Martin on Social Security
This novel reference work was designed to take full advantage of today's online legal research environment. It was written to be surrounded by and linked to the primary law material of its field. The author’s aim has been to create a fully integrated electronic reference work. Issue by issue it provides immediate, “point and click” access to the relevant portions of the Social Security Act, Code of Federal Regulations, Hallex, and POMS as well as all important cases and rulings. In this way it organizes a comprehensive library of Social Security material. While it can be used apart from the Internet or printed out, in whole or part, separated from its companion online library it is far less useful.
The flexibility of the medium allows all this material to be brought to bear on the quite diverse needs of different researchers, ranging from attorneys or other experts doing Social Security representation to non-experts seeking guidance on a more general level to judges confronting a steady stream of specific Social Security issues.
The reference work, like the full collection it integrates, can be entered in several different ways. It is divided into two distinct parts, designated Part 1 and Part 2. Part 1 contains an overview of Social Security law, with extensive links from its “broad brush” sections to the topically focused sections of Part 2. Part 1 is organized around different benefit types and general features of the program. Its structure reflects the initial questions an individual may have about benefits under Social Security and how they are pursued. Part 2, by contrast, is organized around issues or topics that are particularly important in appeals or litigation. Using the Table of Contents or by moving into a part directly from the front menu a researcher can find a useful starting point in Part 1 or 2. Each section carries its own small table of contents, a set of linked references to related sections in Parts 1 and 2. Consequently, once a researcher has started off in a useful direction that direction can be pursued without frequent need to return “to the top.”
Print reference works must do a great deal of summarizing and excerpting. Since they are separated, often by significant physical distance, from their underlying primary material, it is important that they provide detailed description. A reference work that can take you straight to its cited sources with a “point and click” need not quote them. The central value of this reference work to the user lies in the links between its topic structure and the Social Security Act, the agency regulations and rulings, and the thousands of Federal court decisions that comprise this fully integrated collection. The reference work text that accompanies those links was written with three principal aims: to provide context, to highlight particularly important primary materials among the many accessible to the user, and to note when there are relatively recent changes in law or regulation that should be considered when reading older decisions. Because the detailed provisions of both Act and regulations are close at hand, this work does not repeat their every qualification or condition. Its description of governing rules is at a more general level. As a consequence, on any point about which you need precise and authoritative information, you should follow the links to the pertinent sections of the Act, regulations, and other primary material.
No work of this magnitude is a single person achievement. Meeting the challenges of building a new reference work, from scratch, for electronic publication necessarily required contributions of many kinds, from many quarters. Those who have helped in major ways are far too numerous to mention so I must acknowledge my indebtedness to them by category, secure in the knowledge that the individuals know both who they are and the depth of my gratitude. The National Center for Automated Information Retrieval and Cornell University furnished the necessary time, space, and funds to launch this project in 1988. Mead Data Central furnished data and an initial experimental run on LEXIS along with a serious opportunity to explore the design issues of CD-ROM publication. Last not least, Clark Boardman Callaghan took on the challenge of building and publishing the full work on CD-ROM. In addition to these institutions (of which only Cornell remains) and their people, I am deeply indebted to successive cohorts of student assistants who wrestled with the thousands of Social Security decisions that had to be read and classified against an evolving reference work structure, making use of an ever changing set of software tools, to several law colleagues at institutions scattered across the map who not only shared and, at times, helped buoy my enthusiasm for this new form of law scholarship but furnished useful criticism, and finally to my family who have been very, very patient.
An electronic work is not static. This reference work is not done. It will be revised as Social Security law evolves and its links must be kept up-to-date. By its nature, a work in electronic media, existing in a software environment that enables electronic annotation, invites those who use it to suggest improvements – of all kinds. If you have such suggestions, please send them, in electronic format or on paper to: Prof. Peter W. Martin, Cornell Law School, Myron Taylor Hall, Ithaca, NY 14853. By e-mail, I am: peter-martin@lawschool.cornell.edu
Part 1 – Overviews
Scope of Reference Work
§ 100. Scope of Reference Work – In General
This reference work and accompanying on-line resources cover issues of entitlement and benefit calculation arising out of the set of programs popularly referred to as Social Security. These programs touch the lives of well over 90 percent of all persons living or working in the United States and provide critical income to those who have retired or ceased working due to severe physical or mental disability. They also provide income to other members of a worker’s family when the worker has retired, become disabled, or died. The law directing these payments and setting their amount is complicated. Questions about proper application of this law are raised in hundreds of thousands of administrative hearings and well over ten thousand federal court proceedings each year. This collection of materials is assembled to assist those who must resolve questions of Social Security law as judges, those who represent individuals and families seeking Social Security benefits, and individuals, family members, and organizations seeking a clearer understanding of the law that directs the distribution of hundreds of billions of dollars each year. Since these benefits are centrally important to individuals at critical points in their lives, understanding under what circumstances they are available and how much the payments will be is vital information for planning and making decisions about other forms of savings or insurance.
Rev. 11/05
[Related Sections: Part 1]
§ 101. The Programs Covered – Old-Age, Survivors, and Disability Insurance (OASDI) and Supplemental Security Income (SSI)
Although the Social Security Act of 1935 established a wide range of income support programs and many additional programs have since been added to the Social Security Act, the phrase “Social Security” is used throughout this reference work to refer more narrowly to the programs found in Title II of that act. These include old-age insurance (retirement) benefits, survivors’ benefits, and disability benefits. The full collection is referred to as Old-Age, Survivors and Disability Insurance or OASDI.
This reference work and accompanying on-line resources also cover questions of entitlement and benefit amount under Title XVI, the Supplement Security Income program (SSI). As its name suggests, Supplemental Security Income can be viewed as a backstop for Social Security, providing benefits for individuals in the same population segments who have insufficient income, either because they do not qualify for Social Security (having not had enough past covered employment) or because their Social Security benefits are too low.
Rev. 9/95
[Related Sections: Part 1]
§ 102. Programs Not Covered Although Closely Affiliated With Social Security – Black Lung, Medicare, AFDC, Private Pensions
For many individuals and families, Social Security benefits overlap with or interact with other important benefits. While SSI is a special case, other close program-to-program relationships exist. These relationships are, in most cases, structured by provisions of the statutes or regulations that regulate the interaction from both sides. Although such related benefits and their interaction with Social Security can have a major impact on the Social Security claimant, this reference work and accompanying on-line resources do not provide detailed treatment of Black Lung benefits, Medicare, private pensions, or the many other forms of income support that resemble Social Security in some respects. It does, however, include summary treatment of the Social Security side of the relationship between its benefits and the more important overlapping programs.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 103. The Issues Covered – Entitlement, Amount, Procedure, Proof or Evidence, Issues of Representation, Planning in Relation to Benefits
For the programs covered, this reference work and accompanying on-line resources cover all issues bearing on entitlement, those elements an individual must establish in order to secure benefits in the first place or keep benefits once started. Depending on the benefits involved, the issues can range from the generally straightforward matter of establishing the claimant’s age, through the more frequently troublesome question of whether a specified family relationship exists, to the nearly always difficult complex of issues surrounding a disability determination. This reference work and files cover the law of Social Security and SSI benefit calculation, including the effect on monthly payments of continuing earnings and benefit claims by other family members. The reference work deals with the administrative and judicial procedures that govern appeals from unfavorable agency determinations, and also with associated rules of proof or evidence. It covers the rules concerning representation of individuals by lawyers or others, including the provisions controlling the fees charged for such representation. Finally, the work focuses on areas where the contours of Social Security law may affect private planning, such as decisions about retirement or continued part-time work and about divorce, marriage, and adoption.
Rev. 11/05
[Related Sections: Part 1]
§ 104. Related Tax Issues Not Addressed
Social Security benefits are financed by special taxes. Those taxes, paid by employees, employers, and self-employed individuals, are set out in a separate set of statutory provisions that can be found, today, with the other provisions of the Internal Revenue Code. In many respects these tax provisions track the benefit provisions of the Social Security Act in perfect parallel. The definitions of employment, wages, and self-employment income that operate in the benefit context are nearly identical to those that determine the incidence of the Federal Insurance Contributions Act (FICA) and Self-Employment Contributions Act (SECA) taxes. Consequently, there are times when decisions about a tax question furnish useful authority on a benefit issue. On the other hand, the tax and benefit settings are so distinct, involving different public agencies and private attorneys, that the practical overlap is slight. This reference work and accompanying on-line resources are limited to the benefit side of Social Security. References to the program’s tax provisions are limited to a few situations in which they constitute important authority on benefit questions.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
The Different Types of Social Security Benefits
Social Security – Basic Categories
§ 150. The Different Types of Social Security Benefits – In General
When first enacted, in 1935, the Social Security program was almost exclusively a retirement benefit program. It provided for monthly benefits to covered workers who had reached the age of eligibility (then 65) and also retired. The program has since acquired two additional types of benefits. It now includes benefits for covered workers who become severely disabled, long before they reach retirement age. It also includes benefits for others, related to the worker, in the event of the worker’s retirement, disability, or death.
[Related Sections: Part 1 - Part 2]
§ 151. Benefits Categorized According to the Claimant’s Relationship to the Worker
The Social Security program provides two types of benefits for the worker whose own earnings have established entitlement: 1) disability benefits, available to covered workers who become severely disabled, and 2) old-age insurance (retirement) benefits, available to workers after reaching the age of 62. These benefits received directly by the worker are sometimes called primary Social Security benefits. In addition to these two types of primary benefits, the Social Security program provides for auxiliary or derivative benefits. These are benefits that are paid to children, spouses, former spouses, and parents of a covered worker under certain circumstances.
[Related Sections: Part 1 - Part 2]
§ 152. The Different Types of Social Security Benefits – Benefits Categorized According to the Worker’s Situation
Three different events in the worker’s life can trigger Social Security benefits – retirement, disability, and death. Benefits are available to the worker and certain family members once the worker has attained 62 and meets the program’s definition of retirement. Benefits are available to the worker and certain family members if the worker becomes severely disabled. And finally, benefits are available to certain surviving family members in the event of the worker’s death.
[Related Sections: Part 1]
Old-Age Benefits
§ 160. Old-Age Benefits – In General
Monthly old-age insurance (retirement) benefits are available to workers covered by Social Security upon reaching age 62. The amount of the monthly benefit depends upon the worker’s earnings history, upon the age at which the worker commences receiving the monthly benefit, and upon the level of the worker’s continuing earned income.
[Related Sections: Part 1]
§ 161. Old-Age Benefits – Entitlement
To receive monthly old-age insurance (retirement) benefits a person must have sufficient past work covered by Social Security to have the necessary “fully insured” status. The person must be 62 or older and, prior to the Social Security Act’s “full retirement age” (which is between 65 and 67 depending on year of birth), must not have a high level of continuing earnings. Unless the person is already receiving Social Security benefits of some other kind old-age benefits await the worker’s decision to file an application. However, if the person has waited until after his or her “full retirement age” to file an application, benefits can be recovered for up to 12 months prior to the application but not for months prior to the “full retirement age.”
Rev. 12/01
[Related Sections: Part 1 - Part 2]
§ 162. Old-Age Benefits – Amount
The monthly old-age insurance (retirement) benefit is pegged to a “full retirement age” defined in the Social Security Act (which is between 65 and 67 depending on year of birth). Those who start benefits at that age get their full “primary insurance amount,” an amount that is based on their personal earnings history. Those who start benefits prior to that “full retirement age” receive a smaller monthly sum; those who start benefits later, a larger one. Prior to that “full retirement age,” benefits are also affected by the worker’s continued receipt of significant earned income. Claimants seeking benefits while they continue to work may have their monthly benefit reduced or even eliminated because of the resulting earnings.
Rev. 12/01
[Related Sections: Part 1 - Part 2]
§ 163. Old-Age Benefits – Relationship to Prior or Subsequent Benefits Received by Worker
Old-age insurance (retirement) benefits are primary benefits; they rest on the claimant’s own earnings record rather than the earnings record of another. When a person entitled to old-age insurance benefits is also eligible for a family benefit, as a spouse, say, that auxiliary benefit is reduced by the amount of the primary benefit. If the auxiliary benefit is larger than the primary, the total amount received by the individual will be that larger amount but the total will be made up of the full primary benefit plus a reduced auxiliary benefit.
Because of this interplay, if a person below his or her “full retirement age” is simultaneously eligible for a reduced spouse benefit, based on the earnings record of a retired or disabled worker, and also a reduced old-age insurance benefit, the individual cannot put off applying for the primary benefits. Application for one is deemed an application for the other. (This is not the case, however, with surviving spouse benefits and old-age insurance benefits.)
Prior receipt of disability benefits, the other form of primary benefits, has no direct effect on the amount of old-age insurance benefits. The disability will, however, result in the period of disability being dropped from the “primary insurance amount” calculation. (This prevents any ultimate old-age benefits from being dragged down by the years of no or low earnings.) If the person continues to receive disability benefits up through the month before he or she reaches the “full retirement age” defined by the Social Security Act (which is between 65 and 67 depending on year of birth), those benefits convert to old-age or retirement benefits at that point without any need to file an application.
When a person is entitled to both an old-age insurance and a disability benefit, he or she can receive only one.
Rev. 11/05
[Related Sections: Part 1]
§ 164. Old-Age Benefits – Benefits for Others That Are Linked To
When an individual is entitled to old-age insurance (retirement) benefits, his or her spouse, divorced spouse, or child may be entitled to derivative benefits on the worker’s account. Since an individual is not entitled to old-age insurance benefits until he or she has filed an application, these derivative benefits, too, must await the worker’s application. There is one exception to this rule: benefits for most divorced spouses do not depend on the worker’s having filed an application.
[Related Sections: Part 1]
Disability Benefits
§ 170. Disability Benefits – In General
Several different types of Social Security benefits are available on the basis of disability. First, disability insurance benefits are available to qualifying individuals on the basis of their own past earnings record. The amount of the benefit depends on that earnings history. Second, a surviving spouse can receive widow(er)s benefits prior to the eligibility age of 60 normally applicable to such benefits if he or she meets the Act’s disability test. Such benefits can begin as early as age 50. Third, a child can receive benefits on the basis of the earnings record of a parent beyond the normal cutoff age for such benefits if the child meets the disability test. Finally, those who are not entitled to any of these other Social Security benefits or whose benefits are low may be eligible for Supplement Security Income disability benefits.
[Related Sections: Part 1 - Part 2]
§ 171. Disability Benefits – Entitlement
To be entitled to monthly disability insurance benefits an individual must meet the program’s definition of disability, and the disability must have lasted for at least five months. In addition, the individual must have insured status for disability benefits, must be below the Act’s “full retirement age” (which is between 65 and 67 depending on year of birth), and must have filed an application.
Rev. 12/01
[Related Sections: Part 1 - Part 2]
§ 172. Disability Benefits – Amount
The monthly disability insurance benefit is the individual’s full “primary insurance amount,” an amount that is based on his or her earnings history. The age at which disability benefits begin has no effect on the monthly amount except in the unusual situation in which the person becomes eligible for disability benefits after having begun old-age insurance (retirement) benefits. In such a case, the individual will be between the age of 62 and his or her “full retirement age” (which is between 65 and 67 depending on year of birth) and the disability benefit amount will be reduced to reflect the months of early payment of old-age insurance benefits. When a person is entitled to both an old-age insurance and disability benefit, he or she can receive only one.
Disability insurance benefits may also be reduced when an individual is also receiving workers compensation or equivalent benefits under a state or federal program. Such reduction occurs when the combined total of disability insurance and such other benefits (including benefits to other family members) exceeds 80% of the worker’s average earnings immediately prior to the onset of disability.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 173. Disability Benefits – Relationship to Prior or Subsequent Benefits Received by Worker
When a person becomes eligible for disability insurance benefits after having begun old-age insurance (retirement) benefits, which can happen only when the individual is between the age of 62 and the Social Security Act’s “full retirement age” (which is between 65 and 67 depending on year of birth), the disability benefit amount will be reduced to reflect the months of early payment of old-age insurance benefits.
Disability benefits are primary benefits; they rest on the claimant’s own earnings record rather than the earnings record of another. When a person entitled to disability benefits is also eligible for a family benefit, as a spouse, say, that auxiliary benefit is reduced by the amount of the primary benefit. If the auxiliary benefit is larger than the primary, the total amount received by the individual will be that larger amount but the total will be made up of the full primary benefit plus a reduced auxiliary benefit.
[Related Sections: Part 1 - Part 2]
§ 174. Disability Benefits – Benefits for Others That Are Linked To
When an individual is entitled to disability insurance benefits, his or her spouse, divorced spouse, or child may be entitled to derivative benefits on the worker’s account. Since an individual is not entitled to disability insurance benefits until he or she has filed an application these derivative benefits, too, must await the worker’s application.
[Related Sections: Part 1 - Part 2]
§ 180. Disability Benefits – Disability Determination – In General
The Social Security Act has both a general definition of disability and a specific definition of blindness as a disability. The general definition of disability requires the claimant to show a medically determinable physical or mental impairment. That impairment must be expected to result in death or to last for at least 12 months. This definition combines both medical and vocational components.
[Related Sections: Part 1 - Part 2]
§ 181. Disability Benefits – Disability Determination – Procedure Employed
While the overall administration of the Social Security program lies with the Social Security Administration disability determinations are made by state agencies. Those agencies operate under agreements with the Federal Agency and are subject to Federal law. Moreover, their determinations are ultimately subject to appeal to Federal administrative law judges and the Federal courts.
The regulations prescribe a sequential evaluation process to be followed in determining whether an individual meets the Act’s disability test. A conclusion at any step that the individual is disabled or not disabled ends the evaluation; subsequent steps do not apply. In order, the steps of that process are as follows:
1) Substantial gainful activity – If the claimant is, in fact, continuing to work and that work is found to be substantial gainful activity the process calls for a finding that he or she is not disabled.
2) Severity – A conclusion that the claimant’s medical impairments do not significantly limit the ability to perform basic work activities calls for a finding that he or she is not disabled.
3) Listed Impairments – The regulations provide a catalog of impairments that are deemed severe enough to warrant a finding that the claimant is disabled. If the claimant suffers from a listed impairment or its medical equivalent, he or she is to be found disabled.
4) Relevant past work – If a claimant’s impairments do not prevent performance of relevant work he or she has done in the past, a finding of not disabled is called for.
5) If the claimant cannot perform his or her past relevant work, the issue becomes whether or not the individual has the capacity to perform other work available in the national economy. Here, in appropriate cases, the Agency makes use of the Medical-Vocational Guidelines (also known as the grid).
[Related Sections: Part 1 - Part 2]
§ 182. Disability Benefits – Disability Determination – End of Disability
A claimant who has been found entitled to disability benefits may lose those benefits if he or she later ceases to be disabled. A determination that the disability has ended can come from the individual’s return to substantial gainful activity without any other evidence that the level of impairment has changed. However, beneficiaries are entitled to a period of trial work before that judgment is reached. A determination that the individual’s medical condition has improved to the point that he or she no longer meets the disability test will also lead to the end of benefits. The Agency is required to reevaluate beneficiaries’ impairments from time to time to determine whether they remain disabled. The frequency of such reviews depends on the likelihood of improvement. The process of reevaluation is termed a “continuing disability review.”
Before beginning such a review, the Agency must notify the individual of the review and the grounds for it. Because those subject to review have previously been determined disabled, determinations that disability has ceased generally require substantial evidence of a change.
Disability beneficiaries threatened with termination have an option to continue payments through the hearing stage, subject to having those payments treated as overpayments should the hearing decision by the Administrative Law Judge affirm the termination.
[Related Sections: Part 1 - Part 2]
§ 190. How Disability Affects Non-Disability Benefits
When an individual meets the Act’s test of disability and the insured status test for disability benefits, his or her earnings record is protected by a disability “freeze.” The freeze applies for the length of the disability (or until the individual’s “full retirement age” if that comes first). One result of a freeze is that quarters during the period of disability are not counted in determining the number of quarters needed for insured status. A second consequence of a freeze is that years included within the period are not included in calculation of the individual’s “primary insurance amount.”
To secure recognition of a period of disability, the claimant must file an application while disabled or within 12 months after the disability period has ended. An extension of that deadline for an additional 24 months is available in cases where the failure to file within 12 months was due to the individual’s mental or physical incapacity.
Rev. 12/01
[Related Sections: Part 1 - Part 2]
Benefits Based on Family Relationship
§ 200. Benefits Based on Family Relationship – In General
Several family relationships can be a source of Social Security benefits. In most cases, these benefits rest on family relationship and age alone without further proof of actual financial dependency on the insured worker. There are, however, special situations in which the claimant must establish not only a family tie but some measure of financial dependency. In addition family benefits are only available after a triggering event in the worker’s life – disability, retirement with entitlement to old-age insurance benefits, or death.
[Related Sections: Part 1 - Part 2]
§ 201. Benefits Based on Family Relationship – Categories Based on Family Relationship
The Social Security Act provides for:
1) benefits payable to the spouse or former spouse (divorced spouse) of a disabled or retired worker;
2) benefits payable to the surviving spouse (widow or widower) or surviving former spouse (divorced spouse) of a deceased worker, including benefits payable to younger spouses or former spouses caring for children of the deceased worker (mother or father);
3) benefits payable to the children of a disabled, retired, or deceased worker; and
4) benefits payable to the parents of a deceased worker.
Family relationship benefits for spouses once contained very different rules for men and women, but this is no longer the case. Family benefits are now provided on the same terms to men and women and their families.
[Related Sections: Part 1 - Part 2]
§ 202. Benefits Based on Family Relationship – Categories Based on Worker’s Situation
Organizing family benefits according to the worker’s situation yields the following groups:
1) benefits payable to others in the family of a retired or disabled worker (spouse, divorced spouse, children), and
2) benefits commonly known as survivors’ benefits payable to family members – surviving spouse (widow or widower), surviving former spouse (divorced spouse), surviving children, and surviving parents – on behalf of a deceased worker.
[Related Sections: Part 1 - Part 2]
§ 203. Benefits Based on Family Relationship – Establishing Family Relationship
To be eligible for family benefits, a claimant must meet the Social Security Act’s definition of the relevant family relationship, e.g., spouse, divorced spouse, child, or parent. The Act defines these terms sometimes more broadly and sometimes more narrowly than ordinary usage does.
For those individuals whose claim to Social Security benefits rests on their family relationship to a covered and insured worker, how the law determines family relationship can be critical to original entitlement, amount of benefits, or the continuation of benefits.
The Act establishes its own set of criteria under which individuals who fail to meet state law tests for spouse, surviving spouse, or child can, nonetheless, qualify for benefits. These criteria can carry additional conditions or limitations. Consequently, in most cases the applicant is better off qualifying under state law, if possible.
Sometimes, the critical issue is not whether the essential family relationship existed but when it was established or ended or whether other claimants have a qualifying family tie as well. There are occasions when the Social Security benefit system places applicants in an adversarial posture, with the entitlement of one applicant reducing or blocking entitlement of another. For example, the claim of one child, born of an earlier, asserted marriage, can, because of the maximum on benefits payable on one worker’s account, threaten a reduction in benefits clearly payable to a later spouse and her children. The claim of a subsequently established household, filled with children, including some from the new partner’s prior marriage, can have an even more dramatic effect.
Family relationship alone rarely brings benefits. Additional conditions must be met including conditions having to do with the duration of the family relationship and, in some cases, financial dependency on the covered worker.
[Related Sections: Part 1 - Part 2]
§ 204. Benefits Based on Family Relationship – Amount
Each type of family benefit has a base monthly amount set at a fixed percentage of the insured worker’s “primary insurance amount” (100%, for example, in the case of a widow or widower eligible on the basis of age, 50% in the case of a qualifying child of a disabled worker). However, the resulting benefit amount is subject to a variety of adjustments – both reductions and increases. Some of these are the result of the number of other family benefit recipients or actions taken by other benefit recipients.
[Related Sections: Part 1 - Part 2]
§ 210. Benefits Based on Family Relationship – Survivors’ Benefits
Family members are eligible for survivors’ benefits if they are related to a deceased worker who, at the time of death, had acquired the requisite insured status. Entitlement depends on proof of the worker’s death (generally, but not always, an easy fact to establish), the worker’s insured status, and proof of the necessary family relationship. With some survivors’ benefit categories entitlement depends on additional factors such as the age of the family member or whether the family member was financially dependent on or shared a household with the deceased.
[Related Sections: Part 1 - Part 2]
§ 211. Survivors’ Benefits – Categories of Family Members Who Are Eligible
Survivors’ benefits are available to a worker’s surviving spouse (widow or widower), a surviving former spouse (divorced spouse), surviving children, and surviving parents. In addition to these categories of monthly survivors’ benefits, the Social Security Act provides for a small lump sum death benefit that is payable to the worker’s surviving spouse or children.
[Related Sections: Part 1 - Part 2]
Benefits for the Surviving Spouse of a Deceased Worker
§ 220. Benefits for the Surviving Spouse of a Deceased Worker – Entitlement
Benefits are available to the widow or widower age 60 or over and surviving divorced spouse age 60 or over of a deceased worker. If the surviving spouse or surviving divorced spouse is disabled benefits are available as early as age 50. The Social Security Act terms these age or age and disability limited spouse benefits “widow” or “widower” benefits and requires that the deceased worker have been “fully insured.”
Another category of surviving spouse benefits termed “mother” or “father” benefits is available to the widow or widower of any age and surviving divorced spouse of any age of a deceased worker so long as the individual has children of that worker in his or her care. The children must be entitled to child benefits and must meet certain additional age requirements. The deceased worker in this case must have been either “fully insured” or “currently insured.”
[Related Sections: Part 1 - Part 2]
§ 221. Benefits for the Surviving Spouse of a Deceased Worker – Amount
The monthly benefit for a surviving spouse is closely related to the old-age insurance (retirement) benefit the deceased worker would have received (or was receiving). If begun at the Act’s “full retirement age” (which is between 65 and 67 depending on year of birth) the benefit received by a surviving spouse equals the worker’s full “primary insurance amount.” However, if the deceased worker had already begun retired worker benefits before his or her “full retirement age” the worker’s reduced monthly amount is passed on to the surviving spouse. Similarly, if the deceased worker had postponed receiving retired worker benefits until after his or her “full retirement age,” the resulting increase in the monthly amount carries over to the surviving spouse.
Benefits for the surviving spouse can begin benefits at age 60 or as early as age 50 if the spouse is disabled. Those who start benefits prior to the Act’s “full retirement age” receive a smaller monthly sum. The reduction for those who begin benefits at age 60 brings the benefit down to 71.5% of the deceased worker’s primary insurance amount. Those who qualify at an earlier age because of disability suffer no greater reduction.
The surviving spouse benefit paid regardless of age to a spouse caring for the worker’s child eligible for surviving child benefits is equal to 75% of the deceased worker’s primary insurance amount.
Surviving spouse benefits are reduced if the individual is under the Act’s “full retirement age” and has earnings above the annual excess earnings threshold. They are also reduced in some cases if the individual is receiving a public pension based on his or her own work in uncovered government employment.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 222. Benefits for the Surviving Spouse of a Deceased Worker – Relationship to Prior or Subsequent Benefits Received by the Individual
Surviving spouse benefits are auxiliary benefits and as such they are reduced by any primary benefits received by the same individual. A person who is entitled both to an old-age insurance (retirement) benefit and a surviving spouse benefit will receive only the former if it is greater than the auxiliary spouse benefit. If the spouse benefit is greater than the primary benefit, the individual will receive a full primary benefit and a reduced spouse benefit. The reduction will be calculated to bring the total of both benefits up to the unreduced spouse benefit amount.
Prior receipt of other auxiliary benefits will not affect the level of benefits the individual can receive as a surviving spouse. On the other hand, an individual cannot receive two auxiliary benefits at once (two surviving spouse benefits, for example). In such cases, the individual will receive only one: the higher auxiliary benefit.
[Related Sections: Part 1 - Part 2]
§ 223. Benefits for the Surviving Spouse of a Deceased Worker – How Affected by Benefits Received by Others
Like other auxiliary benefits, benefits for the surviving spouse of a deceased worker are subject to the family maximum. That cap is calculated by a formula that yields a figure between 150% and 188% of the worker’s “primary insurance amount.” The family maximum operates to reduce a surviving spouse’s benefit when additional family members are entitled to survivor benefits. It does not take many additional family members entitled to survivors benefits before the total exceeds the family maximum, triggering a reduction of the individual amounts. However, benefits to a surviving divorced spouse are, except in the case of mother or father benefits, paid outside the family maximum and therefore have no impact on the amount of benefits for a surviving spouse. The existence of eligible surviving children in a separate household, on the other hand, can cause a family maximum reduction.
In cases where two individuals are both claiming benefits as the worker’s surviving spouse their claims have more direct impact on one another. Their claims may be directly competitive under the relevant state law. If one of the two is claiming benefits as a spouse on the basis of the Social Security Act’s provision deeming valid certain ceremonial marriages which state law does not recognize, the Act allows payment of spouse benefits to both and in such cases places the benefit of the “state law” spouse outside the family maximum.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 224. Benefits for the Surviving Spouse of a Deceased Worker Caring for Children (Mother’s or Father’s Benefits)
The surviving spouse and surviving divorced spouse of a currently or fully insured worker are entitled to benefits regardless of age during the period they are caring for a child of the worker who is entitled to surviving child benefits. These are termed “mother’s” or “father’s” benefits. When the child reaches the age of 16, unless he or she is disabled, these benefits end. They end earlier if the individual ceases to have the child in his or her care.
Normally, remarriage ends entitlement to such benefits for younger surviving spouses.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 225. Benefits for the Surviving Divorced Spouse of a Deceased Worker
Benefits are available to the former spouse of a deceased worker. The requirements that apply to surviving spouse benefits generally apply to those for a surviving divorced spouse. However, benefits to a surviving divorced spouse are, except in the case of mother or father benefits, paid outside the family maximum.
To be entitled to benefits, except those paid on account of caring for children of the deceased worker, such a former spouse must have been divorced after 10 years or more of marriage.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
Benefits for Surviving Child of a Deceased Worker
§ 230. Benefits for the Surviving Child of a Deceased Worker – Entitlement
Benefits are available to the surviving dependent children of a deceased worker if those children are under 18, or under 19 and full-time students, or age 18 and older and under a disability that began before the age of 22.
Certain categories of children must prove that they were dependent on the insured worker. For most, however, dependency is assumed. Eligibility for surviving child benefits begins when the insured worker dies.
[Related Sections: Part 1 - Part 2]
§ 231. Benefits for the Surviving Child of a Deceased Worker – Amount
The monthly benefit for a surviving child is based on the deceased worker’s “primary insurance amount.” The initial benefit amount, before reductions, is 75% of that primary insurance amount. Surviving child benefits are reduced if the child has earnings above the annual excess earnings threshold (although earnings of other family members, including the child’s surviving parent, have no effect on his or her benefits).
[Related Sections: Part 1 - Part 2]
§ 232. Benefits for the Surviving Child of a Deceased Worker – Relationship to Prior or Subsequent Benefits Received by the Individual
A surviving child cannot receive multiple Social Security benefits. The Social Security Act limits the individual to one, specifying that in most cases that one is the benefit based on the highest “primary insurance amount.”
Auxiliary benefits received as a child have no effect on the individual’s later entitlement to other Social Security benefits, either primary or auxiliary.
Rev. 12/04
[Related Sections: Part 1 - Part 2]
§ 233. Benefits for the Surviving Child of a Deceased Worker – How Affected by Benefits Received by Others
Like other auxiliary benefits, benefits for the surviving child of a deceased worker are subject to the family maximum, an amount between 150% and 188% of the worker’s primary insurance amount. The family maximum operates to reduce a surviving child’s benefit when additional family members are entitled to survivor benefits. It does not take many additional family members entitled to survivors benefits, in most cases a spouse and other children, before the total exceeds the family maximum, triggering a reduction of the individual amounts. However, benefits to a surviving divorced spouse are paid outside the family maximum and therefore have no impact on the amount of benefits for a surviving child. The existence of eligible surviving children in a separate household, on the other hand, can cause a family maximum reduction.
[Related Sections: Part 1 - Part 2]
Benefits for Surviving Parent of a Deceased Worker
§ 240. Benefits for the Surviving Parents of a Deceased Worker – Entitlement
Benefits are available to the dependent parents (age 62 and over) of a deceased worker. Financial dependency on the deceased worker must be established; it is not presumed as it is in the case of most surviving children and surviving spouses.
[Related Sections: Part 1 - Part 2]
§ 241. Benefits for the Surviving Parents of a Deceased Worker – Amount
The monthly benefit for a surviving parent depends on the number of parents entitled to such benefits. When there is only one that parent’s monthly benefit is equal to 82.5% of the deceased worker’s “primary insurance amount.” When more than one parent is entitled to benefits on the worker’s account, the monthly benefit for each is equal to 75% of the deceased worker’s primary insurance amount. Surviving parent benefits are reduced if the individual is under the Act’s “full retirement age” and has earnings above the annual excess earnings threshold.
Rev. 12/01
[Related Sections: Part 1 - Part 2]
§ 242. Benefits for the Surviving Parents of a Deceased Worker – Relationship to Prior or Subsequent Benefits Received by the Individual
Surviving parent benefits are auxiliary benefits and as such they are reduced by any primary benefits received by the same individual. A person who is entitled both to an old-age insurance (retirement) benefit and a surviving parent benefit will receive only the former if it is greater than the auxiliary parent benefit. If the parent benefit is greater than the primary benefit, the individual will receive a full primary benefit and a reduced parent benefit. The reduction will be calculated to bring the total of both benefits up to the unreduced parent benefit amount.
Prior receipt of other auxiliary benefits will not affect the level of benefits the individual can receive as a surviving parent. On the other hand, an individual cannot receive two auxiliary benefits at once (a surviving spouse benefit and surviving parent benefit, for example). In such cases, the individual will receive only one: the higher auxiliary benefit.
[Related Sections: Part 1 - Part 2]
§ 243. Benefits for the Surviving Parents of a Deceased Worker – How Affected by Benefits Received by Others
Like other auxiliary benefits, benefits for the surviving parent of a deceased worker are subject to the family maximum. That cap is calculated by a formula that yields a figure between 150% and 188% of the worker’s “primary insurance amount.” The family maximum operates to reduce a surviving parent’s benefit when additional family members are entitled to survivor benefits. It does not take many additional family members entitled to survivors benefits, in most cases a spouse and children, before the total exceeds the family maximum, triggering a reduction of the individual amounts. However, benefits to a surviving divorced spouse are, except in the case of mother or father benefits, paid outside the family maximum and therefore have no impact on the amount of benefits for a surviving parent. The existence of eligible surviving children in a separate household, on the other hand, can cause a family maximum reduction.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
Benefits for Spouse of an Old-Age or Disability Benefits Recipient
§ 250. Benefits for the Spouse of an Old-Age or Disability Benefits Recipient – Entitlement
Benefits are available to the spouse (age 62 or over) of a person eligible for and receiving Social Security old-age insurance (retirement) or disability benefits. Called “wife benefits” and “husband benefits” by the Social Security Act, these are termed “spouse benefits” throughout this reference work. Spouse benefits are also available to younger spouses who have children of the retired or disabled worker in their care. The children must be entitled to child benefits and must meet certain additional age requirements.
[Related Sections: Part 1 - Part 2]
§ 251. Benefits for the Spouse of an Old-Age or Disability Benefits Recipient – Amount
The monthly benefit for the spouse of a disability or old-age insurance (retirement) benefit recipient is closely related to the benefit the worker is receiving. The spouse who begins benefits at the Social Security Act’s “full retirement age” (which is between 65 and 67 depending on year of birth) receives a benefit equal to 50% of the worker’s “primary insurance amount.”
Spouses who start benefits prior to the Act’s “full retirement age” receive a smaller monthly sum unless they qualify because they are caring for eligible children. The reduction for those who begin benefits prior to the “full retirement age” brings the benefit down to between 32.5% and 37.5% of the worker’s primary insurance amount for a spouse who claims at age 62, depending on the individual’s “full retirement age.” The spouse benefit paid regardless of age to a spouse caring for the worker’s child during the time the child is eligible for child benefits is equal to the full 50% of the worker’s primary insurance amount.
Spouse benefits are reduced if the individual or the retired worker upon whose account those benefits are based has earnings above the annual excess earnings threshold. Spouse benefits are also reduced in some cases if the individual is receiving a public pension based on his or her own work in uncovered government employment.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 252. Benefits for the Spouse of an Old-Age or Disability Benefits Recipient – Relationship to Prior or Subsequent Benefits Received by the Individual
Spouse benefits are auxiliary benefits and as such they are reduced by any primary benefits received by the same individual. A person who is entitled both to an old-age insurance (retirement) benefit and a spouse benefit will receive only the former if it is greater than the auxiliary spouse benefit. If the spouse benefit is greater than the primary benefit, the individual will receive a full primary benefit and a reduced spouse benefit. The reduction will be calculated to bring the total of both benefits up to the unreduced spouse benefit amount.
Prior receipt of other auxiliary benefits will not affect the level of benefits the individual can receive as a spouse. On the other hand, an individual cannot receive two auxiliary benefits at once. In such cases, the individual will receive only one: the higher auxiliary benefit.
[Related Sections: Part 1 - Part 2]
§ 253. Benefits for the Spouse of an Old-Age or Disability Benefits Recipient – How Affected by Benefits Received by Others
Like other auxiliary benefits, benefits for the spouse of a worker receiving disability or retirement benefits are subject to the family maximum. For retired workers, that cap is calculated by a formula that yields a figure between 150% and 188% of the worker’s “primary insurance amount.” With disabled workers it is a somewhat lower figure. The family maximum operates to reduce a spouse benefit when additional family members are entitled to benefits. Since the worker’s benefit is paid in full out of the maximum, it does not take many additional family members entitled to benefits before the total exceeds the family maximum, triggering a reduction of the individual amounts. However, benefits to a divorced spouse are, except in the case of mother or father benefits, paid outside the family maximum and therefore have no impact on the amount of benefits for others. The existence of eligible children in a separate household, on the other hand, can cause a family maximum reduction.
In cases where two individuals are both claiming benefits as the worker’s spouse their claims have more direct impact on one another. Their claims may be directly competitive under the relevant state law. If one of the two is claiming benefits as a spouse on the basis of the Social Security Act’s provision deeming valid certain ceremonial marriages which state law does not recognize, the Act allows payment of spouse benefits to both and in such cases places the benefit of the “state law” spouse outside the family maximum.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 255. Benefits for the Divorced Spouse of an Old-Age or Disability Benefits Recipient
Benefits are available to the former spouse of an insured worker who is entitled to disability or old-age benefits. Such former spouse must have been divorced after 10 years or more of marriage. The requirements that apply to spouse benefits generally apply to benefits for a divorced spouse, with a few exceptions. The three most important exceptions are: 1) such benefits are available even though the worker on whose account they rest has not yet applied for old-age benefits so long as the worker would be entitled to such benefits upon application, 2) the divorced spouse’s benefits are not affected by excess earnings received by the worker, and 3) benefits to a divorced spouse are paid outside the family maximum. However, the Social Security Act requires that a divorced spouse have been divorced for at least 2 years before he or she can take advantage of the first two exceptions. That requirement does not apply in cases where the divorce follows the worker’s entitlement to old-age insurance (retirement) benefits.
[Related Sections: Part 1 - Part 2]
Benefits for Child of an Old-Age or Disability Benefits Recipient
§ 260. Benefits for the Child of an Old-Age or Disability Benefits Recipient – Entitlement
Benefits are available to the dependent children of a worker who is entitled to old-age insurance (retirement) or disability benefits if those children are under 18, or under 19 and full-time students, or age 18 and older and under a disability that began before the age of 22.
Certain categories of children must prove that they were dependent on the insured worker. For others dependency is assumed. Eligibility for these child benefits begins when the insured worker becomes entitled to old-age insurance or disability benefits.
[Related Sections: Part 1 - Part 2]
§ 261. Benefits for the Child of an Old-Age or Disability Benefits Recipient – Amount
The monthly benefit for the child of an old-age or disability benefits recipient is based on the deceased worker’s “primary insurance amount.” The initial benefit amount, before reductions, is 50% of that primary insurance amount.
Child benefits are reduced if the child or the old-age insurance recipient parent has earnings above their respective annual excess earnings thresholds (although earnings of other family members, including the child’s other parent, have no effect on his or her benefits).
[Related Sections: Part 1 - Part 2]
§ 262. Benefits for the Child of an Old-Age or Disability Benefits Recipient – Relationship to Prior or Subsequent Benefits Received by the Individual
A child cannot receive multiple Social Security benefits. The Social Security Act limits the individual to one, specifying that in most cases that one is the benefit based on the highest “primary insurance amount.”.
Auxiliary benefits received as a child have no effect on the individual’s later entitlement to other Social Security benefits, either primary or auxiliary.
Rev. 12/04
[Related Sections: Part 1 - Part 2]
§ 263. Benefits for the Child of an Old-Age or Disability Benefits Recipient – How Affected by Benefits Received by Others
Like other auxiliary benefits, benefits for the child of an old-age or disability benefit recipient are subject to the family maximum. For retired workers, that cap is calculated by a formula that yields a figure between 150% and 188% of the worker’s “primary insurance amount.” With disabled workers it is a somewhat lower figure. The family maximum operates to reduce a child’s benefit when additional family members are entitled to benefits. Since the worker’s benefit is paid in full out of the maximum, it does not take many additional family members entitled to benefits before the total exceeds the family maximum, triggering a reduction of the individual amounts. However, benefits to a divorced spouse are, except in the case of mother or father benefits, paid outside the family maximum and therefore have no impact on the amount of benefits for others. The existence of eligible children in a separate household, on the other hand, can cause a family maximum reduction.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
Supplemental Security Income (SSI)
§ 280. Supplemental Security Income – Basic Elements
Alongside the “insurance” benefits of Title II, the Social Security Act of 1935 encouraged state programs for specific categories of low-income individuals with Federal grants-in-aid. During the early years of Social Security, benefits based on past earnings reached a relatively small portion of the elderly population and benefits were low for those who qualified. During that start-up period, Old Age Assistance, the grant-in-aid program providing need-tested benefits for those 65 and over had broader reach and higher payment levels than Social Security.
In 1974 this model of need-based benefits for potential Social Security recipients was changed, as the grant-in-aid programs for the elderly, the blind, and the disabled were replaced by Supplemental Security Income (SSI). The significant changes brought by SSI included uniform national standards of eligibility and benefit amount, 100% Federal funding of the basic benefit, and administration by the Social Security Administration. On top of the Federal SSI benefit, states can add supplementary payments. Indeed, those that had higher standards under the previous grant-in-aid approach were required to do so as a condition for continued receipt of Federal Medicaid money.
Paying benefits to those 65 or over or blind or otherwise disabled whose incomes and assets fall below a national (or the case of state supplementary benefits, a state) minimum, SSI has a very close relationship with Social Security. Since “disability” is defined in terms nearly identical to those employed with Social Security Disability Insurance and since the claims procedures and judicial review provisions of the two programs are identical, a great deal of Social Security law is SSI law as well.
Rev. 12/01
[Related Sections: Part 1 - Part 2]
Coverage, Proof, and Procedure
Social Security
§ 300. Basic Elements of Coverage
Both eligibility for Social Security benefits and the monthly payments for those who are eligible depend on how much the individual working person has earned in types of work covered by the Social Security system, over a period of years.
By the time most people are eligible for Social Security benefits, whether due to their own retirement or disability or the death or disability of a family member, the basic facts on which their coverage and benefit amount calculations rest have been established for some time. That is because the benefit provisions look back across a working lifetime using the same definitions as were applied year by year during that period in the imposition of the Social Security tax. Reporting of the income for Social Security tax purposes, its characterization for tax purposes, and payment of the tax are not legal preconditions to nor determinative of treatment of a benefit claim. On the other hand, the records of covered employment and self-employment income maintained by the Social Security Administration are based, year by year, on the information drawn from Social Security tax records of the Internal Revenue Service. Those records of income in covered work are given strong, and in some cases conclusively, presumptive effect after a short period of years. As a consequence, most, although not all, of the attention to these questions of covered employment and self-employment concern the tax provisions which parallel the benefit sections of the Social Security Act.
The types of work covered by Social Security have steadily been expanded since the program was first established in 1935. Today, most work performed in the United States, as well as most work performed abroad by U.S. nationals, is covered. Both work done in one’s own business (“self-employment”) and work done as an employee in someone else’s business (“employment”) count. On the other hand, income that comes to an individual without work, such as interest income, dividends, and similar forms of investment, does not count. The same holds true for gifts or lottery winnings. The program is based on earned income, not unearned income.
While the fact that a person had earned income in covered work during a particular period has significance, the amount of that earned income has, in most cases, greater importance. The minimum amounts necessary to accrue four quarters of coverage for a year of work are set so low that most individuals with any taxed and reported work exceed them by such a wide margin as to render academic any question about amount. However, the final benefit amount to which an individual is entitled is based on a year by year computation of the amount earned in covered employment and self-employment.
Finally, once a person begins receiving Social Security benefits, the amount is affected by continuing earnings prior to the Act’s “full retirement age” (which is between 65 and 67, depending on the person’s year of birth). Here, the basic concepts of work, employment, and self-employment are identical to those that are involved in the original entitlement and benefit amount determinations, but certain narrow categories of work exempted from and therefore not counted for coverage are recognized in the operation of this “excess earnings test.”
All Social Security benefits, whether old-age insurance (retirement) benefits, survivors benefits, or disability benefits, depend on some person (either the claimant or the relative on whom his or her benefits depend) having sufficient covered earnings to qualify for “insured status.” Different benefits require different types of insured status, but all require that the claimant or relevant other person have insured status. The requirement reflects the notion, which the program has carried from its inception, that benefits are payable only to those individuals or families who have paid into the system through Social Security taxes during a significant period of covered work. All tests of insured status are expressed in terms of quarters of coverage, requiring a certain total of qualifying quarters or a certain number during a specified period. The reference is to calendar quarters. A year of work can, depending on the amount and timing of covered wages and self-employment income, yield up to four quarters of coverage.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 400. Steps in Presenting or Appealing a Benefit Claim
In general, Social Security benefits are not paid unless they are applied for. Consequently, all claims begin with the filing of an application along with such other supporting evidence as is necessary to establish the claim. With disability benefits the supporting evidence and following determination can be quite complex. With old-age insurance (retirement) benefits it can be quite simple. An application filed before the individual meets all the other requirements for entitlement can be valid but only if all requirements for entitlement are met before the Agency makes its determination.
Once the Agency has made a determination on an application, a claimant who disagrees with that determination can press an appeal through several stages. Each must be pursued in a timely fashion before moving to the next. At each stage, the claimant is notified in writing of the Agency’s decision and his or her next appeal option. A failure to exercise an available Agency appeal within the time allowed can foreclose later Agency or judicial review.
Following the Agency’s initial determination, the next stage is for the claimant to request reconsideration. A claimant dissatisfied with the Agency’s decision upon reconsideration can secure a hearing before an administrative law judge. Following a decision by the administrative law judge, the dissatisfied claimant must appeal to the Social Security Administration’s Appeals Council. In a normal case, it is only after the Council has decided on the appeal or declined to consider it that the claimant can secure judicial review of the Agency’s decision. The Social Security Act provides for judicial review by a U.S. district court.
A plan for reforming this multi-stage process, as it applies to disability benefit claims, was adopted by the Agency in 2006. See 71 Fed. Reg. 16446 (Mar. 31, 2006). The new procedures were to be phased in, over time, across the U.S., starting with ME, NH, VT, MA, RI, and CT. Initial experience in those states together with appointment of a new agency head led to proposed regulations setting out a different reform scheme in October 2007. See 71 Fed. Reg. 61218 (Oct. 29, 2007).
Rev. 11/07
[Related Sections: Part 1 - Part 2]
§ 420. Representation by a Lawyer or Other Experienced Person
Claimants are entitled to have someone else represent them in dealings with the Agency. The representative can be an attorney or some other person. Indeed, it can be anyone chosen by the claimant so long as that person has not been disqualified by the Agency because of past misconduct in such cases. The claimant must sign a statement authorizing the representative to act on his or her behalf and may, at any time, revoke the appointment. Fees for representation before the Agency and for representation in any subsequent judicial proceedings are governed by the Social Security Act and subject to Agency or court review.
[Related Sections: Part 1 - Part 2]
§ 430. The Individual’s Earnings Record
Both insured status and benefit amounts depend on the amount of earnings in covered work during past periods. In making these determinations, the Agency relies on its own records of those earnings. Errors and omissions in those records can have serious consequences for an individual, and correcting such errors years after the fact when the individual is applying for benefits can prove impossible. Not only are there the often severe practical difficulties of collecting evidence of past earnings, but the Agency’s records of earnings are given substantial and in some cases conclusive weight. The prudent course is for an individual to make periodic checks on his or her earnings record. Within 3 years, 3 months, and 15 days after the end of any tax year, errors can be corrected without difficulty.
[Related Sections: Part 1 - Part 2]
§ 440. Proof, Presumptions, and Evidence
A claimant must prove that he or she meets all the requirements for the benefits claimed. Some of the requirements are established by the Agency’s earnings record for the claimant or the individual on whose account the benefits depend. This is true of proof of insured status and the earnings on which benefit amount calculations rest. However, other key requirements must be established by proof furnished by the claimant. This is true for such matters as age, death, family relationship, financial dependency or living arrangement, and most especially disability. As to each element that must be established by the claimant for entitlement to a particular type of benefits Agency regulations specify preferred evidence, but in nearly all cases alternative forms can be used. Throughout the Agency’s determination and appeal process strict rules of evidence do not apply. This includes the hearing before an administrative law judge.
On some issues, notably those of family status, Social Security benefit entitlement can depend on state law or even the outcome of state legal proceedings. When state law is incorporated in this fashion the incorporation is likely to include presumptions or standards of proof which may either assist or hinder a claimant.
[Related Sections: Part 1 - Part 2]
§ 450. Being Mistaken About Entitlement or Particular Social Security Rules
Under most circumstances an individual’s mistake about Social Security rules or procedures furnishes no excuse for a failure to comply. The mistake may induce the Agency to grant relief from the rule in some cases. For example, a claimant who was mistaken about how the time limit for filing an appeal is calculated might persuade the Agency that “good cause” existed to grant an extension. The Agency is not, however, under any obligation to grant relief from the mistake, even if it was caused by misinformation from Agency staff. And under some circumstances, the Agency will have no authority under the Social Security Act to grant relief.
The Act specifically provides for relief from mistakes caused by the Agency in two situations. First, a failure to apply induced by erroneous advice from the Agency can be the starting point for entitlement under a later application. Second, a failure to pursue administrative appeals caused by a mistaken belief that filing a new application could achieve the same result will warrant relief if the Agency’s notice did not make clear the difference between the two.
[Related Sections: Part 1 - Part 2]
SSI
§ 455. Supplemental Security Income – Establishing Entitlement Through the Administrative Process
While eligibility for Social Security benefits rests on a history of past employment, Supplemental Security Income (SSI) benefits rest on present economic circumstance. Playing a critical role in the SSI eligibility determination and also the SSI benefit amount calculation is a determination of the individual’s current income and resources. SSI benefits are not available, however, to all who fall below its income and resource standards but only those who qualify by age (65 or over), blindness, or disability
As with Social Security, SSI claimants must apply and must present adequate evidence of eligibility. Except in minor respects, the administrative appeals processes for the two programs are identical. Judicial review for the two programs is based on the same provision of the Social Security Act.
Rev. 9/95
[Related Sections: Part 1 - Part 2]
Taking a Social Security or SSI Claim to Court
§ 460. Taking a Social Security or SSI Claim to Court – In General
The Social Security Act provides for judicial review of final Agency determinations on entitlement, benefit amount, and other matters on which the Act or regulations provide for a decision after a hearing. Judicial review is not normally available if the claimant has not pursued his or her full appeal rights within the Agency. Also, it is not available on discretionary determinations for which the Agency does not provide a full hearing (such as a decision not to reopen an old question).
Rev. 9/95
[Related Sections: Part 1 - Part 2]
§ 461. Taking a Social Security or SSI Claim to Court – What a Court Can and Will Do
When the action has been filed in timely fashion in Federal district court, the Social Security Act provides for the court to review the Agency’s determination for legal error. Factual determinations by the Agency are reviewed against a “substantial evidence” test. In other words, Agency determinations of factual questions are conclusive so long as they are supported by “substantial evidence.”
The court will not hear new evidence; its review is limited to the transcript of the Agency proceedings. The Act specifically authorizes a reviewing court to affirm, modify, or reverse the Agency’s determination with or without remanding the decision. The court can also, upon the request of either the Agency or claimant, remand to the Agency to receive new evidence, but such remands require a showing of good cause for the failure to incorporate the evidence in the prior Agency proceedings.
Rev. 9/95
[Related Sections: Part 1 - Part 2]
§ 462. Taking a Social Security or SSI Claim to Court – Class Actions and Other Special Cases
The normal Social Security or SSI case brought in Federal district court is an action seeking judicial review of an Agency determination that an individual is not entitled to benefits he or she is seeking. In such a case, only one claimant is involved, or at most a family, and the issue is benefit entitlement or amount.
If a regulation or other policy of the Agency treats a whole class of individuals in a manner that arguably violates the statute or the Social Security Act itself contains provisions that are arguably unconstitutional, litigation by individual claimants can raise the issue, but a class action may offer a more attractive alternative.
Another type of case posing special issues of judicial review and remedy occurs when the core of a complaint about Agency policy or practice concerns not the outcome in a particular determination but delays or other procedural inadequacies. The problem is that the effective point of judicial intervention in such cases may be before the Agency has reached a final decision.
Rev. 9/95
[Related Sections: Part 1 - Part 2]
Fees Charged and Award for Representation
Social Security
§ 500. Fees Charged and Awarded for Social Security Representation – In General
All fees charged for representing a claimant before the Agency or before a court on appeal from the Agency are subject to limits set by the Act and enforced by the Agency or court. When the representative is a lawyer or an experienced non-lawyer approved by the Agency and the claimant secures a favorable determination yielding past due benefits, the Agency or court will direct payment of the fees out of those benefits. The Act sets a cap on such fee awards paid out of past due benefits at 25% of those benefits.
A 1990 amendment to the Social Security Act altered the procedure for approving attorneys fees paid out of past due benefits resulting from an administrative appeal. Fees agreed to by the claimant will generally be approved so long as they do not exceed 25% or a set dollar amount, initially established by the Act at $4,000. Effective February 2002, the Agency increased that figure to $5,300. The Act also provides that the attorneys fee calculation occurs prior to operation of the SSI offset.
Under a 1999 amendment, fees paid by the Agency out of past due benefits are reduced by a 6.3% assessment to cover the Agency’s costs. A further amendment in 2004 capped that assessment at $75, subject to an annual cost-of-living adjustment. The figure for 2008 is $79.
Rev. 11/07
[Related Sections: Part 1 - Part 2]
§ 505. Fees Charged and Awarded for Social Security Representation – Fees Awarded That Do Not Come Out of Claimant’s Benefits
The Equal Access to Justice Act (EAJA) applies to litigation against the United States in court. Consequently, it has no bearing on representation before the Agency prior to judicial review. However, under the EAJA a federal court can award attorneys fees against the government when the Agency’s position in a Social Security case is later found by the court not to have been “substantially justified.” This standard is not met in every successful Social Security appeal, but where it is met the EAJA may provide for a fee award that does not reduce the claimant’s past due benefits. Because of the differences between both the conditions under which such a fee award will be made and the method of calculating the fee, where both fee awards are available (an award under the Social Security Act as well as an EAJA award) the amounts must be coordinated.
[Related Sections: Part 1 - Part 2]
§ 510. Fees Charged and Awarded for Social Security Representation – Fees Charged by Non-Lawyer Representatives
The Social Security Act provides for Agency review and approval of fees charged by representatives whether or not they are recovered out of past due benefits. This provision is not limited to non-lawyers, but it is especially important to them since, with limited exceptions, fees charged by non-lawyers are not paid out of past due benefits by the Agency. The regulations list the factors governing such review. The regulations make clear that while the amount of benefits recovered is one factor, it is not determinative. Indeed, the regulations state that the Agency may approve a fee even when no benefits have been recovered. Legislation enacted in 2004 authorizes a five-year experiment in paying fees to qualifying non-lawyer representatives out of past due benefits.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
SSI
§ 580. Supplemental Security Income – Legal Representation
SSI claimants, like those seeking Title II benefits, are entitled to have someone else represent them in dealings with the Agency. The representative can be an attorney or some other person. Indeed, it can be anyone chosen by the claimant so long as that person has not been disqualified by the Agency because of past misconduct in such cases. The claimant must sign a statement authorizing the representative to act on his or her behalf and may, at any time, revoke the appointment. Fees for representation before the Agency and for presentation in any subsequent judicial proceedings are subject to Agency or court review.
Prior to 2004 there was no provision with SSI, comparable to that applying to Social Security, for a portion of benefits to be withheld to cover attorneys fees. A 2004 amendment extended the Title II attorneys fees withholding provisions to SSI (complete with assessment of a processing fee) for a limited period of five years. As with Title II claims attorneys fees can be recovered under the Equal Access to Justice Act following successful litigation of an SSI claim in some but not in all cases of Agency reversal.
Rev. 12/04
[Related Sections: Part 1 - Part 2]
Benefit Calculation
Social Security
§ 600. Social Security Benefit Calculation – In General
The arithmetic of Social Security benefit calculation centers around the insured worker’s “primary insurance amount.” Those entitled to benefits start out with a base monthly payment that is a percentage of that primary insurance amount. The percentage is, in some cases, adjusted depending on the age at which the person begins benefits. If a beneficiary continues to receive earnings after applying for benefits, earnings above a set annual amount will produce a reduction in benefits prior to the individual’s “full retirement age” (which is between 65 and 67 depending on year of birth). Because of the family maximum, a cap on the monthly benefits payable on the account of a particular worker, benefits received by others can reduce the amount any one individual will receive.
Generally other pensions or transfer payments have no effect on Social Security benefits, but there are a few exceptions including a public pension offset that applies to spouse benefits and an offset for workers compensation or other public disability payments that applies to disability benefits.
In addition, under the “Windfall Elimination Provision,” workers who receive public pensions based on work that was not covered by Social Security have their old-age insurance benefits calculated under a different formula, one yielding lower monthly amounts.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 601. Social Security Benefit Calculation – The Role of the Primary Insurance Amount
The “primary insurance amount” is the basic unit with which all benefit calculations begin. The full primary insurance amount is the monthly benefit received by an old-age insurance (retirement) beneficiary who has begun benefits at the Social Security Act’s “full retirement age” or by a disability benefit recipient. Adjustments because of the age at which old-age insurance benefits are begun move the monthly amount up or down in relation to the primary insurance amount.
Family or auxiliary benefits are set in terms of the insured worker’s primary insurance amount. For example, the base benefit for a surviving spouse is 100% of that primary insurance amount; the base benefit for a child of a disability benefit recipient, 50%.
[Related Sections: Part 1 - Part 2]
§ 602. Social Security Benefit Calculation – Calculating the Primary Insurance Amount
The “primary insurance amount” for a worker is based on the worker’s average indexed monthly earnings. That figure is calculated from the worker’s earnings in covered work over most of his or her career, indexed for inflation so as to translate earlier earnings figures into recent earnings levels. The indexing year used is that which is two years prior to the worker’s year of eligibility. (This is the year in which the worker could claim benefits or the year of the worker’s death even if benefits are not begun until later.)
Not all years enter into this average indexed monthly earnings figure. The Social Security Act contains a formula that identifies a number of low earnings years (usually at least 5) that can be dropped before calculating the average. In addition, a “disability freeze” will remove periods of disability from the calculation.
A worker’s average indexed monthly earnings are converted into the worker’s primary insurance amount by applying a series of multipliers. The primary insurance amount equals 90% of a first low band of average indexed monthly earnings plus 32% of a large middle band plus 15% of all earnings above that middle band. The boundaries between these bands are adjusted automatically to keep up with rising earnings. (For workers becoming eligible in 2008 the 90% band covers the first $711 of average indexed monthly earnings; the 32% band, from $712 through $4,288; the 15% band, over $4,288.) This formula produces a primary insurance amount that is more adequate for low income than high income workers. In addition, a special minimum primary insurance amount is available for workers with lengthy careers of steady low income work. Finally, under the “Windfall Elimination Provision,” workers who receive public pensions based on work that was not covered by Social Security have their old-age insurance benefits calculated under a different formula, one yielding lower monthly amounts.
Rev. 11/07
[Related Sections: Part 1 - Part 2]
§ 603. Social Security Benefit Calculation – Shares of the Primary Insurance Amount
The different types of benefits are set at the following percentages of the insured worker’s “primary insurance amount.” Primary benefits, that is old-age insurance (retirement) benefits and disability benefits, are set at the full amount, 100%. Surviving spouse benefits are also set at 100%. Surviving parents receive 82.5% if there is only one eligible parent, 75% if there is more than one. Surviving children and a younger surviving spouse eligible while caring for eligible children have benefits set at 75% of the primary insurance amount. The children and spouse of an old-age or disability benefit recipient have benefits set at 50% of the primary insurance amount.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 604. Social Security Benefit Calculation – Effect on Benefits of the Timing of Application
All benefits for which entitlement depends in part on attainment of a certain age set the monthly benefit amount in terms of the Social Security Act’s “full retirement age” (which is between 65 and 67 depending on year of birth). Benefits that are first claimed prior to the Act’s “full retirement age” are reduced to take account of the longer period over which they may be received. The benefit types subject to such an actuarial reduction include old-age insurance (retirement) benefits and spouse benefits including those for divorced spouses.
The calculation of this “actuarial reduction” is somewhat different for each of the benefit types. In all cases the amount of reduction is based on the number of months prior to the individual’s “full retirement age” for which benefits are claimed. For old-age insurance benefits the reduction is 5/9 of 1% for each month up to 36, plus 5/12 of 1% for each additional month. Since old-age or retirement benefits can be claimed as early as age 62, the maximum reduction under this formula is 20% for those whose “full retirement age” is 65, and it will be 30% for those whose “full retirement age” is 67. The comparable formula for the spouse of an old-age or disability benefit recipient is 25/36 of 1% for each month up to 36, plus 5/12 of 1% for each additional month. Since spouse benefits of this type can be claimed as early as age 62, the maximum reduction under this formula is 25% for those whose “full retirement age” is 65, 35% for those whose “full retirement age” is 67. Finally, for a surviving spouse, who can claim benefits as early as age 60, a still different formula yields a maximum reduction of 28.5%. The same maximum reduction applies to those surviving spouses who are entitled to benefits prior to age 60 because of disability. In other words, there is no additional reduction even though benefits in such cases may begin as early as age 50. Similarly there is no reduction for periods in which a spouse is eligible for benefits because he or she is caring for a child entitled to child benefits.
At the Act’s “full retirement age,” a claimant’s “actuarial reduction” is recalculated if there were months in the period prior to that age in which benefits were not received because of excess earnings. Such months are removed from those used to calculate the reduction amount.
For old-age insurance benefits (but not spouse benefits) there is also an adjustment for individuals who postpone claiming benefits until months or years after the Act’s “full retirement age.” These “delayed retirement credits” are not available for months beyond age 70. The Act’s credit for delaying old-age benefits after its “full retirement age” is programmed to increase. For workers reaching age 65 in 1990, the credit was 3.5% per year of delay. In successive even numbered years (1992, 1994, and so on) the credit rose .5%. It levels off at 8% for those turning 65 in 2008.
Rev. 11/07
[Related Sections: Part 1 - Part 2]
§ 605. Social Security Benefit Calculation – Effect on Benefits of Continuing Earned Income
Earnings received by a disability benefit recipient may demonstrate an ability to engage in substantial gainful activity and thus lead to a finding that the individual is no longer disabled.
For all other benefit types, there is no such direct connection between entitlement and continuing earned income. However, for all other benefit types there is a reduction formula reflecting the view that benefits are a substitute for earned income, a substitute that is not necessary if the individual has substantial earned income. This earnings reduction does not apply, however, to beneficiaries who have reached the Act’s “full retirement age.”
For beneficiaries under the “full retirement age,” the earnings test operates as follows. First, it disregards earnings below an “annual earnings test.” This threshold amount is adjusted each year to take account of increases in average earnings levels in covered work. For the year 2008, the threshold expressed as an annual figure is $13,560. Earnings above the threshold, “excess earnings,” reduce benefits $1 for every $2 of excess earnings. (Prior to a 2000 amendment, excess earnings, measured by a more generous formula, also reduced benefits of beneficiaries between 65 and 70. That formula still applies to any months of earnings in the year the individual reaches “full retirement age” prior to his or her birthday.)
The excess earnings reduction applies to the individual’s own benefit. In the case of an old-age insurance (retirement) benefits recipient, it also applies to family benefits based on the individual’s account.
A comparable reduction applies to beneficiaries working in uncovered jobs outside the U.S.
Rev. 11/07
[Related Sections: Part 1 - Part 2]
§ 606. Social Security Benefit Calculation – Effect on Benefits of Benefits Being Received by Others
In general, all benefits paid on the account of an individual are subject to a family maximum. For retired and deceased workers, that cap is calculated by a formula that yields a figure between 150% and 188% of the worker’s “primary insurance amount.” With disabled workers it is a somewhat lower figure. It does not take many beneficiaries claiming on an account to reach a total that brings the maximum into play. When benefits are reduced to bring them down to the maximum, the monthly benefit for the worker, if any, is first paid in full. Then all auxiliary benefits are reduced in pro rata fashion to reach the maximum.
One category of benefits, benefits for a divorced spouse other than those in the mother’s or father’s category, is paid outside the maximum. That means both that benefits to a divorced spouse are not reduced because of the maximum and that benefits paid to a divorced spouse are not counted against the maximum in calculating benefits to other family benefit recipients. Similarly, when benefits are paid to two eligible spouses, one entitled on the basis of state law and the other on the basis of a ceremonial marriage “deemed valid” by the Act, the payments to the “state law spouse” are outside the maximum.
Rev. 11/05
[Related Sections: Part 1]
§ 610. Events Causing Loss or Reduction of Benefits
Several types of events can lead to a loss or reduction of benefits. With some benefits entitlement depends on the continuation of a certain condition or set of circumstances. Should the condition end or circumstances change, benefits may be lost. Benefits for all who are under the Act’s “full retirement age” may be reduced during periods in which they receive large amounts of earnings from work. Receipt of a government pension by a spouse benefit recipient will cause a benefit reduction in cases where that pension is based on the individual’s uncovered employment with a Federal, state or government agency.
Deportation from the country may end benefits. Also aliens may lose benefits after living outside the U.S. for more than 6 consecutive months. Finally, conviction of certain crimes, flight to avoid arrest, and incarceration can also cause benefits to be lost.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 611. The General But Not Complete Symmetry of Entitlement (Disability, Death, Dependence)
In many cases benefit entitlement depends on the continuation of a certain condition or set of circumstances. These facts must be established for initial entitlement and should the condition end or circumstances change, benefits may be lost. This is true, for example, of disability. Disability benefits end when an individual who once met the disability test no longer does. Benefits received by a younger spouse who is caring for a child entitled to child benefits end when the child no longer qualifies or is no longer in the beneficiary’s care.
The Social Security Act and regulations spell out each benefit category’s conditions for initial entitlement and also conditions that will cause benefits to end. The latter list typically parallels the former but with some differences. For example, the Act explicitly provides that benefits cease with the beneficiary’s death. There are also a number of conditions for initial entitlement to family benefits that are not reflected in parallel provisions ending benefits. For example, family benefits that require an individual to establish actual dependency upon an old-age insurance (retirement) benefit recipient or that the family benefit claimant was living in the same household with the worker are not lost if those conditions later cease.
Rev. 11/05
[Related Sections: Part 1]
§ 620. Interplay of Multiple Benefit Calculation Effects – E.G., Excess Earnings, Family Maximum
When two different benefit adjustment rules apply to the same beneficiary or family group the interplay between those rules can have a large impact on the amounts received by particular individuals.
The most important provision dealing with this type of interplay concerns the family maximum. Reductions under the family maximum occur only after other deductions, including those based on excess earnings. That means that in families with numerous family benefit recipients, these other reductions may not be felt if one views the family as a whole. In such cases, the reduction experienced by one individual will be compensated for by increases to the others as the amount of the reduction falls out of the family maximum calculation.
[Related Sections: Part 1 - Part 2]
§ 630. Special Provisions – Deportation, Incarceration
Deportation from the U.S. on a variety of grounds will cause benefits to end for the deported individual until he or she is lawfully readmitted to the U.S. Family benefits on that person’s account are not effected so long as the recipients remain in the U.S. or are U.S. citizens.
Flight to avoid arrest and imprisonment following conviction of a felony will cause benefits to be suspended. This suspension does not apply to family benefits paid on the worker’s account. They are paid as though benefits continued to the insured individual.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 640. Cost-of-Living Adjustments
The Social Security Act provides for automatic adjustments in benefits on the basis of increases in the Consumer Price Index. The adjustment is based on the index for the third quarter of the current year compared to the third quarter of the last year in which adjustment was made. When an adjustment occurs, it takes effect with the December benefits for the year, which means that it first appears in the checks for the following January. During periods in which the Social Security reserves reach low levels, the adjustment is made on the basis of wage increases (rather than price increases) if smaller. (This occurs if the trust fund ratio drops below 20%.)
For an individual the adjustment is calculated by taking his or her monthly benefit amount and multiplying it by the increase percentage.
Whenever this benefit increase provision operates, automatic adjustments of the “primary insurance amount” formula and family maximum amounts are also calculated.
[Related Sections: Part 1 - Part 2]
SSI
§ 680. Supplemental Security Income – Benefit Amount
Since SSI was created to insure a minimum income “floor” for aged, blind or disabled persons, its benefits are reduced by other sources of income, including earnings, interest, and Social Security. Not all sources of income or all income from sources affecting benefits are counted, but the basic benefit formula begins with a monthly payment amount for eligible individuals who have no other income. For 2008 this figure is $637. Couples with both spouses eligible for SSI are treated as a unit with a monthly minimum for 2008 of $956.
The existence of “countable income” reduces the benefit amount. In states paying supplemental benefits the relationship of income to benefits is the same but the monthly minimum is equal to the Federal SSI benefit plus the state supplement.
Rev. 11/07
[Related Sections: Part 1 - Part 2]
Payment of Benefits
Social Security
§ 700. Payment of Benefits – In General
The Agency prefers direct deposit in a financial institution to mailing a check. It will arrange direct deposit unless the beneficiary does not have an account that would make it possible or specifically requests payment by check. Social Security benefit checks are mailed by the Treasury Department. Payments are mailed or deposited during the month following the month to which they relate. (For example, the December benefit payment is received in January.) Exactly when during that month is determined by the birth date of the worker on whose record the payments are based.
Benefits for family members who are living in the same household can be combined in a single joint payment.
The Social Security Act protects benefits from the claims of creditors and prohibits assignment of future benefits.
Payments to minor children and adults who are not able to manage their own financial affairs will be made to a representative payee who is responsible to use them on behalf of the beneficiary.
Rev. 11/07
[Related Sections: Part 1 - Part 2]
§ 701. Payment of Benefits – Payment Arrangements on Behalf of Individuals Who Have Difficulty Managing
Social Security payments to children under the age of 15 are made through a representative payee. That means that the payment is made to the representative, normally the parent or legal guardian in this case, who is then responsible for using the payments solely for the beneficiary. With children 15 and over, representative payment is the norm but direct payment to the child will be made under a variety of circumstances that indicate the child’s economic independence.
With adults representative payment is made only upon a showing that the beneficiary is incapable of managing benefits on his or her own.
The Act includes provisions designed to protect beneficiaries against exploitation or other abuses by representative payees. They include authority for payments to a beneficiary when Agency negligence in overseeing a representative payee results in loss of benefits.
[Related Sections: Part 1 - Part 2]
§ 710. Payment of Benefits – Overpayments and Underpayments
When individuals receive more or less than the amount to which they are entitled, the Act provides for an appropriate adjustment. If an individual has been underpaid, the Agency will pay the amount due. In the event the underpaid individual has died before this adjustment occurs, the Social Security Act provides for payment to surviving family members.
When individuals receive benefits to which they were not entitled (either because they were entitled to no benefits or because they were entitled to a smaller amount), the Act provides for recovering the overpayment. The overpaid individual or the individual’s estate can be required to make a refund or the overpayment can be recovered out of future benefits. The Act does, however, authorize waiver of recovery from a person who was without fault in causing the overpayment when the recovery would “defeat the purpose of the law” or “be against equity and good conscience.”
The Agency is authorized to recover overpayments from any federal tax refunds due the individual when he or she is no longer entitled to benefits from which overpayments might be recouped.
[Related Sections: Part 1 - Part 2]
SSI
§ 780. Supplemental Security Income – Payment, Overpayment, and Underpayment
SSI payments are made at the beginning of the month for which they are due (in contrast to Social Security). In other respects, though, the program’s provisions for payment and for dealing with over or under payment are the largely the same as those governing Title II. Because of the limited economic resources of SSI recipients, the provisions for waiving recovery of overpayments are in some respects more forgiving.
Rev. 9/95
[Related Sections: Part 1 - Part 2]
Sources of Social Security and SSI Law
§ 800. Sources of Social Security and SSI Law – In General
Social Security and SSI law is based on a single Federal statute, the Social Security Act of 1935, as amended. Under the Social Security Independence and Program Improvements Act of 1994 the Social Security Administration was removed from the Department of Health and Human Services, where it had been located, and established as an independent agency. Decisions of the Agency or in the language of the Social Security Act final decisions of “the Commissioner” are subject to review in Federal district court with appeal on up to the Supreme Court.
The primary sources of law for these programs are, as a consequence, the Act, the regulations promulgated by the Agency, other less formal Agency guidance and interpretations, and decisions by Federal courts on questions of Social Security or SSI law.
Rev. 12/03
[Related Sections: Part 1 - Part 2]
§ 801. Sources of Social Security and SSI Law – The Act
Subject to Constitutional limits, the Social Security Act is the ultimate source of law for Social Security and SSI. Agency or judicial interpretations of the Act with which Congress disagrees can be “reversed” by an amendment of the Social Security Act. Since the Act was first passed in 1935, it has been the subject of repeated amendment. Most of these statutory changes have extended benefits to new categories of recipients or liberalized the benefit formula. Some, however, have removed or reduced benefits for classes of individuals. In Flemming v. Nestor, 363 U.S. 603 (1960), and Richardson v. Belcher, 404 U.S. 78 (1971), the Supreme Court upheld Congressional power to make such amendments noting that the Act itself reserves this right.
The provisions of the Act governing Old-age Survivors and Disability Insurance benefits are contained in Title II, which begins at 42 U.S.C. § 401. SSI benefits are covered in Title XVI of the Act, which begins at 42 U.S.C. § 1381.
Rev. 11/05
[Related Sections: Part 1 - Part 2]
§ 802. Sources of Social Security and SSI Law – The Regulations
The Social Security Act expressly authorizes the Agency to promulgate rules and regulations in carrying out its responsibilities. This authority extends not only to procedures for carrying out the respective programs, but also to regulations on the “nature and extent of proofs and evidence.”
The Agency’s regulations on Title II benefits appear in 20 C.F.R., Part 404. Its regulations on Supplemental Security Income (SSI) appear in 20 C.F.R., Part 416.