a court of competent jurisdiction. When we disclose pursuant to an
order from a court of competent jurisdiction, and the order is a matter
of public record, the Privacy Act requires us to send a notice of the
disclosure to the last known address of the person whose record was
disclosed.
(b) Court. For purposes of this section, a court is an institution
of the judicial branch of the U.S. Federal government consisting of one
or more judges who seek to adjudicate disputes and administer justice.
(See 404.2(c)(6) of this chapter). Entities not in the judicial branch
of the Federal government are not courts for purposes of this section.
(c) Court order. For purposes of this section, a court order is any
legal process which satisfies all of the following conditions:
(1) It is issued under the authority of a Federal court;
(2) A judge or a magistrate judge of that court signs it;
(3) It commands SSA to disclose information; and
(4) The court is a court of competent jurisdiction.
(d) Court of competent jurisdiction. It is the view of SSA that
under the Privacy Act the Federal Government has not waived sovereign
immunity, which precludes state court jurisdiction over a Federal agency
or official. Therefore, SSA will not honor state court orders as a basis
for disclosure. State court orders will be treated in accordance with
the other provisions of this part.
(e) Conditions for disclosure under a court order of competent
jurisdiction. We disclose information in compliance with an order of a
court of competent jurisdiction if--
(1) another section of this part specifically allows such
disclosure, or
(2) SSA, the Commissioner of Social Security, or any officer or
employee of SSA in his or her official capacity is properly a party in
the proceeding, or
(3) disclosure of the information is necessary to ensure that an
individual who is accused of criminal activity receives due process of
law in a criminal proceeding under the jurisdiction of the judicial
branch of the Federal government.
(f) In other circumstances. We may disclose information to a court
of competent jurisdiction in circumstances other than those stated in
paragraph (e) of this section. We will make our decision regarding
disclosure by balancing the needs of a court while preserving the
confidentiality of information. For example, we may disclose information
under a court order that restricts the use and redisclosure of the
information by the participants in the proceeding; we may offer the
information for inspection by the court in camera and under seal; or we
may arrange for the court to exclude information identifying individuals
from that portion of the record of the proceedings that is available to
the public. We will make these determinations in accordance with Sec.
401.140.
(g) Other regulations on request for testimony, subpoenas and
production of records in legal proceedings. See 20 CFR part 403 of this
chapter for additional rules covering disclosure of information and
records governed by this part and requested in connection with legal
proceedings.
[72 FR 20941, Apr. 27, 2007]
[[Page 22]]
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.
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.
[[Page 23]]
(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 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
[[Page 24]]
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 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.
Sec. 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 Sec. Sec.
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;
[[Page 25]]
(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 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.
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
[[Page 26]]
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 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.
[62 FR 4143, Jan. 29, 1997, as amended at 72 FR 69617, Dec. 10, 2007]
PART 402_AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC-
-Table of Contents
Sec.
402.05 Scope and purpose of this part.
402.10 Definitions.
402.15 SSA's FOIA policy.
402.20 Relationship between the FOIA and the Privacy Act of 1974.
402.25 Who can file a FOIA request?
402.30 Requirements of a FOIA request.
402.35 Where to submit a FOIA request.
402.40 Requests for deceased individual's records.
402.45 Requests handled outside of the FOIA process.
402.50 FOIA Officer's authority.
402.55 Referrals and consultations.
402.60 How does SSA process FOIA requests?
402.65 Expedited processing.
402.70 Fees associated with processing FOIA requests.
402.75 FOIA fee schedule.
402.80 Charging under section 1106(c) of the Social Security Act.
402.85 Waiver of fees in the public interest.
402.90 Notification of fees and prepayment requirements.
402.95 Release of records.
402.100 FOIA Public Liaison and the Office of Government Information
Services.
402.105 Appeals of the FOIA Officer's determination.
402.110 U.S. District Court action.
402.115 The FOIA Exemption 1: National defense and foreign policy.
402.120 The FOIA Exemption 2: Internal personnel rules and practices.
402.125 The FOIA Exemption 3: Records exempted by other statutes.
402.130 The FOIA Exemption 4: Trade secrets and confidential commercial
or financial information.
402.135 The FOIA Exemption 5: Internal documents.
402.140 The FOIA Exemption 6: Clearly unwarranted invasion of personal
privacy.
402.145 The FOIA Exemption 7: Law enforcement.
402.150 The FOIA Exemptions 8 and 9: Records on financial institutions;
records on wells.
402.155 Records available for public inspection.
402.160 Where records are published.
402.165 Publications for sale through the Government Publishing Office.
Authority: 42 U.S.C. 405, 902(a)(5), and 1306); 5 U.S.C. 552 and
552a; 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: 89 FR 102711, Dec. 18, 2024, unless otherwise noted.
Sec. 402.05 Scope and purpose of this part.
(a) The purpose of this part is to describe the Social Security
Administration's (SSA) policies and procedures for implementing the
requirements of the Freedom of Information Act (FOIA) 5 U.S.C. 552. The
FOIA mandates disclosure to the public of Federal agency records unless
specific exemptions apply. The FOIA also requires an agency to
proactively disclose records and make certain records available for
public inspection.
(b) The rules in this part describe how SSA makes records available
to the public, including:
[[Page 27]]
(1) What constitutes a proper request for records;
(2) How to make a FOIA request;
(3) Who has the authority to release and withhold records;
(4) What fees may be charged to process a request for records;
(5) The timing of determinations regarding release;
(6) The exemptions that permit the withholding of records;
(7) Requesters' right to seek assistance from the FOIA Public
Liaison;
(8) Requesters' right to appeal the agency's FOIA determination;
(9) Requesters' right to seek assistance from the Office of
Government Information Services and then go to court if they still
disagree with our release determination; and
(10) The records available for public inspection.
(c) The rules in this part do not revoke, modify, or supersede SSA's
regulations relating to disclosure of information in part 401 or 403 of
this chapter.
Sec. 402.10 Definitions.
As used in this part:
Agency means the Social Security Administration (SSA). Agency may
also refer to 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 the Government or is receiving
Federal financial assistance.
Chief FOIA Officer means a senior official of SSA who has an agency-
wide responsibility for ensuring efficient and appropriate compliance
with the FOIA, monitoring implementation of the FOIA throughout the
agency, and making recommendations to the head of the agency to improve
the agency's implementation of the FOIA. The Commissioner of SSA
designated the General Counsel as the Chief FOIA Officer for SSA. The
Chief FOIA Officer or the Chief FOIA Officer's designee is authorized to
make final decisions in response to appeals of the FOIA Officer's
determinations.
Commercial interest includes interests relating to business, trade,
and profit. These interests could be present regardless of the identity
of the requester (e.g., individual, non-profit corporation, for-profit
corporation). The interest of a representative of the news media in
using the information for news dissemination purposes will not be
considered a commercial interest.
Commercial use request is a request that asks for information for a
use or a purpose that furthers a commercial, trade, or profit interest,
which can include furthering those interests through litigation. An
agency's decision to place a requester in the commercial use category
will be made on a case-by-case basis based on the requester's intended
use of the information. Agencies will notify requesters of their
placement in this category.
Component means each separate office, division, commission, service,
center, or administration within SSA that may maintain agency records
subject to a request under the FOIA.
Duplication means the process of reproducing a copy of a record, or
of the information contained in it, to the extent necessary to respond
to a request. Copies include paper, electronic records, audiovisual
materials, and other formats of agency records.
Educational institution is any school that operates a program of
scholarly research. A requester in this fee category must show that the
request is made in connection with their role at the educational
institution. To qualify for this category, a requester must show that
the FOIA request is authorized by, and is made under the auspices of or
in connection with the requester's role at a qualifying institution and
that the records are sought to further a scholarly research goal of the
institution, and not for a commercial use or purpose, or for individual
use or benefit. SSA may seek verification from the requester that the
request is in furtherance of scholarly research and will advise
requesters of their placement in this category.
Exemption means one of the nine exemptions to the mandatory
disclosure of records permitted under section 552(b) of the FOIA.
[[Page 28]]
Expedited processing means the process set forth in the FOIA that
allows requesters to request faster processing of their FOIA request, if
they meet specific criteria noted in Sec. 402.65.
Fee category means one of the three categories established by the
FOIA to determine whether a requester will be charged fees under FOIA
for search, review, and duplication. The categories are: commercial use
requests; scientific or educational institutions and news media
requests; and all other requests.
Fee waiver means the waiver or reduction of fees if a requester is
able to demonstrate the requirements set forth in Sec. 402.85.
FOIA Library means an electronic location(s) that SSA uses to post
records that are made available to the public without a specific
request. SSA makes FOIA library records electronically available to the
public through our website, www.ssa.gov, including at www.ssa.gov/foia.
Posted records may include those provided under agency discretion and
not required pursuant to FOIA.
FOIA Officer means an SSA official whom the Commissioner of Social
Security delegated the authority to release or withhold records; to
assess, waive, or reduce fees in response to FOIA requests; and to make
all other determinations regarding the processing of a FOIA request. In
this capacity, the FOIA Officer is authorized to request and receive
responsive records that may be maintained by other agency components.
Except for records subject to proactive disclosure pursuant to
subsection (a)(2) of the FOIA, only the FOIA Officer has the authority
to release or withhold records or to waive fees in response to a FOIA
request.
FOIA Public Liaison means an agency official who reports to the
agency Chief FOIA Officer and serves as a supervisory official to whom a
requester can raise concerns about the service the requester received
concerning the processing of the FOIA request. This individual is
responsible for increasing transparency in the agency's FOIA business
process, helping requesters understand the status of requests, and
assisting in the resolution of disputes. The FOIA Public Liaison may be
contacted via email to [email protected].
FOIA request means a written request that meets the criteria in
Sec. 402.30.
Freedom of Information Act or FOIA means the law codified at 5
U.S.C. 552 that provides the public with the right to request agency
records from the Federal executive branch agencies.
Non-commercial scientific institution means an institution that does
not further the commercial, trade, or profit interests of any person or
entity and is operated for the purpose of conducting scientific research
whose results are not intended to promote any particular product or
industry.
Numident refers to the ``Numerical Identification System,'' the SSA
system that contains information available on an Application for a
Social Security Card (Form SS-5). The Numident record contains the name
of the applicant, place of birth, and other information.
OGC means the Office of the General Counsel.
Online FOIA portal means the electronic application that SSA uses to
process FOIA requests. The public may also submit requests directly to
SSA via the online FOIA portal.
OPD means the Office of Privacy and Disclosure.
Other requester means any individual or organization whose FOIA
request does not qualify as a commercial-use request, representative of
the news media request (including a request made by a freelance
journalist), or an educational or non-commercial scientific institution
request.
Production means the process of preparing the records for
duplication, including the time spent in preparing the records for
duplication (i.e., materials used, records/database retrieval, employee
and contractor time, as well as systems processing time).
Record(s) means any information maintained by an agency, regardless
of format, that is made or received in connection with official agency
business that is under the agency's control at the time of the FOIA
request. Record(s) includes any information maintained for an agency by
a third party.
[[Page 29]]
(1) Record(s) does not include personal records of an employee, or
other information in formally organized and officially designated SSA
libraries and FOIA library, where such materials are available under the
rules of the particular library.
(2) Record(s) includes information maintained by the State
Disability Determination Services related to performing the disability
determination function and medical source information pertaining to
consultative examinations performed for the Social Security program when
obtained by, created on behalf of, or otherwise, in the control of SSA.
Redact means delete or mark over.
Representative of the news media means any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn raw materials into a distinct work,
and distributes that work to an audience. The term ``news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations that broadcast news to the public at large
and publishers of periodicals, including print and online publications
that disseminate news and make their products available through a
variety of means to the general public. We do not consider FOIA requests
for records that support the news-dissemination function of the
requester to be a commercial use. We consider ``freelance'' journalists
who demonstrate a solid basis for expecting publication through a news
media entity as working for that entity. A publishing contract provides
the clearest evidence that a journalist expects publication; however, we
also consider a requester's past publication record. We decide whether
to grant a requester media status on a case-by-case basis,.
Request means asking for records, whether or not the requester
refers specifically to the FOIA. Requests from Federal agencies,
subpoenas, and court orders for documents are not included within this
definition.
Review, unless otherwise specifically defined in this part, means
examining records responsive to a request to determine whether any
portions are exempt from disclosure. Review time includes processing a
record for disclosure (i.e., doing all that is necessary to prepare the
record for disclosure), including redacting the record and marking the
appropriate FOIA exemptions. It does not include the process of
resolving general legal or policy issues regarding exemptions.
Search means the process of identifying, locating, and retrieving
records responsive to a request, whether in hard copy or in electronic
form or format, or by manual or automated/electronic means.
Special services means performing additional services outside of
that required under the FOIA to respond to a request. Examples include
using an overnight mail service to send the agency's response to a FOIA
request.
SS-5 means an Application for a Social Security Card. It is used to
request an original, different, or replacement Social Security Card.
SSA means the Social Security Administration.
Submitter means any person or entity that provides trade secrets or
commercial or financial information to the agency, and includes
individuals, corporations, other organizational entities, and state and
foreign governments.
Tolling means temporarily stopping the running of a time limit. We
may toll a FOIA request to seek clarification from the requester or to
address fee issues, as further described in Sec. 402.60(h).
Trade secrets and confidential commercial or financial information
means trade secrets and confidential commercial or financial information
that is obtained by the agency from a submitter, such that it may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
Sec. 402.15 SSA's FOIA policy.
(a) Presumption of openness. SSA will withhold information only if
we reasonably foresee that disclosure would harm an interest protected
by a FOIA exemption or if disclosure is prohibited by law.
(b) Authority to release and withhold records. As described in Sec.
402.50, the
[[Page 30]]
agency's FOIA Officer, or the FOIA Officer's designee, has the authority
to:
(1) Release or withhold records in response to initial requests;
(2) Grant or deny expedited processing; and
(3) Reduce or waive fees.
(c) Records publicly available. We make available for public
inspection in an electronic format records that are final and have been
requested and released three or more times and other specified records
described in Sec. 402.155. We do not make available for public
inspection records that are not static, such as the Open Access Death
Master File.
(d) Required record production. The FOIA does not require an agency
to give opinions, conduct research, answer questions, or create records.
Sec. 402.20 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.
(b) Requesting your own records. If you have filed a FOIA request
and are an individual requesting your own records that are maintained in
a system of records, or if you are a parent or legal guardian authorized
to act under Sec. 401.75 of this chapter who is seeking the records
about a minor or individual who has been declared incompetent, your
request may be handled under the Privacy Act. See Sec. 401.40 of this
chapter. If we handle your request under the Privacy Act, we will
provide you with written notification with further processing
instructions. Privacy Act requests are also processed under the FOIA,
when appropriate, to give you the benefit of both statutes. You must
verify your identity in accordance with our regulations. See Sec.
401.45 of this chapter.
Sec. 402.25 Who can file a FOIA request?
Any person may submit a FOIA request to SSA. Under the FOIA, ``any
person'' includes requests from individuals, corporations, State and
local agencies, as well as foreign entities. Requests from Federal
agencies and Federal or State courts are not covered by the FOIA.
Sec. 402.30 Requirements of a FOIA request.
(a) To be considered a FOIA request under this part, the following
must occur:
(1) The request must be written (either by hand or electronically);
(2) The request must be submitted in accordance with Sec. 402.35;
(3) The requester must provide the following required contact
information: Requester's name, U.S. or foreign postal address,
description of records sought, and fee willing to pay. While not
required, we encourage requesters to provide us with their email address
and phone number; and
(4) The request must clearly state and reasonably describe what SSA
records are being requested in sufficient detail to enable OPD to locate
them with a reasonable amount of effort. Broad, sweeping requests and
vague requests are not reasonably described. When known, requests should
identify the records sought by providing the name/title of the record,
applicable date range, subject matter, offices or employees involved,
and record type. If the request is for electronic communications, such
as email records, the request may identify the names, position titles,
or other identifying information about the agency employees involved, as
well as the applicable timeframe. Absent sufficient details, the agency
may be unable to search for or locate the records sought. The greater
the date range, the longer it may take to process the request and the
greater amount of fees that may be charged.
(b) Requests that do not meet the required criteria in paragraph (a)
of this section are not considered proper FOIA requests.
Sec. 402.35 Where to submit a FOIA request.
(a) Submission of requests. Except as specified in paragraph (b) of
this section, requesters must submit FOIA requests in writing to OPD
through the following options:
(1) Online FOIA portal: Link available from the agency's
www.ssa.gov/foia
[[Page 31]]
website or the National FOIA Portal at www.FOIA.gov.
(2) Email: [email protected].
(3) Mail: SSA Office of Privacy and Disclosure, ATTN: Freedom of
Information Officer, 6401 Security Boulevard, Baltimore, MD 21235.
(b) Requests for copies of Deceased Individual's Application for a
Social Security Card (SS-5) or Numident record. Requesters may use the
Form SSA-711, Request for a Deceased Individual's Social Security
Record, to request a copy of a deceased individual's original SS-5 or
Numident record. When the Form SSA-711 is used, it may be submitted to
the office listed on the form or as directed in paragraph (a) of this
section.
Sec. 402.40 Requests for deceased individual's records.
(a) The agency will disclose the records concerning a deceased
individual when we have acceptable proof of death unless Federal law or
regulations prohibits the disclosure.
(b) Proof of death includes:
(1) A copy of a public record of death of the number holder;
(2) A statement of death by the funeral home director;
(3) A statement of death by the attending physician or the
superintendent, physician, or intern of the institution where the person
died;
(4) A copy of the coroner's report of death or the verdict of the
coroner's jury;
(5) An obituary that we determine has sufficient identifying
information; or
(6) Other certified record of death that we determine within our
discretion is acceptable.
(c) If upon review of the provided proof of death, we cannot
determine that the individual is deceased or we have questions about the
authenticity of the proof, then the proof is not acceptable. When we do
not have acceptable proof of death, we will treat the request in
accordance with Sec. 402.20(b), requests for information about a living
person.
Sec. 402.45 Requests handled outside of the FOIA process.
When records outlined in paragraphs (a) through (d) of this section
are requested from OPD, OPD will respond to the requester and provide
information for requesting the records sought:
(a) To the extent a request asks for records that are currently
publicly available, either from SSA or from another part of the Federal
Government. See Sec. 402.155.
(b) If the records sought are distributed by SSA as part of its
regular program activity, for example, public information leaflets
distributed by SSA. See Sec. Sec. 402.155 through 402.165.
(c) If the records sought are earnings records covered by Sec.
422.125 of this chapter.
(d) If a request does not meet the requirements of a FOIA request as
defined in Sec. 402.30. We will send written correspondence to the
requester:
(1) Providing instructions for how to submit a proper FOIA request;
or
(2) Asking for additional information to make the request a proper
FOIA request.
Sec. 402.50 FOIA Officer's authority.
(a) Release determination. Only the Deputy Executive Director for
OPD or their designee is authorized to make determinations about:
(1) Release or withholding of records;
(2) Expedited processing;
(3) Charging or waiver of fees; and
(4) Other matters relating to processing a request for records under
this part.
(b) Determination provided in writing. The FOIA Officer's
determination is provided in writing to the requester via emailed
communication or, in the absence of the requester's email address, via
U.S. postal mail. If the requester disagrees with the FOIA Officer's
determination in response to items identified in paragraph (a) of this
section, the requester may appeal the determination to the Executive
Director for OPD, as described in Sec. 402.105.
Sec. 402.55 Referrals and consultations.
(a) Consultation and referral. When reviewing records located by SSA
in response to a request, SSA will determine whether another agency of
the
[[Page 32]]
Federal Government is better able to determine whether the record is
exempt from disclosure under the FOIA. As to any such record, SSA will
proceed in one of the following ways:
(1) Referral of FOIA records in whole or in part to an outside
agency. We will notify the requester in writing when we opt to refer
records in whole or in part to another agency for direct response from
that agency, including the name(s) or the agency(s) to which the record
was referred and that agency's FOIA contact information, unless
notification would cause harm to an interest protected under the FOIA.
In such instances, in order to avoid harm to an interest protected by an
applicable exemption, we coordinate to seek the view of the originating
agency.
(2) Agency consultation. If a request is for records that were
created by, or provided to us by, another agency that is not subject to
the FOIA, we may consult with that agency, as described in paragraph (b)
of this section.
(b) Consultation with another agency or entity. If a request is for
records that originated with SSA but contain information of interest to
another agency or entity, we may consult with the other agency or entity
prior to issuing our release determination to the requester.
Sec. 402.60 How does SSA process FOIA requests?
(a) Acknowledgement. (1) If we receive a FOIA request that will take
longer than 10 working days to process, we will provide an
acknowledgment. The acknowledgement email or letter restates the FOIA
request and provides the requester with the request's tracking number.
(2) If we require clarification to process the FOIA request, we will
contact the requester either via email, U.S. postal mail, or phone call.
We attempt to contact requesters twice. If we do not receive a response
to our clarification attempts within 30 calendar days from the date of
our first contact to the requester, we will close the FOIA request due
to insufficient information.
(b) Perfected requests. FOIA requests are considered ``perfected,''
i.e., the 20-working day statutory time begins, when the request meets
the requirements of the proper FOIA request listed in Sec. 402.30.
There may be times that we require more information from the requester
after perfecting a request. The 20-working day period may be extended in
unusual circumstances by written notice to the requester. See paragraph
(d) of this section.
(c) Multi-tracking procedures. FOIA requests are categorized simple,
complex, or expedited. Unless granted expedited processing, we process
FOIA requests in each track according to a first-in, first-out basis.
(1) Simple. For most non-expedited requests, we make a determination
about release of the record(s) requested within 20-working days.
(2) Complex. We will place into a complex processing queue any
request that cannot be completed within 20-working days due to the
complex nature of the request, including consultation with components
that may maintain records subject to the request. We make good faith
efforts to notify requesters in writing if it is necessary for us to
take additional time to process a request and of the requester's right
to seek dispute resolution services with the Office of Government
Information Services. See Sec. 402.100.
(3) Expedited processing. Unless granted expedited processing, we
process FOIA requests according to a first-in, first-out basis. See
Sec. 402.65 for information on expedited processing.
(d) Unusual circumstances. (1) Unusual circumstances exist when
there is a need to:
(i) Search for and collect records from SSA components or field
locations that are separate from OPD;
(ii) Search for, collect, and review a voluminous number of records
that are part of a single request; or
(iii) Consult with two or more SSA components or another agency
having substantial interest in the request before releasing the records.
(2) Within the unusual circumstances letter to the requester, we
will provide an estimated date that we will contact the requester with
the applicable fee notice and/or further correspondence. We will notify
the requester of the date by which we estimate completing the
[[Page 33]]
request. We will also advise the requester that they may modify or
narrow the scope of their request.
(3) When unusual circumstances exist, we will process the request
under the complex track.
(e) Aggregating requests. We may aggregate requests in cases where
it reasonably appears that multiple requests, submitted either by a
requester or by a group of requesters acting in concert, constitute a
single request, involving clearly related matters, which would otherwise
involve unusual circumstances. In the event requests are aggregated,
they will be treated as one request for estimating response time and
calculating fees.
(f) Fee notice. FOIA requesters are issued a fee notice that informs
them of the estimated search, review, and duplication time associated
with processing their FOIA request. For more information on fees, see
Sec. Sec. 402.70 through 402.80.
(g) Tolling. (1) We may stop or toll the 20 working days in two
circumstances:
(i) We may stop the clock once if we require additional information
regarding the specifics of the request; and
(ii) We may stop the clock as many times as needed regarding fee
assessments.
(2) The processing time will resume upon our receipt of the
requester's response. There may be instances when we require multiple
clarifications on a FOIA request. After the first request for
clarification, any additional clarifications are performed without
tolling the clock. If we do not receive a response to our clarification
attempts within 30 calendar days from the date of our first contact to
the requester, we will close the FOIA request.
(h) Retrieving records. We are required to furnish copies of records
only when they are in our possession or we can retrieve them from
storage. We will make reasonable efforts to search for records except
when such efforts would significantly interfere with the operation of
our automated information system(s). The Federal Government follows
National Archives and Records Administration rules on record retention.
Records are retained or destroyed under the guidelines of the Federal
Records Act.
(i) No records determinations. We will search for records to satisfy
a request using methods that can be reasonably expected to produce the
requested records. Nevertheless, we may not be able to always find the
records requested using the information provided by the requester, or
they may not exist. If we advise that we have been unable to find the
records despite a diligent search, the requester may appeal the no
records determination to the Executive Director for OPD, as described in
Sec. 402.105.
(j) Furnishing records. We will furnish copies of records in whole
or in-part, unless we reasonably foresee that disclosure would harm an
interest protected by a FOIA exemption or if disclosure is prohibited by
law. When information within a responsive record(s) is exempt from
disclosure, the information is redacted and the applicable FOIA
exemption(s) are noted within the redacted cell. We will make reasonable
efforts to provide the records in the form or format requested if the
record is readily reproducible in that form or format. We may provide
individual records as we process them on a rolling basis, or we may
release all responsive records once the request is completed. See Sec.
402.95 for more information on SSA's release of records.
(k) Directing a requester to another agency. If a request is for
records that are not SSA records for purposes of the FOIA, and we
believe the records may be maintained by another agency, we may advise
the requester to submit their request to that other agency. In such
cases, we will provide the requester with the other agency's name in our
response letter. Our recommendation that the requester submit their
request to the other agency is not a guarantee the other agency will
have or disclose the records requested.
(l) Burdensome requests. The FOIA requires an agency to provide the
record in any form or format requested by the person if the record is
readily reproducible by the agency in that form or format. We will not
search or produce records in response to a FOIA request that we
determine would be unduly
[[Page 34]]
burdensome to process. FOIA requests are determined to be unreasonably
burdensome when processing the FOIA request would significantly
interfere with the ongoing operation of the agency's programs.
Sec. 402.65 Expedited processing.
(a) Expedited processing must be requested at the same time as the
FOIA request. We provide expedited processing when the requester can
demonstrate a ``compelling need'' for the requested information:
(1) When there is an imminent threat to the life or safety of a
person;
(2) When the requester is primarily engaged in disseminating
information, and shows an urgency to inform the public about actual or
alleged government activities; or
(3) When the requester can show, in detail and to our satisfaction,
that a prompt response is needed because the requester may be denied a
legal right, benefit, or remedy without the requested information, and
that it cannot be obtained elsewhere in a reasonable amount of time.
(b) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. We will notify
the requester within 10 calendar days of receipt of the request for
expedited processing of our decision to grant or deny expedited
processing. Only the FOIA Officer may make the decision to grant or deny
expedited processing. Requests granted expedited processing will be
given priority and processed as soon as practicable. Requests that do
not meet the ``compelling need'' criteria, will be processed normally.
If we do not grant the request for expedited processing, the requester
may appeal the denial to the Executive Director for OPD. In the appeal
letter, the requester should explain why they believe their request
demonstrates a ``compelling need,'' such as describing how the request
meets the criteria in paragraphs (a)(1) through (3) of this section. The
process described in Sec. 402.105 will also apply to these appeals.
Sec. 402.70 Fees associated with processing FOIA requests.
(a) Charging authorities--(1) Section 1106(c). Section 1106(c) of
the Social Security Act (42 U.S.C. 1306(c)) allows the agency to charge
for FOIA requests that are not directly related to SSA's administration
of the Social Security Act. See Sec. 402.80 for information on the
agency's authorization under section 1106(c) to charge requesters.
Requesters may request a fee waiver, as described in Sec. 402.85.
(2) FOIA fee categories. The FOIA establishes three fee categories
of requesters, i.e., commercial use, non-commercial scientific or
educational institutions and representatives of the news media; and
other requesters. The category of the requester determines the fees that
may be charged; see Sec. 402.75 for the FOIA fee schedule. Requesters
may request a fee waiver, as described in Sec. 402.85.
(b) Hourly rate when charging under section 1106(c) and the FOIA fee
categories. (1) When we search for and review records, we charge an
hourly rate, based in 15-minute increments, depending on the grade(s) of
the employee(s) and/or contractors performing the search and review. The
hourly rate is the same when charging under the FOIA fee provisions or
section 1106(c) of the Social Security Act. SSA uses the current General
Schedule (GS) salary table for the locality pay area of Washington-
Baltimore-Arlington, DC-MD-VA-WV-PA. We use the following criteria to
compute our hourly rates for search or review:
(i) When performed by employees at grade GS-1 through GS-8, SSA will
charge an hourly rate based on the salary of a GS-5, step 7, employee;
(ii) When performed by a GS-9 through GS-14, SSA will charge an
hourly rate based on the salary of a GS-12, step 4, employee; and
(iii) When performed by a GS-15 or above, SSA will charge an hourly
rate based on the salary of a GS-15, step 7, employee.
(2) When work is performed by a contractor, we will charge an hourly
rate based on the GS equivalent of the contractor's hourly pay rate. We
compute the hourly rate by taking the current hourly rate for the
specified grade and
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adding 16 percent of that rate to cover benefits and rounding to the
nearest whole dollar. These rates are adjusted as Federal salaries
change. Federal salary rates are available from the Office of Personnel
Management. When a search and review involves employees at more than one
of these GS levels, we will charge the rate appropriate for each. We may
charge a fee for search time even if we are unable to locate any
responsive records or the records are exempt from disclosure.
Sec. 402.75 FOIA fee schedule.
(a) Fee schedule category. Requesters whom SSA charges under the
FOIA fee schedule are subject to the following fees dependent upon their
fee category:
(1) Commercial. Commercial use requesters are charged for search,
review, and duplication.
(2) Non-commercial educational or scientific institutions and
representative of the news media. Requesters that fit this category are
charged for the duplication of documents. We will not charge requesters
the copying costs for the first 100 pages of duplication.
(3) Other. If the FOIA request does not fall within a category
described in paragraph (a)(1) or (2) of this section, we will charge for
search and duplication; however, we will not charge for the first two
hours of search time or for the duplication costs of the first 100
pages.
(b) Certification. If a requester asks for certification of the
record(s) responsive to their FOIA request and OPD agrees to provide it,
we will notify the requester of the appropriate certification fee via
written correspondence.
(c) Record(s) production and duplication--(1) Electronic records. We
will charge the actual costs for producing and duplicating the record
and the time spent by the employees or contractors in production,
duplication, or otherwise processing the FOIA request, at the rates
given in Sec. 402.70(c).
(2) Photocopying standard size pages. For noncommercial requesters,
we will charge $0.10 per page after the first 100 pages, which are free.
The FOIA Officer may charge lower fees for particular documents where:
(i) The document has already been printed in large numbers;
(ii) The program office determines that using existing stock to
answer this request, and any other anticipated FOIA requests, will not
interfere with program requirements; and
(iii) The FOIA Officer determines that the lower fee is adequate to
recover the prorated share of the original printing costs.
(3) Photocopying odd-size documents. For photocopying documents,
such as punch cards or blueprints, or duplicating 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 Sec. 402.70(c).
(d) Cost of service less than cost of issuing a bill. We will not
charge a fee when the cost of the service is less than the cost of
sending the requester 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.
(e) Fee waiver. We may waive or reduce the fee if we find that
waiver is in the public interest. See Sec. 402.85 for fee waiver
information.
Sec. 402.80 Charging under section 1106(c) of the Social Security Act.
Section 1106(c) of the Social Security Act permits the agency to
charge the full cost to process requests for information for purposes
not directly related to the administration of program(s) under the
Social Security Act. This may be done notwithstanding the fee provisions
in FOIA, the Privacy Act, or any other provision of law. In responding
to FOIA requests for non-program purposes, we will charge the full cost
(both direct and indirect costs) of our services, regardless of the
requester's fee categorization, unless the cost of the service is less
than the cost of issuing a bill as stated in paragraph (b) of this
section.
(a) Full costs. The agency may charge full costs for processing
records or information requests, including but not limited to:
(1) Search. We may charge for search time even if we are unable to
locate any responsive records or the records
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are exempt from disclosure. We will notify the requester in writing if
the records estimated as responsive are determined unreasonably
burdensome for the agency to process and/or the search would cause
significant interference with the operation of SSA's automated
information systems.
(2) Review. Review includes the reviews performed at any level
(staff through executive), including but not limited to review by
multiple people and offices.
(3) Production and duplication of record(s). We may charge the full
cost of the systems' processing (e.g., computer search time, computer
processing database retrieval), materials used to produce and duplicate
the requested record(s), and time spent by agency employee(s) and/or
contractor(s) in production, duplication, or otherwise processing the
FOIA request.
(4) Certification. We will charge the full costs for certification.
(5) Employee's time. The full cost of an employee's time includes
fringe benefits and overhead costs, such as rent and utilities.
(6) Forwarding/delivering materials. If special arrangements for
forwarding material are requested, we will charge the requester the full
cost of this service (e.g., if express mail or a commercial delivery
service is requested). If no special forwarding arrangements are
requested, we will charge the requester the full cost of the service,
including the U.S. Postal Service cost.
(7) Performing other special services. If we agree to provide any
special services requested, we will charge the full cost of the time of
the employee(s) or contractor(s) who perform the service, plus the full
cost of any systems processing time and materials that the employee or
contractor uses.
(b) Cost of service less than cost of issuing a bill. We will not
charge a fee when the cost of the service is less than the cost of
sending the requester 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.
(c) Standard administrative fees for non-program information. The
information in this part does not revoke, modify, or supersede the
schedule of standard administrative fees the agency charges for
specified non-program information requests.
(d) Non-program purpose. Non-program purposes constitute any purpose
that is not program related.
(1) We consider a request to be program related if:
(i) The information must be disclosed under the Social Security Act
(Act); or
(ii) The information will be used for a purpose which is directly
related to the administration of a program under the Act for which SSA
has responsibility. In deciding whether this paragraph (d)(1)(ii)
applies, the major criteria SSA considers is whether the information is:
(A) Needed to pursue a benefit under a program that SSA administers
under the Act.
(B) Needed solely to verify the accuracy of information obtained in
connection with a program that SSA administers under the Act.
(C) Needed in connection with an activity under SSA's purview which
is authorized under the Act.
(D) Needed by an employer to carry out taxpaying responsibilities
under the Federal Insurance Contributions Act or section 218 of the Act.
(2) We will consider each request on a case-by-case basis when the
criteria in this paragraph (d) are not met but the requester claims a
request is for a program-related purpose for another reason. We will not
conclude a request is program-related solely because the records sought
are about programs administered by SSA or are claimed to be of public
interest.
(e) Disagreement with program or non-program determination. Only the
FOIA Officer has the authority to make the program/non-program decision.
If a requester disagrees with the FOIA Officer's non-program
determination, they may appeal the decision to the Executive Director
for OPD. In the appeal letter, the requester should explain why they
believe the request meets the requirements in paragraph (c) of this
section. The process described in Sec. 402.105 will also apply to these
appeals.
[[Page 37]]
Sec. 402.85 Waiver of fees in the public interest.
A requester may request waiver or reduction of fees, whether charged
under Sec. 402.75 or Sec. 402.80, if the release of the requested
records is in the public interest. We will waive or reduce the fees we
would otherwise charge if disclosure of the requested information:
(a) Is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the government; and
(b) Is not primarily in the commercial interest of the requester.
(1) Procedure for requesting a waiver or reduction. A requester must
make the request for a fee waiver or reduction in writing at the same
time they make their request for records. The requester should explain
with reasonable specificity why they believe a waiver or reduction is
proper under the analysis in paragraphs (b)(2) and (3) of this section.
Only the FOIA Officer may make the decision whether to waive, or reduce,
the fees. If we do not completely grant the request for a waiver or
reduction, the requester may appeal the denial to the Executive Director
for OPD. In the appeal letter, the requester should explain why they
believe the request meets the requirements in paragraphs (b)(2) and (3)
of this section. The process prescribed in Sec. 402.105 will also apply
to these appeals.
(2) Public interest. We consider the factors below when analyzing
whether disclosure is in the public interest:
(i) How the records pertain to the Federal Government's operations
or activities;
(ii) Whether disclosure would reveal any meaningful information
about Government operations or activities not already known to the
public; and
(iii) Whether the contribution to public understanding of those
operations or activities would be significant.
(iv) Regarding the above criteria, you must be reasonably specific
in your waiver request as to the specific Government operation or
activity and provide direct, clear (not remote or attenuated)
connections to the meaningful information you seek. Generalized interest
in government programs is not reasonably specific to grant waiver.
(3) Not primarily in requester's commercial interest. If the
disclosure is determined to be in the public interest as described in
paragraph (b)(2) of this section, we will then determine whether it also
furthers the requester's commercial interest and, if so, whether this
effect outweighs the advancement of that public interest. We consider
the following factors when analyzing whether disclosure is not primarily
in the requester's commercial interest:
(i) Would the disclosure further a commercial interest of the
requester, or of someone on whose behalf the requester is acting?
(ii) If disclosure would further a commercial interest of the
requester, would that effect outweigh the advancement of the public
interest defined in paragraph (b)(2) of this section? Which effect is
primary?
(4) Burden on SSA to produce the record(s). If the disclosure meets
the requirements in paragraphs (b)(2) and (3) of this section, we
reserve the right to charge a fee if special services are needed to
provide the records.
(5) Deciding between waiver and reduction. If the disclosure meets
the requirements in paragraphs (b)(2) and (3) of this section, 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 meet the fee waiver criteria.
Sec. 402.90 Notification of fees and prepayment requirements.
Requesters must agree to pay the fee, whether charged under Sec.
402.75 or Sec. 402.80, before we will begin the search for record(s).
(a) Cost estimate. OPD will issue a fee notice to the requester for
the processing of their request for records that includes an estimated
fee based on the time we estimate it will take to process the record(s)
requested. We issue fee notices via email or, when the requester does
not provide an email address, via U.S. postal mail.
(b) Advanced payment information required. The requester must agree
to pay the estimated fee provided within the fee notice and provide the
agency with
[[Page 38]]
payment information within 30 calendar days from the date of our fee
notice. Payment information is required before OPD will begin the search
for the requested record(s). Unless otherwise specified in the schedule
of standard administrative fees the agency charges for specified non-
program information requests, OPD will process payment when the request
is closed, i.e., when the FOIA Officer issues a decision on records
release. If the payment information provided by the requester expires
during the course of OPD's processing of the FOIA request, the requester
must provide updated payment information. If updated payment information
is not provided within 30 calendar days of our written request for the
payment information, we reserve the right to administratively close the
request.
(c) Changes in estimated fee. (1) If the time spent to search for
records is more or less than the time estimated in the fee notice, OPD
will issue the requester a revised fee notice after the responsive
component(s) performs the records search and retrieval.
(2) If the record(s) provided to OPD for review are more or less
than those from which OPD estimated search and review time, OPD will
issue the requester a revised fee notice after the responsive
component(s) perform the records search and retrieval.
(3) OPD will either dispose of the payment information or return the
payment information to the requester when OPD issues the revised fee
notice.
(4) The requester must agree to pay the revised fee before we will
continue processing the request. If the requester disagrees with the
revised fee, the requester may appeal to the Executive Director for OPD.
Appeals will be processed as described in Sec. 402.105.
(d) Prompt payment. We will administratively close the FOIA request
if we do not receive a response or appeal within 30 calendar days from
the date of the fee notice. ``Response'' includes:
(1) Requesting to narrow the scope of the request; or
(2) Providing payment in response to the fee notice. Appeals will be
processed as described in Sec. 402.105.
(e) Methods of payment. We accept payment by check or money order
made payable to the Social Security Administration (SSA), as well as by
credit card (MasterCard, Visa, Discover, American Express, or Diner's
Club).
Sec. 402.95 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 the requester, as well. However, we will not release it to a
requester if a statute forbids this disclosure; an exemption applies
that was not previously applicable; or if the previous release was
unauthorized.
(b) Withholding records. Section 552(b) of the FOIA explains the
nine exemptions under which we may withhold records requested under the
FOIA. Within Sec. Sec. 402.115 through 402.150, we describe the FOIA
exemptions and explain how we apply them to disclosure determinations.
In some cases, more than one exemption may apply to the same document.
Section 552(b) of the FOIA, while providing nine exemptions from
mandatory disclosure, does not itself provide any assurance of
confidentiality by the agency.
(c) FOIA library. If the record(s) requested are already publicly
available, either in our electronic FOIA library or elsewhere online,
such as at www.ssa.gov, we will direct the requester to the publicly
available record(s).
(d) 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. 402.100 FOIA Public Liaison and the Office of Government
Information Services.
We notify requesters of their right to seek dispute resolution from
the FOIA Public Liaison or the Office of Government Information Services
(OGIS) within our fee notices, responses to determinations identified in
Sec. 402.50(a), and responses to appeals.
(a) FOIA Public Liaison. If requesters have questions about the
response to their request or wish to seek dispute resolutions services
within SSA, the requester may contact the FOIA Public
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Liaison via email to [email protected].
(b) OGIS. OGIS is an entity outside of SSA that offers mediation
services to resolve disputes between FOIA requesters and Federal
agencies as a non-exclusive alternative to litigation. OGIS' contact
information will be provided in any decision letter issued by the FOIA
Officer and Executive Director for OPD.
Sec. 402.105 Appeals of the FOIA Officer's determination.
(a) Appeal requirements. If a requester disagrees with the FOIA
Officer's determination in response to items specified in Sec.
402.50(a), the requester may appeal the decision. The appeal must meet
the following requirements:
(1) Be submitted in writing via the avenues identified in Sec.
402.35(a);
(2) Be received, or in the case of electronic submissions,
transmitted within 90 calendar days from the date of the determination
the requester is appealing; and
(3) Explain what the requester is appealing and include additional
information to support the appeal. The appeal should clearly identify
the agency determination that is being appealed and the assigned
request's tracking number. To facilitate handling when submitted via
mail or fax, the requester should mark the appeal letter, or subject
line of the electronic transmission, ``Freedom of Information Act
Appeal.''
(b) Acknowledgement. If we receive an appeal that will take longer
than 10 working days to process, we will provide an acknowledgment. The
acknowledgement is provided via email or, when the requester does not
provide an email address, via U.S. postal mail. The acknowledgement
email or letter restates the FOIA appeal and provides the requester with
the appeal's tracking number.
(c) Processing timeframe. FOIA appeals are categorized as either
simple or complex, based on the designation of the initial request.
(1) Simple. Generally, we make a determination about release of the
requested record(s) within 20-working days.
(2) Complex. Appeals of complex requests cannot be completed within
20-working days. During OPD's processing of the appeal, OPD will need to
consult with appropriate SSA component(s), including legal counsel;
therefore, we generally require more than 20-working days to issue a
final decision on the appeal.
(d) Final decision. The Chief FOIA Officer delegated to the
Executive Director for OPD the authority to make decisions on appeals of
the FOIA Officer's determinations.
(1) The final decision is provided in writing to the requester via
email or, in the absence of the requester's email address, via U.S.
postal mail.
(2) The final decision letter will explain the basis of the decision
(for example, the reasons why an exemption applies).
(e) Disagreement with final decision. If a requester disagrees with
the final decision issued by the Executive Director for OPD, they may
seek assistance from OGIS, as described in Sec. 402.100. Requesters may
also ask a U.S. District Court to review our final decision. See 5
U.S.C. 552(a)(4)(B).
Sec. 402.110 U.S. District Court action.
If the Executive Director for OPD or the Executive Director for
OPD's designee, upon review, affirms the denial of the FOIA Officer's
determination of items specified in Sec. 402.50(a), requesters may ask
a U.S. District Court to review that denial. See 5 U.S.C. 552(a)(4)(B).
Sec. 402.115 The FOIA Exemption 1: National defense and foreign policy.
Exemption 1 protects from disclosure information specifically
authorized under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign policy and are in
fact properly classified pursuant to such Executive order.
Sec. 402.120 The FOIA Exemption 2: Internal personnel rules and practices.
Exemption 2 authorizes our agency to withhold records that are
related solely to the internal personnel rules and practices of an
agency. For example, we may withhold personnel rules and practices
dealing with employee relations or human resources.
[[Page 40]]
Sec. 402.125 The FOIA Exemption 3: Records exempted by other statutes.
(a) Required record release. Exemption 3 authorizes our agency to
withhold records if another statute specifically allows or requires us
to withhold them. We may use another statute to justify withholding only
if it prohibits disclosure or if it sets forth criteria to guide our
decision on releasing or identifies particular types of material to be
withheld.
(b) Examples. (1) 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.
(2) We also use this exemption to withhold death information about
decedents:
(i) When the date of death is within three calendar years from the
current date, the requested information about the decedent is protected
under section 203 of the Bipartisan Budget Act of 2013 (Pub. L. 113-67).
(ii) When the agency's source of death is the state, the requested
information is protected under section 205(r) of the Social Security
Act.
Sec. 402.130 The FOIA Exemption 4: Trade secrets and confidential
commercial or financial information.
Submitters may designate information as trade secrets and
confidential commercial or financial information at the time of
submission or within a reasonable time thereafter. Submitters must use
good faith efforts to designate, by appropriate markings, any portion of
its submission that it considers to be protected from disclosure under
the FOIA exemptions. These designations expire ten years after the due
date of the submission unless the submitter requests a longer
designation period.
(a) Steps of submitters notice--(1) The submitter's notice. When
trade secrets or confidential commercial or financial information is
requested under the FOIA, SSA will provide written submitter's notice if
we have a reason to believe that information in the records could
reasonably be disclosed under the FOIA. The submitter's notice will
describe and include a copy of the trade secret or commercial or
financial information requested or portions of records containing the
information. In cases involving many submitters, SSA may post or publish
a submitter's notice in a place or manner reasonably likely to inform
the submitters of the proposed disclosure instead of sending individual
notifications. The submitter's notice requirements of this section do
not apply if:
(i) SSA determines the information is fully exempt under the FOIA,
and therefore will not be disclosed;
(ii) The information has been previously published or made generally
available; or
(iii) Disclosure of the information is required by statute other
than the FOIA.
(2) Submitter's opportunity to object to disclosure. (i) Unless SSA
grants an extension, the submitter must respond to the notice within
five working days of SSA issuing the submitter's notice or the
information may be released in accordance with these regulations and the
FOIA. A submitter who fails to respond within five working days will be
considered to have no objection to the disclosure of the information.
SSA is not required to consider any information received after the date
of any disclosure decision. Any information provided by a submitter
under this subpart may itself be subject to disclosure under the FOIA.
(ii) If a submitter objects to disclosure, the submitter should
provide SSA with a detailed written statement that specifies all grounds
for withholding the particular information under any exemption of the
FOIA. In order to rely on Exemption 4 as basis for non-disclosure, the
submitter must explain why the information constitutes a trade secret or
commercial or financial information that is confidential.
(iii) SSA will consider a submitter's timely made objections and
specific grounds for nondisclosure in deciding whether to disclose the
requested information.
(3) Notice of intent to disclose. Whenever SSA decides to disclose
information over the objection of a submitter, SSA provides the
following to the submitter:
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(i) A Release Over Objection letter explaining the reasons why each
of the submitter's disclosure objections did not meet the requirements
for withholding under the FOIA.
(ii) A copy of the information as SSA intends to release it.
(iii) A statement of our intent to disclose the information five
working days from the date on the Release Over Objection letter unless
the submitter files an action in a U.S. District Court to prevent the
release.
(b) Notice of FOIA lawsuit. When a submitter's notice is issued for
a request that is the subject of a lawsuit, SSA notifies the submitter
of the lawsuit within the notice.
(c) Requester notification. To the extent SSA expects substantial
delays in the processing of FOIA requests due to the agency's
communications with the submitter, we will notify the requester in
writing via email, or when the requester's email is not provided, via
U.S. postal mail.
Sec. 402.135 The FOIA Exemption 5: Internal documents.
This exemption covers inter-agency or intra-agency government
documents that fall within an evidentiary privilege recognized in civil
discovery. Such internal government communications may 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 the
decision-making processes of government agencies. Information is
protected under this privilege if it is predecisional and deliberative.
The purpose of the privilege is to prevent injury to the quality of the
agency decision-making process by encouraging open and frank internal
discussions, by avoiding premature disclosure of decisions 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
decision-making 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; however, we will release predecisional deliberative
communications that were created 25 years or more before the date on
which the records are requested.
(b) Attorney work product privilege. This privilege protects records
prepared by or for an attorney in anticipation of or for litigation. It
includes documents prepared for purposes of administrative and court
proceedings. This privilege extends to information directly prepared by
an attorney, as well as materials prepared by non-attorneys working for
an attorney.
(c) Attorney-client communication privilege. This privilege protects
confidential communications between an attorney and the attorney's
client where legal advice is sought or provided.
Sec. 402.140 The FOIA Exemption 6: Clearly unwarranted invasion of
personal privacy.
We may withhold records about individuals if disclosure would
constitute a clearly unwarranted invasion of their personal privacy.
(a) Balancing test. When we decide whether to release records that
contain personal or private information about someone else, we weigh the
foreseeable harm of invading a person's privacy against the public
interest in disclosure. When we determine whether disclosure would be in
the public interest, we will consider whether disclosure of the
requested information would shed light on how a Government agency
performs its statutory duties.
(b) Agency employees. To protect the safety of agency employees, we
will not disclose information when the information sought is contact
information and/or duty stations of one or more Federal employees if the
disclosure would place
[[Page 42]]
employee(s) at risk of injury or other harm.
(c) Examples. We generally withhold the personally identifiable
information of individuals if we do not have the consent (consistent
with Sec. 401.100 of this chapter) of the number holder, including but
not limited to the number holder's home address, age, Social Security
number, claims file, and other personal information. If the information
requested concerns agency employees, we will determine disclosure on a
case-by-case basis. For example, our redaction of management officials'
information may be treated differently depending on how the balancing
test applies in a given circumstance.
Sec. 402.145 The FOIA Exemption 7: Law enforcement.
Exemption 7 authorizes our agency to withhold certain 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. Pursuant to the FOIA Exemption 7(A) (5
U.S.C. 552(b)(7)(a)), 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. Under the FOIA Exemption
7(B) (5 U.S.C. 552(b)(7)(b)), 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. Under the FOIA Exemption 7(C) (5 U.S.C.
552(b)(7)(c)), we may withhold the personally identifiable information
of individuals when the disclosure 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. Pursuant to the FOIA
Exemption 7(D) (5 U.S.C. 552(b)(7)(d)), we may withhold the identity of
confidential sources, as well as the records obtained from the
confidential sources in criminal investigations or by an agency
conducting a lawful national security investigation. 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; however, inferred confidentiality is determined in a case-by-
case analysis. 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. Under the FOIA Exemption 7(E) (5
U.S.C. 552(b)(7)(e)), we may withhold records that would disclose
techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law. In some cases, it is not
possible to describe even in general terms those techniques without
disclosing the very material to be withheld.
(f) Life and physical safety. Under the FOIA Exemption 7(F) (5
U.S.C. 552(b)(7)(f)), 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. 402.150 The FOIA Exemptions 8 and 9: Records on financial
institutions; records on wells.
Exemption 8 permits us to withhold records about regulation or
supervision
[[Page 43]]
of financial institutions. Exemption 9 permits the withholding of
geological and geophysical information and data, including maps,
concerning wells.
Sec. 402.155 Records available for public inspection.
(a) Under the FOIA, SSA is required to make available for public
inspection in an electronic format:
(1) Final opinions made in the adjudication of cases;
(2) An agency's statements and interpretations of policy that have
been adopted but are not published in the Federal Register;
(3) Administrative staff manuals and instructions that affect the
public; and
(4) Copies of records, regardless of form or format, that an agency
determines will likely become the subject of subsequent requests, as
well as records that have been requested and released three or more
times, unless said materials are published and copies are offered to
sale.
(b) SSA will not use or cite instructional manuals issued to our
employees, general statements of policy, and other materials which are
used in processing claims 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.
(c) Records that SSA makes available for public inspection in an
electronic format may be accessed through www.ssa.gov free of charge.
Such records include:
(1) Compilation of Social Security Laws and Regulations;
(2) SSA regulations under the retirement, survivors, disability, and
supplemental security income programs, i.e., 20 CFR parts 401, 402, 404,
416, and 422;
(3) Social Security Handbook;
(4) Social Security Rulings and Acquiescence Rulings;
(5) SSA's Public Programs Operations Manual System;
(6) SSA's Organizational Structure;
(7) State and Local Coverage Handbook for State Social Security
Administrators; and
(8) SSA's Public Hearings, Appeals, and Litigation Law Manual.
Sec. 402.160 Where records are published.
(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 Code of Federal Regulations with the approval of the Director of the
Federal Register;
(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 that
have been adopted but have not been published in the Federal Register;
and
(5) By posting in the FOIA library.
(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 and 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 SSA. 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 SSA, except with respect to claims
subject to the relitigation procedures established in 20 CFR 404.985(c)
and 416.1485(c). For a description of Social Security Acquiescence
Rulings, see 20 CFR 404.985(b) and 416.1485(b).
Sec. 402.165 Publications for sale through the Government Publishing
Office.
The public may purchase publications containing information
pertaining to the program, organization,
[[Page 44]]
functions, and procedures of SSA from the electronic U.S. Government
Bookstore maintained by the Government Publishing Office. The
publications for sale include but are not limited to:
(a) Title 20, parts 400 through 499, of the Code of Federal
Regulations;
(b) Federal Register issues; and
(c) Compilation of the Social Security Laws.
PART 403_TESTIMONY BY EMPLOYEES AND THE PRODUCTION OF RECORDS AND
INFORMATION IN LEGAL PROCEEDINGS--Table of Contents
Sec.
403.100 When can an SSA employee testify or produce information or
records in legal proceedings?
403.105 What is the relationship between this part and 20 CFR parts 401
and 402?
403.110 What special definitions apply to this part?
403.115 When does this part apply?
403.120 How do you request testimony?
403.125 How will we handle requests for records, information, or
testimony involving SSA's Office of the Inspector General?
403.130 What factors may the Commissioner consider in determining
whether SSA will grant your application for testimony?
403.135 What happens to your application for testimony?
403.140 If the Commissioner authorizes testimony, what will be the scope
and form of that testimony?
403.145 What will SSA do if you have not satisfied the conditions in
this part or in 20 CFR part 401 or 402?
403.150 Is there a fee for our services?
403.155 Does SSA certify records?
Authority: Secs. 702(a)(5) and 1106 of the Act, (42 U.S.C. 902(a)(5)
and 1306); 5 U.S.C. 301; 31 U.S.C. 9701.
Source: 66 FR 2809, Jan. 12, 2001, unless otherwise noted.
Sec. 403.100 When can an SSA employee testify or produce information
or records in legal proceedings?
An SSA employee can testify concerning any function of SSA or any
information or record created or acquired by SSA as a result of the
discharge of its official duties in any legal proceeding covered by this
part only with the prior authorization of the Commissioner. An SSA
employee can provide records or other information in a legal proceeding
covered by this part only to the extent that doing so is consistent with
20 CFR parts 401 and 402. A request for both testimony and records or
other information is considered two separate requests--one for testimony
and one for records or other information. SSA maintains a policy of
strict impartiality with respect to private litigants and seeks to
minimize the disruption of official duties.
Sec. 403.105 What is the relationship between this part and
20 CFR parts 401 and 402?
(a) General. Disclosure of SSA's records and information contained
in those records is governed by the regulations at 20 CFR parts 401 and
402. SSA employees will not disclose records or information in any legal
proceeding covered by this part except as permitted by 20 CFR parts 401
and 402.
(b) Requests for information or records that do not include
testimony. (1) If you do not request testimony, Sec. Sec. 403.120-
403.140 do not apply.
(2) If 20 CFR part 401 or 402 permits disclosure to you of any
requested record or information, we will make every reasonable effort to
provide the disclosable information or record to you on or before the
date specified in your request.
(3) If neither 20 CFR part 401 nor 402 permits disclosure of
information or a record you request, we will notify you as provided in
Sec. 403.145. We will also send you any notices required by part 401 or
402.
Sec. 403.110 What special definitions apply to this part?
The following definitions apply:
(a) Application means a written request for testimony that conforms
to the requirements of Sec. 403.120.
(b)(1) Employee includes--
(i) Any person employed in any capacity by SSA, currently or in the
past;
(ii) Any person appointed by, or subject to the supervision,
jurisdiction, or control of SSA, the Commissioner of Social Security, or
any other SSA official, currently or in the past; and
(iii) Any person who is not described elsewhere in this definition
but whose
[[Page 45]]
disclosure of information is subject to the regulations at 20 CFR part
401, currently or in the past.
(2) For purposes of this paragraph (b), a person subject to SSA's
jurisdiction or control includes any person hired as a contractor by
SSA, any person performing services for SSA under an agreement (such as
an officer or employee of a State agency involved in determining
disability for SSA), and any consultant (including medical or vocational
experts or medical services or consultative examination providers),
contractor, or subcontractor of such person. Such a person would also
include any person who has served or is serving in any advisory
capacity, formal or informal.
(3) For purposes of this paragraph (b), a person employed by SSA in
the past is considered an employee only when the matter about which the
person would testify is one in which he or she was personally involved
while at SSA; where the matter concerns official information that the
employee acquired while working, such as sensitive or confidential
agency information; where the person purports to speak for SSA; or where
significant SSA resources would be required to prepare the person to
testify. Such a person would not be considered an employee when the
person will rely only on expertise or general knowledge he or she
acquired while working at SSA.
(c) Commissioner means the Commissioner of Social Security or his or
her designee(s).
(d) Legal proceeding includes any pretrial, trial, and post-trial
stage of any existing or reasonably anticipated judicial or
administrative action, hearing, investigation, or similar proceeding
before a court, commission, board, agency, or other tribunal, authority
or entity, foreign or domestic. Legal proceeding also includes any
deposition or other pretrial proceeding, including a formal or informal
request for testimony by an attorney or any other person.
(e) Record has the same meaning as ``record'' in 20 CFR 402.30.
(f) Request means any attempt to obtain the production, disclosure,
or release of information, records, or the testimony of an SSA employee,
including any order, subpoena, or other command issued in a legal
proceeding as well as any informal or other attempt (by any method) by a
party or a party's representative.
(g) SSA means the Social Security Administration.
(h) Testimony includes any sworn statement (oral or written),
including (but not limited to)--
(1) Any statement provided through personal appearance; deposition;
or recorded interview; or provided by telephone, television, or
videotape;
(2) Any response during discovery or other similar proceedings that
would involve more than the mere physical production of records; and
(3) Any declaration made under penalty of perjury or any affidavit.
(i) We or our means the Social Security Administration.
(j) You or your means an individual or entity that submits a request
for records, information or testimony.
Sec. 403.115 When does this part apply?
(a) Except as specified in paragraph (b) of this section, this part
applies to any request in connection with any legal proceeding for SSA
records or other information or for testimony from SSA or its employees.
This part applies to requests for testimony related to SSA's functions
or to any information or record created or acquired by SSA as a result
of the discharge of its official duties.
(b) This part does not apply to requests for testimony--
(1) In an SSA administrative proceeding;
(2) In a legal proceeding to which SSA is a party (``SSA'' here
includes the Commissioner and any employee acting in his or her official
capacity);
(3) From the United States Department of Justice;
(4) In a criminal proceeding in which the United States is a party;
(5) In a legal proceeding initiated by state or local authorities
arising from an investigation or audit initiated by, or conducted in
cooperation with, SSA's Office of the Inspector General;
(6) From either house of Congress;
(7) In a law enforcement proceeding related to threats or acts
against SSA, its employees, or its operations (``SSA''
[[Page 46]]
here includes the Commissioner and any employee acting in his or her
official capacity); or
(8) Where Federal law or regulations expressly require a Federal
employee to provide testimony.
Sec. 403.120 How do you request testimony?
(a) You must submit a written application for testimony of an SSA
employee. Your application must-
(1) Describe in detail the nature and relevance of the testimony
sought in the legal proceeding;
(2) Include a detailed explanation as to why you need the testimony,
why you cannot obtain the information you need from an alternative
source, and why providing it to you would be in SSA's interest; and
(3) Provide the date and time that you need the testimony and the
place where SSA would present it.
(b) You must submit a complete application to SSA at least 30 days
in advance of the date that you need the testimony. If your application
is submitted fewer than 30 days before that date, you must provide, in
addition to the requirements set out above, a detailed explanation as to
why--
(1) You did not apply in a timely fashion; and
(2) It is in SSA's interest to review the untimely application.
(c) You must send your application for testimony to: Office of the
General Counsel, Office of General Law, Social Security Administration,
Attn: Touhy Officer, 6401 Security Boulevard, Baltimore, MD, 21235. If
you are requesting testimony of an employee of the Office of the
Inspector General, send your application to the address in Sec.
403.125.
(d) The Commissioner has the sole discretion to waive any
requirement in this section.
(e) If your application does not include each of the items required
by paragraph (a) of this section, we may return it to you for additional
information. Unless the Commissioner waives one or more requirements, we
will not process an incomplete or untimely application.
[66 FR 2809, Jan. 12, 2001; 66 FR 14316, Mar. 12, 2001, as amended at 73
FR 26002, May 8, 2008; 74 FR 16327, Apr. 10, 2009; 79 FR 7577, Feb. 10,
2014; 88 FR 1329, Jan. 10, 2023]
Sec. 403.125 How will we handle requests for records, information, or
testimony involving SSA's Office of the Inspector General?
A request for records or information of the Office of the Inspector
General or the testimony of an employee of the Office of the Inspector
General will be handled in accordance with the provisions of this part,
except that the Inspector General or the Inspector General's designee
will make those determinations that the Commissioner otherwise would
make. Send your request for records or information pertaining to the
Office of the Inspector General or your application for testimony of an
employee of the Office of the Inspector General to: Office of the
Inspector General, Social Security Administration, 6401 Security
Boulevard, Room 3-ME-1, Baltimore, MD 21235. Requests may also be sent
via email to [email protected].
[66 FR 2809, Jan. 12, 2001, as amended at 88 FR 1329, Jan. 10, 2023]
Sec. 403.130 What factors may the Commissioner consider in determining
whether SSA will grant your application for testimony?
In deciding whether to authorize the testimony of an SSA employee,
the Commissioner will consider applicable law and factors relating to
your need and the burden to SSA. The considerations include, but are not
limited to, the following:
(a) Risk of law violation or compromise of Government privilege. (1)
Would providing the testimony violate a statute (such as 26 U.S.C. 6103
or section 1106 of the Social Security Act, 42 U.S.C. 1306), Executive
Order, or regulation (such as 20 CFR part 401)?
(2) Would providing the testimony put confidential, sensitive, or
privileged information at risk?
(b) Burden on SSA. (1) Would granting the application unduly expend
for private purposes the resources of the United States (including the
time of
[[Page 47]]
SSA employees needed for official duties)?
(2) Would the testimony be available in a less burdensome form or
from another source?
(3) Would the testimony be limited to the purpose of the request?
(4) Did you previously request the same testimony in the same or a
related proceeding?
(c) Interests served by allowing testimony. (1) Would providing the
testimony serve SSA's interest?
(2) Would providing the testimony maintain SSA's policy of
impartiality among private litigants?
(3) Is another government agency involved in the proceeding?
(4) Do you need the testimony to prevent fraud or similar
misconduct?
(5) Would providing the testimony be necessary to prevent a
miscarriage of justice or to preserve the rights of an accused
individual to due process in a criminal proceeding?
Sec. 403.135 What happens to your application for testimony?
(a) If 20 CFR part 401 or 402 does not permit disclosure of
information about which you seek testimony from an SSA employee, we will
notify you under Sec. 403.145.
(b) If 20 CFR part 401 or 402 permits disclosure of the information
about which you seek testimony,
(1) The Commissioner makes the final decision on your application;
(2) All final decisions are in the sole discretion of the
Commissioner; and
(3) We will notify you of the final decision on your application.
Sec. 403.140 If the Commissioner authorizes testimony, what will be
the scope and form of that testimony?
The employee's testimony must be limited to matters that were
specifically approved. We will provide testimony in the form that is
least burdensome to SSA unless you provide sufficient information in
your application for SSA to justify a different form. For example, we
will provide an affidavit or declaration rather than a deposition and a
deposition rather than trial testimony.
Sec. 403.145 What will SSA do if you have not satisfied the conditions
in this part or in 20 CFR part 401 or 402?
(a) We will provide the following information, as appropriate, to
you or the court or other tribunal conducting the legal proceeding if
your request states that a response is due on a particular date and the
conditions prescribed in this part, or the conditions for disclosure in
20 CFR part 401 or 402, are not satisfied or we anticipate that they
will not be satisfied by that date:
(1) A statement that compliance with the request is not authorized
under 20 CFR part 401 or 402, or is prohibited without the
Commissioner's approval;
(2) The requirements for obtaining the approval of the Commissioner
for testimony or for obtaining information, records, or testimony under
20 CFR part 401 or 402; and
(3) If the request complies with Sec. 403.120, the estimated time
necessary for a decision. We will make every reasonable effort to
provide this information in writing on or before the date specified in
your request.
(b) Generally, if a response to a request for information, records,
or testimony is due before the conditions of this part or the conditions
for disclosure in 20 CFR part 401 or 402 are met, no SSA employee will
appear.
(c) SSA will seek the advice and assistance of the Department of
Justice when appropriate.
Sec. 403.150 Is there a fee for our services?
(a) General. Unless the Commissioner grants a waiver, you must pay
fees for our services in providing information, records, or testimony.
You must pay the fees as prescribed by the Commissioner. In addition,
the Commissioner may require that you pay the fees in advance as a
condition of providing the information, records, or testimony. Make fees
payable to the Social Security Administration by check or money order.
(b) Records or information. Unless the Commissioner grants a waiver,
you must pay the fees for production of records or information
prescribed in 20 CFR Sec. Sec. 401.95 and 402.155 through 402.185, as
appropriate.
[[Page 48]]
(c) Testimony. Unless the Commissioner grants a waiver, you must pay
fees calculated to reimburse the United States Government for the full
cost of providing the testimony. Those costs include, but are not
limited to--
(1) The salary or wages of the witness and related costs for the
time necessary to prepare for and provide the testimony and any travel
time, and
(2) Other travel costs.
(d) Waiver or reduction of fees. The Commissioner may waive or
reduce fees for providing information, records, or testimony under this
part. The rules in 20 CFR Sec. 402.185 apply in determining whether to
waive fees for the production of records. In deciding whether to waive
or reduce fees for testimony or for production of information that does
not constitute a record, the Commissioner may consider other factors,
including but not limited to--
(1) The ability of the party responsible for the application to pay
the full amount of the chargeable fees;
(2) The public interest, as described in 20 CFR Sec. 402.185,
affected by complying with the application;
(3) The need for the testimony or information in order to prevent a
miscarriage of justice;
(4) The extent to which providing the testimony or information
serves SSA's interest; and
(5) The burden on SSA's resources required to provide the
information or testimony.
Sec. 403.155 Does SSA certify records?
We can certify the authenticity of copies of records we disclose
pursuant to 20 CFR parts 401 and 402, and this part. We will provide
this service only in response to your written request. If we certify, we
will do so at the time of the disclosure and will not certify copies of
records that have left our custody. A request for certified copies of
records previously released is considered a new request for records.
Fees for this certification are set forth in 20 CFR 402.165(e).
PART 404_FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950)-
-Table of Contents
Subpart A_Introduction, General Provisions and Definitions
Sec.
404.1 Introduction.
404.2 General definitions and use of terms.
404.3 General provisions.
Subpart B_Insured Status and Quarters of Coverage
General
404.101 Introduction.
404.102 Definitions.
Fully Insured Status
404.110 How we determine fully insured status.
404.111 When we consider a person fully insured based on World War II
active military or naval service.
404.112 When we consider certain employees of private nonprofit
organizations to be fully insured.
404.115 Table for determining the quarters of coverage you need to be
fully insured.
Currently Insured Status
404.120 How we determine currently insured status.
Disability Insured Status
404.130 How we determine disability insured status.
404.131 When you must have disability insured status.
404.132 How we determine fully insured status for a period of disability
or disability insurance benefits.
404.133 When we give you quarters of coverage based on military service
to establish a period of disability.
Quarters of Coverage
404.140 What is a quarter of coverage.
404.141 How we credit quarters of coverage for calendar years before
1978.
404.142 How we credit self-employment income to calendar quarters for
taxable years beginning before 1978.
404.143 How we credit quarters of coverage for calendar years after
1977.
404.144 How we credit self-employment income to calendar years for
taxable years beginning after 1977.
404.145 When you acquire a quarter of coverage.
404.146 When a calendar quarter cannot be a quarter of coverage.
[[Page 49]]
Appendix to Subpart B of Part 404--Quarter of Coverage Amounts for
Calendar Years After 1978
Subpart C_Computing Primary Insurance Amounts
General
404.201 What is included in this subpart?
404.202 Other regulations related to this subpart.
404.203 Definitions.
404.204 Methods of computing primary insurance amounts--general.
Average-Indexed-Monthly Earnings Method of Computing Primary Insurance
Amounts
404.210 Average-indexed-monthly-earnings method.
404.211 Computing your average indexed monthly earnings.
404.212 Computing your primary insurance amount from your average
indexed monthly earnings.
404.213 Computation where you are eligible for a pension based on your
noncovered employment.
Average-Monthly-Wage Method of Computing Primary Insurance Amounts
404.220 Average-monthly-wage method.
404.221 Computing your average monthly wage.
404.222 Use of benefit table in finding your primary insurance amount
from your average monthly wage.
Guaranteed Alternative for People Reaching Age 62 After 1978 but Before
1984
404.230 Guaranteed alternative.
404.231 Steps in computing your primary insurance amount under the
guaranteed alternative--general.
404.232 Computing your average monthly wage under the guaranteed
alternative.
404.233 Adjustment of your guaranteed alternative when you become
entitled after age 62.
Old-Start Method of Computing Primary Insurance Amounts
404.240 Old-start method--general.
404.241 1977 simplified old-start method.
404.242 Use of old-start primary insurance amount as guaranteed
alternative.
404.243 Computation where you are eligible for a pension based on
noncovered employment.
Special Computation Rules for People Who Had a Period of Disability
404.250 Special computation rules for people who had a period of
disability.
404.251 Subsequent entitlement to benefits less than 12 months after
entitlement to disability benefits ended.
404.252 Subsequent entitlement to benefits 12 months or more after
entitlement to disability benefits ended.
Special Minimum Primary Insurance Amounts
404.260 Special minimum primary insurance amounts.
404.261 Computing your special minimum primary insurance amount.
Cost-of-Living Increases
404.270 Cost-of-living increases.
404.271 When automatic cost-of-living increases apply.
404.272 Indexes we use to measure the rise in the cost-of-living.
404.273 When are automatic cost-of-living increases effective?
404.274 What are the measuring periods we use to calculate cost-of-
living increases?
404.275 How is an automatic cost-of-living increase calculated?
404.276 Publication of notice of increase.
404.277 When does the frozen minimum primary insurance amount increase
because of cost-of-living adjustments?
404.278 Additional cost-of-living increase.
Recomputing Your Primary Insurance Amount
404.280 Recomputations.
404.281 Why your primary insurance amount may be recomputed.
404.282 Effective date of recomputations.
404.283 Recomputation under method other than that used to find your
primary insurance amount.
404.284 Recomputations for people who reach age 62, or become disabled,
or die before age 62 after 1978.
404.285 Recomputations performed automatically.
404.286 How to request an immediate recomputation.
404.287 Waiver of recomputation.
404.288 Recomputing when you are entitled to a monthly pension based on
noncovered employment.
Recalculations of Primary Insurance Amounts
404.290 Recalculations.
Appendixes to Subpart C of Part 404--Note
Appendix I to Subpart C of Part 404--Average of the Total Wages for
Years After 1950
Appendix II to Subpart C of Part 404--Benefit Formulas Used With Average
Indexed Monthly Earnings
Appendix III to Subpart C of Part 404--Benefit Table
[[Page 50]]
Appendix IV to Subpart C of Part 404--Earnings Needed for a Year of
Coverage After 1950
Appendix V to Subpart C of Part 404--Computing the Special Minimum
Primary Insurance Amount and Related Maximum Family Benefits
Appendix VI to Subpart C of Part 404--Percentage of Automatic Increases
in Primary Insurance Amounts Since 1978
Appendix VII to Subpart C of Part 404--``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 What are the general rules on benefit amounts?
404.305 When you may not be entitled to benefits.
Old-Age and Disability Benefits
404.310 When am I entitled to old-age benefits?
404.311 When does my entitlement to old-age benefits begin and end?
404.312 How is my old-age benefit amount calculated?
404.313 What are delayed retirement credits and how do they increase my
old-age benefit amount?
404.315 Who is entitled to disability benefits?
404.316 When entitlement to disability benefits begins and ends.
404.317 How is the amount of my disability benefit calculated?
404.320 Who is entitled to a period of disability.
404.321 When a period of disability begins and ends.
404.322 When you may apply for a period of disability after a delay due
to a physical or mental condition.
404.325 The termination month.
Rules Relating to Continuation of Benefits After Your Impairment Is No
Longer Disabling
404.327 When you are participating in an appropriate program of
vocational rehabilitation services, employment services, or
other support services.
404.328 When your completion of the program, or your continuation in the
program for a specified period of time, will increase the
likelihood that you will not have to return to the disability
benefit rolls.
Benefits for Spouses and Divorced Spouses
404.330 Who is entitled to wife's or husband's benefits.
404.331 Who is entitled to wife's or husband's benefits as a divorced
spouse.
404.332 When wife's and husband's benefits begin and end.
404.333 Wife's and husband's benefit amounts.
404.335 How do I become entitled to widow's or widower's benefits?
404.336 How do I become entitled to widow's or widower's benefits as a
surviving divorced spouse?
404.337 When does my entitlement to widow's and widower's benefits start
and end?
404.338 Widow's and widower's benefits amounts.
404.339 How do I become entitled to mother's or father's benefits as a
surviving spouse?
404.340 How do I become 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 is a child living with me in my care?
404.349 When is a child living apart from me in my care?
Child's Benefits
404.350 Who is entitled to child's benefits?
404.351 Who may be reentitled to child's benefits?
404.352 When does my entitlement to child's benefits begin and end?
404.353 Child's benefit amounts.
404.354 Your relationship to the insured.
404.355 Who is the insured's natural child?
404.356 Who is the insured's legally adopted child?
404.357 Who is the insured's stepchild?
404.358 Who is the insured's grandchild or stepgrandchild?
404.359 Who is the insured's equitably adopted child?
404.360 When a child is dependent upon the insured person.
404.361 When a natural child is dependent.
404.362 When a legally adopted child is dependent.
404.363 When is a stepchild dependent?
[[Page 51]]
404.364 When is a grandchild or stepgrandchild 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.
404.380-404.384 [Reserved]
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.
404.404 How reduction for maximum affects insured individual and other
persons entitled on his earnings record.
404.405 Situations where total benefits can exceed maximum because of
``savings clause.''
404.406 Reduction for maximum because of retroactive effect of
application for monthly benefits.
404.407 Reduction because of entitlement to other benefits.
404.408 Reduction of benefits based on disability on account of receipt
of certain other disability benefits provided under Federal,
State, or local laws or plans.
404.408a Reduction where spouse is receiving a Government pension.
404.408b Reduction of retroactive monthly social security benefits where
supplemental security income (SSI) payments were received for
the same period.
404.409 What is full retirement age?
404.410 How does SSA reduce my benefits when my entitlement begins
before full retirement age?
404.411 How are benefits reduced for age when a person is entitled to
two or more benefits?
404.412 After my benefits are reduced for age when and how will
adjustments to that reduction be made?
404.413 After my benefits are reduced for age what happens if there is
an increase in my primary insurance amount?
404.415 Deductions because of excess earnings.
404.417 Deductions because of noncovered remunerative activity outside
the United States; 45 hour and 7-day work test.
404.418 ``Noncovered remunerative activity outside the United States,''
defined.
404.420 Persons deemed entitled to benefits based on an individual's
earnings record.
404.421 How are deductions made when a beneficiary fails to have a child
in his or her care?
404.423 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 Monthly and annual exempt amounts defined; excess earnings
defined.
404.434 Excess earnings; method of charging.
404.435 Excess earnings; months to which excess earnings can or cannot
be charged; grace year defined.
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.
[[Page 52]]
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.
404.459 Penalty for making false or misleading statements or withholding
information.
404.460 Nonpayment of monthly benefits to 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 How does deportation or removal from the United States affect
the receipt of benefits?
404.465 Conviction for subversive activities; effect on monthly benefits
and entitlement to hospital insurance benefits.
404.466 Conviction for subversive activities; effect on enrollment for
supplementary medical insurance benefits.
404.467 Nonpayment of benefits; individual entitled to disability
insurance benefits or childhood disability benefits based on
statutory blindness is engaging in substantial gainful
activity.
404.468 Nonpayment of benefits to prisoners.
404.469 Nonpayment of benefits where individual has not furnished or
applied for a Social Security number.
404.470 Nonpayment of disability benefits due to noncompliance with
rules regarding treatment for drug addiction or alcoholism.
404.471 Nonpayment of disability benefits for trial work period service
months upon a conviction of fraudulently concealing work
activity.
404.480 Paying benefits in installments: Drug addiction or alcoholism.
Subpart F_Overpayments, Underpayments, Waiver of Adjustment or Recovery
of Overpayments, and Liability of a Certifying Officer
404.501 General applicability of section 204 of the Act.
404.502 Overpayments.
404.502a Notice of right to waiver consideration.
404.503 Underpayments.
404.504 Relation to provisions for reductions and increases.
404.505 Relationship to provisions requiring deductions.
404.506 When waiver may be applied and how to process the request.
404.507 Fault.
404.508 Defeat the purpose of Title II.
404.509 Against equity and good conscience; defined.
404.510 When an individual is ``without fault'' in a deduction
overpayment.
404.510a When an individual is ``without fault'' in an entitlement
overpayment.
404.511 When an individual is at ``fault'' in a deduction overpayment.
404.512 When adjustment or recovery of an overpayment will be waived.
404.513 Liability of a certifying officer.
404.515 Collection and compromise of claims for overpayment.
404.520 Referral of overpayments to the Department of the Treasury for
tax refund offset--General.
404.521 Notice to overpaid persons.
404.522 Review within SSA that an overpayment is past due and legally
enforceable.
404.523 Findings by SSA.
404.524 Review of our records related to the overpayment.
404.525 Suspension of offset.
404.526 Tax refund insufficient to cover amount of overpayment.
404.527 Additional methods for recovery of title II benefit
overpayments.
404.530 Are title VIII and title XVI benefits subject to adjustment to
recover title II overpayments?
404.535 How much will we withhold from your title VIII and title XVI
benefits to recover a title II overpayment?
404.540 Will you receive notice of our intention to apply cross-program
recovery?
404.545 When will we begin cross-program recovery from current monthly
benefits?
Subpart G_Filing of Applications and Other Forms
General Provisions
404.601 Introduction.
[[Page 53]]
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 How do I file an application for Social Security benefits?
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.
404.617 Pilot program for photographic identification of disability
benefit applicants in designated geographic areas.
Effective Filing Period of Application
404.620 Filing before the first month you meet the requirements for
benefits.
404.621 What happens if I file after the first month I meet the
requirements for benefits?
404.622 Limiting an application.
404.623 Am I required to file for all benefits if I am eligible for old-
age and husband's or wife's benefits?
Filing Date Based on Written Statement
404.630 Use of date of written statement as filing date.
404.631 Statements filed with the Railroad Retirement Board.
404.632 Statements filed with a hospital.
Deemed Filing Date Based on Misinformation
404.633 Deemed filing date in a case of misinformation.
Withdrawal of Application
404.640 Withdrawal of an application.
404.641 Cancellation of a request to withdraw.
Subpart H_Evidence
General
404.701 Introduction.
404.702 Definitions.
404.703 When evidence is needed.
404.704 Your responsibility for giving evidence.
404.705 Failure to give requested evidence.
404.706 Where to give evidence.
404.707 Original records or copies as evidence.
404.708 How we decide what is enough evidence.
404.709 Preferred evidence and other evidence.
Evidence of Age, Marriage, and Death
404.715 When evidence of age is needed.
404.716 Type of evidence of age to be given.
404.720 Evidence of a person's death.
404.721 Evidence to presume a person is dead.
404.722 Rebuttal of a presumption of death.
404.723 When evidence of marriage is required.
404.725 Evidence of a valid ceremonial marriage.
404.726 Evidence of common-law marriage.
404.727 Evidence of a deemed valid marriage.
404.728 Evidence a marriage has ended.
Evidence for Child's and Parent's Benefits
404.730 When evidence of a parent or child relationship is needed.
404.731 Evidence you are a natural parent or child.
404.732 Evidence you are a stepparent or stepchild.
404.733 Evidence you are the legally adopting parent or legally adopted
child.
404.734 Evidence you are an equitably adopted child.
404.735 Evidence you are the grandchild or stepgrandchild.
404.736 Evidence of a child's dependency.
404.745 Evidence of school attendance for child age 18 or older.
404.750 Evidence of a parent's support.
Other Evidence Requirements
404.760 Evidence of living in the same household with insured person.
404.762 What is acceptable evidence of having a child in my 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.
[[Page 54]]
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.
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 written evidence to an administrative law judge.
404.936 Time, place, and manner of appearance for a hearing before an
administrative law judge.
404.937 Protecting the safety of the public and our employees in our
hearing process.
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 a hearing decision.
404.956 Removal of a hearing request(s) 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.
[[Page 55]]
404.960 Vacating a dismissal of a request for a hearing before an
administrative law judge.
404.961 Prehearing and posthearing conferences.
404.965 [Reserved]
Appeals Council Review
404.966 [Reserved]
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 hearing 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.
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, Guam, or the Commonwealth of the Northern
Mariana Islands.
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.
[[Page 56]]
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 Religious 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.
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.
[[Page 57]]
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.
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.
[[Page 58]]
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.
404.1352 Benefits and payments based on deemed insured status.
Effect of Other Benefits on Payment of Social Security Benefits and
Payments
404.1360 Veterans Administration pension or compensation payable.
404.1361 Federal benefit payable other than by Veterans Administration.
404.1362 Treatment of social security benefits or payments where
Veterans Administration pension or compensation payable.
404.1363 Treatment of social security benefits or payments where Federal
benefit payable other than by Veterans Administration.
Evidence of Active Service and Membership in a Uniformed Service
404.1370 Evidence of active service and separation from active service.
404.1371 Evidence of membership in a uniformed service during the years
1957 through 1967.
Subpart O_Interrelationship of Old-Age, Survivors and Disability
Insurance Program With the Railroad Retirement Program
404.1401 What is the interrelationship between the Railroad Retirement
Act and the Old-Age, Survivors and Disability Insurance
Program of the Social Security Act?
404.1402 When are railroad industry services by a non-vested worker
covered under Social Security?
404.1404 Effective date of coverage of railroad services under the act.
404.1405 If you have been considered a non-vested worker, what are the
situations when your railroad industry work will not be
covered under Social Security?
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 When will we certify payment to the Railroad Retirement Board
(RRB)?
Subpart P_Determining Disability and Blindness
General
404.1501 Scope of subpart.
[[Page 59]]
404.1502 General definitions and terms for this subpart.
Determinations
404.1503 Who makes disability and blindness determinations.
404.1503a Program integrity.
404.1503b Evidence from excluded medical sources of evidence.
404.1504 Determinations by other government agencies and nongovernmental
entities.
Definition of Disability
404.1505 Basic definition of disability.
404.1506 When we will not consider your impairment.
404.1508 [Reserved]
404.1509 How long the impairment must last.
404.1510 Meaning of substantial gainful activity.
404.1511 Definition of disabling impairment.
Evidence
404.1512 Responsibility for evidence.
404.1513 Categories of evidence.
404.1513a Evidence from our Federal or State agency medical or
psychological consultants.
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 medical source.
404.1519i Other sources for consultative examinations.
404.1519j Objections to the medical source designated to perform the
consultative examination.
404.1519k Purchase of medical examinations, laboratory tests, and other
services.
404.1519m Diagnostic tests or procedures.
404.1519n Informing the medical source of examination scheduling, report
content, and signature requirements.
404.1519o When a properly signed consultative examination report has not
been received.
404.1519p Reviewing reports of consultative examinations.
404.1519q Conflict of interest.
Authorizing and Monitoring the Referral Process
404.1519s Authorizing and monitoring the consultative examination.
Procedures To Monitor the Consultative Examination
404.1519t Consultative examination oversight.
Evaluation of Disability
404.1520 Evaluation of disability in general.
404.1520a Evaluation of mental impairments.
404.1520b How we consider evidence.
404.1520c How we consider and articulate medical opinions and prior
administrative medical findings for claims filed on or after
March 27, 2017.
404.1521 Establishing that you have a medically determinable
impairment(s).
404.1522 What we mean by an impairment(s) that is not severe.
404.1523 Multiple impairments.
Medical Considerations
404.1525 Listing of Impairments in appendix 1.
404.1526 Medical equivalence.
404.1527 Evaluating opinion evidence for claims filed before March 27,
2017.
404.1528 [Reserved]
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.
[[Page 60]]
Residual Functional Capacity
404.1545 Your residual functional capacity.
404.1546 Responsibility for assessing your residual functional capacity.
Vocational Considerations
404.1560 When we will consider your vocational background.
404.1562 Medical-vocational profiles showing an inability to make an
adjustment to other work.
404.1563 Your age as a vocational factor.
404.1564 Your education as a vocational factor.
404.1565 Your work experience as a vocational factor.
404.1566 Work which exists in the national economy.
404.1567 Physical exertion requirements.
404.1568 Skill requirements.
404.1569 Listing of Medical-Vocational Guidelines in appendix 2.
404.1569a Exertional and nonexertional limitations.
Substantial Gainful Activity
404.1571 General.
404.1572 What we mean by substantial gainful activity.
404.1573 General information about work activity.
404.1574 Evaluation guides if you are an employee.
404.1574a When and how we will average your earnings.
404.1575 Evaluation guides if you are self-employed.
404.1576 Impairment-related work expenses.
Widows, Widowers, and Surviving Divorced Spouses
404.1577 Disability defined for widows, widowers, and surviving divorced
spouses for 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 and terminate your
benefits before we make a determination.
Continuing or Stopping Disability
404.1588 Your responsibility to tell us of events that may change your
disability status.
404.1589 We may conduct a review to find out whether you continue to be
disabled.
404.1590 When and how often we will conduct a continuing disability
review.
404.1591 If your medical recovery was expected and you returned to work.
404.1592 The trial work period.
404.1592a The reentitlement period.
404.1592b What is expedited reinstatement?
404.1592c Who is entitled to expedited reinstatement?
404.1592d How do I request reinstatement?
404.1592e How do we determine provisional benefits?
404.1592f How do we determine reinstated benefits?
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 and terminate 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 of Part 404--Listing of Impairments
Appendix 2 to Subpart P of Part 404--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.
[[Page 61]]
404.1614 Responsibilities for obtaining evidence to make disability
determinations.
404.1615 Making disability determinations.
404.1616 Medical consultants and psychological consultants.
404.1617 Reasonable efforts to obtain review by a physician,
psychiatrist, and psychologist.
404.1618 Notifying claimants of the disability determination.
Quick Disability Determinations
404.1619 Quick disability determination process.
Administrative Responsibilities and Requirements
404.1620 General administrative requirements.
404.1621 Personnel.
404.1622 Training.
404.1623 Facilities.
404.1624 Medical and other purchased services.
404.1625 Records and reports.
404.1626 Fiscal.
404.1627 Audits.
404.1628 Property.
404.1629 Participation in research and demonstration projects.
404.1630 Coordination with other agencies.
404.1631 Confidentiality of information and records.
404.1632 Other Federal laws and regulations.
404.1633 Policies and operating instructions.
Performance Standards
404.1640 General.
404.1641 Standards of performance.
404.1642 Processing time standards.
404.1643 Performance accuracy standard.
404.1644 How and when we determine whether the processing time standards
are met.
404.1645 How and when we determine whether the performance accuracy
standard is met.
404.1650 Action we will take if a State agency does not meet the
standards.
Performance Monitoring and Support
404.1660 How we will monitor.
404.1661 When we will provide performance support.
404.1662 What support we will provide.
Substantial Failure
404.1670 General.
404.1671 Good cause for not following the Act, our regulations, or other
written guidelines.
404.1675 Finding of substantial failure.
Hearings and Appeals
404.1680 Notice of right to hearing on proposed finding of substantial
failure.
404.1681 Disputes on matters other than substantial failure.
404.1682 Who conducts the hearings.
404.1683 Hearings and appeals process.
Assumption of Disability Determination Function
404.1690 Assumption when we make a finding of substantial failure.
404.1691 Assumption when State no longer wishes to perform the
disability determination function.
404.1692 Protection of State employees.
404.1693 Limitation on State expenditures after notice.
404.1694 Final accounting by the State.
Subpart R_Representation of Parties
404.1700 Introduction.
404.1703 Definitions.
404.1705 Who may be your representative.
404.1706 Notification of options for obtaining attorney representation.
404.1707 Appointing a representative.
404.1710 Authority of a representative.
404.1713 Mandatory use of electronic services.
404.1715 Notice or request to a representative.
404.1717 Direct payment of fees to eligible non-attorney
representatives.
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 Entity eligible for direct payment of fees.
404.1740 Rules of conduct and standards of responsibility for
representatives.
404.1745 Violations of our requirements, rules, or standards.
404.1750 Notice of charges against a representative.
404.1755 Withdrawing charges against a representative.
404.1765 Hearing on charges.
404.1770 Decision by hearing officer.
404.1775 Requesting review of the hearing officer's decision.
404.1776 Assignment of request for review of the hearing officer's
decision.
404.1780 Appeals Council's review of hearing officer's decision.
404.1785 Evidence permitted on review.
404.1790 Appeals Council's decision.
404.1795 When the Appeals Council will dismiss a request for review.
404.1797 Reinstatement after suspension--period of suspension expired.
404.1799 Reinstatement after suspension or disqualification--period of
suspension not expired.
[[Page 62]]
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.
404.1821 Garnishment of payments after disbursement.
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.
404.2011 What happens to your monthly benefits while we are finding a
suitable representative payee for you?
404.2015 Information considered in determining whether to make
representative payments.
404.2018 Advance designation of representative payees.
404.2020 Information considered in selecting a representative payee.
404.2021 What is our order of preference in selecting a representative
payee for you?
404.2022 Who may not serve as a representative payee?
404.2024 How do we investigate a representative payee applicant?
404.2025 What information must a representative payee report to us?
404.2026 How do we investigate an appointed representative payee?
404.2030 How will we notify you when we decide you need a representative
payee?
404.2035 What are the responsibilities of your representative payee?
404.2040 Use of benefit payments.
404.2040a Compensation for qualified organizations serving as
representative payees.
404.2041 Who is liable if your representative payee misuses your
benefits?
404.2045 Conservation and investment of benefit payments.
404.2050 When will we select a new representative payee for you?
404.2055 When representative payment will be stopped.
404.2060 Transfer of accumulated benefit payments.
404.2065 How does your representative payee account for the use of
benefits?
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.
404.2106 [Reserved]
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.
404.2114 Services for which payment may be made.
404.2115 When services must have been provided.
[[Page 63]]
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 [Reserved]
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)) and 48
U.S.C. 1801.
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 Commissioner. It also
sets out the Commissioner's responsibilities in carrying out the
disability determination function.
(r) Subpart R relates to the provisions applicable to attorneys and
other individuals who represent applicants in connection with claims for
benefits.
(s) Subpart S relates to the payment of benefits to individuals who
are entitled to benefits.
(t) Subpart T relates to the negotiation and administration of
totalization agreements between the United States and foreign countries.
(u) Subpart U relates to the selection of a representative payee to
receive benefits on behalf of a beneficiary and to the duties and
responsibilities of a representative payee.
(v) Subpart V relates to payments to State vocational rehabilitative
agencies for vocational rehabilitation services.
[26 FR 7054, Aug. 5, 1961; 26 FR 7760, Aug. 19, 1961, as amended at 27
FR 4513, May 11, 1962; 28 FR 14492, Dec. 31, 1963; 51 FR 11718, Apr. 7,
1986; 62 FR 38450, July 18, 1997; 83 FR 62456, Dec. 4, 2018]
[[Page 64]]
Sec. 404.2 General definitions and use of terms.
(a) Terms relating to the Act and regulations. (1) The Act means the
Social Security Act, as amended (42 U.S.C. Chapter 7).
(2) Section means a section of the regulations in part 404 of this
chapter unless the context indicates otherwise.
(b) Commissioner; Appeals Council; Administrative Law Judge;
Administrative Appeals Judge defined--(1) Commissioner means the
Commissioner of Social Security.
(2) Appeals Council means the Appeals Council of the Office of
Analytics, Review, and Oversight in the Social Security Administration
or such member or members thereof as may be designated by the Chair of
the Appeals Council.
(3) Administrative Law Judge means an Administrative Law Judge in
the Office of Hearings Operations in the Social Security Administration.
(4) Administrative Appeals Judge means an Administrative Appeals
Judge serving as a member of the Appeals Council.
(c) Miscellaneous. (1) Certify, when used in connection with the
duty imposed on the Commissioner by section 205(i) of the act, means
that action taken by the Administration in the form of a written
statement addressed to the Managing Trustee, setting forth the name and
address of the person to whom payment of a benefit or lump sum, or any
part thereof, is to be made, the amount to be paid, and the time at
which payment should be made.
(2) Benefit means an old-age insurance benefit, disability insurance
benefit, wife's insurance benefit, husband's insurance benefit, child's
insurance benefit, widow's insurance benefit, widower's insurance
benefit, mother's insurance benefit, father's insurance benefit, or
parent's insurance benefit 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,
(v) The Territories of Alaska and Hawaii prior to January 3, 1959,
and August 21, 1959, respectively, when those territories acquired
statehood, and
(vi) The Commonwealth of the Northern Mariana Islands (CNMI)
effective January 1, 1987; Social Security coverage for affected
temporary employees of the government of the CNMI is also effective on
January 1, 1987, under section 210(a)(7)(E) of the Social Security Act.
In addition, Social Security coverage for affected non-temporary
employees of the government of the CNMI is effective on October 1, 2012,
under section 210(a)(7)(C) of the Social Security Act.
(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, (vi)
Guam and American Samoa, effective September 13, 1960, generally, and
for purposes of sections 210(a) and 211 of the Act, effective after 1960
with respect to service performed after 1960, and effective for taxable
years beginning after 1960 with respect to crediting net earnings from
self-employment and self-employment income, and
[[Page 65]]
(vii) The Commonwealth of the Northern Mariana Islands effective
January 1, 1987.
(7) Masculine gender includes the feminine, unless otherwise
indicated.
(8) The terms defined in sections 209, 210, and 211 of the act shall
have the meanings therein assigned to them.
[26 FR 7055, Aug. 5, 1961; 26 FR 7760, Aug. 19, 1961, as amended at 28
FR 1037, Feb. 2, 1963; 28 FR 14492, Dec. 31, 1963; 29 FR 15509, Nov. 19,
1964; 41 FR 32886, Aug. 6, 1976; 51 FR 11718, Apr. 7, 1986; 61 FR 41330,
Aug. 8, 1996; 62 FR 38450, July 18, 1997; 69 FR 51555, Aug. 20, 2004; 79
FR 33684, June 12, 2014; 83 FR 21708, May 10, 2018; 85 FR 73156, Nov.
16, 2020]
Sec. 404.3 General provisions.
(a) Effect of cross references. The cross references in the
regulations in this part 404 to other portions of the regulations, when
the word see is used, are made only for convenience and shall be given
no legal effect.
(b) Periods of limitation ending on nonwork days. Pursuant to the
provisions of section 216(j) of the act, effective September 13, 1960,
where any provision of title II, or any provision of another law of the
United States (other than the Internal Revenue Code of 1954) relating to
or changing the effect of title II, or any regulation of the
Commissioner issued under title II, provides for a period within which
an act is required to be done which affects eligibility for or the
amount of any benefit or payment under this title or is necessary to
establish or protect any rights under this title, and such period ends
on a Saturday, Sunday or Federal legal holiday or on any other day all
or part of which is declared to be a nonwork day for Federal employees
by statute or Executive Order, then such act shall be considered as done
within such period if it is done on the first day thereafter which is
not a Saturday, Sunday, or legal holiday or any other day all or part of
which is declared to be a nonwork day for Federal employees either by
statute or Executive Order. For purposes of this paragraph, the day on
which a period ends shall include the final day of any extended period
where such extension is authorized by law or by the Commissioner
pursuant to law. Such extension of any period of limitation does not
apply to periods during which benefits may be paid for months prior to
the month an application for such benefits is filed pursuant to Sec.
404.621, or to periods during which an application for benefits may be
accepted as such pursuant to Sec. 404.620.
[26 FR 7055, Aug. 5, 1961, as amended at 29 FR 15509, Nov. 19, 1964; 51
FR 11718, Apr. 7, 1986; 61 FR 41330, Aug. 8, 1996; 62 FR 38450, July 18,
1997]
Subpart B_Insured Status and Quarters of Coverage
Authority: Secs. 205(a), 212, 213, 214, 216, 217, 223, and 702(a)(5)
of the Social Security Act (42 U.S.C. 405(a), 412, 413, 414, 416, 417,
423, and 902(a)(5)).
Source: 45 FR 25384, Apr. 15, 1980, unless otherwise noted.
General
Sec. 404.101 Introduction.
(a) Insured status. This subpart explains what we mean when we say
that a person has insured status under the social security program. It
also describes how a person may become fully insured, currently insured
or insured for disability benefits. Your insured 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 Sec. Sec. 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 Sec. Sec. 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
[[Page 66]]
status. In general, you are credited with QCs based on the wages you are
paid and the self-employment income you derive during certain periods.
(See subpart K of this part for a definition of wages and self-
employment income.) Our rules on how and when you acquire a QC are
contained in Sec. Sec. 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 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
[[Page 67]]
total wages before 1951, as defined in paragraph (d)(2) of this section,
provided that the number of QCs credited to you under this paragraph
plus the number of QCs credited to you for periods after 1950 make you
fully insured.
(2) What are total wages before 1951. For purposes of paragraph
(d)(1) of this section, your total wages before 1951 include--
(i) Remuneration credited to you before 1951 on the records of the
Secretary;
(ii) Wages considered paid to you before 1951 under section 217 of
the Act (relating to benefits in case of veterans);
(iii) Compensation under the Railroad Retirement Act of 1937 before
1951 that can be credited to you under title II of the Social Security
Act; and
(iv) Wages considered paid to you before 1951 under section 231 of
the Act (relating to benefits in case of certain persons interned in the
United States during World War II).
(e) When your fully insured status begins. You are fully insured as
of the first day of the calendar quarter in which you acquire the last
needed QC (see Sec. 404.145).
[45 FR 25384, Apr. 15, 1980, as amended at 50 FR 36573, Sept. 9, 1985;
57 FR 23156, June 2, 1992; 83 FR 21708, May 10, 2018]
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 Age in year
Men Women \2\--Year of Col. IV \3\ of death
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 68]]
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 69]]
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 70]]
(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 elapsed 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 71]]
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. Sec. 404.1047 and 404.1096,
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, as amended at
70 FR 14977, Mar. 24, 2005]
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 72]]
employment income you derived during a taxable year that began before
1978 to calendar quarters as follows:
(a) If your taxable year was a calendar year, we credit your self-
employment income equally to each quarter of that calendar year.
(b) If your taxable year was not a calendar year (that is, it began
on a date other than January 1, or was less than a calendar year), we
credit your self-employment income equally--
(1) To the calendar quarter in which your taxable year ended; and
(2) To each of the next three or fewer preceding quarters that were
wholly or partly in your taxable year.
Sec. 404.143 How we credit quarters of coverage for calendar years
after 1977.
(a) Crediting quarters of coverage (QCs). For calendar years after
1977, we credit you with a QC for each part of the total wages paid and
self-employment income credited (under Sec. 404.144) to you in a
calendar year that equals the amount required for a QC in that year. For
example, if the total of your wages and self-employment income for a
calendar year is more than twice, but less than 3 times, the amount
required for a QC in that year, we credit you with only 2 QCs for the
year. The rules for crediting QCs in this section are subject to the
limitations in Sec. 404.146, which tells when a calendar quarter cannot
be a QC. In addition, we cannot credit you with more than four QCs for
any calendar year. The amount of wages and self-employment income that
you must have for each QC is--
(1) $250 for calendar year 1978; and
(2) For each calendar year after 1978, an amount determined by the
Commissioner for that year (on the basis of a formula in section
213(d)(2) of the Act which reflects national increases in average
wages). The amount determined by the Commissioner is published in the
Federal Register on or before November 1 of the preceding year and
included in the appendix to this subpart.
(b) Assigning QCs. We assign a QC credited under paragraph (a) of
this section to a specific calendar quarter in the calendar year only if
the assignment is necessary to--
(1) Give you fully or currently insured status;
(2) Entitle you to a computation or recomputation of your primary
insurance amount; or
(3) Permit you to establish a period of disability.
[45 FR 25834, Apr. 15, 1980, as amended at 62 FR 38450, July 18, 1997]
Sec. 404.144 How we credit self-employment income to calendar years
for taxable years beginning after 1977.
In crediting quarters of coverage under Sec. 404.143(a), we credit
self-employment income you derived during a taxable year that begins
after 1977 to calendar years as follows:
(a) If your taxable year is a calendar year or begins and ends
within the same calendar year, we credit your self-employment income to
that calendar year.
(b) If your taxable year begins in one calendar year and ends in the
following calendar year, we allocate proportionately your self-
employment income to the two calendar years on the basis of the number
of months in each calendar year which are included completely within
your taxable year. We consider the calendar month in which your taxable
year ends as included completely within your taxable year.
Example: For the taxable year beginning May 15, 1978, and ending May
14, 1979, your self-employment income is $1200. We credit \7/12\ ($700)
of your self-employment income to calendar year 1978 and \5/12\ ($500)
of your self-employment income to calendar year 1979.
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
[[Page 73]]
years after 1977. We cannot credit you with a QC for--
(a) A calendar quarter that has not begun;
(b) A calendar quarter that begins after the quarter of your death;
(c) A calendar quarter that has already been counted as a QC; or
(d) A calendar quarter that is included in a period of disability
established for you, unless--
(1) The quarter is the first or the last quarter of this period; or
(2) The period of disability is not taken into consideration (see
Sec. 404.320(a)).
Sec. Appendix to Subpart B of Part 404--Quarter of Coverage Amounts for
Calendar Years After 1978
This appendix shows the amount determined by the Commissioner that
is needed for a quarter of coverage for each year after 1978 as
explained in Sec. 404.143. We publish the amount as a Notice in the
Federal Register on or before November 1 of the preceding year. The
amounts determined by the Commissioner are as follows:
------------------------------------------------------------------------
Amount
Calendar year needed
------------------------------------------------------------------------
1979.......................................................... $260
1980.......................................................... 290
1981.......................................................... 310
1982.......................................................... 340
1983.......................................................... 370
1984.......................................................... 390
1985.......................................................... 410
1986.......................................................... 440
1987.......................................................... 460
1988.......................................................... 470
1989.......................................................... 500
1990.......................................................... 520
1991.......................................................... 540
1992.......................................................... 570
------------------------------------------------------------------------
[45 FR 25384, Apr. 15, 1980, as amended at 52 FR 8247, Mar. 17, 1987; 57
FR 44096, Sept. 24, 1992; 62 FR 38450, July 18, 1997]
Subpart C_Computing Primary Insurance Amounts
Authority: Secs. 202(a), 205(a), 215, and 702(a)(5) of the Social
Security Act (42 U.S.C. 402(a), 405(a), 415, and 902(a)(5)).
Source: 47 FR 30734, July 15, 1982, unless otherwise noted.
General
Sec. 404.201 What is included in this subpart?
In this subpart we describe how we compute your primary insurance
amount (PIA), how and when we will recalculate or recompute your PIA to
include credit for additional earnings, and how we automatically adjust
your PIA to reflect changes in the cost of living.
(a) What is my primary insurance amount? Your primary insurance
amount (PIA) is the basic figure we use to determine the monthly benefit
amount payable to you and your family. For example, if you retire in the
month you attain full retirement age (as defined in Sec. 404.409) or if
you become disabled, you will be entitled to a monthly benefit equal to
your PIA. If you retire prior to full retirement age your monthly
benefit will be reduced as explained in Sec. Sec. 404.410-404.413.
Benefits to other members of your family are a specified percentage of
your PIA as explained in subpart D. Total benefits to your family are
subject to a maximum as explained in Sec. 404.403.
(b) How is this subpart organized? (1) In Sec. Sec. 404.201 through
404.204, we explain some introductory matters.
(2) In Sec. Sec. 404.210 through 404.213, we describe the average-
indexed-monthly-earnings method we use to compute the primary insurance
amount (PIA) for workers who attain age 62 (or become disabled or die
before age 62) after 1978.
(3) In Sec. Sec. 404.220 through 404.222, we describe the average-
monthly-wage method we use to compute the PIA for workers who attain age
62 (or become disabled or die before age 62) before 1979.
(4) In Sec. Sec. 404.230 through 404.233, we describe the
guaranteed alternative method we use to compute the PIA for people who
attain age 62 after 1978 but before 1984.
(5) In Sec. Sec. 404.240 through 404.243, we describe the old-start
method we use to compute the PIA for those who had all or substantially
all of their social security covered earnings before 1951.
(6) In Sec. Sec. 404.250 through 404.252, we describe special rules
we use to compute the PIA for a worker who previously had a period of
disability.
[[Page 74]]
(7) In Sec. Sec. 404.260 through 404.261, we describe how we
compute the special minimum PIA for long-term, low-paid workers.
(8) In Sec. Sec. 404.270 through 404.278, we describe how we
automatically increase your PIA because of increases in the cost of
living.
(9) In Sec. Sec. 404.280 through 404.288, we describe how and when
we will recompute your PIA to include additional earnings which were not
used in the original computation.
(10) In Sec. 404.290 we describe how and when we will recalculate
your PIA.
(11) Appendices I-VII contain material such as figures and formulas
that we use to compute PIAs.
[68 FR 4701, Jan. 30, 2003]
Sec. 404.202 Other regulations related to this subpart.
This subpart is related to several others. In subpart B of this
part, we describe how you become insured for social security benefits as
a result of your work in covered employment. In subpart D, we discuss
the different kinds of social security benefits available--old-age and
disability benefits for you and benefits for your dependents and
survivors--the amount of the benefits, and the requirements you and your
family must meet to qualify for them; your work status, your age, the
size of your family, and other factors may affect the amount of the
benefits for you and your family. Rules relating to deductions,
reductions, and nonpayment of benefits we describe in subpart E. In
subpart F of this part, we describe what we do when a recalculation or
recomputation of your primary insurance amount (as described in this
subpart) results in our finding that you and your family have been
overpaid or underpaid. In subparts G and H of this part, we tell how to
apply for benefits and what evidence is needed to establish entitlement
to them. In subpart J of this part, we describe how benefits are paid.
Then in subparts I, K, N, and O of this part, we discuss your earnings
that are taxable and creditable for social security purposes (and how we
keep records of them), and deemed military wage credits which may be
used in finding your primary insurance amount.
Sec. 404.203 Definitions.
(a) General definitions. As used in this subpart--
Ad hoc increase in primary insurance amounts means an increase in
primary insurance amounts enacted by the Congress and signed into law by
the President.
Entitled means that a person has applied for benefits and has proven
his or her right to them for a given period of time.
We, us, or our means the Social Security Administration.
You or your means the insured worker who has applied for benefits or
a deceased insured worker on whose social security earnings record
someone else has applied.
(b) Other definitions. To make it easier to find them, we have
placed other definitions in the sections of this subpart in which they
are used.
[47 FR 30734, July 15, 1982, as amended at 62 FR 38450, July 18, 1997]
Sec. 404.204 Methods of computing primary insurance amounts--general.
(a) General. We compute most workers' primary insurance amounts
under one of two major methods. There are, in addition, several special
methods of computing primary insurance amounts which we apply to some
workers. Your primary insurance amount is the highest of all those
computed under the methods for which you are eligible.
(b) Major methods. (1) If after 1978 you reach age 62, or become
disabled or die before age 62, we compute your primary insurance amount
under what we call the average-indexed-monthly-earnings method, which is
described in Sec. Sec. 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 Sec. Sec. 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
[[Page 75]]
under either major method described in paragraph (b) of this section.
(2) If you reach age 62 during the period 1979-1983, your primary
insurance amount is guaranteed to be the highest of--
(i) The primary insurance amount we compute for you under the
average-indexed-monthly-earnings method;
(ii) The primary insurance amount we compute for you under the
average-monthly-wage method, as modified by the rules described in
Sec. Sec. 404.230 through 404.233; or
(iii) The primary insurance amount computed under what we call the
old-start method; as described in Sec. Sec. 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
Sec. Sec. 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 Sec. Sec. 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 Sec. Sec. 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
[[Page 76]]
computation base years in a recomputation if their use would result in a
higher primary insurance amount. (See Sec. Sec. 404.280 through
404.287.) However, years after the year you die may not be used as
computation base years even if you have earnings credited to you in
those years. Computation base years do not include years wholly within a
period of disability unless your primary insurance amount would be
higher by using the disability years. In such situations, we count all
the years during the period of disability, even if you had no earnings
in some of them.
(c) Average of the total wages. Before we compute your average
indexed monthly earnings, we must first know the ``average of the total
wages'' of all workers for each year from 1951 until the second year
before you become eligible. The average of the total wages for years
after 1950 are shown in appendix I. Corresponding figures for more
recent years which have not yet been incorporated into this appendix are
published in the Federal Register on or before November 1 of the
succeeding year. ``Average of the total wages'' (or ``average wage'')
means:
(1) For the years 1951 through 1977, four times the amount of
average taxable wages that were reported to the Social Security
Administration for the first calendar quarter of each year for social
security tax purposes. For years prior to 1973, these average wages were
determined from a sampling of these reports.
(2) For the years 1978 through 1990, all remuneration reported as
wages on Form W-2 to the Internal Revenue Service for all employees for
income tax purposes, divided by the number of wage earners. We adjusted
those averages to make them comparable to the averages for 1951-1977.
For years after 1977, the term includes remuneration for services not
covered by social security and remuneration for covered employment in
excess of that which is subject to FICA contributions.
(3) For years after 1990, all remuneration reported as wages on Form
W-2 to the Internal Revenue Service for all employees for income tax
purposes, including remuneration described in paragraph (c)(2) of this
section, plus contributions to certain deferred compensation plans
described in section 209(k) of the Social Security Act (also reported on
Form W-2), divided by the number of wage earners. If both distributions
from and contributions to any such deferred compensation plan are
reported on Form W-2, we will include only the contributions in the
calculation of the average of the total wages. We will adjust those
averages to make them comparable to the averages for 1951-1990.
(d) Indexing your earnings. (1) The first step in indexing your
social security earnings is to find the relationship (under paragraph
(d)(2) of this section) between--
(i) The average wage of all workers in your computation base years;
and
(ii) The average wage of all workers in your indexing year. As a
general rule, your indexing year is the second year before the earliest
of the year you reach age 62, or become disabled or die before age 62.
However, your indexing year is determined under paragraph (d)(4) of this
section if you die before age 62, your surviving spouse or surviving
divorced spouse is first eligible for benefits after 1984, and the
indexing year explained in paragraph (d)(4) results in a higher
widow(er)'s benefit than results from determining the indexing year
under the general rule.
(2) To find the relationship, we divide the average wages for your
indexing year, in turn, by the average wages for each year beginning
with 1951 and ending with your indexing year. We use the quotients found
in these divisions to index your earnings as described in paragraph
(d)(3) of this section.
(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 Sec. Sec. 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.)
[[Page 77]]
Example: Ms. A reaches age 62 in July 1979. Her year-by-year social
security earnings since 1950 are as follows:
------------------------------------------------------------------------
Year Earnings
------------------------------------------------------------------------
1951....................................................... $3,200
1952....................................................... 3,400
1953....................................................... 3,300
1954....................................................... 3,600
1955....................................................... 3,700
1956....................................................... 3,700
1957....................................................... 4,000
1958....................................................... 4,200
1959....................................................... 4,400
1960....................................................... 4,500
1961....................................................... 2,800
1962....................................................... 2,200
1963....................................................... 0
1964....................................................... 0
1965....................................................... 3,700
1966....................................................... 4,500
1967....................................................... 5,400
1968....................................................... 6,200
1969....................................................... 6,900
1970....................................................... 7,300
1971....................................................... 7,500
1972....................................................... 7,800
1973....................................................... 8,200
1974....................................................... 9,000
1975....................................................... 9,900
1976....................................................... 11,100
1977....................................................... 9,900
1978....................................................... 11,000
------------------------------------------------------------------------
Step 1. The first step in indexing Ms. A's earnings is to find the
relationship between the general wage level in Ms. A's indexing year
(1977) and the general wage level in each of the years 1951-1976. We
refer to appendix I for average wage figures, and perform the following
computations:
------------------------------------------------------------------------
II. III. Column
I. 1977 Nationwide I divided by
Year general average of column II
wage level the total equals
wages relationship
------------------------------------------------------------------------
1951.............................. $9,779.44 $2,799.16 3.4937053
1952.............................. 9,779.44 2,973.32 3.2890641
1953.............................. 9,779.44 3,139.44 3.1150269
1954.............................. 9,779.44 3,155.64 3.0990354
1955.............................. 9,779.44 3,301.44 2.9621741
1956.............................. 9,779.44 3,532.36 2.7685287
1957.............................. 9,779.44 3,641.72 2.6853904
1958.............................. 9,779.44 3,673.80 2.6619413
1959.............................. 9,779.44 3,855.80 2.5362934
1960.............................. 9,779.44 4,007.12 2.4405159
1961.............................. 9,779.44 4,086.76 2.3929568
1962.............................. 9,779.44 4,291.40 2.2788461
1963.............................. 9,779.44 4,396.64 2.2242986
1964.............................. 9,779.44 4,576.32 2.1369659
1965.............................. 9,779.44 4,658.72 2.0991689
1966.............................. 9,779.44 4,938.36 1.9803012
1967.............................. 9,779.44 5,213.44 1.8758133
1968.............................. 9,779.44 5,571.76 1.7551797
1969.............................. 9,779.44 5,893.76 1.6592871
1970.............................. 9,779.44 6,186.24 1.5808375
1971.............................. 9,779.44 6,497.08 1.5052054
1972.............................. 9,779.44 7,133.80 1.3708599
1973.............................. 9,779.44 7,580.16 1.2901364
1974.............................. 9,779.44 8,030.76 1.2177478
1975.............................. 9,779.44 8,630.92 1.1330704
1976.............................. 9,779.44 9,226.48 1.0599318
1977.............................. 9,779.44 9,779.44 1.0000000
------------------------------------------------------------------------
Step 2. After we have found these indexing quotients, we multiply
Ms. A's actual year-by-year earnings by them to find her indexed
earnings, as shown below:
------------------------------------------------------------------------
III.
Column I
II. multiplied
Year I. Actual Indexing by column
earnings quotient II equals
indexed
earnings
------------------------------------------------------------------------
1951................................ $3,200 3.4937053 $11,179.86
1952................................ 3,400 3.2890641 11,182.82
1953................................ 3,300 3.1150269 10,279.59
1954................................ 3,600 3.0990354 11,156.53
1955................................ 3,700 2.9621741 10,960.04
1956................................ 3,700 2.7685287 10,243.56
1957................................ 4,000 2.6853904 10,741.56
1958................................ 4,200 2.6619413 11,180.15
1959................................ 4,400 2.5362934 11,159.69
1960................................ 4,500 2.4405159 10,982.32
1961................................ 2,800 2.3929568 6,700.28
1962................................ 2,200 2.2788461 5,013.46
1963................................ 0 2.2242986 0
1964................................ 0 2.1369659 0
1965................................ 3,700 2.0991689 7,766.92
1966................................ 4,500 1.9803012 8,911.36
1967................................ 5,400 1.8758133 10,129.39
1968................................ 6,200 1.7551797 10,882.11
1969................................ 6,900 1.6592871 11,449.08
1970................................ 7,300 1.5808375 11,540.11
1971................................ 7,500 1.5052054 11,289.04
1972................................ 7,800 1.3708599 10,692.71
1973................................ 8,200 1.2901364 10,579.12
1974................................ 9,000 1.2177478 10,959.73
1975................................ 9,900 1.1330704 11,217.40
1976................................ 11,100 1.0599318 11,765.24
1977................................ 9,900 1.0000000 9,900.00
1978................................ 11,000 0 11,000.00
------------------------------------------------------------------------
(4) We calculate your indexing year under this paragraph if you, the
insured worker, die before reaching age 62, your surviving spouse or
surviving 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
[[Page 78]]
surviving divorced spouse becomes eligible for widow(er)'s benefits,
i.e., has attained age 60, or is age 50-59 and disabled.
(e) Number of years to be considered in finding your average indexed
monthly earnings. To find the number of years to be used in computing
your average indexed monthly earnings--
(1) We count the years beginning with 1951, or (if later) the year
you reach age 22, and ending with the earliest of the year before you
reach age 62, become disabled, or die. Years wholly or partially within
a period of disability (as defined in Sec. 404.1501(b) of subpart P of
this part) are not counted unless your primary insurance amount would be
higher. In that case, we count all the years during the period of
disability, even though you had no earnings in some of those years.
These are your elapsed years. From your elapsed years, we then subtract
up to 5 years, the exact number depending on the kind of benefits to
which you are entitled. You cannot, under this procedure, have fewer
than 2 benefit computation years.
(2) For computing old-age insurance benefits and survivors insurance
benefits, we subtract 5 from the number of your elapsed years. See
paragraphs (e) (3) and (4) of this section for the dropout as applied to
disability benefits. This is the number of your benefit computation
years; we use the same number of your computation base years (see
paragraph (b)(2) of this section) in computing your average indexed
monthly earnings. For benefit computation years, we use the years with
the highest amounts of earnings after indexing. They may include
earnings from years that were not indexed, and must include years of no
earnings if you do not have sufficient years with earnings. You cannot
have fewer than 2 benefit computation years.
(3) Where the worker is first entitled to disability insurance
benefits (DIB) after June 1980, there is an exception to the usual 5
year dropout provision explained in paragraph (e)(2) of this section.
(For entitlement before July 1980, we use the usual dropout.) We call
this exception the disability dropout. We divide the elapsed years by 5
and disregard any fraction. The result, which may not exceed 5, is the
number of dropout years. We subtract that number from the number of
elapsed years to get the number of benefit computation years, which may
not be fewer than 2. After the worker dies, the disability dropout no
longer applies and we use the basic 5 dropout years to compute benefits
for survivors. We continue to apply the disability dropout when a person
becomes entitled to old-age insurance benefits (OAIB), unless his or her
entitlement to DIB ended at least 12 months before he or she became
eligible for OAIB. For first DIB entitlement before July 1980, we use
the rule in paragraph (e)(2) of this section.
(4) For benefits payable after June 1981, the disability dropout
might be increased by the child care dropout. If the number of
disability dropout years is fewer than 3, we will drop out a benefit
computation year for each benefit computation year that the worker meets
the child care requirement and had no earnings, until the total of all
dropout years is 3. The child care requirement for any year is that the
worker must have been living with his or her child (or his or her
spouse's child) substantially throughout any part of any calendar year
that the child was alive and under age 3. In actual practice, no more
than 2 child care years may be dropped, because of the combined effect
of the number of elapsed years, 1-for-5 dropout years (if any), and the
computation years required for the computation.
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
[[Page 79]]
earnings, we can drop only one of Ms. M.'s computation years, i.e.,
1976, in addition to the year 1975 which we dropped in the initial
computation.
(i) Living with means that you and the child ordinarily live in the
same home and you exercise, or have the right to exercise, parental
control. See Sec. 404.366(c) for a further explanation.
(ii) Substantially throughout any part of any calendar year means
that any period you were not living with the child during a calendar
year did not exceed 3 months. If the child was either born or attained
age 3 during the calendar year, the period of absence in the year cannot
have exceeded the smaller period of 3 months, or one-half the time after
the child's birth or before the child attained age 3.
(iii) Earnings means wages for services rendered and net earnings
from self-employment minus any net loss for a taxable year. See Sec.
404.429 for a further explanation.
(f) Your average indexed monthly earnings. After we have indexed
your earnings and found your benefit computation years, we compute your
average indexed monthly earnings by--
(1) Totalling your indexed earnings in your benefit computation
years;
(2) Dividing the total by the number of months in your benefit
computation years; and
(3) Rounding the quotient to the next lower whole dollar. if not
already a multiple of $1.
Example: From the example in paragraph (d) of this section, we see
that Ms. A reaches age 62 in 1979. Her elapsed years are 1951-1978 (28
years). We subtract 5 from her 28 elapsed years to find that we must use
23 benefit computation years. This means that we will use her 23 highest
computation base years to find her average indexed monthly earnings. We
exclude the 5 years 1961-1965 and total her indexed earnings for the
remaining years, i.e., the benefit computation years (including her
unindexed earnings in 1977 and 1978) and get $249,381.41. We then divide
that amount by the 276 months in her 23 benefit computation years and
find her average indexed monthly earnings to be $903.56, which is
rounded down to $903.
[47 FR 30734, July 15, 1982; 47 FR 35479, Aug. 13, 1982, as amended at
48 FR 11695, Mar. 21, 1983; 51 FR 4482, Feb. 5, 1986; 57 FR 1381, Jan.
14, 1992]
Sec. 404.212 Computing your primary insurance amount from your average
indexed monthly earnings.
(a) General. We compute your primary insurance amount under the
average-indexed-monthly-earnings method by applying a benefit formula to
your average indexed monthly earnings.
(b) Benefit formula. (1) We use the applicable benefit formula in
appendix II for the year you reach age 62, become disabled, or die
whichever occurs first. If you die before age 62, and your surviving
spouse or surviving divorced spouse is first eligible after 1984, we may
compute the primary insurance amount, for the purpose of paying benefits
to your widow(er), as if you had not died but reached age 62 in the
second year after the indexing year that we computed under the
provisions of Sec. 404.211(d)(4). We will not use this primary
insurance amount for computing benefit amounts for your other survivors
or for computing the maximum family benefits payable on your earnings
record. Further, we will only use this primary insurance amount if it
results in a higher widow(er)'s benefit than would result if we did not
use this special computation.
(2) The dollar amounts in the benefit formula are automatically
increased each year for persons who attain age 62, or who become
disabled or die before age 62 in that year, by the same percentage as
the increase in the average of the total wages (see appendix I).
(3) We will publish benefit formulas for years after 1979 in the
Federal Register at the same time we publish 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
[[Page 80]]
total amount to the next higher multiple of $0.10 if it is not a
multiple of $0.10 and for computations using the benefit formulas
effective for 1983 and later years, we round to the next lower multiple
of $0.10. (See paragraph (e) of this section for a discussion of the
minimum primary insurance amount.)
(d) Adjustment of your primary insurance amount when entitlement to
benefits occurs in a year after attainment of age 62, disability or
death. If you (or your survivors) do not become entitled to benefits in
the same year you reach age 62, become disabled, or die before age 62,
we compute your primary insurance amount by--
(1) Computing your average indexed monthly earnings as described in
Sec. 404.211;
(2) Applying to your average indexed monthly earnings the benefit
formula for the year in which you reach age 62, or become disabled or
die before age 62; and
(3) Applying to the primary insurance amount all automatic cost-of-
living and ad hoc increases in primary insurance amounts that have gone
into effect in or after the year you reached age 62, became disabled, or
died before age 62. (See Sec. 404.277 for special rules on minimum
benefits, and appendix VI for a table of percentage increases in primary
insurance amounts since December 1978. Increases in primary insurance
amounts are published in the Federal Register and we periodically update
appendix VI.)
(e) Minimum primary insurance amount. If you were eligible for
benefits, or died without having been eligible, before 1982, your
primary insurance amount computed under this method cannot be less than
$122. This minimum benefit provision has been repealed effective with
January 1982 for most workers and their families where the worker
initially becomes eligible for benefits in that or a later month, or
dies in January 1982 or a later month without having been eligible
before January 1982. For members of a religious order who are required
to take a vow of poverty, as explained in 20 CFR 404.1024, and which
religious order elected Social Security coverage before December 29,
1981, the repeal is effective with January 1992 based on first
eligibility or death in that month or later.
[47 FR 30734, July 15, 1982, as amended at 48 FR 46142, Oct. 11, 1983;
51 FR 4482, Feb. 5, 1986; 52 FR 47916, Dec. 17, 1987]
Sec. 404.213 Computation where you are eligible for a pension based
on your noncovered employment.
(a) When applicable. Except as provided in paragraph (d) of this
section, we will modify the formula prescribed in Sec. 404.212 and in
appendix II of this subpart in the following situations:
(1) You become eligible for old-age insurance benefits after 1985;
or
(2) You become eligible for disability insurance benefits after
1985; and
(3) For the same months after 1985 that you are entitled to old-age
or disability benefits, you are also entitled to a monthly pension(s)
for which you first became eligible after 1985 based in whole or part on
your earnings in employment which was not covered under Social Security.
We consider you to first become eligible for a monthly pension in the
first month for which you met all requirements for the pension except
that you were working or had not yet applied. In determining whether you
are eligible for a pension before 1986, we consider all applicable
service used by the pension-paying agency. (Noncovered employment
includes employment outside the United States which is not covered under
the United States Social Security system. Pensions from noncovered
employment outside the United States include both pensions from social
insurance systems 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 Sec. Sec. 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
[[Page 81]]
a monthly basis) which is attributable to your noncovered work after
1956 that you are entitled to for the first month in which you are
concurrently entitled to Social Security benefits. For applications
filed before December 1988, we will use the month of earliest concurrent
eligibility. In determining the amount of your monthly pension we will
use, we will consider the following:
(1) If your pension is not paid on a monthly basis or is paid in a
lump-sum, we will allocate it proportionately as if it were paid
monthly. We will allocate this the same way we allocate lump-sum
payments for a spouse or surviving spouse whose benefits are reduced
because of entitlement to a Government pension. (See Sec. 404.408a.)
(2) If your monthly pension is reduced to provide a survivor's
benefit, we will use the unreduced amount.
(3) If the monthly pension amount which we will use in computing
your primary insurance amount is not a multiple of $0.10, we will round
it to the next lower multiple of $0.10.
(c) How we compute your primary insurance amount. When you become
entitled to old-age or disability insurance benefits and to a monthly
pension, we will compute your primary insurance amount under the
average-indexed-monthly-earnings method (Sec. 404.212) as modified by
paragraph (c) (1) and (2) of this section. Where applicable, we will
also consider the 1977 simplified old-start method (Sec. 404.241) as
modified by Sec. 404.243 and a special minimum primary insurance amount
as explained in Sec. Sec. 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
------------------------------------------------------------------------
[[Page 82]]
(2) If you later earn additional year(s) of coverage, we will
recompute your primary insurance amount, effective with January of the
following year.
(e) Exceptions. The computations in paragraph (c) of this section do
not apply in the following situations:
(1) Payments made under the Railroad Retirement Act are not
considered to be a pension from noncovered employment for the purposes
of this section. See subpart O of this part for a discussion of railroad
retirement benefits.
(2) You were entitled before 1986 to disability insurance benefits
in any of the 12 months before you reach age 62 or again become
disabled. (See Sec. 404.251 for the appropriate computation.)
(3) You were a Federal employee performing service on January 1,
1984 to which Social Security coverage was extended on that date solely
by reason of the amendments made by section 101 of the Social Security
Amendments of 1983.
(4) You were an employee of a nonprofit organization who was exempt
from Social Security coverage on December 31, 1983 unless you were
previously covered under a waiver certificate which was terminated prior
to that date.
(5) You have 30 years of coverage as defined in the column headed
``Alternate Computation Under Sec. 404.213(d)'' in appendix IV of this
subpart.
(6) Your survivors are entitled to benefits on your record of
earnings. (After your death, we will recompute the primary insurance
amount to nullify the effect of any monthly pension, based in whole or
in part on noncovered employment, to which you had been entitled.)
(7) For benefits payable for months after December 1994, payments by
the social security system of a foreign country which are based on a
totalization agreement between the United States and that country are
not considered to be a pension from noncovered employment for purposes
of this section. See subpart T of this part for a discussion of
totalization agreements.
(8) For benefits payable for months after December 1994, the
computations in paragraph (c) do not apply in the case of an individual
whose entitlement to U.S. social security benefits results from a
totalization agreement between the United States and a foreign country.
(9) For benefits payable for months after December 1994, you are
eligible after 1985 for monthly periodic benefits based wholly on
service as a member of a uniformed service, including inactive duty
training.
(f) Entitlement to a totalization benefit and a pension based on
noncovered employment. If, before January 1995, you are entitled to a
totalization benefit and to a pension based on noncovered employment
that is not covered by a totalization agreement, we count your coverage
from a foreign country with which the United States (U.S.) has a
totalization agreement and your U.S. coverage to determine if you meet
the requirements for the modified computation in paragraph (d) of this
section or the exception in paragraph (e)(5) of this section.
(1) Where the amount of your totalization benefit will be determined
using a computation method that does not consider foreign earnings (see
Sec. 404.1918), we will find your total years of coverage by adding
your--
(i) Years of coverage from the agreement country (quarters of
coverage credited under Sec. 404.1908 divided by four) and
(ii) Years of U.S. coverage as defined for the purpose of computing
the special minimum primary insurance amount under Sec. 404.261.
(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]
[[Page 83]]
Average-Monthly-Wage Method of Computing Primary Insurance Amounts
Sec. 404.220 Average-monthly-wage method.
(a) Who is eligible for this method. You must before 1979, reach age
62, become disabled or die to be eligible for us to compute your primary
insurance amount under the average-monthly-wage method. Also, as
explained in Sec. 404.230, if you reach age 62 after 1978 but before
1984, you are eligible to have your primary insurance amount computed
under a modified average-monthly-wage method if it is to your advantage.
Being eligible for either the average-monthly-wage method or the
modified average-monthly-wage method does not preclude your eligibility
under the old-start method described in Sec. Sec. 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 Sec. Sec.
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 Sec. Sec. 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
[[Page 84]]
before you reached age 64, or became disabled or died before age 64 to
find your elapsed years; or
(iii) 1974, we count the years beginning with 1951 and ending with
the year before you reached age 63, became disabled, or died before age
63 to find your elapsed years.
(3) Then we subtract 5 from the number of your elapsed years. This
is the number of your benefit computation years; we use the same number
of your computation base years in computing your average monthly wage.
For benefit computation years, we use the years with the highest amounts
of earnings, but they may include years of no earnings. You cannot have
fewer than 2 benefit computation years.
(d) Your average monthly wage. After we find your benefit
computation years, we compute your average monthly wage by--
(1) Totalling your creditable earnings in your benefit computation
years;
(2) Dividing the total by the number of months in your benefit
computation years; and
(3) Rounding the quotient to the next lower whole dollar if not
already a multiple of $1.
Example: Mr. B reaches age 62 and becomes entitled to old-age
insurance benefits in August 1978. He had no social security earnings
before 1951 and his year-by-year social security earnings after 1950 are
as follows:
------------------------------------------------------------------------
Year Earnings
------------------------------------------------------------------------
1951....................................................... $2,700
1952....................................................... 2,700
1953....................................................... 3,400
1954....................................................... 3,100
1955....................................................... 4,000
1956....................................................... 4,100
1957....................................................... 4,000
1958....................................................... 4,200
1959....................................................... 4,800
1960....................................................... 4,800
1961....................................................... 4,800
1962....................................................... 4,800
1963....................................................... 4,800
1964....................................................... 1,500
1965....................................................... 0
1966....................................................... 0
1967....................................................... 0
1968....................................................... 3,100
1969....................................................... 5,200
1970....................................................... 7,100
1971....................................................... 7,800
1972....................................................... 8,600
1973....................................................... 8,900
1974....................................................... 9,700
1975....................................................... 10,100
1976....................................................... 10,800
1977....................................................... 11,900
------------------------------------------------------------------------
We first find Mr. B's elapsed years, which are the 27 years 1951-
1977. We subtract 5 from his 27 elapsed years to find that we must use
22 benefit computation years in computing his average monthly wage. His
computation base years are 1951-1977, which are the years after 1950 and
prior to the year he became entitled. This means that we will use his 22
computation base years with the highest earnings to compute his average
monthly wage. Thus, we exclude the years 1964-1967 and 1951.
We total his earnings in his benefit computation years and get
$132,700. We then divide that amount by the 264 months in his 22 benefit
computation years and find his average monthly wage to be $502.65, which
is rounded down to $502.
(e) ``Deemed'' average monthly wage for certain deceased veterans of
World War II. Certain deceased veterans of World War II are ``deemed''
to have an average monthly wage of $160 (see Sec. Sec. 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 Sec. Sec. 404.240 through
404.242 or the guaranteed alternative computation method explained in
Sec. Sec. 404.230 through 404.233. However, as can be seen from the
extended table in appendix III, the lowest
[[Page 85]]
primary insurance amount under this method is now $1.70 for individuals
for whom the minimum benefit has been repealed.
Example: In the example in Sec. 404.221(d), we computed Mr. B's
average monthly wage to be $502. We refer to the December 1978 benefit
table in appendix III. Then we find his average monthly wage in column
III of the table. Reading across, his primary insurance amount is on the
same line in column IV and is $390.50. A 9.9 percent automatic cost-of-
living benefit increase was effective for June 1979, increasing Mr. B's
primary insurance amount to $429.20, as explained in Sec. Sec. 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
(Sec. Sec. 404.240 through 404.242) and under the special rules for a
person who had a period of disability (Sec. Sec. 404.250 through
404.252), if you are eligible. In Sec. Sec. 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
[[Page 86]]
primary insurance amounts since December 1978.)
Example: Mr. C reaches age 62 in January 1981 and becomes entitled
to old-age insurance benefits in April 1981. He had no social security
earnings before 1951 and his year-by-year social security earnings after
1950 are as follows:
------------------------------------------------------------------------
Year Earnings
------------------------------------------------------------------------
1951....................................................... $3,600
1952....................................................... 3,600
1953....................................................... 3,600
1954....................................................... 3,600
1955....................................................... 4,200
1956....................................................... 4,200
1957....................................................... 4,200
1958....................................................... 4,200
1959....................................................... 4,800
1960....................................................... 4,800
1961....................................................... 4,800
1962....................................................... 4,800
1963....................................................... 4,800
1964....................................................... 4,800
1965....................................................... 4,800
1966....................................................... 6,600
1967....................................................... 6,600
1968....................................................... 7,800
1969....................................................... 7,800
1970....................................................... 7,800
1971....................................................... 7,800
1972....................................................... 9,000
1973....................................................... 10,800
1974....................................................... 13,200
1975....................................................... 14,100
1976....................................................... 15,300
1977....................................................... 16,500
1978....................................................... 17,700
1979....................................................... 22,900
1980....................................................... 25,900
1981....................................................... 29,700
------------------------------------------------------------------------
Mr. C's elapsed years are the 30 years 1951 through 1980. We
subtract 5 from his 30 elapsed years to find that we must use 25 benefit
computation years in computing his average monthly wage. His computation
base years are 1951 through 1980 which are years after 1950 up to the
year he reached age 62. We will use his 25 computation base years with
the highest earnings to compute his average monthly wage. Thus, we
exclude the years 1951-1955. The year 1981 is not a base year for this
computation.
We total his earnings in his benefit computation years and get
$236,000. We then divide by the 300 months in his 25 benefit computation
years, and find his average monthly wage to be $786.66 which is rounded
down to $786.
The primary insurance amount in the benefit table in appendix III
that corresponds to Mr. C's average monthly wage is $521.70. The 9.9
percent and 14.3 percent cost of living increase for 1979 and 1980,
respectively, are not applicable because Mr. C reached age 62 in 1981.
The average indexed monthly earnings method described in Sec. Sec.
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 Sec. Sec. 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.
[[Page 87]]
(2)(i) You or your survivor becomes entitled to benefits for June
1992 or later;
(ii) You do not meet the conditions in paragraph (a)(1) of this
section, and,
(iii) No person is entitled to benefits on your earnings record in
the month before the month you or your survivor becomes entitled to
benefits.
(3) A recomputation is first effective for June 1992 or later based
on your earnings for 1992 or later.
(b) Steps in old-start computation. (1) First, we allocate your
earnings during the period 1937-1950 as described in paragraph (c) of
this section.
(2) Next, we compute your average monthly wage, as described in
paragraph (d) of this section.
(3) Next, we apply the old-start formula to your average monthly
wage, as described in paragraph (e)(1) of this section.
(4) Next, we apply certain increments to the amount computed in step
(3), as described in paragraph (e)(2) of this section.
(5) Next, we find your primary insurance amount in the benefit table
in appendix III, as described in paragraph (f)(1) of this section.
(6) Then, we apply automatic cost-of-living or ad hoc increases in
primary insurance amounts to the primary insurance amount found in step
(5), as described in paragraph (f)(2) of this section.
(c) Finding your computation base years under the old-start method.
(1) Instead of using your actual year-by-year earnings before 1951, we
find your computation base years for 1937-1950 (and the amount of
earnings for each of them) by allocating your total 1937-1950 earnings
among the years before 1951 under the following procedure:
(i) If you reached age 21 before 1950 and your total 1937-1950
earnings are not more than $3,000 times the number of years after the
year you reached age 20 and before 1951 (a maximum of 14 years), we
allocate your earnings equally among those years, and those years are
your computation base years before 1951.
(ii) If you reached age 21 before 1950 and your total 1937-1950
earnings are more than $3,000 times the number of years after the year
you reached age 20 and before 1951, we allocate your earnings at the
rate of $3,000 per year for each year after you reached age 20 and
before 1951 up to a maximum of 14 years. We credit any remainder in
reverse order to years before age 21 in $3,000 increments and any amount
left over of less than $3,000 to the year before the earliest year to
which we credited $3,000. No more than $42,000 may be credited in this
way and to no more than 14 years. Those years are your computation base
years before 1951.
(iii) If you reached age 21 in 1950 or later and your total pre-1951
earnings are $3,000 or less, we credit the total to the year you reached
age 20 and that year is your pre-1951 computation base year.
(iv) If you reached age 21 in 1950 or later and your total pre-1951
earnings are more than $3,000, we credit $3,000 to the year you reached
age 20 and credit the remainder to earlier years (or year) in blocks of
$3,000 in reverse order. We credit any remainder of less than $3,000 to
the year before the earliest year to which we had credited $3,000. No
more than $42,000 may be credited in this way and to no more than 14
years. Those years are your computation base years before 1951.
(v) If you die before 1951, we allocate your 1937-1950 earnings
under paragraphs (c)(1) (i) through (iv), except that in determining the
number of 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,
[[Page 88]]
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 (Sec. Sec. 404.210 through
404.212). As of June 1981, it is $170.50, which is the minimum primary
insurance amount applicable, because her average indexed monthly
earnings of $50 would yield only $56.50 under the benefit formula. Ms. D
reached age 62 after 1978 but before 1984 and her guaranteed alternative
under the average-monthly-wage method as of June 1981 is $170.30, which
is the minimum primary insurance amount based on average monthly wages
of $48. (These amounts include the 9.9, the 14.3, and the 11.2 percent
cost-of-living increases effective June 1979, June 1980, and June 1981
respectively.)
Ms. D is also eligible for the old-start method. We first allocate
$3,000 of her 1937-1950 earnings to each of her 13 computation base
years starting with the year she reached age 21 (1938) and ending with
1950. The remaining $1,000 is credited to the year she reached age 20.
Ms. D, then, has 42 computation base years (14 before 1951 and 28 after
1950).
(d) Computing your average monthly wage under the old-start method.
(1) First, we count your elapsed years, which are the years beginning
with 1937 (or the year you reach 22, if later) and ending with the year
before you reach age 62, or become disabled or die before age 62. (See
Sec. 404.211(e)(1) for the rule on how we treat years wholly or
partially within a period of disability.)
(2) Next, we subtract 5 from the number of your elapsed years, and
this is the number of computation years we must use. We then choose this
number of your computation base years in which you had the highest
earnings. These years are your benefit computation years. You must have
at least 2 benefit computation years.
(3) Then we compute your average monthly wage by dividing your total
creditable earnings in your benefit computation years by the number of
months in these years and rounding the quotient to the next lower dollar
if not already a multiple of $1.
(e) Old-start computation formula. We use the following formula to
compute your primary insurance benefit, which we will convert to your
primary insurance amount:
(1) We take 40 percent of the first $50 of your average monthly
wage, plus 10 percent of the next $200 of your average monthly wage up
to a total average monthly wage of $250. (We do not use more than $250
of your average monthly wage.)
(2) We increase the amount found in paragraph (e)(1) of this section
by 1 percent for each $1,650 in your pre-1951 earnings, disregarding any
remainder less than $1,650. We always increase the amount by at least 4
of these 1 percent increments but may not increase it by more than 14 of
them.
(f) Finding your primary insurance amount under the old-start
method. (1) In column I of the benefit table in appendix III we locate
the amount (the primary insurance benefit) computed in paragraph (e) of
this section and find the corresponding primary insurance amount on the
same line in column IV of the table.
(2) We increase that amount by any automatic cost-of-living or ad
hoc increases in primary insurance amounts effective since the beginning
of the year in which you reached age 62, or became disabled or died
before age 62. (See Sec. Sec. 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
[[Page 89]]
the 14.3 percent cost-of-living increase effective for June 1980, and to
$273.70 to reflect the June 1981 increase. Since that primary insurance
amount is higher than the $153.10 primary insurance amount computed
under the average-monthly-wage method and the $153.30 primary insurance
amount computed under the average-indexed-monthly-earnings method, we
base Ms. D's benefits (and those of her family) on $215.30 (plus later
cost-of-living increases), which is the highest primary insurance
amount.
[47 FR 30734, July 15, 1982, as amended at 55 FR 21382, May 24, 1990; 57
FR 23157, June 2, 1992]
Sec. 404.242 Use of old-start primary insurance amount as guaranteed
alternative.
If your primary insurance amount as computed under the old-start
method is higher than your primary insurance amount computed under the
average-monthly-wage method, your old-start primary insurance amount
will serve as the guaranteed alternative to your primary insurance
amount computed under the average-indexed-monthly-earnings method, as
described in Sec. 404.230. However, earnings that you have in or after
the year you reach age 62, or become disabled or die before age 62 are
not used in an old-start computation in this situation.
Sec. 404.243 Computation where you are eligible for a pension based
on noncovered employment.
The provisions of Sec. 404.213 are applicable to computations under
the old-start method, except for paragraphs (c) (1) and (2) and (d) of
that section. Your primary insurance amount will be whichever of the
following two amounts is larger:
(a) One-half the primary insurance amount computed according to
Sec. 404.241 (before application of the cost of living amount); or
(b) The primary insurance amount computed according to Sec. 404.241
(before application of the cost of living amount), minus one-half the
portion of your monthly pension which is due to noncovered work after
1956 and for which you were eligible in the first month you became
eligible for Social Security benefits. If the result is not a multiple
of $0.10, we will round to the next lower multiple of $0.10. (See Sec.
404.213 (b)(3) if you are not eligible for a monthly pension in the
first month you are entitled to Social Security benefits.) To determine
the portion of your pension which is due to noncovered work after 1956,
we consider the total number of years of work used to compute your
pension and the percentage of those years which are after 1956 and in
which your employment was not covered. We take that percentage of your
total pension as the amount which is due to your noncovered work after
1956.
[52 FR 47918, Dec. 17, 1987]
Special Computation Rules for People Who Had a Period of Disability
Sec. 404.250 Special computation rules for people who had a period
of disability.
If you were disabled at some time in your life, received disability
insurance benefits, and those benefits were terminated because you
recovered from your disability or because you engaged in substantial
gainful activity, special rules apply in computing your primary
insurance amount when you become eligible after 1978 for old-age
insurance benefits or if you become re-entitled to disability insurance
benefits or die. (For purposes of Sec. Sec. 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:
[[Page 90]]
(1) The primary insurance amount to which you were entitled when you
last received a benefit, increased by any automatic cost-of-living or ad
hoc increases in primary insurance amounts that took effect since then;
(2) The primary insurance amount resulting from a recomputation of
your primary insurance amount, if one is possible; or
(3) The primary insurance amount computed for you as of the time of
your second entitlement under any method for which you are qualified at
that time, including the average-indexed-monthly-earnings method if the
previous period of disability is disregarded.
(b) Disability and second entitlement after 1978. In this situation,
we compute your second-entitlement primary insurance amount by selecting
the highest of the following:
(1) The primary insurance amount to which you were entitled when you
last received a benefit, increased by any automatic cost-of-living or ad
hoc increases in primary insurance amount that took effect since then;
(2) The primary insurance amount resulting from a recomputation of
your primary insurance amount, if one is possible (this recomputation
may be under the average-indexed-monthly-earnings method only); or
(3) The primary insurance amount computed for you as of the time of
your second entitlement under any method (including an old-start method)
for which you are qualified 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.
[[Page 91]]
(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 Sec. Sec. 404.212(e) and 404.222(b) of this
part). In any situation where your primary insurance amount computed
under another method is higher, we use that higher amount.
(b) Computing your special minimum primary insurance amount. (1)
First, we subtract 10 from your years of coverage and multiply the
remainder (at least 1 and no more than 20) by $11.50;
(2) Then we increase the amount found in paragraph (b)(1) of this
section by any automatic cost-of-living or ad hoc increases that have
become effective since December 1978 to find your special minimum
primary insurance amount. See appendix V for the applicable table, which
includes the 9.9 percent cost-of-living increase that became effective
June 1979, the 14.3 percent increase that became effective June 1980,
and the 11.2 percent increase that became effective June 1981.
Example: Ms. F, who attained age 62 in January 1979, had $10,000 in
total social security earnings before 1951 and her post-1950 earnings
are as follows:
------------------------------------------------------------------------
Year Earnings
------------------------------------------------------------------------
1951....................................................... $1,100
1952....................................................... 950
1953....................................................... 0
1954....................................................... 1,000
1955....................................................... 1,100
1956....................................................... 1,200
1957....................................................... 0
1958....................................................... 1,300
1959....................................................... 0
1960....................................................... 1,300
1961....................................................... 0
1962....................................................... 1,400
1963....................................................... 1,300
1964....................................................... 0
1965....................................................... 500
1966....................................................... 700
1967....................................................... 650
1968....................................................... 900
1969....................................................... 1,950
1970....................................................... 2,100
1971....................................................... 2,000
1972....................................................... 1,500
1973....................................................... 2,700
1974....................................................... 2,100
1975....................................................... 2,600
1976....................................................... 3,850
1977....................................................... 4,150
1978....................................................... 0
------------------------------------------------------------------------
Her primary insurance amount under the average-indexed-monthly-
earnings method as of June 1981 is $240.40 (based on average indexed
monthly earnings of $229). Her guaranteed-alternative primary insurance
amount under the average-monthly-wage method as of June 1981 is $255.80
(based on average monthly wages of $131).
However, Ms. F has enough earnings before 1951 to allow her 11 years
of coverage before 1951 ($10,000 / $900 = 11, plus a remainder, which we
drop). She has sufficient earnings in 1951-52, 1954-56, 1958, 1960,
1962-63, 1969-71, 1973, and 1976-77 to have a year of coverage for each
of those years. She thus has 15 years of coverage after 1950 and a total
of 26 years of coverage. We subtract 10 from her years of coverage,
multiply the remainder (16) by $11.50 and get $184.00. We then apply the
June 1979, June 1980, and June 1981 automatic cost-of-living increases
(9.9 percent, 14.3 percent, and 11.2 percent, respectively) to that
amount to find her special minimum primary insurance amount of $202.30
effective June 1979, $231.30 effective June 1980, and $257.30 effective
June 1981. (See appendices V and VI.) Since her special minimum primary
insurance amount is higher than the primary insurance amounts computed
for her under the other methods described in this subpart for which she
is eligible, her benefits (and those of her family) are based on the
special minimum primary insurance amount.
[47 FR 30734, July 15, 1982, as amended at 48 FR 46143, Oct. 11, 1983]
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 special minimum primary insurance amounts (described in
Sec. Sec. 404.260
[[Page 92]]
through 404.261) of current and future beneficiaries;
(b) 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
(c) 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;
83 FR 21708, May 10, 2018]
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 are automatic cost-of-living increases effective?
We make automatic cost-of-living increases if the applicable index,
either the CPI or the AWI, rises over a specified measuring period (see
the rules on measuring periods in Sec. 404.274). If the cost-of-living
increase is to be based on an increase in the CPI, the increase is
effective in December of the year in which the measuring period ends. If
the increase is to be based on an increase in the AWI, the increase is
effective in December of the year after the year in which the measuring
period ends.
[69 FR 19925, Apr. 15, 2004]
[[Page 93]]
Sec. 404.274 What are the measuring periods we use to calculate
cost-of-living increases?
(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 the CPI--(1) When the period begins.
The measuring period we use for finding the amount of the CPI increase
begins with the later of--
(i) Any calendar quarter in which an ad hoc benefit increase is
effective; or
(ii) The third calendar quarter of any year in which the last
automatic increase became effective.
(2) When the period ends. The measuring period ends with the third
calendar quarter of the following year. If this measuring period ends in
a year after the year in which an ad hoc increase was enacted or took
effect, there can be no cost-of-living increase at that time. We will
extend the measuring period to the third calendar quarter of the next
year.
(c) Measuring period based on the AWI--(1) When the period begins.
The measuring period we use for finding the amount of the AWI increase
begins with the later of--
(i) The calendar year before the year in which an ad hoc benefit
increase is effective; or
(ii) The calendar year before the year in which the last automatic
increase became effective.
(2) When the period ends. The measuring period ends with the
following year. If this measuring period ends in a year in which an ad
hoc increase was enacted or took effect, there can be no cost-of-living
increase at that time. We will extend the measuring period to the next
calendar year.
[69 FR 19925, Apr. 15, 2004]
Sec. 404.275 How is an automatic cost-of-living increase calculated?
(a) Increase based on the CPI. We compute the average of the CPI for
the quarters that begin and end the measuring period by adding the three
monthly CPI figures, dividing the total by three, and rounding the
result to the same number of decimal places as the published CPI
figures. If the number of decimal places in the published CPI values
differs between those used for the beginning and ending quarters, we use
the number for the ending quarter. If the average for the ending quarter
is higher than the average for the beginning quarter, we divide the
average for the ending quarter by the average of the beginning quarter
to determine the percentage increase in the CPI over the measuring
period.
(b) Increase based on the AWI. If the AWI for the year that ends the
measuring period is higher than the AWI for the year which begins the
measuring period and all the other conditions for an AWI-based increase
are met, we divide the higher AWI by the lower AWI to determine the
percentage increase in the AWI.
(c) Rounding rules. We round the increase from the applicable
paragraph (a) or (b) of this section to the nearest 0.1 percent by
rounding 0.05 percent and above to the next higher 0.1 percent and
otherwise rounding to the next lower 0.1 percent. For example, if the
applicable index is the CPI and the increase in the CPI is 3.15 percent,
we round the increase to 3.2 percent. We then apply this percentage
increase to the amounts described in Sec. 404.271 and round the
resulting dollar amounts to the next lower multiple of $0.10 (if not
already a multiple of $0.10).
(d) Additional increase. See Sec. 404.278 for the additional
increase that is possible.
[69 FR 19925, Apr. 15, 2004, as amended at 72 FR 2186, Jan. 18, 2007]
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.
[[Page 94]]
Sec. 404.277 When does the frozen minimum primary insurance amount
increase because of cost-of-living adjustments?
(a) What is the frozen minimum primary insurance amount (PIA)? The
frozen minimum is a minimum PIA for certain workers whose benefits are
computed under the average-indexed-monthly-earnings method. Section
404.210(a) with Sec. 404.212(e) explains when the frozen minimum
applies.
(b) When does the frozen minimum primary insurance amount (PIA)
increase automatically? The frozen minimum PIA increases automatically
in every year in which you or your dependents or survivors are entitled
to benefits and a cost-of-living increase applies.
(c) When are automatic increases effective for old-age or disability
benefits based on a frozen minimum primary insurance amount (PIA)?
Automatic cost-of-living increases apply to your frozen minimum PIA
beginning with the earliest of:
(1) December of the year you become entitled to benefits and receive
at least a partial benefit;
(2) December of the year you reach full retirement age (as defined
in Sec. 404.409) if you are entitled to benefits in or before the month
you attain full retirement age, regardless of whether you receive at
least a partial benefit; or
(3) December of the year you become entitled to benefits if that is
after you attain full retirement age.
(d) When are automatic increases effective for survivor benefits
based on a frozen minimum primary insurance amount (PIA)? (1) Automatic
cost-of-living increases apply to the frozen minimum PIA used to
determine survivor benefits in December of any year in which your
child(ren), your surviving spouse caring for your child(ren), or your
parent(s), are entitled to survivor benefits for at least one month.
(2) Automatic cost-of-living increases apply beginning with December
of the earlier of:
(i) The year in which your surviving spouse or surviving divorced
spouse (as defined in Sec. Sec. 404.335 and 404.336) has attained full
retirement age (as defined in Sec. 404.409) and receives at least a
partial benefit, or
(ii) The year in which your surviving spouse or surviving disabled
spouse becomes entitled to benefits and receives at least a partial
benefit.
(3) Automatic cost-of-living increases are not applied to the frozen
minimum PIA in any year in which no survivor of yours is entitled to
benefits on your social security record.
[68 FR 4702, Jan. 30, 2003]
Sec. 404.278 Additional cost-of-living increase.
(a) General. In addition to the cost-of-living increase explained in
Sec. 404.275 for a given year, we will further increase the amounts in
Sec. 404.271 if--
(1) The OASDI fund ratio is more than 32.0 percent in the given year
in which a cost-of-living increase is due; and
(2) In any prior year, the cost-of-living increase was based on the
AWI as the lower of the CPI and AWI.
(b) Measuring period for the additional increase--(1) To compute the
additional increase for all individuals and for maximum benefits payable
to a family, we begin with 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
[[Page 95]]
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
percentage 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, as amended at 69 FR 19925, Apr. 15, 2004;
83 FR 21708, May 10, 2018]
Recomputing Your Primary Insurance Amount
Sec. 404.280 Recomputations.
At times after you or your survivors become entitled to benefits, we
will recompute your primary insurance amount. Usually we will recompute
only if doing so will increase your primary insurance amount. However,
we will also recompute your primary insurance amount if you first became
eligible for old-age or disability insurance benefits after 1985, and
later become entitled to a pension based on your noncovered employment,
as explained in Sec. 404.213. There is no limit on the number of times
your primary insurance amount may be recomputed, and we do most
recomputations automatically. In the following sections, we explain:
(a) Why a recomputation is made (Sec. 404.281),
(b) When a recomputation takes effect (Sec. 404.282),
(c) Methods of recomputing (Sec. Sec. 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-
[[Page 96]]
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 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.
[[Page 97]]
(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 Sec. Sec. 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
Sec. Sec. 404.220 through 404.222, had earnings of $12,000 in 1978
which were not used in the initial computation of his primary insurance
amount. We may recompute his primary insurance amount effective for
January 1979. In this recomputation, his 1978 earnings are substituted
for the lowest year of earnings used in the initial computation ($2,700
in 1952). Mr. B's total earnings are now $142,000 and his new average
monthly wage is $537.
We next find Mr. B's new average monthly wage in column III of the
December 1978 benefit table in appendix III. Reading across, we find his
recomputed primary insurance amount on the same line in column IV, which
is $407.70. We then apply the 9.9 percent, the 14.3 percent and the 11.2
percent automatic cost-of-living increases for June 1979, June 1980, and
June 1981, respectively, to compute Mr. B's primary insurance amount of
$569.60.
(f) Guaranteed alternatives. We may recompute your primary insurance
amount by any of the following methods for which you qualify, if doing
so would result in a higher amount than the one computed under the
average-indexed-monthly-earnings method. Earnings in or after the year
you reach age 62 cannot be used.
(1) If you reached age 62 after 1978 and before 1984, we may
recompute to include earnings for years before the year you reached age
62 by using the guaranteed alternative (Sec. 404.231). We will increase
the result by any cost-of-living or ad hoc increases in the primary
insurance amounts that have become effective in and after the year you
reached age 62.
(2) We will also recompute under the old-start guarantee (Sec.
404.242) and the prior-disability guarantee (Sec. 404.252) if you meet
the requirements of either or both these methods.
[47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987]
Sec. 404.285 Recomputations performed automatically.
Each year, we examine the earnings record of every retired,
disabled, and deceased worker to see if the worker's primary insurance
amount may be recomputed under any of the methods we have described.
When a recomputation is called for, we perform it automatically and
begin paying the higher benefits based on your recomputed primary
insurance amount for the earliest possible month that the recomputation
can be effective. You do not have to request this service, although you
may request a recomputation at an earlier
[[Page 98]]
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. 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
Sec. Sec. 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.
[[Page 99]]
(b) Unlike recomputations, which may only serve to increase your
primary insurance amount, recalculations may serve to either increase or
reduce it.
Sec. Appendixes to Subpart C of Part 404--Note
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 Sec. Sec.
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]
Sec. 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]
[[Page 100]]
Sec. Appendix II to Subpart C of Part 404--Benefit Formulas Used With
Average Indexed Monthly Earnings
As explained in Sec. 404.212, we use one of the formulas below to
compute your primary insurance amount from your average indexed monthly
earnings (AIME). To select the appropriate formula, we find in the left-
hand column the year after 1978 in which you reach age 62, or become
disabled, or die before age 62. The benefit formula to be used in
computing your primary insurance amount is on the same line in the
right-hand columns. For example, if you reach age 62 or become disabled
or die before age 62 in 1979, then we compute 90 percent of the first
$180 of AIME, 32 percent of the next $905 of AIME, and 15 percent of
AIME over $1,085. After we figure your amount for each step in the
formula, we add the amounts. If the total is not already a multiple of
$0.10, we round the total as follows:
(1) For computations using the benefit formulas in effect for 1979
through 1982, we round the total upward to the nearest $0.10, and
(2) For computations using the benefit formulas in effect for 1983
and later, we round the total downward to the nearest $0.10.
Benefit Formulas
------------------------------------------------------------------------
90 plus 32 plus 15
percent percent percent
Year you reach age 62 \1\ of the of the of AIME
first-- next-- over--
------------------------------------------------------------------------
1979..................................... $180 $905 $1,085
1980..................................... 194 977 1,171
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]
Sec. Appendix III to Subpart C of Part 404--Benefit Table
This benefit table shows primary insurance amounts and maximum
family benefits in effect in December 1978 based on cost-of-living
increases which became effective for June 1978. (See Sec. 404.403 for
information on maximum family benefits.) You will also be able to find
primary insurance amounts for an individual whose entitlement began in
the period June 1977 through May 1978.
The benefit table in effect in December 1978 had a minimum primary
insurance amount of $121.80. As explained in Sec. 404.222(b), certain
workers eligible, or who died without having been eligible, before 1982
had their benefit computed from this table. However, the minimum benefit
provision was repealed for other workers by the 1981 amendments to the
Act (the Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35 as
modified by Pub. L. 97-123). As a result, this benefit table includes a
downward extension from the former minimum of $121.80 to the lowest
primary insurance amount now possible. The extension is calculated as
follows. For each single dollar of average monthly wage in the benefit
table, the primary insurance amount shown for December 1978 is $121.80
multiplied by the ratio of that average monthly wage to $76. The upper
limit of each primary insurance benefit range in column I of the table
is $16.20 multiplied by the ratio of the average monthly wage in column
III of the table to $76. The maximum family benefit is 150 percent of
the corresponding primary insurance amount.
The repeal of the minimum benefit provision is effective with
January 1982 for most workers and their families where the worker
initially becomes eligible for benefits after 1981 or dies after 1981
without having been eligible before January 1982. For members of a
religious order who are required to take a vow of poverty, as explained
in 20 CFR 404.1024, and which religious order elected Social Security
coverage before December 29, 1981, the repeal is effective with January
1992 based on first eligibility or death in that month or later.
To use this table, you must first compute the primary insurance
benefit (column I) or the average monthly wage (column III), then move
across the same line to either column II or column IV as appropriate. To
determine increases in primary insurance amounts since December 1978 you
should see appendix VI. Appendix VI tells you, by year, the percentage
of the increases. In applying each cost-of-living increase to primary
insurance amounts, we round the increased primary insurance amount to
the next lower multiple of $0.10 if not already a multiple of $0.10.
(For cost-of-living increases which are effective before June 1982, we
round to the next higher multiple of $0.10.)
[[Page 101]]
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
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
[[Page 102]]
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
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
[[Page 103]]
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
......... 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
[[Page 104]]
......... 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
......... 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
[[Page 105]]
......... 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
......... 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
[[Page 106]]
......... 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
......... 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
[[Page 107]]
......... 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
------------------------------------------------------------------------
[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]
Sec. Appendix IV to Subpart C of Part 404--Earnings Needed for a Year of
Coverage After 1950
Minimum Social Security Earnings to Qualify for a Year of Coverage After
1950 for Purposes of the--
------------------------------------------------------------------------
Special Benefit
minimum computations
Year primary described in
insurance section
amount 404.213(d) \2\
------------------------------------------------------------------------
1951-1954................................. $900 $900
1955-1958................................. 1,050 1,050
1959-1965................................. 1,200 1,200
1966-1967................................. 1,650 1,650
1968-1971................................. 1,950 1,950
1972...................................... 2,250 2,250
1973...................................... 2,700 2,700
1974...................................... 3,300 3,300
1975...................................... 3,525 3,525
1976...................................... 3,825 3,825
1977...................................... 4,125 4,125
1978...................................... 4,425 4,425
1979...................................... 4,725 4,725
1980...................................... 5,100 5,100
1981...................................... 5,550 5,550
1982...................................... 6,075 6,075
1983...................................... 6,675 6,675
1984...................................... 7,050 7,050
1985...................................... 7,425 7,425
1986...................................... 7,875 7,875
1987...................................... 8,175 8,175
1988...................................... 8,400 8,400
1989...................................... 8,925 8,925
1990...................................... 9,525 9,525
1991...................................... 5,940 9,900
1992...................................... 6,210 10,350
------------------------------------------------------------------------
\2\ Applies only to certain individuals with pensions from noncovered
employment.
Note: For 1951-78, the amounts shown are 25 percent of the
contribution and benefit base (the contribution and benefit base is the
same as the annual wage limitation as shown in Sec. 404.1047) in
effect. For years after 1978, however, the amounts are 25 percent of
what the contribution and benefit base would have been if the 1977
Social Security Amendments had not been enacted, except, for special
minimum benefit purposes, the applicable percentage is 15 percent for
years after 1990.
[57 FR 44096, Sept. 24, 1992]
[[Page 108]]
Sec. Appendix V to Subpart C of Part 404--Computing the Special Minimum
Primary Insurance Amount and Related Maximum Family Benefits
These tables are based on section 215(a)(1)(C)(i) of the Social
Security Act, as amended. They include the percent cost-of-living
increase shown in appendix VI for each effective date.
June 1979
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $12.70 $19.10
12.............................................. 25.30 38.00
13.............................................. 38.00 57.00
14.............................................. 50.60 75.90
15.............................................. 63.20 94.90
16.............................................. 75.90 113.90
17.............................................. 88.50 132.80
18.............................................. 101.20 151.80
19.............................................. 113.80 170.70
20.............................................. 126.40 189.60
21.............................................. 139.10 208.70
22.............................................. 151.70 227.60
23.............................................. 164.40 246.60
24.............................................. 177.00 265.50
25.............................................. 189.60 284.50
26.............................................. 202.30 303.50
27.............................................. 214.90 322.40
28.............................................. 227.50 341.30
29.............................................. 240.20 360.30
30.............................................. 252.80 379.20
------------------------------------------------------------------------
June 1980
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $14.60 $21.90
12.............................................. 29.00 43.50
13.............................................. 43.50 65.30
14.............................................. 57.90 86.90
15.............................................. 72.30 108.50
16.............................................. 86.80 130.20
17.............................................. 101.20 151.80
18.............................................. 115.70 173.60
19.............................................. 130.10 195.20
20.............................................. 144.50 216.80
21.............................................. 159.00 238.60
22.............................................. 173.40 260.20
23.............................................. 188.00 282.00
24.............................................. 202.40 303.60
25.............................................. 216.80 325.20
26.............................................. 231.30 347.00
27.............................................. 245.70 368.60
28.............................................. 260.10 390.20
29.............................................. 274.60 411.90
30.............................................. 289.00 433.50
------------------------------------------------------------------------
June 1981
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefits
------------------------------------------------------------------------
11.............................................. $16.30 $24.50
12.............................................. 32.30 48.50
13.............................................. 48.40 72.70
14.............................................. 64.40 96.70
15.............................................. 80.40 120.70
16.............................................. 96.60 144.90
17.............................................. 112.60 168.90
18.............................................. 128.70 193.10
19.............................................. 144.70 217.10
20.............................................. 160.70 241.10
21.............................................. 176.90 265.40
22.............................................. 192.90 289.40
23.............................................. 209.10 313.70
24.............................................. 225.10 337.70
25.............................................. 241.10 361.70
26.............................................. 257.30 386.00
27.............................................. 273.30 410.00
28.............................................. 289.30 434.00
29.............................................. 305.40 458.10
30.............................................. 321.40 482.10
------------------------------------------------------------------------
June 1982
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $17.50 $26.30
12.............................................. 34.60 52.00
13.............................................. 51.90 78.00
14.............................................. 69.10 103.80
15.............................................. 86.30 129.60
16.............................................. 103.70 155.60
17.............................................. 120.90 181.30
18.............................................. 138.20 207.30
19.............................................. 155.40 233.10
20.............................................. 172.50 258.90
21.............................................. 189.90 285.00
22.............................................. 207.10 310.80
23.............................................. 224.50 336.90
24.............................................. 241.70 362.60
25.............................................. 258.90 388.40
26.............................................. 276.30 414.50
27.............................................. 293.50 440.30
28.............................................. 310.70 466.10
29.............................................. 327.90 491.90
30.............................................. 345.10 517.70
------------------------------------------------------------------------
December 1983
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $18.10 $27.20
12.............................................. 35.80 53.80
13.............................................. 53.70 80.70
14.............................................. 71.50 107.40
15.............................................. 89.30 134.10
16.............................................. 107.30 161.00
17.............................................. 125.10 187.60
18.............................................. 143.00 214.50
19.............................................. 160.80 241.20
20.............................................. 178.50 267.90
21.............................................. 196.50 294.90
22.............................................. 214.30 321.60
23.............................................. 232.30 348.60
24.............................................. 250.10 375.20
25.............................................. 267.90 401.90
26.............................................. 285.90 429.00
[[Page 109]]
27.............................................. 303.70 455.70
28.............................................. 321.50 482.40
29.............................................. 339.30 509.10
30.............................................. 357.10 535.80
------------------------------------------------------------------------
December 1984
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $18.70 $28.10
12.............................................. 37.00 55.60
13.............................................. 55.50 83.50
14.............................................. 74.00 111.10
15.............................................. 92.40 138.70
16.............................................. 111.00 166.60
17.............................................. 129.40 194.10
18.............................................. 148.00 222.00
19.............................................. 166.40 249.60
20.............................................. 184.70 277.20
21.............................................. 203.30 305.20
22.............................................. 221.80 332.80
23.............................................. 240.40 360.80
24.............................................. 258.80 388.30
25.............................................. 277.20 415.90
26.............................................. 295.90 444.00
27.............................................. 314.30 471.60
28.............................................. 332.70 499.20
29.............................................. 351.10 526.90
30.............................................. 369.50 554.50
------------------------------------------------------------------------
December 1985
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $19.20 $28.90
12.............................................. 38.10 57.30
13.............................................. 57.20 86.00
14.............................................. 76.20 114.50
15.............................................. 95.20 142.90
16.............................................. 114.40 171.70
17.............................................. 133.40 200.10
18.............................................. 152.50 228.80
19.............................................. 171.50 257.30
20.............................................. 190.40 285.70
21.............................................. 209.60 314.60
22.............................................. 228.60 343.10
23.............................................. 247.80 371.90
24.............................................. 266.80 400.30
25.............................................. 285.70 428.70
26.............................................. 305.00 457.70
27.............................................. 324.00 486.20
28.............................................. 343.00 514.60
29.............................................. 361.90 543.20
30.............................................. 380.90 571.60
------------------------------------------------------------------------
December 1986
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $19.40 $29.20
12.............................................. 38.50 58.00
13.............................................. 57.90 87.10
14.............................................. 77.10 115.90
15.............................................. 96.40 144.70
16.............................................. 115.80 173.90
17.............................................. 135.10 202.70
18.............................................. 154.40 231.70
19.............................................. 173.70 260.60
20.............................................. 192.80 289.40
21.............................................. 212.30 318.60
22.............................................. 231.50 347.50
23.............................................. 251.00 376.70
24.............................................. 270.20 405.50
25.............................................. 289.40 434.20
26.............................................. 308.90 463.60
27.............................................. 328.20 492.50
28.............................................. 347.40 521.20
29.............................................. 366.60 550.20
30.............................................. 385.80 579.00
------------------------------------------------------------------------
December 1987
------------------------------------------------------------------------
III.
II. Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11............................................ $20.20 $30.40
12............................................ 40.10 60.40
13............................................ 60.30 90.70
14............................................ 80.30 120.70
15............................................ 100.40 150.70
16............................................ 120.60 181.20
17............................................ 140.70 211.20
18............................................ 160.80 241.40
19............................................ 180.90 271.50
20............................................ 200.80 301.50
21............................................ 221.20 331.90
22............................................ 241.20 362.00
23............................................ 261.50 392.50
24............................................ 281.50 422.50
25............................................ 301.50 452.40
26............................................ 321.80 483.00
27............................................ 341.90 513.10
28............................................ 361.90 543.00
29............................................ 381.90 573.30
30............................................ 402.00 603.30
------------------------------------------------------------------------
December 1988
------------------------------------------------------------------------
III.
II. Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11............................................ $21.00 $31.60
12............................................ 41.70 62.80
13............................................ 62.70 94.30
14............................................ 83.50 125.50
15............................................ 104.40 156.70
16............................................ 125.40 188.40
17............................................ 146.30 219.60
18............................................ 167.20 251.00
19............................................ 188.10 282.30
20............................................ 208.80 313.50
21............................................ 230.00 345.10
22............................................ 250.80 376.40
23............................................ 271.90 408.20
24............................................ 292.70 439.40
25............................................ 313.50 470.40
26............................................ 334.60 502.30
27............................................ 355.50 533.60
28............................................ 376.30 564.70
29............................................ 397.10 596.20
[[Page 110]]
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
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]
Sec. Appendix VI to Subpart C of Part 404--Percentage of Automatic
Increases in Primary Insurance Amounts Since 1978
------------------------------------------------------------------------
Percentage
Effective date increase
------------------------------------------------------------------------
06/79...................................................... 9.9
06/80...................................................... 14.3
06/81...................................................... 11.2
06/82...................................................... 7.4
12/83...................................................... 3.5
12/84...................................................... 3.5
12/85...................................................... 3.1
12/86...................................................... 1.3
12/87...................................................... 4.2
12/88...................................................... 4.0
12/89...................................................... 4.7
12/90...................................................... 5.4
12/91...................................................... 3.7
------------------------------------------------------------------------
[57 FR 44097, Sept. 24, 1992]
Sec. Appendix VII to Subpart C of Part 404--``Old-Law'' Contribution and
Benefit Base
Explanation: We use these figures to determine the earnings needed
for a year of coverage for years after 1978 (see Sec. 404.261 and
appendix IV). This is the contribution and benefit base that would have
been effective under the Social Security Act without the enactment of
the 1977 amendments.
------------------------------------------------------------------------
Year Amount
------------------------------------------------------------------------
1979....................................................... $18,900
1980....................................................... 20,400
1981....................................................... 22,200
1982....................................................... 24,300
[[Page 111]]
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, and
702(a)(5) of the Social Security Act (42 U.S.C. 402, 403(a) and (b),
405(a), 416, 423, 425, 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; and
(c) For a worker's survivors, benefits for a worker's widow,
widower, divorced wife, child, and parent, and a lump-sum death payment.
[44 FR 34481, June 15, 1979, as amended at 83 FR 21708, May 10, 2018]
Sec. 404.302 Other regulations related to this subpart.
This subpart is related to several others. Subpart H sets out what
evidence you need to prove you qualify for benefits. Subpart P describes
what is needed to prove you are disabled. Subpart E describes when your
benefits may be reduced or stopped for a time. Subpart G describes the
need for and the effect of an application for benefits. Part 410
describes when you may qualify for black lung benefits. Part 416
describes when you may qualify for supplemental security income. Also 42
CFR part 405 describes when you may qualify for hospital and medical
insurance if you are aged, disabled, or have chronic kidney disease.
Sec. 404.303 Definitions.
As used in this subpart:
Apply means to sign a form or statement that the Social Security
Administration accepts as an application for benefits under the rules
set out in subpart G.
Eligible means that a person would meet all the requirements for
entitlement to benefits for a period of time but has not yet applied.
Entitled means that a person has applied and has proven his or her
right to benefits for a period of time.
Insured person or the insured means someone who has enough earnings
under social security to permit payment of benefits on his or her
earnings record. The requirements for becoming insured are described in
subpart B.
Permanent home means the true and fixed home (legal domicile) of a
person. It is the place to which a person intends to return whenever he
or she is absent.
Primary insurance amount means an amount that is determined from the
average monthly earnings creditable to the insured person. This term and
the manner in which it is computed are explained in subpart C.
We or Us means the Social Security Administration.
You means the person who has applied for benefits or the person for
whom someone else has applied.
Sec. 404.304 What are the general rules on benefit amounts?
This subpart describes how we determine the highest monthly benefit
amount you ordinarily could qualify for under each type of benefit.
However, the highest monthly benefit amount you could qualify for may
not be the amount you will be paid. In a
[[Page 112]]
particular month, your benefit amount may be reduced or not paid at all.
Under some circumstances, your benefit amount may be increased. The most
common reasons for a change in your benefit amount are listed below.
(a) Age. Sections 404.410 through 404.413 explain how your old-age,
wife's or husband's, or widow's or widower's benefits may be reduced if
you choose to receive them before you attain full retirement age (as
defined in Sec. 404.409).
(b) Earnings. Sections 404.415 through 404.418 explain how
deductions will be made from your benefits if your earnings or the
insured person's earnings go over certain limits.
(c) Overpayments and underpayments. Your benefits may be increased
or decreased to make up for any previous overpayment or underpayment
made on the insured person's record. For more information about this,
see subpart F of this part.
(d) Family maximum. Sections 404.403 through 404.406 explain that
there is a maximum amount payable on each insured person's earnings
record. If you are entitled to benefits as the insured's dependent or
survivor, your benefits may be reduced to keep total benefits payable to
the insured's family within these limits.
(e) Government pension offset. If you are entitled to wife's,
husband's, widow's, widower's, mother's, or father's benefits and
receive a Government pension for work that was not covered under Social
Security, your monthly benefits may be reduced because of that pension.
For more information about this, see Sec. 404.408a, which covers
reductions for Government pensions.
(f) Rounding. After all other deductions or reductions, we reduce
any monthly benefit that is not a multiple of $1 to the next lower
multiple of $1.
[68 FR 4702, Jan. 30, 2003, as amended at 83 FR 21708, May 10, 2018]
Sec. 404.305 When you may not be entitled to benefits.
In addition to the situations described in Sec. 404.304 when you
may not receive a benefit payment, there are special circumstances when
you may not be entitled to benefits. These circumstances are--
(a) Waiver of benefits. If you have waived benefits and been granted
a tax exemption on religious grounds as described in Sec. Sec. 404.1039
and 404.1075, no one may become entitled to any benefits or payments on
your earnings record and you may not be entitled to benefits on anyone
else's earnings record; and
(b) Person's death caused by an intentional act. You may not become
entitled to or continue to receive any survivor's benefits or payments
on the earnings record of any person, or receive any underpayment due a
person, if you were convicted of a felony or an act in the nature of a
felony of intentionally causing that person's death. If you were subject
to the juvenile justice system, you may not become entitled to or
continue to receive survivor's benefits or payments on the earnings
record of any person, or receive any underpayment due a person, if you
were found by a court of competent jurisdiction to have intentionally
caused that person's death by committing an act which, if committed by
an adult, would have been considered a felony or an act in the nature of
a felony.
[44 FR 34481, June 15, 1979, as amended at 47 FR 42098, Sept. 24, 1982;
52 FR 19136, May 21, 1987, 52 FR 21410, June 5, 1987; 58 FR 64888, Dec.
10, 1993]
Old-Age and Disability Benefits
Sec. 404.310 When am I entitled to old-age benefits?
We will find you entitled to old-age benefits if you meet the
following three conditions:
(a) You are at least 62 years old;
(b) You have enough social security earnings to be fully insured as
defined in Sec. Sec. 404.110 through 404.115; and
(c) You apply; or you are entitled to disability benefits up to the
month you attain full retirement age (as defined in Sec. 404.409). When
you attain full retirement age, your disability benefits automatically
become old-age benefits.
[68 FR 4702, Jan. 30, 2003]
Sec. 404.311 When does my entitlement to old-age benefits begin and end?
(a) We will find you entitled to old-age benefits beginning with:
(1) If you have attained full retirement age (as defined in Sec.
404.409), the
[[Page 113]]
first month covered by your application in which you meet all
requirements for entitlement; or
(2) If you have attained age 62, but have not attained full
retirement age (as defined in Sec. 404.409), the first month covered by
your application throughout which you meet all requirements for
entitlement.
(b) We will find your entitlement to old-age benefits ends with the
month before the month you die.
[68 FR 4702, Jan. 30, 2003]
Sec. 404.312 How is my old-age benefit amount calculated?
(a) If your old-age benefits begin in the month you attain full
retirement age (as defined in Sec. 404.409), your monthly benefit is
equal to the primary insurance amount (as explained in subpart C of this
part).
(b) If your old-age benefits begin after the month you attain full
retirement age, your monthly benefit is your primary insurance amount
plus an increase for retiring after full retirement age. See Sec.
404.313 for a description of these increases.
(c) If your old-age benefits begin before the month you attain full
retirement age, your monthly benefit amount is the primary insurance
amount minus a reduction for each month you are entitled before you
attain full retirement age. These reductions are described in Sec. Sec.
404.410 through 404.413.
[68 FR 4702, Jan. 30, 2003]
Sec. 404.313 What are delayed retirement credits and how do they
increase my old-age benefit amount?
(a) What are delayed retirement credits and how do I earn them?
Delayed retirement credits (DRCs) are credits we use to increase the
amount of your old-age benefit amount. You may earn a credit for each
month during the period beginning with the month you attain full
retirement age (as defined in Sec. 404.409) and ending with the month
you attain age 70 (72 before 1984). You earn a credit for each month for
which you are fully insured and eligible but do not receive an old-age
benefit either because you do not apply for benefits or because you
elect to voluntarily suspend your benefits to earn DRCs. Even if you
were entitled to old-age benefits before full retirement age you may
still earn DRCs for months during the period from full retirement age to
age 70, if you voluntarily elect to suspend those benefits. If we have
determined that you are entitled to benefits, you may voluntarily
suspend benefits for any month beginning with the month after the month
in which you voluntarily request that we suspend your benefits. If you
apply for benefits, and we have not made a determination that you are
entitled to benefits, you may voluntarily have your benefits suspended
for any month for which you have not received a payment.
(b) How is the amount of the increase because of delayed retirement
credits computed?--(1) Computation of the increase amount. The amount of
the increase depends on your date of birth and the number of credits you
earn. We total the number of credits (which need not be consecutive) and
multiply that number by the applicable percentage from paragraph (b)(2)
of this section. We then multiply the result by your benefit amount and
round the answer to the next lower multiple of 10 cents (if the answer
is not already a multiple of 10 cents). We add the result to your
benefit amount. If a supplementary medical insurance premium is involved
it is then deducted. The result is rounded to the next lower multiple of
$1 (if the answer is not already a multiple of $1).
(2) Credit percentages. The applicable credit amount for each month
of delayed retirement can be found in the table below.
------------------------------------------------------------------------
The credit for each month you delay
If your date of birth is: retirement is:
------------------------------------------------------------------------
Before 1/2/1917............... \1/12\ of 1%
1/2/1917--1/1/1925............ \1/4\ of 1%
1/2/1925--1/1/1927............ \7/24\ of 1%
1/2/1927--1/1/1929............ \1/3\ of 1%
1/2/1929--1/1/1931............ \3/8\ of 1%
1/2/1931--1/1/1933............ \5/12\ of 1%
1/2/1933--1/1/1935............ \11/24\ of 1%
1/2/1935--1/1/1937............ \1/2\ of 1%
1/2/1937--1/1/1939............ \13/24\ of 1%
1/2/1939--1/1/1941............ \7/12\ of 1%
1/2/1941--1/1/1943............ \5/8\ of 1%
After 1/1/1943................ \2/3\ of 1%
------------------------------------------------------------------------
Example: Alan was qualified for old-age benefits when he reached age
65 on January 15, 1998. He decided not to apply for old-age
[[Page 114]]
benefits immediately because he was still working. When he became age 66
in January 1999, he stopped working and applied for benefits beginning
with that month. Based on his earnings, his primary insurance amount was
$782.60. However, because he did not receive benefits immediately upon
attainment of full retirement age (65), he is due an increase based on
his delayed retirement credits. He earned 12 credits, one for each month
from January 1998 through December 1998. Based on his date of birth of
1/15/1933 he is entitled to a credit of \11/24\ of one percent for each
month of delayed retirement. 12 credits multiplied by \11/24\ of one
percent equals a credit of 5.5 percent. 5.5% of the primary insurance
amount of $782.60 is $43.04 which is rounded to $43.00, the next lower
multiple of 10 cents. $43.00 is added to the primary insurance amount,
$782.60. The result, $825.60 is the monthly benefit amount. If a
supplementary medical insurance premium is involved it is then deducted.
The result is rounded to the next lower multiple of $1 (if the answer is
not already a multiple of $1).
(c) When is the increase because of delayed retirement credits
effective?--(1) Credits earned after entitlement and before the year of
attainment of age 70. If you are entitled to benefits, we examine our
records after the end of each calendar year to determine whether you
have earned delayed retirement credits during the previous year for
months when you were at or over full retirement age and you were fully
insured and eligible for benefits but did not receive them. Any increase
in your benefit amount is effective beginning with January of the year
after the year the credits were earned.
(2) Credits earned after entitlement in the year of attainment of
age 70. If you are entitled to benefits in the month you attain age 70,
we examine our records to determine if you earned any additional delayed
retirement credits during the calendar year in which you attained age
70. Any increase in your benefit amount is effective beginning with the
month you attained age 70.
(3) Credits earned prior to entitlement. If you are full retirement
age or older and eligible for old-age benefits but do not apply for
benefits, your delayed retirement credits for months from the month of
attainment of full retirement age through the end of the year prior to
the year of filing will be included in the computation of your initial
benefit amount. Credits earned in the year you attain age 70 will be
added in the month you attain age 70.
(d) How do delayed retirement credits affect the special minimum
primary insurance amount? We do not add delayed retirement credits to
your old-age benefit if your benefit is based on the special minimum
primary insurance amount described in Sec. 404.260. We add the delayed
retirement credits only to your old-age benefit based on your regular
primary insurance amount, i.e. as computed under one of the other
provisions of subpart C of this part. If your benefit based on the
regular primary insurance amount plus your delayed retirement credits is
higher than the benefit based on your special minimum primary insurance
amount, we will pay the higher amount to you. However, if the special
minimum primary insurance amount is higher than the regular primary
insurance amount without the delayed retirement credits, we will use the
special minimum primary insurance amount to determine the family maximum
and the benefits of others entitled on your earnings record.
(e) What is the effect of my delayed retirement credits on the
benefit amount of others entitled on my earnings record?--(1) Surviving
spouse or surviving divorced spouse. If you earn delayed retirement
credits during your lifetime, we will compute benefits for your
surviving spouse or surviving divorced spouse based on your regular
primary insurance amount plus the amount of those delayed retirement
credits. All delayed retirement credits, including any earned during the
year of death, can be used in computing the benefit amount for your
surviving spouse or surviving divorced spouse beginning with the month
of your death. We compute delayed retirement credits up to but not
including the month of death.
(2) Other family member. We do not use your delayed retirement
credits to increase the benefits of other family members entitled on
your earnings record.
(3) Family maximum. We add delayed retirement credits to your
benefit after we compute the family maximum. However, we add delayed
retirement credits to your surviving spouse's or
[[Page 115]]
surviving divorced spouse's benefit before we reduce for the family
maximum.
[68 FR 4703, Jan. 30, 2003, as amended at 75 FR 76259, Dec. 8, 2010]
Sec. 404.315 Who is entitled to disability benefits?
(a) General. You are entitled to disability benefits while disabled
before attaining full retirement age as defined in Sec. 404.409 if--
(1) You have enough social security earnings to be insured for
disability, as described in Sec. 404.130;
(2) You apply;
(3) You have a disability, as defined in Sec. 404.1505, or you are
not disabled, but you had a disability that ended within the 12-month
period before the month you applied; and
(4) You have been disabled for 5 full consecutive months or no
waiting period is required. The 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:
(i) 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; or
(ii) You have been medically determined to have amyotrophic lateral
sclerosis, and we approved your application for disability insurance
benefits on or after July 23, 2020.
(b) Prohibition against reentitlement to disability benefits if drug
addiction or alcoholism is a contributing factor material to the
determination of disability. You cannot be entitled to a period of
disability payments if drug addiction or alcoholism is a contributing
factor material to the determination of disability and your earlier
entitlement to disability benefits on the same basis terminated after
you received benefits for 36 months during which treatment was
available.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21930, May 16, 1983; 51
FR 10616, Mar. 28, 1986; 51 FR 16166, May 1, 1986; 53 FR 43681, Oct. 28,
1988; 57 FR 30119, July 8, 1992; 60 FR 8145, Feb. 10, 1995; 68 FR 4704,
Jan. 30, 2003; 86 FR 48021, Aug. 27, 2021]
Sec. 404.316 When entitlement to disability benefits begins and ends.
(a) You are entitled to disability benefits beginning with the first
month covered by your application in which you meet all the other
requirements for entitlement. If a waiting period is required, your
benefits cannot begin earlier than the first month following that
period.
(b) Your entitlement to disability benefits ends with the earliest
of these months:
(1) The month before the month of your death;
(2) The month before the month you attain full retirement age as
defined in Sec. 404.409 (at full retirement age your disability
benefits will be automatically changed to old-age benefits);
(3) The second month after the month in which your disability ends
as provided in Sec. 404.1594(b)(1), unless continued subject to
paragraph (c); or (4) subject to the provisions of paragraph (d) of this
section, the month before your termination month (Sec. 404.325).
(c)(1) Your benefits, and those of your dependents, may be continued
after your impairment is no longer disabling if--
(i) You are participating in an appropriate program of vocational
rehabilitation services, employment services, or other support services,
as described in Sec. 404.327(a) and (b);
(ii) You began participating in the program before the date your
disability ended; and
(iii) We have determined under Sec. 404.328 that your completion of
the program, or your continuation in the program for a specified period
of time, will increase the likelihood that you will not have to return
to the disability benefit rolls.
(2) We generally will stop your benefits with the earliest of these
months--
(i) The month in which you complete the program; or
[[Page 116]]
(ii) The month in which you stop participating in the program for
any reason (see Sec. 404.327(b) for what we mean by ``participating''
in the program); or
(iii) The month in which we determine under Sec. 404.328 that your
continuing participation in the program will no longer increase the
likelihood that you will not have to return to the disability benefit
rolls.
Exception to paragraph (c): In no case will we stop your benefits
with a month earlier than the second month after the month your
disability ends, provided that you meet all other requirements for
entitlement to and payment of benefits through such month.
(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 more
than 36 months regardless of the number of entitlement periods you may
have. Not included in these 36 months are months in which treatment for
your drug addiction or alcoholism is not available, months before March
1995, and months for which your benefit payments were suspended for any
reason. Benefits to your dependents may continue after the 36 months of
benefits if, but for the operation of this paragraph, you would
otherwise be entitled to benefits based on disability. The 36-month
limit is no longer effective for benefits for months beginning after
September 2004.
(f) If drug addiction or alcoholism is a contributing factor
material to the determination of disability as described in Sec.
404.1535 and your disability benefits are suspended for 12 consecutive
months because of your failure to comply with treatment requirements,
your disability benefits will be terminated effective the first month
after such 12-month period. Benefits to your dependents may continue
after the 12-month period if, but for the operation of this paragraph,
you would otherwise be entitled to benefits based on disability.
[44 FR 34481, June 15, 1979, as amended at 47 FR 31542, July 21, 1982;
47 FR 52693, Nov. 23, 1982; 49 FR 22270, May 29, 1984; 51 FR 17617, May
14, 1986; 60 FR 8145, Feb. 10, 1995; 68 FR 4704, Jan. 30, 2003; 70 FR
36505, June 24, 2005]
Sec. 404.317 How is the amount of my disability benefit calculated?
Your monthly benefit is equal to the primary insurance amount (PIA).
This amount is computed under the rules in subpart C of this part as if
it was an old-age benefit, and as if you were 62 years of age at the
beginning of the 5-month waiting period mentioned in Sec. 404.315(a).
If the 5-month waiting period is not required because of your previous
entitlement, your PIA is figured as if you were 62 years old when you
become entitled to benefits this time. If the 5-month waiting period is
not required because you have been medically determined to have
amyotrophic lateral sclerosis (see Sec. 404.315), your PIA is figured
as if you were 62 years old when you become entitled to benefits. Your
monthly benefit amount may be reduced if you receive workers'
compensation or public disability payments before you attain full
retirement age (as defined in Sec. 404.409) (see Sec. 404.408). Your
benefits may also be reduced if you were entitled to other retirement-
age benefits before you attained full retirement age (as defined in
Sec. 404.409).
[68 FR 4704, Jan. 30, 2003, as amended at 81 FR 10033, Apr. 4, 2016; 86
FR 48021, Aug. 27, 2021]
[[Page 117]]
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
calendar quarter after your disability began in which you become insured
for disability. Your period of disability may not begin after you have
attained full retirement age as defined in Sec. 404.409.
(b) When disability ended before December 1, 1980. Your period of
disability ends on the last day of the month before the month in which
you become 65 years old or, if earlier, the last day of the second month
following the month in which your disability ended.
(c) When disability ends after November 1980. Your period of
disability ends with the close of whichever of the following is the
earliest--
(1) The month before the month in which you attain full retirement
age as defined in Sec. 404.409.
(2) The month immediately preceding your termination month (Sec.
404.325); or
(3) If you perform substantial gainful activity during the
reentitlement period described in Sec. 404.1592a, the last month for
which you received benefits.
(d) When drug addiction or alcoholism is a contributing factor
material to the determination of disability. (1) Your entitlement to
receive disability benefit payments ends the month following the month
in which, regardless of the number of entitlement periods you may have
had based on disability where drug addiction or alcoholism is a
contributing factor material to the determination of disability (as
described in Sec. 404.1535)--
(i) You have received a total of 36 months of disability benefits.
Not included in these 36 months are months in which treatment for your
drug addiction or alcoholism is not available, months before March 1995,
and months for which your benefits were suspended for any reason; or
(ii) Your benefits have been suspended for 12 consecutive months
because of your failure to comply with treatment requirements.
(2) For purposes other than payment of your disability benefits,
your period of disability continues until the termination month as
explained in Sec. 404.325.
[49 FR 22271, May 29, 1984, as amended at 60 FR 8145, Feb. 10, 1995; 65
FR 42782, July 11, 2000; 68 FR 4704, Jan. 30, 2003]
Sec. 404.322 When you may apply for a period of disability after a
delay due to a physical or mental condition.
If because of a physical or mental condition you did not apply for a
period of disability within 12 months after your period of disability
ended,
[[Page 118]]
you may apply not more than 36 months after the month in which your
disability ended. Your failure to apply within the 12-month time period
will be considered due to a physical or mental condition if during this
time--
(a) Your physical condition limited your activities to such an
extent that you could not complete and sign an application; or
(b) You were mentally incompetent.
Sec. 404.325 The termination month.
If you do not have a disabling impairment, your termination month is
the third month following the month in which your impairment is not
disabling even if it occurs during the trial work period or the
reentitlement period. If you continue to have a disabling impairment and
complete 9 months of trial work, your termination month will be the
third month following the earliest month you perform substantial gainful
activity or are determined able to perform substantial gainful activity;
however, in no event will the termination month under these
circumstances be earlier than the first month after the end of the
reentitlement period described in Sec. 404.1592a.
Example 1: You complete your trial work period in December 1999. You
then work at the substantial gainful activity level and continue to do
so throughout the 36 months following completion of your trial work
period and thereafter. Your termination month will be January 2003,
which is the first month in which you performed substantial gainful
activity after the end of your 36-month reentitlement period. This is
because, for individuals who have disabling impairments (see Sec.
404.1511) and who work, the termination month cannot occur before the
first month after the end of the 36-month reentitlement period.
Example 2: You complete your trial work period in December 1999, but
you do not do work showing your ability to do substantial gainful
activity during your trial work period or throughout your 36-month
reentitlement period. In April 2003, 4 months after your reentitlement
period ends, you become employed at work that we determine is
substantial gainful activity, considering all of our rules in Sec. Sec.
404.1574 and 404.1574a. Your termination month will be July 2003; that
is, the third month after the earliest month you performed substantial
gainful activity.
[65 FR 42782, July 11, 2000]
Rules Relating to Continuation of Benefits After Your Impairment Is No
Longer Disabling
Source: 70 FR 36505, June 24, 2005, unless otherwise noted.
Sec. 404.327 When you are participating in an appropriate program of
vocational rehabilitation services, employment services, or other support
services.
(a) What is an appropriate program of vocational rehabilitation
services, employment services, or other support services? An appropriate
program of vocational rehabilitation services, employment services, or
other support services means--
(1) A program that is carried out under an individual work plan with
an employment network under the Ticket to Work and Self-Sufficiency
Program under part 411 of this chapter;
(2) A program that is carried out under an individualized plan for
employment with--
(i) A State vocational rehabilitation agency (i.e., a State agency
administering or supervising the administration of a State plan approved
under title I of the Rehabilitation Act of 1973, as amended (29 U.S.C.
720-751) under 34 CFR part 361; or
(ii) An organization administering a Vocational Rehabilitation
Services Project for American Indians with Disabilities authorized under
section 121 of part C of title I of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 741);
(3) A program of vocational rehabilitation services, employment
services, or other support services that is carried out under a similar,
individualized written employment plan with--
(i) An agency of the Federal Government (for example, the Department
of Veterans Affairs);
(ii) A one-stop delivery system or specialized one-stop center
described in section 134(c) of the Workforce Investment Act of 1998 (29
U.S.C. 2864(c)); or
(iii) Another provider of services approved by us; providers we may
approve include, but are not limited to--
(A) A public or private organization with expertise in the delivery
or coordination of vocational rehabilitation services, employment
services, or other support services; or
[[Page 119]]
(B) A public, private or parochial school that provides or
coordinates a program of vocational rehabilitation services, employment
services, or other support services carried out under an individualized
program or plan;
(4) An individualized education program developed under policies and
procedures approved by the Secretary of Education for assistance to
States for the education of individuals with disabilities under the
Individuals with Disabilities Education Act, as amended (20 U.S.C. 1400
et seq.); you must be age 18 through age 21 for this provision to apply.
(b) When are you participating in the program? (1) You are
participating in a program described in paragraph (a)(1), (a)(2), or
(a)(3) of this section when you are taking part in the activities and
services outlined in your individual work plan, your individualized plan
for employment, or your similar individualized written employment plan,
as appropriate.
(2) If you are a student age 18 through 21 receiving services under
an individualized education program described in paragraph (a)(4) of
this section, you are participating in your program when you are taking
part in the activities and services outlined in your program or plan.
(3) You are participating in your program under paragraph (b)(1) or
(2) of this section during temporary interruptions in your program. For
an interruption to be considered temporary, you must resume taking part
in the activities and services outlined in your plan or program, as
appropriate, no more than three months after the month the interruption
occurred.
Sec. 404.328 When your completion of the program, or your continuation
in the program for a specified period of time, will increase the likelihood
that you will not have to return to the disability benefit rolls.
(a) We will determine that your completion of the program, or your
continuation in the program for a specified period of time, will
increase the likelihood that you will not have to return to the
disability benefit rolls if your completion of or your continuation in
the program will provide you with--
(1) Work experience (see Sec. 404.1565) so that you would more
likely be able to do past relevant work (see Sec. 404.1560(b)), despite
a possible future reduction in your residual functional capacity (see
Sec. 404.1545); or
(2) Education (see Sec. 404.1564) and/or skilled or semi-skilled
work experience (see Sec. 404.1568) so that you would more likely be
able to adjust to other work that exists in the national economy (see
Sec. 404.1560(c)), despite a possible future reduction in your residual
functional capacity (see Sec. 404.1545).
(b) If you are a student age 18 through age 21 participating in an
individualized education program described in Sec. 404.327(a)(4), we
will find that your completion of or continuation in the program will
increase the likelihood that you will not have to return to the
disability benefit rolls.
(c) If you are receiving transition services after having completed
an individualized education program as described in paragraph (b) of
this section, we will determine that the transition services will
increase the likelihood that you will not have to return to the
disability benefit rolls if they meet the requirements in Sec.
404.328(a).
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 Sec. Sec. 404.345 through 404.346 and one of the following
conditions is met:
(1) Your relationship to the insured as a wife or husband has lasted
at least 1 year. (You will be considered to meet the 1-year duration
requirement throughout the month in which the first anniversary of the
marriage occurs.)
(2) You and the insured are the natural parents of a child; or
(3) In the month before you married the insured you were entitled
to, or if you had applied and been old enough you could have been
entitled to, any of
[[Page 120]]
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 Sec. Sec. 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 other person is someone entitled to benefits as a wife,
husband, widow, widower, father, mother, parent or disabled child. Your
benefits will end if you remarry the insured who is not yet entitled to
old-age benefits.
(4) If you are under age 62, there is no longer a child of the
insured who is under age 16 or disabled and entitled to child's benefits
on the insured's earnings record. (See paragraph (c) of this section if
you were entitled to wife's or husband's benefits for August 1981 on the
basis of having a child in care.) (If
[[Page 121]]
you no longer have in your care a child who is under age 16 or disabled
and entitled to child's benefits on the insured's earnings record, your
benefits may be subject to deductions as provided in Sec. 404.421.)
(5) The insured person dies or is no longer entitled to old age or
disability benefits. Exception: Your benefits will continue if the
insured person was entitled to disability benefits based on a finding
that drug addiction or alcoholism was a contributing factor material to
the determination of his or her disability (as described in Sec.
404.1535), the insured person's benefits ended after 36 months of
benefits (see Sec. 404.316(e)) or 12 consecutive months of suspension
for noncompliance with treatment (see Sec. 404.316(f)), and but for the
operation of these provisions, the insured person would remain entitled
to benefits based on disability.
(6) If your benefits are based upon a deemed valid marriage and you
have not divorced the insured, you marry someone other than the insured.
(7) You die.
(8) You became entitled as the divorced wife or the divorced husband
before the insured person became entitled, but he or she is no longer
insured.
(c) If you were entitled to wife's or husband's benefits for August
1981 on the basis of having a child in care, your entitlement will
continue until September 1983, until the child reaches 18 (unless
disabled) or is otherwise no longer entitled to child's benefits, or
until one of the events described in paragraph (b) (1), (2), (3), (5),
(6) or (7) of this section occurs, whichever is earliest.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21926, May 16, 1983; 49
FR 24115, June 12, 1984; 51 FR 11911, Apr. 8, 1986; 58 FR 64891, Dec.
10, 1993; 60 FR 8145, Feb. 10, 1995; 64 FR 14608, Mar. 26, 1999]
Sec. 404.333 Wife's and husband's benefit amounts.
Your wife's or husband's monthly benefit is equal to one-half the
insured person's primary insurance amount. If you are entitled as a
divorced wife or as a divorced husband before the insured person becomes
entitled, we will compute the primary insurance amount as if he or she
became entitled to old-age benefits in the first month you are entitled
as a divorced wife or as a divorced husband. The amount of your monthly
benefit may change as explained in Sec. 404.304.
[51 FR 11912, Apr. 8, 1986]
Sec. 404.335 How do I become entitled to widow's or widower's benefits?
We will find you entitled to benefits as the widow or widower of a
person who died fully insured if you meet the requirements in paragraphs
(a) through (e) of this section:
(a) You are the insured's widow or widower based upon a relationship
described in Sec. Sec. 404.345 through 404.346, and you meet one of the
conditions in paragraphs (a)(1) through (4) of this section:
(1) Your relationship to the insured as a wife or husband lasted for
at least 9 months immediately before the insured died.
(2) Your relationship to the insured as a wife or husband did not
last 9 months before the insured died, but you meet one of the
conditions in paragraphs (a)(2)(i) through (iv) of this section.
(i) At the time of your marriage the insured was reasonably expected
to live for 9 months, and the death of the insured was accidental. The
death is accidental if it was caused by an event that the insured did
not expect, if it was the result of bodily injuries received from
violent and external causes, and if, 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) At the time of your marriage the insured was reasonably
expected to live for 9 months, and the death of the insured occurred in
the line of duty while he or she was serving on active duty as a member
of the uniformed services as defined in Sec. 404.1019.
(iii) At the time of your marriage the insured was reasonably
expected to live for 9 months, and you had been previously married to
the insured for at least 9 months.
(iv) The insured had been married prior to his or her marriage to
you and the prior spouse was institutionalized during the marriage to
the insured due
[[Page 122]]
to mental incompetence or similar incapacity. During the period of the
prior spouse's institutionalization, the insured, as determined based on
evidence satisfactory to the Agency, would have divorced the prior
spouse and married you, but the insured did not do so because the
divorce would have been unlawful, by reason of the institutionalization,
under the laws of the State in which the insured was domiciled at the
time. Additionally, the prior spouse must have remained
institutionalized up to the time of his or her death and the insured
must have married you within 60 days after the prior spouse's death.
(3) You and the insured were the natural parents of a child; or you
were married to the insured when either of you adopted the other's child
or when both of you adopted a child who was then under 18 years old.
(4) In the month before you married the insured, you were entitled
to or, if you had applied and had been old enough, could have been
entitled to any of these benefits or payments: widow's, widower's,
father's (based on the record of a fully insured individual), mother's
(based on the record of a fully insured individual), wife's, husband's,
parent's, or disabled child's benefits; or annuity payments under the
Railroad Retirement Act for widows, widowers, parents, or children age
18 or older.
(b) You apply, except that you need not apply again if you meet one
of the conditions in paragraphs (b)(1) through (4) of this section:
(1) You are entitled to wife's or husband's benefits for the month
before the month in which the insured dies and you have attained full
retirement age (as defined in Sec. 404.409) or you are not entitled to
either old-age or disability benefits.
(2) You are entitled to mother's or father's benefits for the month
before the month in which you attained full retirement age (as defined
in Sec. 404.409).
(3) You are entitled to wife's or husband's benefits and to either
old-age or disability benefits in the month before the month of the
insured's death, you are under full retirement age (as defined in Sec.
404.409) in the month of death, and you have filed a Certificate of
Election in which you elect to receive reduced widow's or widower's
benefits.
(4) You applied in 1990 for widow's or widower's benefits based on
disability and you meet both of the conditions in paragraphs (b)(4)(i)
and (ii) of this section:
(i) You were entitled to disability insurance benefits for December
1990, or eligible for supplemental security income or federally
administered State supplementary payments, as specified in subparts B
and T of part 416 of this chapter, respectively, for January 1991.
(ii) You were found not disabled for any month based on the
definition of disability in Sec. Sec. 404.1577 and 404.1578, as in
effect prior to January 1991, but would have been entitled if the
standard in Sec. 404.1505(a) had applied. (This exception to the
requirement for filing an application is effective only with respect to
benefits payable for months after December 1990.)
(c) You are at least 60 years old; or you are at least 50 years old
and have a disability as defined in Sec. 404.1505 and you meet all of
the conditions in paragraphs (c)(1) through (4) of this section:
(1) Your disability started not later than 7 years after the insured
died or 7 years after you were last entitled to mother's or father's
benefits or to widow's or widower's benefits based upon a disability,
whichever occurred last.
(2) Your disability continued during a waiting period of 5 full
consecutive months, unless months beginning with the first month of
eligibility for supplemental security income or federally administered
State supplementary payments are counted, as explained in the Exception
in paragraph (c)(3) of this section. The waiting period may begin no
earlier than the 17th month before you applied; the fifth month before
the insured died; or if you were previously entitled to mother's,
father's, widow's, or widower's benefits, the 5th month before your
entitlement to benefits ended. If you were previously entitled to
widow's or widower's benefits based upon a disability, no waiting period
is required.
(3) Exception: For monthly benefits payable for months after
December 1990, if you were or have been eligible for supplemental
security income or
[[Page 123]]
federally administered State supplementary payments, as specified in
subparts B and T of part 416 of this chapter, respectively, your
disability need not have continued through a separate, full 5-month
waiting period before you may begin receiving benefits. We will include
as months of the 5-month waiting period the months in a period beginning
with the first month you received supplemental security income or a
federally administered State supplementary payment and continuing
through all succeeding months, regardless of whether the months in the
period coincide with the months in which your waiting period would have
occurred, or whether you continued to be eligible for supplemental
security income or a federally administered State supplementary payment
after the period began, or whether you met the nondisability
requirements for entitlement to widow's or widower's benefits. However,
we will not pay you benefits under this provision for any month prior to
January 1991.
(4) You have not previously received 36 months of payments based on
disability when drug addiction or alcoholism was a contributing factor
material to the determination of disability (as described in Sec.
404.1535), regardless of the number of entitlement periods you may have
had, or your current application for widow's or widower's benefits is
not based on a disability where drug addiction or alcoholism is a
contributing factor material to the determination of disability.
(d) You are not entitled to an old-age benefit that is equal to or
larger than the insured person's primary insurance amount.
(e) You are unmarried, unless for benefits for months after 1983 you
meet one of the conditions in paragraphs (e)(1) through (3) of this
section:
(1) You remarried after you became 60 years old.
(2) You are now age 60 or older and you meet both of the conditions
in paragraphs (e)(2)(i) and (ii) of this section:
(i) You remarried after attaining age 50 but before attaining age
60.
(ii) At the time of the remarriage, you were entitled to widow's or
widower's benefits as a disabled widow or widower.
(3) You are now at least age 50, but not yet age 60 and you meet
both of the conditions in paragraphs (e)(3)(i) and (ii) of this section:
(i) You remarried after attaining age 50.
(ii) You met the disability requirements in paragraph (c) of this
section at the time of your remarriage (i.e., your disability began
within the specified time and before your remarriage).
[68 FR 4704, Jan. 30, 2003, as amended at 70 FR 61365, Oct. 24, 2005]
Sec. 404.336 How do I become entitled to widow's or widower's benefits
as a surviving divorced spouse?
We will find you entitled to widow's or widower's benefits as the
surviving divorced wife or the surviving divorced husband of a person
who died fully insured if you meet the requirements in paragraphs (a)
through (e) of this section:
(a) You are the insured's surviving divorced wife or surviving
divorced husband and you meet both of the conditions in paragraphs
(a)(1) and (2) of this section:
(1) You were validly married to the insured under State law as
described in Sec. 404.345 or are deemed to have been validly married as
described in Sec. 404.346.
(2) You were married to the insured for at least 10 years
immediately before your divorce became final.
(b) You apply, except that you need not apply again if you meet one
of the conditions in paragraphs (b)(1) through (4) of this section:
(1) You are entitled to wife's or husband's benefits for the month
before the month in which the insured dies and you have attained full
retirement age (as defined in Sec. 404.409) or you are not entitled to
old-age or disability benefits.
(2) You are entitled to mother's or father's benefits for the month
before the month in which you attain full retirement age (as defined in
Sec. 404.409).
(3) You are entitled to wife's or husband's benefits and to either
old-age or disability benefits in the month before the month of the
insured's death, you have not attained full retirement age (as defined
in Sec. 404.409) in the month of
[[Page 124]]
death, and you have filed a Certificate of Election in which you elect
to receive reduced widow's or widower's benefits.
(4) You applied in 1990 for widow's or widower's benefits based on
disability, and you meet the requirements in both paragraphs (b)(4)(i)
and (ii) of this section:
(i) You were entitled to disability insurance benefits for December
1990 or eligible for supplemental security income or federally
administered State supplementary payments, as specified in subparts B
and T of part 416 of this chapter, respectively, for January 1991.
(ii) You were found not disabled for any month based on the
definition of disability in Sec. Sec. 404.1577 and 404.1578, as in
effect prior to January 1991, but would have been entitled if the
standard in Sec. 404.1505(a) had applied. (This exception to the
requirement for filing an application is effective only with respect to
benefits payable for months after December 1990.)
(c) You are at least 60 years old; or you are at least 50 years old
and have a disability as defined in Sec. 404.1505 and you meet all of
the conditions in paragraphs (c)(1) through (4) of this section:
(1) Your disability started not later than 7 years after the insured
died or 7 years after you were last entitled to mother's or father's
benefits or to widow's or widower's benefits based upon a disability,
whichever occurred last.
(2) Your disability continued during a waiting period of 5 full
consecutive months, unless months beginning with the first month of
eligibility for supplemental security income or federally administered
State supplementary payments are counted, as explained in the Exception
in paragraph (c)(3) of this section. This waiting period may begin no
earlier than the 17th month before you applied; the fifth month before
the insured died; or if you were previously entitled to mother's,
father's, widow's, or widower's benefits, the 5th month before your
previous entitlement to benefits ended. If you were previously entitled
to widow's or widower's benefits based upon a disability, no waiting
period is required.
(3) Exception: For monthly benefits payable for months after
December 1990, if you were or have been eligible for supplemental
security income or federally administered State supplementary payments,
as specified in subparts B and T of part 416 of this chapter,
respectively, your disability does not have to have continued through a
separate, full 5-month waiting period before you may begin receiving
benefits. We will include as months of the 5-month waiting period the
months in a period beginning with the first month you received
supplemental security income or a federally administered State
supplementary payment and continuing through all succeeding months,
regardless of whether the months in the period coincide with the months
in which your waiting period would have occurred, or whether you
continued to be eligible for supplemental security income or a federally
administered State supplementary payment after the period began, or
whether you met the nondisability requirements for entitlement to
widow's or widower's benefits. However, we will not pay you benefits
under this provision for any month prior to January 1991.
(4) You have not previously received 36 months of payments based on
disability when drug addiction or alcoholism was a contributing factor
material to the determination of disability (as described in Sec.
404.1535), regardless of the number of entitlement periods you may have
had, or your current application for widow's or widower's benefits is
not based on a disability where drug addiction or alcoholism is a
contributing factor material to the determination of disability.
(d) You are not entitled to an old-age benefit that is equal to or
larger than the insured person's primary insurance amount.
(e) You are unmarried, unless for benefits for months after 1983 you
meet one of the conditions in paragraphs (e)(1) through (3) of this
section:
(1) You remarried after you became 60 years old.
(2) You are now age 60 or older and you meet both of the conditions
in paragraphs (e)(2)(i) and (ii) of this section:
(i) You remarried after attaining age 50 but before attaining age
60.
[[Page 125]]
(ii) At the time of the remarriage, you were entitled to widow's or
widower's benefits as a disabled widow or widower.
(3) You are now at least age 50 but not yet age 60 and you meet both
of the conditions in paragraphs (e)(3)(i) and (ii) of this section:
(i) You remarried after attaining age 50.
(ii) You met the disability requirements in paragraph (c) of this
section at the time of your remarriage (i.e., your disability began
within the specified time and before your remarriage).
[68 FR 4705, Jan. 30, 2003, as amended at 71 FR 24814, Apr. 27, 2006]
Sec. 404.337 When does my entitlement to widow's and widower's benefits
start and end?
(a) We will find you entitled to widow's or widower's benefits under
Sec. 404.335 or Sec. 404.336 beginning with the first month covered by
your application in which you meet all other requirements for
entitlement.
(b) We will end your entitlement to widow's or widower's benefits at
the earliest of the following times:
(1) The month before the month in which you become entitled to an
old-age benefit that is equal to or larger than the insured's primary
insurance amount.
(2) The second month after the month your disability ends or, where
disability ends on or after December 1, 1980, the month before your
termination month (Sec. 404.325). However your payments are subject to
the provisions of paragraphs (c) and (d) of this section.
Note: You may remain eligible for payment of benefits if you
attained full retirement age (as defined in Sec. 404.409) before your
termination month and you meet the other requirements for widow's or
widower's benefits.
(3) If drug addiction or alcoholism is a contributing factor
material to the determination of disability as described in Sec.
404.1535, the month after the 12th consecutive month of suspension for
noncompliance with treatment or after 36 months of benefits on that
basis when treatment is available regardless of the number of
entitlement periods you may have had, unless you are otherwise disabled
without regard to drug addiction or alcoholism.
(4) The month before the month in which you die.
(c)(1) Your benefits may be continued after your impairment is no
longer disabling if--
(i) You are participating in an appropriate program of vocational
rehabilitation services, employment services, or other support services,
as described in Sec. 404.327(a) and (b);
(ii) You began participating in the program before the date your
disability ended; and
(iii) We have determined under Sec. 404.328 that your completion of
the program, or your continuation in the program for a specified period
of time, will increase the likelihood that you will not have to return
to the disability benefit rolls.
(2) We generally will stop your benefits with the earliest of these
months--
(i) The month in which you complete the program; or
(ii) The month in which you stop participating in the program for
any reason (see Sec. 404.327(b) for what we mean by ``participating''
in the program); or
(iii) The month in which we determine under Sec. 404.328 that your
continuing participation in the program will no longer increase the
likelihood that you will not have to return to the disability benefit
rolls.
Exception to paragraph (c): In no case will we stop your benefits
with a month earlier than the second month after the month your
disability ends, provided that you meet all other requirements for
entitlement to and payment of benefits through such month.
(d) If, after November 1980, you have a disabling impairment (Sec.
404.1511), we will pay you benefits for all months in which you do not
do substantial gainful activity during the reentitlement period (Sec.
404.1592a) following the end of your trial work period (Sec. 404.1592).
If you are unable to do substantial gainful activity in the first month
following the reentitlement period, we will pay you benefits until you
are able to do substantial gainful activity. (Earnings during your trial
work period do not affect the payment of your benefits.) We will also
pay you benefits for the first month after the trial work
[[Page 126]]
period in which you do substantial gainful activity and the two
succeeding months, whether or not you do substantial gainful activity
during those succeeding months. After those three months, we cannot pay
you benefits for any months in which you do substantial gainful
activity.
[68 FR 4706, Jan. 30, 2003, as amended at 70 FR 36506, June 24, 2005]
Sec. 404.338 Widow's and widower's benefits amounts.
(a) Your monthly benefit is equal to the insured person's primary
insurance amount. If the insured person dies before reaching age 62 and
you are first eligible after 1984, we may compute a special primary
insurance amount to determine the amount of the monthly benefit (see
Sec. 404.212(b)).
(b) We may increase your monthly benefit amount if the insured
person delays filing for benefits or requests voluntary suspension of
benefits, and thereby earns delayed retirement credit (see Sec.
404.313), and/or works before the year 2000 after reaching full
retirement age (as defined in Sec. 404.409(a)). The amount of your
monthly benefit may change as explained in Sec. 404.304.
(c) Your monthly benefit will be reduced if the insured person
chooses to receive old-age benefits before reaching full retirement age.
If so, your benefit will be reduced to the amount the insured person
would be receiving if alive, or 82\1/2\ percent of his or her primary
insurance amount, whichever is larger.
[70 FR 28811, May 19, 2005]
Sec. 404.339 How do I become entitled to mother's or father's benefits
as a surviving spouse?
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);
(b) You apply for these benefits; or you were entitled to wife's
benefits for the month before the insured died;
(c) You are unmarried;
(d) You are not entitled to widow's or widower's benefits, or to an
old-age benefit that is equal to or larger than the full mother's or
father's benefit; and
(e) You have in your care the insured's child who is entitled to
child's benefits and he or she is under 16 years old or is disabled.
Sections 404.348 and 404.349 describe when a child is in your care.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 73
FR 40967, July 17, 2008]
Sec. 404.340 How do I become 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
surviving divorced wife or the surviving divorced husband on the
earnings record of someone who was fully or currently insured when she
or he 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
[[Page 127]]
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; 73 FR 40967, July
17, 2008]
Sec. 404.341 When mother's and father's benefits begin and end.
(a) You are entitled to mother's or father's benefits beginning with
the first month covered by your application in which you meet all the
other requirements for entitlement.
(b) Your entitlement to benefits ends with the month before the
month in which one of the following events first occurs:
(1) You become entitled to a widow's or widower's benefit or to an
old-age benefit that is equal to or larger than the full mother's or
father's benefit.
(2) There is no longer a child of the insured who is under age 16 or
disabled and entitled to a child's benefit on the insured's earnings
record. (See paragraph (c) of this section if you were entitled to
mother's or father's benefits for August 1981.) (If you no longer have
in your care a child who is under age 16 or disabled and entitled to
child's benefits on the insured's earnings record, your benefits may be
subject to deductions as provided in Sec. 404.421.)
(3) You remarry. Your benefits will not end, however, if you marry
someone entitled to old-age, disability, wife's, husband's, widow's,
widower's, father's, mother's, parent's or disabled child's benefits.
(4) You die.
(c) If you were entitled to spouse's benefits on the basis of having
a child in care, or to mother's or father's benefits for August 1981,
your entitlement will continue until September 1983, until the child
reaches 18 (unless disabled) or is otherwise no longer entitled to
child's benefits, or until one of the events described in paragraph (b)
(1), (3), or (4) of this section occurs, whichever is earliest.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 49
FR 24115, June 12, 1984; 58 FR 64891, Dec. 10, 1993; 64 FR 14608, Mar.
26, 1999]
Sec. 404.342 Mother's and father's benefit amounts.
Your mother's or father's monthly benefit is equal to 75 percent of
the insured person's primary insurance amount. The amount of your
monthly benefit may change as explained in Sec. 404.304.
Sec. 404.344 Your relationship by marriage to the insured.
You may be eligible for benefits if you are related to the insured
person as a wife, husband, widow, or widower. To decide your
relationship to the insured, we look first to State laws. The State laws
that we use are discussed in Sec. 404.345. If your relationship cannot
be established under State law, you may still be eligible for benefits
if your relationship as the insured's wife, husband, widow, or widower
is based upon a deemed valid marriage as described in Sec. 404.346.
Sec. 404.345 Your relationship as wife, husband, widow, or widower
under State law.
To decide your relationship as the insured's wife or husband, we
look to the laws of the State where the insured had a permanent home
when you applied for wife's or husband's benefits. To decide your
relationship as the insured's widow or widower, we look to the laws of
the State where the insured had a permanent home when he or she died. If
the insured's permanent home is not or was not in one of the 50 States,
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or American
Samoa, we look to the laws of the District of Columbia. For a definition
of permanent home, see Sec. 404.303. If you and the insured were
validly married 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.
[[Page 128]]
Sec. 404.346 Your relationship as wife, husband, widow, or widower
based upon a deemed valid marriage.
(a) General. If your relationship as the insured's wife, husband,
widow, or widower cannot be established under State law as explained in
Sec. 404.345, you may be eligible for benefits based upon a deemed
valid marriage. You will be deemed to be the wife, husband, widow, or
widower of the insured if, in good faith, you went through a marriage
ceremony with the insured that would have resulted in a valid marriage
except for a legal impediment. A legal impediment includes only an
impediment which results because a previous marriage had not ended at
the time of the ceremony or because there was a defect in the procedure
followed in connection with the intended marriage. For example, a defect
in the procedure may be found where a marriage was performed through a
religious ceremony in a country that requires a civil ceremony for a
valid marriage. Good faith means that at the time of the ceremony you
did not know that a legal impediment existed, or if you did know, you
thought that it would not prevent a valid marriage.
(b) Entitlement based upon a deemed valid marriage. To be entitled
to benefits as a wife, husband, widow or widower as the result of a
deemed valid marriage, you and the insured must have been living in the
same household (see Sec. 404.347) at the time the insured died or, if
the insured is living, at the time you apply for benefits. However, a
marriage that had been deemed valid, shall continue to be deemed valid
if the insured individual and the person entitled to benefits as the
wife or husband of the insured individual are no longer living in the
same household at the time of death of the insured individual.
[44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980; 48
FR 21927, May 16, 1983; 58 FR 64892, Dec. 10, 1993]
Sec. 404.347 ``Living in the same household'' defined.
Living in the same household means that you and the insured
customarily lived together as husband and wife in the same residence.
You may be considered to be living in the same household although one of
you is temporarily absent from the residence. An absence will be
considered temporary if:
(a) It was due to service in the U.S. Armed Forces;
(b) It was 6 months or less and neither you nor the insured were
outside of the United States during this time and the absence was due to
business, employment, or confinement in a hospital, nursing home, other
medical institution, or a penal institution;
(c) It was for an extended separation, regardless of the duration,
due to the confinement of either you or the insured in a hospital,
nursing home, or other medical institution, if the evidence indicates
that you were separated solely for medical reasons and you otherwise
would have resided together; or
(d) It was based on other circumstances, and it is shown that you
and the insured reasonably could have expected to live together in the
near future.
[61 FR 41330, Aug. 8, 1996]
Sec. 404.348 When is a child living with me in my 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; 73
FR 40967, July 17, 2008]
Sec. 404.349 When is a child living apart from me in my care?
(a) In your care. A child living apart from you is in your care if--
[[Page 129]]
(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 Sec. Sec. 404.355 through 404.359;
(2) You are dependent on the insured, as defined in Sec. Sec.
404.360 through 404.365;
(3) You apply;
(4) You are unmarried; and
(5) You are under age 18; you are 18 years old or older and have a
disability that began before you became 22 years old; or you are 18
years or older and qualify for benefits as a full-time student as
described in Sec. 404.367.
(b) Entitlement preclusion for certain disabled children. If you are
a disabled child as referred to in paragraph (a)(5) of this section, and
your disability was based on a finding that drug addiction or alcoholism
was a contributing factor material to the determination of disability
(as described in Sec. 404.1535) and your benefits ended after your
receipt of 36 months of benefits, you will not be entitled to benefits
based on disability for any month following such 36 months regardless of
the number of entitlement periods you have had if, in such following
months, drug addiction or alcoholism is a contributing factor material
to the later determination of disability (as described in Sec.
404.1535).
[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 60
FR 8146, Feb. 10, 1995; 61 FR 38363, July 24, 1996]
Sec. 404.351 Who may be reentitled to child's benefits?
If your entitlement to child's benefits has ended, you may be
reentitled on the same earnings record if you have not married and if
you apply for 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.
(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; or
(d) With respect to benefits payable for months beginning October
2004, you
[[Page 130]]
can be reentitled to childhood disability benefits at anytime if your
prior entitlement terminated because you ceased to be under a disability
due to the performance of substantial gainful activity and you meet the
other requirements for reentitlement. The 84-month time limit in
paragraph (c) in this section continues to apply if your previous
entitlement to childhood disability benefits terminated because of
medical improvement.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 61
FR 38363, July 24, 1996; 71 FR 66865, Nov. 17, 2006]
Sec. 404.352 When does my entitlement to child's benefits begin and end?
(a) We will find your entitlement to child's benefits begins at the
following times:
(1) If the insured is deceased, with the first month covered by your
application in which you meet all other requirements for entitlement.
(2) If the insured is living and your first month of entitlement is
September 1981 or later, with the first month covered by your
application throughout which you meet all other requirements for
entitlement.
(3) If the insured is living and your first month of entitlement is
before September 1981, with the first month covered by your application
in which you meet all other requirements for entitlement.
(b) We will find your entitlement to child's benefits ends at the
earliest of the following times:
(1) With the month before the month in which you become 18 years
old, if you are not disabled or a full-time student.
(2) With the second month following the month in which your
disability ends, if you become 18 years old and you are disabled. If
your disability ends on or after December 1, 1980, your entitlement to
child's benefits continues, subject to the provisions of paragraphs (c)
and (d) of this section, until the month before your termination month
(Sec. 404.325).
(3) With the last month you are a full-time student or, if earlier,
with the month before the month you become age 19, if you become 18
years old and you qualify as a full-time student who is not disabled. If
you become age 19 in a month in which you have not completed the
requirements for, or received, a diploma or equivalent certificate from
an elementary or secondary school and you are required to enroll for
each quarter or semester, we will find your entitlement ended with the
month in which the quarter or semester in which you are enrolled ends.
If the school you are attending does not have a quarter or semester
system which requires reenrollment, we will find your entitlement to
benefits ended with the month you complete the course or, if earlier,
the first day of the third month following the month in which you become
19 years old.
(4) With the month before the month you marry. We will not find your
benefits ended, however, if you are age 18 or older, disabled, and you
marry a person entitled to child's benefits based on disability or
person entitled to old-age, divorced wife's, divorced husband's,
widow's, widower's, mother's, father's, parent's, or disability
benefits.
(5) With the month before the month the insured's entitlement to
old-age or disability benefits ends for a reason other than death or the
attainment of full retirement age (as defined in Sec. 404.409).
Exception: We will continue your benefits if the insured person was
entitled to disability benefits based on a finding that drug addiction
or alcoholism was a contributing factor material to the determination of
his or her disability (as described in Sec. 404.1535), the insured
person's benefits ended after 36 months of payment (see Sec.
404.316(e)) or 12 consecutive months of suspension for noncompliance
with treatment (see Sec. 404.316(f)), and the insured person remains
disabled.
(6) With the month before the month you die.
(7) With the month in which the divorce between your parent
(including an adoptive parent) and the insured stepparent becomes final
if you are entitled to benefits as a stepchild and the marriage between
your parent (including an adoptive parent) and the insured stepparent
ends in divorce.
(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
[[Page 131]]
contributing factor material to the determination of disability (as
described in Sec. 404.1535), we will find your entitlement to benefits
ended under the following conditions:
(1) If your benefits have been suspended for a period of 12
consecutive months for failure to comply with treatment, with the month
following the 12 months unless you are otherwise disabled without regard
to drug addiction or alcoholism (see Sec. 404.470(c)).
(2) If you have received 36 months of benefits on that basis when
treatment is available, regardless of the number of entitlement periods
you may have had, with the month following such 36-month payment period
unless you are otherwise disabled without regard to drug addiction or
alcoholism.
(d)(1) Your benefits may be continued after your impairment is no
longer disabling if--
(i) You are participating in an appropriate program of vocational
rehabilitation services, employment services, or other support services,
as described in Sec. 404.327(a) and (b);
(ii) You began participating in the program before the date your
disability ended; and
(iii) We have determined under Sec. 404.328 that your completion of
the program, or your continuation in the program for a specified period
of time, will increase the likelihood that you will not have to return
to the disability benefit rolls.
(2) We generally will stop your benefits with the earliest of these
months--
(i) The month in which you complete the program; or
(ii) The month in which you stop participating in the program for
any reason (see Sec. 404.327(b) for what we mean by ``participating''
in the program); or
(iii) The month in which we determine under Sec. 404.328 that your
continuing participation in the program will no longer increase the
likelihood that you will not have to return to the disability benefit
rolls.
Exception to paragraph (d): In no case will we stop your benefits
with a month earlier than the second month after the month your
disability ends, provided that you meet all other requirements for
entitlement to and payment of benefits through such month.
(e) If, after November 1980, you have a disabling impairment (Sec.
404.1511), we will pay you benefits for all months in which you do not
do substantial gainful activity during the reentitlement period (Sec.
404.1592a) following the end of your trial work period (Sec. 404.1592).
If you are unable to do substantial gainful activity in the first month
following the reentitlement period, we will pay you benefits until you
are able to do substantial gainful activity. (Earnings during your trial
work period do not affect the payment of your benefits during that
period.) We will also pay you benefits for the first month after the
trial work period in which you do substantial gainful activity and the
two succeeding months, whether or not you do substantial gainful
activity during those succeeding months. After those three months, we
cannot pay you benefits for any months in which you do substantial
gainful activity.
[68 FR 4707, Jan. 30, 2003, as amended at 70 FR 36506, June 24, 2005; 75
FR 52621, Aug. 27, 2010]
Sec. 404.353 Child's benefit amounts.
(a) General. Your child's monthly benefit is equal to one-half of
the insured person's primary insurance amount if he or she is alive and
three-fourths of the primary insurance amount if he or she has died. The
amount of your monthly benefit may change as explained in Sec. 404.304.
(b) Entitlement to more than one benefit. If you are entitled to a
child's benefit on more than one person's earnings record, you will
ordinarily receive only the benefit payable on the record with the
highest primary insurance amount. If your benefit before any reduction
would be larger on an earnings record with a lower primary insurance
amount and no other person entitled to benefits on any earnings record
would receive a smaller benefit as a result of your receiving benefits
on the record with the lower primary insurance amount, you will receive
benefits on that record. See Sec. 404.407(d) for a further explanation.
If you are entitled to
[[Page 132]]
a child's benefit and to other dependent's or survivor's benefits, you
can receive only the highest of the benefits.
[44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended at 48
FR 21928, May 16, 1983; 51 FR 12606, Apr. 14, 1986; 61 FR 38363, July
24, 1996]
Sec. 404.354 Your relationship to the insured.
You may be related to the insured person in one of several ways and
be entitled to benefits as his or her child, i.e., as a natural child,
legally adopted child, stepchild, grandchild, stepgrandchild, or
equitably adopted child. For details on how we determine your
relationship to the insured person, see Sec. Sec. 404.355 through
404.359.
[63 FR 57593, Oct. 28, 1998]
Sec. 404.355 Who is the insured's natural child?
(a) Eligibility as a natural child. You may be eligible for benefits
as the insured's natural child if any of the following conditions is
met:
(1) You could inherit the insured's personal property as his or her
natural child under State inheritance laws, as described in paragraph
(b) of this section.
(2) You are the insured's natural child and the insured and your
mother or father went through a ceremony which would have resulted in a
valid marriage between them except for a ``legal impediment'' as
described in Sec. 404.346(a).
(3) You are the insured's natural child and your mother or father
has not married the insured, but the insured has either acknowledged in
writing that you are his or her child, been decreed by a court to be
your father or mother, or been ordered by a court to contribute to your
support because you are his or her child. If the insured is deceased,
the acknowledgment, court decree, or court order must have been made or
issued before his or her death. To determine whether the conditions of
entitlement are met throughout the first month as stated in Sec.
404.352(a), the written acknowledgment, court decree, or court order
will be considered to have occurred on the first day of the month in
which it actually occurred.
(4) Your mother or father has not married the insured but you have
evidence other than the evidence described in paragraph (a)(3) of this
section to show that the insured is your natural father or mother.
Additionally, you must have evidence to show that the insured was either
living with you or contributing to your support at the time you applied
for benefits. If the insured is not alive at the time of your
application, you must have evidence to show that the insured was either
living with you or contributing to your support when he or she died. See
Sec. 404.366 for an explanation of the terms ``living with'' and
``contributions for support.''
(b) Use of State Laws--(1) General. To decide whether you have
inheritance rights as the natural child of the insured, we use the law
on inheritance rights that the State courts would use to decide whether
you could inherit a child's share of the insured's personal property if
the insured were to die without leaving a will. If the insured is
living, we look to the laws of the State where the insured has his or
her permanent home when you apply for benefits. If the insured is
deceased, we look to the laws of the State where the insured had his or
her permanent home when he or she died. If the insured's permanent home
is not or was not in one of the 50 States, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, or the Northern Mariana
Islands, we will look to the laws of the District of Columbia. For a
definition of permanent home, see Sec. 404.303. For a further
discussion of the State laws we use to determine whether you qualify as
the insured's natural child, see paragraphs (b)(3) and (b)(4) of this
section. If these laws would permit you to inherit the insured's
personal property as his or her child, we will consider you the child of
the insured.
(2) Standards. We will not apply any State inheritance law
requirement that an action to establish paternity must be taken within a
specified period of time measured from the worker's death or the child's
birth, or that an action to establish paternity must have been started
or completed before the worker's death. If applicable State inheritance
law requires a court determination of paternity, we will not require
[[Page 133]]
that you obtain such a determination but will decide your paternity by
using the standard of proof that the State court would use as the basis
for a determination of paternity.
(3) Insured is living. If the insured is living, we apply the law of
the State where the insured has his or her permanent home when you file
your application for benefits. We apply the version of State law in
effect when we make our final decision on your application for benefits.
If you do not qualify as a child of the insured under that version of
State law, we look at all versions of State law that were in effect from
the first month for which you could be entitled to benefits up until the
time of our final decision and apply the version of State law that is
most beneficial to you.
(4) Insured is deceased. If the insured is deceased, we apply the
law of the State where the insured had his or her permanent home when he
or she died. We apply the version of State law in effect when we make
our final decision on your application for benefits. If you do not
qualify as a child of the insured under that version of State law, we
will apply the version of State law that was in effect at the time the
insured died, or any version of State law in effect from the first month
for which you could be entitled to benefits up until our final decision
on your application. We will apply whichever version is most beneficial
to you. We use the following rules to determine the law in effect as of
the date of death:
(i) If a State inheritance law enacted after the insured's death
indicates that the law would be retroactive to the time of death, we
will apply that law; or
(ii) If the inheritance law in effect at the time of the insured's
death was later declared unconstitutional, we will apply the State law
which superseded the unconstitutional law.
[63 FR 57593, Oct. 28, 1998]
Sec. 404.356 Who is the insured's legally adopted child?
You may be eligible for benefits as the insured's child if you were
legally adopted by the insured. If you were legally adopted after the
insured's death by his or her surviving spouse you may also be
considered the insured's legally adopted child. We apply the adoption
laws of the State or foreign country where the adoption took place, not
the State inheritance laws described in Sec. 404.355, to determine
whether you are the insured's legally adopted child.
[44 FR 34481, June 15, 1979, as amended at 63 FR 57594, Oct. 28, 1998]
Sec. 404.357 Who is the insured's stepchild?
You may be eligible for benefits as the insured's stepchild if,
after your birth, your natural or adopting parent married the insured.
You also may be eligible as a stepchild if you were conceived prior to
the marriage of your natural parent to the insured but were born after
the marriage and the insured is not your natural parent. The marriage
between the insured and your parent must be a valid marriage under State
law or a marriage which would be valid except for a legal impediment
described in Sec. 404.346(a). If the insured is alive when you apply,
you must have been his or her stepchild for at least 1 year immediately
preceding the day you apply. For purposes of determining whether the
conditions of entitlement are met throughout the first month as stated
in Sec. 404.352(a)(2)(i), you will be considered to meet the one year
duration requirement throughout the month in which the anniversary of
the marriage occurs. If the insured is not alive when you apply, you
must have been his or her stepchild for at least 9 months immediately
preceding the day the insured died. This 9-month requirement will not
have to be met if the marriage between the insured and your parent
lasted less than 9 months under one of the conditions described in Sec.
404.335(a)(2)(i)-(iii).
[48 FR 21928, May 16, 1983, as amended at 64 FR 14608, Mar. 26, 1999; 70
FR 61365, Oct. 24, 2005]
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 Sec. Sec. 404.355 through 404.357, or
[[Page 134]]
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 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 Sec. Sec. 404.361 through 404.365. The terms
living with, contributions for support, and one-half support are defined
in Sec. 404.366.
Sec. 404.361 When a natural child is dependent.
(a) Dependency of natural child. If you are the insured's natural
child, as defined in Sec. 404.355, you are considered dependent upon
him or her, except as stated in paragraph (b) of this section.
(b) Dependency of natural child legally adopted by someone other
than the insured. (1) Except as indicated in paragraph (b)(2) of this
section, if you are legally adopted by someone other than the insured
(your natural parent) during the insured's lifetime, you are considered
dependent upon the insured only if the insured was either living with
you or contributing to your support at one of the following times:
(i) When you applied;
(ii) When the insured died; or
(iii) If the insured had a period of disability that lasted until he
or she became entitled to disability or old-age benefits or died, at the
beginning of the period of disability or at the time he or she became
entitled to disability or old-age benefits.
(2) You are considered dependent upon the insured (your natural
parent) if:
(i) You were adopted by someone other than the insured after you
applied for child's benefits; or
(ii) The insured had a period of disability that lasted until he or
she became entitled to old-age or disability benefits or died, and you
are adopted by someone other than the insured
[[Page 135]]
after the beginning of that period of disability.
[64 FR 14608, Mar. 26, 1999]
Sec. 404.362 When a legally adopted child is dependent.
(a) General. If you were legally adopted by the insured before he or
she became entitled to old-age or disability benefits, you are
considered dependent upon him or her. If you were legally adopted by the
insured after he or she became entitled to old-age or disability
benefits and you apply for child's benefits during the life of the
insured, you must meet the dependency requirements stated in paragraph
(b) of this section. If you were legally adopted by the insured after he
or she became entitled to old-age or disability benefits and you apply
for child's benefits after the death of the insured, you are considered
dependent upon him or her. If you were adopted after the insured's death
by his or her surviving spouse, you may be considered dependent upon the
insured only under the conditions described in paragraph (c) of this
section.
(b) Adoption by the insured after he or she became entitled to
benefits--(1) General. If you are legally adopted by the insured after
he or she became entitled to benefits and you are not the insured's
natural child or stepchild, you are considered dependent on the insured
during his or her lifetime only if--
(i) You had not attained age 18 when adoption proceedings were
started, and your adoption was issued by a court of competent
jurisdiction within the United States; or
(ii) You had attained age 18 before adoption proceedings were
started; your adoption was issued by a court of competent jurisdiction
within the United States; and you were living with or receiving at least
one-half of your support from the insured for the year immediately
preceding the month in which your adoption was issued.
(2) Natural child and stepchild. If you were legally adopted by the
insured after he or she became entitled to benefits and you are the
insured's natural child or stepchild, you are considered dependent upon
the insured.
(c) Adoption by the insured's surviving spouse--(1) General. If you
are legally adopted by the insured's surviving spouse after the
insured's death, you are considered dependent upon the insured as of the
date of his or her death if--
(i) You were either living with or receiving at least one-half of
your support from the insured at the time of his or her death; and,
(ii) The insured had started adoption proceedings before he or she
died; or if the insured had not started the adoption proceedings before
he or she died, his or her surviving spouse began and completed the
adoption within 2 years of the insured's death.
(2) Grandchild or stepgrandchild adopted by the insured's surviving
spouse. If you are the grandchild or stepgrandchild of the insured and
any time after the death of the insured you are legally adopted by the
insured's surviving spouse, you are considered the dependent child of
the insured as of the date of his or her death if--
(i) Your adoption took place in the United States;
(ii) At the time of the insured's death, your natural, adopting or
stepparent was not living in the insured's household and making regular
contributions toward your support; and
(iii) You meet the dependency requirements stated in Sec. 404.364.
[44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended at 56
FR 24000, May 28, 1991; 57 FR 3938, Feb. 3, 1992]
Sec. 404.363 When is a stepchild dependent?
If you are the insured's stepchild, as defined in Sec. 404.357, we
consider you dependent on him or her if you were 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.
[44 FR 34481, June 15, 1979, as amended at 75 FR 52621, Aug. 27, 2010]
[[Page 136]]
Sec. 404.364 When is a grandchild or stepgrandchild 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 or her 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. Paragraph (c) of this
section explains when the substantially all requirement is met.
(c) The ``substantially all'' requirement will be met if, at one of
the times described in paragraph (b) of this section, the insured was
living with you and providing at least one-half of your support, and any
period during which he or she was not living with you and providing one-
half of your support did not exceed the lesser of 3 months or one-half
of the period beginning with the month of your birth.
[44 FR 34481, June 15, 1979, as amended at 73 FR 40967, July 17, 2008]
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 Sec. Sec. 404.360
through 404.365; what it means to be a dependent parent is explained in
Sec. 404.370(f); and the Government pension offset is explained in
Sec. 404.408a. Your dependency upon the insured person may be based
upon whether at a specified time you were receiving contributions for
your support or one-half of your support from the insured person, or
whether you were living with him or her. These terms are defined in
paragraphs (a) through (c) of this section.
(a) Contributions for support. The insured makes a contribution for
your support if the following conditions are met:
(1) The insured gives some of his or her own cash or goods to help
support you. Support includes food, shelter, routine medical care, and
other ordinary and customary items needed for your maintenance. The
value of any goods the insured contributes is the same as the cost of
the goods when he or she gave them for your support. If the insured
provides services for you that would otherwise have to be paid for, the
cash value of his or her services may be considered a contribution for
your support. An example of this would be work the insured does to
repair your home. The insured person is making a contribution for your
support if you receive an allotment, allowance, or benefit based upon
his or her military pay, veterans' pension or compensation, or social
security earnings.
[[Page 137]]
(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
interruption 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 Sec. Sec. 404.362(c)(1) and 404.363 (for child's benefits), in Sec.
404.370(f) (for parent's benefits) and in Sec. 404.408a(c) (for
benefits where the Government pension offset may be applied). A shorter
period will be considered reasonable under the following circumstances:
(1) At some point within the 12-month period, the insured either
begins or stops providing at least one-half of your support on a
permanent basis and this is a change in the way you had been supported
up to then. In these circumstances, the time from the change up to the
end of the 12-month period will be considered a reasonable period,
unless paragraph (b)(2) of this section applies. The change in your
source of support must be permanent and not temporary. Changes caused by
seasonal employment or customary visits to the insured's home are
considered temporary.
(2) The insured provided one-half or more of your support for at
least 3 months of the 12-month period, but was forced to stop or reduce
contributions because of circumstances beyond his or her control, such
as illness or unemployment, and no one else took over the responsibility
for providing at least one-half of your support on a permanent basis.
Any support you received from a public assistance program is not
considered as a taking over of responsibility for your support by
someone else. Under these circumstances, a reasonable period is that
part of the 12-month period before the insured was forced to reduce or
stop providing at least one-half of your support.
(c) ``Living with'' the insured. You are living with the insured if
you ordinarily live in the same home with the insured and he or she is
exercising, or has the right to exercise, parental control and authority
over your activities. You are living with the insured during temporary
separations if you and the insured expect to live together in the same
place after the separation. Temporary separations may include the
insured's absence because of active military service or imprisonment if
he or she still exercises parental control and authority. However, you
are not considered to be living with the insured if you are in active
military service or in prison. If living with is used to establish
dependency for your eligibility to child's benefits and the date your
application is filed is used for establishing the point for determining
dependency, you must have been living with the insured throughout the
month your application is filed in order to be entitled to benefits for
that month.
(d) Determining first month of entitlement. In evaluating whether
dependency is established under paragraph
[[Page 138]]
(a), (b), or (c) of this section, for purposes of determining whether
the conditions of entitlement are met throughout the first month as
stated in Sec. 404.352(a)(2)(i), we will not use the temporary
separation or temporary interruption rules.
[44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980; 48
FR 21928, May 16, 1983; 52 FR 26955, July 17, 1987; 64 FR 14608, Mar.
26, 1999]
Sec. 404.367 When you are a ``full-time elementary or secondary school
student''.
You may be eligible for child's benefits if you are a full-time
elementary or secondary school student. For the purposes of determining
whether the conditions of entitlement are met throughout the first month
as stated in Sec. 404.352(a)(2)(i), if you are entitled as a student on
the basis of attendance at an elementary or secondary school, you will
be considered to be in full-time attendance for a month during any part
of which you are in full-time attendance. You are a full-time elementary
or secondary school student if you meet all the following conditions:
(a) You attend a school which provides elementary or secondary
education as determined under the law of the State or other jurisdiction
in which it is located. Participation in the following programs also
meets the requirements of this paragraph:
(1) You are instructed in elementary or secondary education at home
in accordance with a home school law of the State or other jurisdiction
in which you reside; or
(2) You are in an independent study elementary or secondary
education program in accordance with the law of the State or other
jurisdiction in which you reside which is administered by the local
school or school district/jurisdiction.
(b) You are in full-time attendance in a day or evening
noncorrespondence course of at least 13 weeks duration and you are
carrying a subject load which is considered full-time for day students
under the institution's standards and practices. If you are in a home
schooling program as described in paragraph (a)(1) of this section, you
must be carrying a subject load which is considered full-time for day
students under standards and practices set by the State or other
jurisdiction in which you reside;
(c) To be considered in full-time attendance, your scheduled
attendance must be at the rate of at least 20 hours per week unless one
of the exceptions in paragraphs (c) (1) and (2) of this section applies.
If you are in an independent study program as described in paragraph
(a)(2) of this section, your number of hours spent in school attendance
are determined by combining the number of hours of attendance at a
school facility with the agreed upon number of hours spent in
independent study. You may still be considered in full-time attendance
if your scheduled rate of attendance is below 20 hours per week if we
find that:
(1) The school attended does not schedule at least 20 hours per week
and going to that particular school is your only reasonable alternative;
or
(2) Your medical condition prevents you from having scheduled
attendance of at least 20 hours per week. To prove that your medical
condition prevents you from scheduling 20 hours per week, we may request
that you provide appropriate medical evidence or a statement from the
school.
(d) You are not being paid while attending the school by an employer
who has requested or required that you attend the school;
(e) You are in grade 12 or below; and
(f) You are not subject to the provisions in Sec. 404.468 for
nonpayment of benefits to certain prisoners and certain other inmates of
publicly funded institutions.
[48 FR 21928, May 16, 1983, as amended at 48 FR 55452, Dec. 13, 1983; 56
FR 35999, July 30, 1991; 61 FR 38363, July 24, 1996]
Sec. 404.368 When you are considered a full-time student during a
period of nonattendance.
If you are a full-time student, your eligibility may continue during
a period of nonattendance (including part-time attendance) if all the
following conditions are met:
(a) The period of nonattendance is 4 consecutive months or less;
[[Page 139]]
(b) You show us that you intend to resume your studies as a full-
time student at the end of the period or at the end of the period you
are a full-time student; and
(c) The period of nonattendance is not due to your expulsion or
suspension from the school.
[48 FR 21929, May 16, 1983]
Parent's Benefits
Sec. 404.370 Who is entitled to parent's benefits?
You may be entitled to parent's benefits on the earnings record of
someone who has died and was fully insured. You are entitled to these
benefits if all the following conditions are met:
(a) You are related to the insured person as his or her parent in
one of the ways described in Sec. 404.374.
(b) You are at least 62 years old.
(c) You have not married since the insured person died.
(d) You apply.
(e) You are not entitled to an old-age benefit equal to or larger
than the parent's benefit amount.
(f) You were receiving at least one-half of your support from the
insured at the time he or she died, or at the beginning of any period of
disability he or she had that continued up to death. See Sec.
404.366(b) for a definition of one-half support. If you were receiving
one-half of your support from the insured at the time of the insured's
death, you must give us proof of this support within 2 years of the
insured's death. If you were receiving one-half of your support from the
insured at the time his or her period of disability began, you must give
us proof of this support within 2 years of the month in which the
insured filed his or her application for the period of disability. You
must file the evidence of support even though you may not be eligible
for parent's benefits until a later time. There are two exceptions to
the 2-year filing requirement:
(1) If there is a good cause for failure to provide proof of support
within the 2-year period, we will consider the proof you give us as
though it were provided within the 2-year period. Good cause does not
exist if you were informed of the need to provide the proof within the
2-year period and you neglected to do so or did not intend to do so.
Good cause will be found to exist if you did not provide the proof
within the time limit due to--
(i) Circumstances beyond your control, such as extended illness,
mental or physical incapacity, or a language barrier;
(ii) Incorrect or incomplete information we furnished you;
(iii) Your efforts to get proof of the support without realizing
that you could submit the proof after you gave us some other evidence of
that support; or
(iv) Unusual or unavoidable circumstances that show you could not
reasonably be expected to know of the 2-year time limit.
(2) The Soldiers' and Sailors' Civil Relief Act of 1940 provides for
extending the filing time.
Sec. 404.371 When parent's benefits begin and end.
(a) You are entitled to parent's benefits beginning with the first
month covered by your application in which you meet all the other
requirements for entitlement.
(b) Your entitlement to benefits ends with the month before the
month in which one of the following events first occurs:
(1) You become entitled to an old-age benefit equal to or larger
than the parent's benefit.
(2) You marry, unless your marriage is to someone entitled to
wife's, husband's, widow's, widower's, mother's, father's, parent's or
disabled child's benefits. If you marry a person entitled to these
benefits, the marriage does not affect your benefits.
(3) You die.
[44 FR 34481, June 15, 1979, as amended at 49 FR 24116, June 12, 1984]
Sec. 404.373 Parent's benefit amounts.
Your parent's monthly benefit before any reduction that may be made
as explained in Sec. 404.304, is figured in one of the following ways:
(a) One parent entitled. Your parent's monthly benefit is equal to
82\1/2\ percent of the insured person's primary insurance amount if you
are the only parent
[[Page 140]]
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.
Sec. Sec. 404.380-404.384 [Reserved]
Lump-Sum Death Payment
Sec. 404.390 General.
If a person is fully or currently insured when he or she dies, a
lump-sum death payment of $255 may be paid to the widow or widower of
the deceased if he or she was living in the same household with the
deceased at the time of his or her death. If the insured is not survived
by a widow(er) who meets this requirement, all or part of the $255
payment may be made to someone else as described in Sec. 404.392.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21929, May 16, 1983; 61
FR 41330, Aug. 8, 1996]
Sec. 404.391 Who is entitled to the lump-sum death payment as a widow
or widower who was living in the same household?
You are entitled to the lump-sum death payment as a widow or widower
who was living in the same household if--
(a) You are the widow or widower of the deceased insured individual
based upon a relationship described in Sec. 404.345 or Sec. 404.346;
(b) You apply for this payment within two years after the date of
the insured's death. You need not apply again if, in the month prior to
the death of the insured, you were entitled to wife's or husband's
benefits on his or her earnings record; and
(c) You were living in the same household with the insured at the
time of his or her death. The term living in the same household is
defined in Sec. 404.347.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21929, May 16, 1983]
Sec. 404.392 Who is entitled to the lump-sum death payment when there
is no widow(er) who was living in the same household?
(a) General. If the insured individual is not survived by a
widow(er) who meets the requirements of Sec. 404.391, the lump-sum
death payment shall be paid as follows:
(1) To a person who is entitled (or would have been entitled had a
timely application been filed) to widow's or widower's benefits (as
described in Sec. 404.335) or mother's or father's benefits (as
described in Sec. 404.339) on the work record of the deceased worker
for the month of that worker's death; or
(2) If no person described in (1) survives, in equal shares to each
person who is entitled (or would have been entitled had a timely
application been 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]
[[Page 141]]
Subpart E_Deductions; Reductions; and Nonpayments of Benefits
Authority: Secs. 202, 203, 204(a) and (e), 205(a) and (c), 216(l),
222(c), 223(e), 224, 225, 702(a)(5), and 1129A of the Social Security
Act (42 U.S.C. 402, 403, 404(a) and (e), 405(a) and (c), 416(l), 422(c),
423(e), 424a, 425, 902(a)(5), and 1320a-8a); 48 U.S.C. 1801.
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
or the lump-sum death payment as calculated under the pertinent
provisions of sections 202 and 203 of the Act (including reduction for
age under section 202(q) of a monthly benefit) must be increased or
decreased to determine the amount to be actually paid to a beneficiary.
Increases in the amount of a monthly benefit or lump-sum death payment
are based upon recomputation and recalculations of the primary insurance
amount (see subpart C of this part). A decrease in the amount of a
monthly benefit or lump-sum death payment is required in the following
instances:
(a) Reductions. A reduction of a person's monthly benefit is
required where:
(1) The total amount of the monthly benefits payable on an earnings
record exceeds the maximum that may be paid (see Sec. 404.403);
(2) An application for monthly benefits is effective for a month
during a retroactive period, and the maximum has already been paid for
that month or would be exceeded if such benefit were paid for that month
(see Sec. 404.406);
(3) An individual is entitled to old-age or disability insurance
benefits in addition to any other monthly benefit (see Sec. 404.407);
(4) An individual under full retirement age (see Sec. 404.409) 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 Sec. Sec. 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 Sec. Sec.
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); or
(6) Certain taxes which were neither deducted from the wages of
maritime employees nor paid to the Federal Government (see Sec.
404.457).
(c) Adjustments. We may adjust your benefits to correct errors in
payments under title II of the Act. We may also adjust your benefits if
you received more than the correct amount due under titles VIII or XVI
of the Act. For the title II rules on adjustment to your benefits, see
subpart F of this part. For the rules on adjusting your benefits to
recover title VIII overpayments, see Sec. 408.930 of this chapter. For
the rules on adjusting your benefits to recover title XVI overpayments,
see Sec. 416.572 of this chapter.
(d) Nonpayments. Nonpayment of monthly benefits may be required
because:
(1) The individual is an alien who has been outside the United
States for more than 6 months (see Sec. 404.460);
(2) The individual on whose earnings record entitlement is based has
been deported (see Sec. 404.464);
[[Page 142]]
(3) The individual is engaged in substantial gainful activity while
entitled to disability insurance benefits based on ``statutory
blindness'' (see Sec. 404.467); or
(4) The individual has not provided satisfactory proof that he or
she has a Social Security number or has not properly applied for a
Social Security number (see Sec. 404.469).
(e) Recalculation. A reduction by recalculation of a benefit amount
may be prescribed because an individual has been convicted of certain
offenses (see Sec. 404.465) or because the primary insurance amount is
recalculated (see subpart C of this part).
(f) Suspensions. Suspension of monthly benefits may be required
pursuant to section 203(h)(3) of the Act (the Social Security
Administration has information indicating that work deductions may
reasonably be expected for the year), or pursuant to section 225 of the
Act (the Social Security Administration has information indicating a
beneficiary is no longer disabled).
[40 FR 30813, July 23, 1975, as amended at 48 FR 37016, Aug. 16, 1983;
56 FR 41789, Aug. 23, 1991; 65 FR 16813, Mar. 30, 2000; 66 FR 38906,
July 26, 2001; 68 FR 40122, July 7, 2003; 69 FR 25955, May 10, 2004; 81
FR 19033, Apr. 4, 2016; 83 FR 21708, May 10, 2018]
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. Except as provided in
Sec. 404.471, 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; 71
FR 66865, Nov. 17, 2006]
Sec. 404.402 Interrelationship of deductions, reductions, adjustments,
and nonpayment of benefits.
(a) Deductions, reductions, adjustment. Deductions because of
earnings or work (see Sec. Sec. 404.415 and 404.417); failure to have a
child ``in his or her care'' (see Sec. 404.421); as a penalty for
failure to timely report noncovered work outside the United States,
failure to report that he or she no longer has a child ``in his or her
care,'' or failure to timely report earnings (see Sec. Sec. 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 Sec. Sec.
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 Sec. Sec. 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);
[[Page 143]]
(v) Before nonpayment of an individual's benefits because he is an
alien living outside the United States for 6 months (see Sec. 404.460),
or because of deportation (see Sec. 404.464);
(vi) Before the redetermination of the amount of benefit payable to
an individual who has been convicted of certain offenses (see Sec.
404.465); and
(vii) Before suspension of benefits due to earnings (see Sec.
404.456), for benefits payable or paid for months after December 1995 to
a non-working auxiliary or survivor who resides in a different household
than the working auxiliary or survivor whose benefits are suspended.
(2) Reduction of benefits because of entitlement to certain public
disability benefits (see Sec. 404.408) is made before deduction under
section 203 of the Act relating to work (see Sec. Sec. 404.415,
404.417, 404.451, and 404.453) and failure to have care of a child (see
Sec. Sec. 404.421 and 404.451).
(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 Sec. Sec. 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 Sec. Sec. 404.417 and 404.421;
(5) Current withholding of benefits under Sec. 404.456;
(6) Unpaid maritime tax deductions (Sec. 404.457);
(7) Withholdings to recover overpayments (see subpart F of this
part);
(8) Penalty deductions under Sec. Sec. 404.451 and 404.453.
[40 FR 30813, July 23, 1975, as amended at 44 FR 29047, May 18, 1979; 48
FR 37016, Aug. 16, 1983; 48 FR 46148, Oct. 11, 1983; 56 FR 41789, Aug.
23, 1991; 60 FR 8146, Feb. 10, 1995; 68 FR 15659, Apr. 1, 2003; 68 FR
40122, July 7, 2003]
Sec. 404.403 Reduction where total monthly benefits exceed maximum
family benefits payable.
(a) General. (1) The Social Security Act limits the amount of
monthly benefits that can be paid for any month based on the earnings of
an insured individual. If the total benefits to which all persons are
entitled on one earnings record exceed a maximum amount prescribed by
law, then those benefits must be reduced so that they do not exceed that
maximum.
(2) The method of determining the total benefits payable (the family
maximum) depends on when the insured individual died or became eligible,
whichever is earlier. For purposes of this section, the year in which
the insured individual becomes eligible refers generally to the year in
which the individual attains age 62 or becomes disabled. However, where
eligibility or death is in 1979 or later, the year of death, attainment
of age 62, or beginning of current disability does not control if the
insured individual was entitled to a disability benefit within the 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
[[Page 144]]
for the same month, and at least one of those individuals is entitled
based on a marriage not valid under State law (see Sec. Sec. 404.345
and 404.346), the benefits of the individual whose entitlement is based
on a valid marriage under State law will not be reduced pursuant to this
section. The benefits of all other individuals entitled on the same
record (unless excluded by paragraph (a)(3) of this section) will be
determined under this section as if such validly married individual were
not entitled to benefits.
(5) When a person entitled on a worker's earnings record is also
entitled to benefits on another earnings record, we consider only the
amount of benefits actually due or payable on the worker's record to the
dually-entitled person when determining how much to reduce total monthly
benefits payable on the worker's earnings record because of the maximum.
We do not include, in total benefits payable, any amount not paid
because of that person's entitlement on another earnings record (see
Sec. 404.407). The effect of this provision is to permit payment of up
to the full maximum benefits to other beneficiaries who are not subject
to a deduction or reduction. (See Sec. 404.402 for other situations
where we apply deductions or reductions before reducing total benefits
for the maximum.)
Example 1: A wage earner, his wife and child are entitled to
benefits. The wage earner's primary insurance amount is $600.00. His
maximum is $900.00. Due to the maximum limit, the monthly benefits for
the wife and child must be reduced to $150.00 each. Their original
benefit rates are $300.00 each.
Maximum--$900.00
Subtract primary insurance amount--$600.00
Amount available for wife and child--$300.00
Divide by 2--$150.00 each for wife and child
The wife is also entitled to benefits on her own record of $120.00
monthly. This reduces her wife's benefit to $30.00. The following table
illustrates this calculation.
Wife's benefit, reduced for maximum--$150.00
Subtract reduction due to dual entitlement--$120.00
Wife's benefit--$30.00
In computing the total benefits payable on the record, we disregard
the $120.00 we cannot pay the wife. This allows us to increase the
amount payable to the child to $270.00. The table below shows the steps
in our calculation.
Amount available under maximum--$300.00
Subtract amount due wife after reduction due to entitlement to her own
benefit--$30.00
Child's benefit--$270.00
Example 2: A wage earner, his wife and 2 children are entitled to
benefits. The wage earner's primary insurance amount is $1,250.00. His
maximum is $2,180.00. Due to the maximum limit, the monthly benefits for
the wife and children must be reduced to $310.00 each. Their original
rates (50 percent of the worker's benefit) are $625.00 each. The
following shows the calculation.
Maximum--$2,180.00
Subtract primary insurance amount--$1,250.00
Amount available for wife and children--$930.00
Divide by 3--$310 each for wife and children
The children are also entitled to benefits on their own records.
Child one is entitled to $390.00 monthly and child two is entitled to
$280.00 monthly. This causes a reduction in the benefit to child one to
0.00 and the benefit to child two to $30.00. Again, the following
illustrates the calculation.
Benefit payable to child 1 reduced for maximum--$310.00
Subtract reduction due to dual entitlement--$390.00
Benefit payable to child 1--$0.00
Benefit payable to child 2, reduced for maximum--$310.00
Subtract reduction for dual entitlement--$280.00
Benefit payable to child 2--$30.00
In computing the total benefits payable on the record, we consider
only the benefits actually paid to the children, or $30. This allows
payment of an additional amount to the wife, increasing her benefit to
$625.00. This is how the calculation works.
Amount available under maximum for wife and children--$930.00
Subtract amount due children after reduction due to entitlement to their
own benefits--$30.00
Amount available for wife--$900.00
Amount payable to wife (original benefit)--$625.00
Example 3: A wage earner, his wife and 4 children are entitled to
benefits. The wage earner's primary insurance amount is $1,250.00. His
maximum is $2,180.00. Due to the maximum limit, the monthly benefits for
the wife and children must be reduced to $186.00 each. Their original
rates are $625.00 each. This is how the calculation works.
Maximum--$2,180.00
Subtract primary insurance amount--$1,250.00
Amount available for wife and children--$930.00
Divide by 5--$186.00 each for wife and four children
[[Page 145]]
Two children are also entitled to benefits on their own records.
Child one is entitled to $390.00 monthly and child two is entitled to
$280.00 monthly. This causes a reduction in the benefit to child one to
$0.00 and the benefit to child two to $0.00. This calculation is as
follows.
Benefit to child 1, reduced for maximum--$186.00
Subtract reduction due to dual entitlement--$390.00
Benefit payable to child 1--$0.00
Benefit to child 2, reduced for maximum--$186.00
Subtract reduction for dual entitlement--$280.00
Benefit payable to child two--$0.00
In computing the total benefits payable on the record, we disregard
the $372.00 we cannot pay the children. This allows payment of an
additional amount to the wife, and the two remaining children as
follows:
Amount available under maximum for wife and children--$930.00
Subtract amount due child one and child two after reduction due to
entitlement to their own benefits--$0.00
Amount available for wife and the other two children--$930.00
Amount payable to the wife and each of the remaining two children--
$310.00
(b) Eligibility or death before 1979. Where more than one individual
is entitled to monthly benefits for the same month on the same earnings
record, a reduction in the total benefits payable for that month may be
required (except in cases involving a saving clause--see Sec. 404.405)
if the maximum family benefit is exceeded. The maximum is exceeded if
the total of the monthly benefits exceeds the amount appearing in column
V of the applicable table in section 215(a) of the Act on the line on
which appears in column IV the primary insurance amount of the insured
individual whose earnings record is the basis for the benefits payable.
Where the maximum is exceeded, the total benefits for each month after
1964 are reduced to the amount appearing in column V. However, when any
of the persons entitled to benefits on the insured individual's earnings
would, except for the limitation described in Sec. 404.353(b), be
entitled to child's insurance benefits on the basis of the earnings
record of one or more other insured individuals, the total benefits
payable may not be reduced to less than the smaller of--
(1) The sum of the maximum amounts of benefits payable on the basis
of the earnings records of all such insured individuals, or
(2) The last figure in column V of the applicable table in (or
deemed to be in) section 215(a) of the Act. The applicable table refers
to the table which is effective for the month the benefit is payable.
(c) Eligible for old-age insurance benefits or dies in 1979. If an
insured individual becomes eligible for old-age insurance benefits or
dies in 1979, the monthly maximum is as follows--
(1) 150 percent of the first $230 of the individual's primary
insurance amount, plus
(2) 272 percent of the primary insurance amount over $230 but not
over $332, plus
(3) 134 percent of the primary insurance amount over $332 but not
over $433, plus
(4) 175 percent of the primary insurance amount over $433.
If the total of this computation is not a multiple of $0.10, it will be
rounded to the next lower multiple of $0.10.
(d) Eligible for old-age insurance benefits or dies after 1979. (1)
If an insured individual becomes eligible for old-age insurance benefits
or dies after 1979, the monthly maximum is computed as in paragraph (c)
of this section. However, the dollar amounts shown there will be updated
each year as average earnings rise. This updating is done by first
dividing the average of the total wages (see Sec. 404.203(m)) for the
second year before the individual dies or becomes eligible, by the
average of the total wages for 1977. The result of that computation is
then multiplied by each dollar amount in the formula in paragraph (c) of
this section. Each updated dollar amount will be rounded to the nearer
dollar; if the amount is an exact multiple of $0.50 (but not of $1), it
will be rounded to the next higher $1.
(2) Before November 2 of each calendar year after 1978, the
Commissioner will publish in the Federal Register the formula and
updated dollar amounts to be used for determining the monthly maximum
for the following year.
[[Page 146]]
(d-1) Entitled to disability insurance benefits after June 1980. If
you first become eligible for old-age or disability insurance benefits
after 1978 and first entitled to disability insurance benefits after
June 1980, we compute the monthly family maximum under a formula which
is different from that in paragraphs (c) and (d) of this section. The
computation under the new formula is as follows:
(1) We take 85 percent of your average indexed monthly earnings and
compare that figure with your primary insurance amount (see Sec.
404.212 of this part). We work with the larger of these two amounts.
(2) We take 150 percent of your primary insurance amount.
(3) We compare the results of paragraphs (d-1) (1) and (2) of this
section. The smaller amount is the monthly family maximum. As a result
of this rule, the entitled spouse and children of some workers will not
be paid any benefits because the family maximum does not exceed the
primary insurance amount.
(e) Person entitled on more than one record during years after 1978
and before 1984. (1) If any of the persons entitled to monthly benefits
on the earnings record of an insured individual would, except for the
limitation described in Sec. 404.353(b), be entitled to child's
insurance benefits on the earnings record of one or more other insured
individuals, the total benefits payable may not be reduced to less than
the smaller of--(i) the sum of the maximum amounts of benefits payable
on the earnings records of all the insured individuals, or (ii) 1.75
times the highest primary insurance amount possible for that month based
on the average indexed monthly earnings equal to one-twelfth of the
contribution and benefit base determined for that year.
(2) If benefits are payable on the earnings of more than one
individual and the primary insurance amount of one of the insured
individuals was computed under the provisions in effect before 1979 and
the primary insurance amount of the others was computed under the
provisions in effect after 1978, the maximum monthly benefits cannot be
more than the amount computed under paragraph (e)(1) of this section.
(f) Person entitled on more than one record for years after 1983.
(1) If any person for whom paragraphs (c) and (d) would apply is
entitled to monthly benefits on the earnings record of an insured
individual would, except for the limitation described in Sec.
404.353(b), be entitled to child's insurance benefits on the earnings
record of one or more other insured individuals, the total benefits
payable to all persons on the earnings record of any of those insured
individuals may not be reduced to less than the smaller of:
(i) The sum of the maximum amounts of benefits payable on the
earnings records of all the insured individuals, or
(ii) 1.75 times the highest primary insurance amount possible for
January 1983, or if later, January of the year that the person becomes
entitled or reentitled on more than one record.
This highest primary insurance amount possible for that year will be
based on the average indexed monthly earnings equal to one-twelfth of
the contribution and benefit base determined for that year. Thereafter,
the total monthly benefits payable to persons on the earnings record of
those insured individuals will then be increased only when monthly
benefits are increased because of cost-of-living adjustments (see Sec.
404.270ff).
(2) If benefits are payable on the earnings of more than one
individual and the primary insurance amount of one of the insured
individuals was computed under the provisions in effect before 1979 and
the primary insurance amount of the other was computed under the
provisions in effect after 1978, the maximum monthly benefits cannot be
more than the amount computed under paragraph (f)(1) of this section.
(g) Person previously entitled to disability insurance benefits. If
an insured individual who was previously entitled to disability
insurance benefits becomes entitled to a ``second entitlement'' as
defined in Sec. 404.250, or dies, after 1995, and the insured
individual's primary insurance amount is determined under Sec. Sec.
404.251(a)(1), 404.251(b)(1), or 404.252(b), the monthly
[[Page 147]]
maximum during the second entitlement is determined under the following
rules:
(1) If the primary insurance amount is determined under Sec. Sec.
404.251(a)(1) or 404.251(b)(1), the monthly maximum equals the maximum
in the last month of the insured individual's earlier entitlement to
disability benefits, increased by any cost-of-living or ad hoc increases
since then.
(2) If the primary insurance amount is determined under Sec.
404.252(b), the monthly maximum equals the maximum in the last month of
the insured individual's earlier entitlement to disability benefits.
(3) Notwithstanding paragraphs (g)(1) and (g)(2) of this section, if
the second entitlement is due to the insured individual's retirement or
death, and the monthly maximum in the last month of the insured
individual's earlier entitlement to disability benefits was computed
under paragraph (d-1) of this section, the monthly maximum is equal to
the maximum that would have been determined for the last month of such
earlier entitlement if computed without regard for paragraph (d-1) of
this section.
[45 FR 1611, Jan. 8, 1980, as amended at 46 FR 25601, May 8, 1981; 48 FR
46148, Oct. 11, 1983; 51 FR 12606, Apr. 14, 1986; 58 FR 64892, Dec. 10,
1993; 62 FR 38450, July 18, 1997; 64 FR 17101, Apr. 8, 1999; 64 FR
57775, Oct. 27, 1999; 65 FR 16813, Mar. 30, 2000]
Sec. 404.404 How reduction for maximum affects insured individual and
other persons entitled on his earnings record.
If a reduction of monthly benefits is required under the provisions
of Sec. 404.403, the monthly benefit amount of each of the persons
entitled to a monthly benefits on the same earnings record (with the
exception of the individual entitled to old-age or disability insurance
benefits) is proportionately reduced so that the total benefits that can
be paid in 1 month (including an amount equal to the primary insurance
amount of the old-age or disability insurance beneficiary, when
applicable) does not exceed the maximum family benefit (except as
provided in Sec. 404.405 where various savings clause provisions are
described).
Sec. 404.405 Situations where total benefits can exceed maximum because
of ``savings clause.''
The following provisions are savings clauses and describe exceptions
to the rules concerning the maximum amount payable on an individual's
earnings record in a month as described in Sec. 404.403. The effect of
a savings clause is to avoid lowering benefit amounts or to guarantee
minimum increases to certain persons entitled on the earnings record of
the insured individual when a statutory change has been made that would
otherwise disadvantage them. The reduction described in Sec. 404.403
does not apply in the following instances:
(a)-(m) [Reserved]
(n) Months after August 1972. The reduction described in Sec.
404.403(a) shall not apply to benefits for months after August 1972
where two or more persons were entitled to benefits for August 1972
based upon the filing of an application in August 1972 or earlier and
the total of such benefits was subject to reduction for the maximum
under Sec. 404.403 (or would have been subject to such reduction except
for this paragraph) for January 1971. In such a case, maximum family
benefits on the insured individual's earnings record for any month after
August 1972 may not be less than the larger of:
(1) The maximum family benefits for such month determined under the
applicable table in section 215(a) of the Act (the applicable table in
section 215(a) is that table which is effective for the month the
benefit is payable or in the case of a lump-sum payment, the month the
individual died); or
(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:
[[Page 148]]
(i) Two or more persons were entitled to benefits for December 1972
on the earnings records of a deceased individual and at least one such
person is entitled to benefits as the deceased individual's widow or
widower for December 1972 and for January 1973; and
(ii) The total of benefits to which all persons are entitled for
January 1973 is reduced (or would be reduced if deductions were not
applicable) for the maximum under Sec. 404.403.
In such case, the benefit of each person referred to in paragraph
(o)(1)(i) of this section for months after December 1972 shall be no
less than the amount it would have been if the widow's or widower's
benefit had not been redetermined under the Social Security Amendments
of 1972.
(2) In the case of entitlement to child's benefits based upon
disability which began between ages 18 and 22 the reduction described in
Sec. 404.403 shall not apply if:
(i) One or more persons were entitled to benefits on the insured
individual's earnings record for December 1972 based upon an application
filed in that month or earlier; and
(ii) One or more persons not included in paragraph (o)(2)(i) of this
section are entitled to child's benefits on that earnings record for
January 1973 based upon disability which began in the period from ages
18 to 22; and
(iii) The total benefits to which all persons are entitled on that
record for January 1973 is reduced (or would be reduced if deductions
were not applicable) for the maximum under Sec. 404.403.
In such case, the benefit of each person referred to in paragraph
(o)(2)(i) of this section for months after December 1972 shall be no
less than the amount it would have been if the person entitled to
child's benefits based upon disability in the period from ages 18 to 22
were not so entitled.
(3) In the case of entitlement of certain surviving divorced
mothers, the reduction described in Sec. 404.403 shall not apply if:
(i) One or more persons were entitled to benefits on the insured
individual's earnings record for December 1972 based upon an application
filed in December 1972 or earlier; and
(ii) One or more persons not included in paragraph (o)(3)(i) of this
section are entitled to benefits on that earnings record as a surviving
divorced mother for a month after December 1972; and
(iii) The total of benefits to which all persons are entitled on
that record for any month after December 1972 is reduced (or would be
reduced if deductions were not applicable) for the maximum under Sec.
404.403.
In such case, the benefit of each such person referred to in paragraph
(o)(3)(i) of this section for months after December 1972 in which any
person referred to in paragraph (o)(3)(ii) of this section is entitled
shall be no less than it would have been if the person(s) referred to in
paragraph (o)(3)(ii) of this section had not become entitled to
benefits.
(p) Months after December 1973. The reduction described in Sec.
404.403 shall not apply to benefits for months after December 1973 where
two or more persons were entitled to monthly benefits for January 1971
or earlier based upon applications filed in January 1971 or earlier, and
the total of such benefits was subject to reduction for the maximum
under Sec. 404.403 for January 1971 or earlier. In such a case, maximum
family benefits payable on the insured individual's earnings record for
any month after January 1971 may not be less than the larger of:
(1) The maximum family benefit for such month shown in the
applicable table in section 215(a) of the Act (the applicable table in
section 215(a) of the Act is that table which is effective for the month
the benefit is payable or in the case of a lump-sum payment, the month
the individual died); or
(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
[[Page 149]]
immediately before the month of increase in the primary insurance amount
(after reduction for the family maximum but before deductions or
reductions for age) multiplied by the percentage of increase. Any such
increased amount, if it is not a multiple of $0.10, will be raised to
the next higher multiple of $0.10 for months before June 1982 and
reduced to the next lower multiple of $0.10 for months after May 1982.
(q) Months after May 1978. The family maximum for months after May
1978 is figured for all beneficiaries just as it would have been if none
of them had gotten a benefit increase because of the retirement credit
if:
(1) One or more persons were entitled (without the reduction
required by Sec. 404.406) to monthly benefits for May 1978 on the wages
and self-employment income of a deceased wage earner;
(2) The benefit for June 1978 of at least one of those persons is
increased by reason of a delayed retirement credit (see Sec.
404.330(b)(4) or Sec. 404.333(b)(4)); and
(3) The total amount of monthly benefits to which all those persons
are entitled is reduced because of the maximum or would be so reduced
except for certain restrictions (see Sec. 404.403 and Sec.
404.402(a)).
[32 FR 19159, Dec. 20, 1967, as amended at 40 FR 30814, July 23, 1975;
43 FR 8132, Feb. 28, 1978; 43 FR 29277, July 7, 1978; 48 FR 46148, Oct.
11, 1983]
Sec. 404.406 Reduction for maximum because of retroactive effect of
application for monthly benefits.
Under the provisions described in Sec. 404.403, beginning with the
month in which a person files an application and becomes entitled to
benefits on an insured individual's earnings record, the benefit rate of
other persons entitled on the same earnings record (aside from the
individual on whose earnings record entitlement is based) are adjusted
downward, if necessary, so that the maximum benefits payable on one
earnings record will not be exceeded. An application may also be
effective (retroactively) for benefits for months before the month of
filing (see Sec. 404.603). For any month before the month of filing,
however, benefits that have been previously certified by the
Administration for payment to other persons (on the same earnings
record) are not changed. Rather, the benefit payment of the person
filing the application in the later month is reduced for each month of
the retroactive period to the extent that may be necessary, so that no
earlier payment to some other person is made erroneous. This means that
for each month of the retroactive period the amount payable to the
person filing the later application is the difference, if any, between
(a) the total amount of benefits actually certified for payment to other
persons for that month, and (b) the maximum amount of benefits payable
for that month to all persons, including the person filing later.
[32 FR 19159, Dec. 20, 1967, as amended at 64 FR 14608, Mar. 26, 1999]
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
[[Page 150]]
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 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]