Subpart D-Old-Age, Disability, Dependents' and Survivors' Insurance Benefits; Period of Disability

AUTHORITY: The provisions of this Subpart D issued under secs. 205, 227, 1102, 202 and 228, 63 Stat. 1868, as amended, 79 Stat 879, as amended. 49 Stat. 647, as amended, 49 Stat. 623, as amended, 80 Stat. 67, as amended; section 5 of Reorganization Plan No. 1 of 1953, 67 Stat. 18, 631: 42 U.S.C. 405, 427, 1802. 402 and 428. Also, $ 404.801404.805, 11 404.313-404.365 issued under section 202. 64 Stat. 482, as amended. 42 U.8.C. 402: 1 404.306-404.309 Issued under section 223. 70 Stat. 815, as amended, 42 U.S.C. 423;

404.310-404.312 Issued under section 216 (1). 68 Stat. 1080, as amended, 42 U.S.C. 416 (1); $ 404.366-404.373 issued under sec. 103; 42 U.S.C. 426a.

§ 404.301 Types of benefits payable; period of disability; general.

Title II of the Social Security Act provides, if certain conditions are met. for the payment of monthly benefits: to an insured individual retired because of disability or old age: to the wife. divorced wife, husband, and children of an individual entitled to disability or old-age insurance benefits; to the widow. surviving divorced wife, widower, children, and parents of a deceased insured individual. Title II of the Act also provides for the payment of a lump sum upon the death of an insured Individual. There is also provision for the establishment, under certain conditions, of a period of disability for a disabled insured individual. Title II also provides for speclal payments, under certain conditions, for persons at age 72 who are not insured for benefits under the regular or transitional insured status requirements. The following sections of this subpart set out the conditions of eligibility for the various monthly benefits, for the lumpsum death payment, for a period of disability, and for a special payment at age 72, and also describe the events causing termination of entitlement to monthly benefits or a period of disability, and the effect of filing a waiver of benefits pursuant to section 1402(h) of the Internal Revenue Code of 1954 and being granted a tax exemption thereunder. See also Subpart E for regulations relating to deductions from benefits and lump-sum death payments, suspension of benefit payments, and reduction and increase of benefit amounts: Subpart N of this part for circumstances under which benefits may be terminated where

entitlement is based upon military service and the individual becomes entitled to another Federal benefit based in whole or in part on such military service; and Subpart O of this part for the effect of entitlement to an annuity or lump sum under the Railroad Retirement Act on entitlement to a monthly benefit or a lump sum under title II of the Social Security Act.

[34 FR. 12568, Aug. 1, 1969]

§ 404.302 Amount of benefit payments. Ordinarily, a beneficiary is paid the monthly benefit or lump sum to which he is entitled in the amount indicated in the succeeding sections of this subpart. However, in some instances he may be paid more or less than such amount because of the provisions of Subparts E or F of this part. See those subparts for full explanation of the circumstances under which these changes occur. See Subpart E of this part also for conditions under which benefits will not be paid where the individual on whose earnings record benefits are claimed or based is deported, or where a claimant or beneficiary is an alien residing outside the United States or has been convicted of certain offenses. Also see § 404.377 for reduction of special payments to persons at age 72 because of eligibility for governmental pension system benefits. [34 F.R 12568, Aug. 1, 1969]

§ 404.303 Old-age insurance benefits; conditions of entitlement.

An individual is entitled to an old-age insurance benefit if such individual: (a) Is fully insured (as defined in 404.108-404.113 or § 404.113a (a)); and (b) Has attained age 62; and

(c) Has filled an application (see Subpart G of this part relating to filing of applications) for old-age insurance benefits, or was entitled to a disability insurance benefit for the month before the month in which the individual attained age 65.

[34 FR. 12568, Aug. 1, 1969]

§ 404.304 Old-age insurance benefits; duration of entitlement.

An individual is entitled to an old-age insurance benefit for each month beginning with the first month in which all of the conditions of entitlement described in § 404.303 are satisfied. The last month for which such individual is entitled to such benefit is the month before the month in which he dies. How

ever, old-age insurance benefits may be terminated, under certain circunstances, before the death of the individual entitled to such benefits when entitlement to a Federal benefit based on military service is involved (see Subpart N of this part) or when entitlement to benefits under the Railroad Retirement Act is involved (see Subpart O of this part). [29 FR. 12286, Aug. 27, 1964]

§ 404.305

Old-age insurance benefits; rate of benefit.

The amount of the old-age insurance benefit to which an individual is entitled for any month is, except as provided in § 404.113a, equal to his primary insurance amount (see section 215(a) of the Act) for such month, subject to reduction under section 202(q) of the Act or subject to increase as provided in § 404.305a. [40 FR 31774, July 29, 1975]

§ 404.305a Increase in old-age insurance benefit amount on account of delayed retirement.

(a) In general. Effective with old-age insurance benefits payable for months beginning after 1972, an individual may be entitled to a delayed retirement credit which will increase the amount of his old-age insurance benefit, if:

(1) (i) The first month of entitlement to the old-age insurance benefit is no earlier than the month in which he attains age 65; or

(ii) The old-age insurance benefit at age 65 is not reduced under section 202 (q) of the Act; and

(2) Such benefit is not based on a primary insurance amount determined under section 215 (a) (3) of the Act. (See paragraph (f) of this section.)

(b) Delayed retirement credit. The amount of the delayed retirement credit is 1/12 of 1 percent of the individual's old-age insurance benefit (before any increase under this section) multiplied by the number of increment months (determined in accordance with paragraphs (c) and (d) of this section) to which he is entitled.

(c) Increment months. The number of increment months is equal to the total number of months which:

(1) Have elapsed in the period beginning with the month in which the individual attained age 65 or (if later) January 1971 and ending with the month immediately prior to the month in which he attained age 72, and

(2) With respect to which:

(i) He was fully insured as defined in §§ 404.108-404.113, and

(ii) He was not entitled to an old-age insurance benefit or suffered deductions under section 203(b) or 203 (c) of the Act in amounts equal to the amount of such benefit.

(d) When increment months are determined and effective date of increase. For purposes of applying the delayed retirement credit provisions, a determination will be made under paragraph (c) of this section for each year, beginning with 1972, of the total number of an individual's increment months through the year for which the determination is made. The total so determined shall be applicable to the individual's old-age insurance benefits (before any increase under this section) beginning with benefits for January of the year following the year for which the determination is made. In the case of an individual who attains age 72 after 1972, the total number of increment months will be determined for the period ending with the month immediately before the month in which he attains age 72 and shall be applicable to his old-age insurance benefit beginning with the month in which he attains such age.

(e) Benefits amounts affected. The increase resulting from the delayed retirement credit does not affect the individual's primary insurance amount; it is applied only to his old-age insurance benefit. The increase payable to the individual does not apply to auxiliary benefits nor, after death, to survivors benefits nor does it affect the family maximum. The increase will be applied to the individual's old-age insurance benefit even if the family maximum is thereby exceeded.

(f) Use of special minimum primary insurance amount. If the individual's regular primary insurance amount as determined under section 215(a)(1) of the Act is lower than the special minimum primary insurance amount as determined under section 215(a) (3) of the Act but the regular primary insurance amount yields a higher old-age insurance benefit under the delayed retirement provision, the regular primary insurance amount will be used to establish the oldage insurance benefit for the individual. However, the special minimum primary insurance amount will be used for auxiliary benefits and the family maximum. [40 FR 31774, July 29, 1975]

(a) General. An individual is entitled to disability insurance benefits if such individual:

(1) Is insured for disability insurance benefits (see § 404.116) at the time specified in § 404.115(b); and

(2) Has not attained age 65; and

(3) Has filed an application (see secs. 202(j) and 223(b) of the Act) for disability insurance benefits; and

(4) Is under a disability, as defined in section 223(c) of the Act. Under the law in effect prior to the Social Security Amendments of 1965 (Public Law 89-97), the individual must have been under a disability at the time his application for disability insurance benefits was filed. However, in the case of applications filed after June 1965 and other applications described in § 404.312a, the disability does not have to exist at the time the application is filed. except that no benefits may be paid under this provision for months before September 1965 nor for any month more than 12 months before the month application is filed; and

(5) Has been under such a disability throughout the waiting period where such period is required (see 404.308).

(b) Effect of prior entitlement to other benefits. With respect to benefits for months before September 1965 (or for months after August 1965 on the basis of application filed before July 1965) an individual is not entitled to disability insurance benefits if he was entitled to old-age, wife's, or husband's insurance benefits reduced under section 202 (q) of the Act, or to widow's, widower's, or parent's insurance benefits, for any month before the first month for which such individual would otherwise be entitled to disability insurance benefits. With respect to disability insurance benefits for months after August 1965. on the basis of applications filed after June 1965, prior entitlement to old-age, wife's, or husband's insurance benefits reduced under section 202(q) of the Act. or to widow's, widower's, or parent's insurance benefits, will not preclude entitlement to disability insurance benefits For a special rule applicable to benefits for July 1962 through November 1964 see 404.353(b) (2) (11).

[33 FR. 13, Jan. 3, 1968]

duration of entitlement.

(a) General. An individual is entitled to a disability insurance benefit beginning with the first month in which all of the requirements of 404.306 are met and ending with the earliest of the following:

(1) The month before the month in which such individual dies;

(2) The month before the month in which such individual attains age 65; or

(3) The second month following the month in which such individual's disability (as defined in sec. 223(c) of the Act) ceases (see 8 404.1539).

(b) Effect of subsequent entitlement to old-age insurance benefits. Under the law in effect prior to the Social Security Amendments of 1965 (Public Law 89-97), an individual's entitlement to disability insurance benefits ended with the month before the first month for which he was entitled to an old-age insurance benefit (or, if earlier, with a month listed in paragraph (a) of this section). (For a special rule applicable to benefits for July 1962 through November 1964, see § 404.353 (b) (2) (ii).) In the case of applications filed after June 1965 and other applications described in § 404.312a, entitlement to disability insurance benefits is not terminated by entitlement to oldage insurance benefits, except that disability insurance benefits are not payable by virtue of this change for months before September 1965.

[33 F.R. 13, Jan. 3. 1968]

§ 404.308 Disability insurance benefits; waiting period.

(a) Benefits payable for months prior to January 1973. An individual's waiting period for benefits payable prior to January 1973 is the earliest period of 6 full consecutive calendar months throughout which the individual has been under a disability (as defined in section 223(c) of the Act); however, an individual's "waiting period" can begin no earlier than the later of:

(1) The first month such individual is insured for disability insurance benefits (see § 404.116);

(2) The 18th month before the month in which such individual's application for disability insurance benefits is filed; or (3) January 1, 1957.

For purposes of this paragraph, where the individual's disability begins on the