80 Stat. 67, as amended; section 5 of Reorganization Plan No. 1 of 1953, 67 Stat. 18, 631; 42 U.S.C. 405, 1302, 402 and 428. Also, §§ 404.301-404.305, §§ 404.313-404.365 issued under section 202, 64 Stat. 482, as amended, 42 US.C. 402; §§ 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(i); §§ 404.366-404.373 under sec. 103; 42 U.S.C. 426a.

issued

§ 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 special 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 F.R. 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 of this subpart 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 filed 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 F.R. 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. ever, old-age insurance benefits may be terminated, under certain circumstances, 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

How

part) or when entitlement to benefits under the Railroad Retirement Act is involved (see Subpart O of this part). [29 F.R. 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 equal to his primary insurance amount (see Subpart C of this part) for such month, subject to reduction under section 202(q) of the Act in cases where the beneficiary elects to take a reduced benefit for months after age 61 and prior to age 65.

[29 F.R. 12286, Aug. 27, 1964]

§ 404.306 Disability insurance benefits; conditions of entitlement.

(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) (ii). [33 F.R. 13, Jan. 3, 1968]

§ 404.307 Disability insurance benefits; 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 § 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 par. (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 old-age 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) "Waiting period” defined. A waiting period is the earliest period of six full consecutive calendar months throughout which the individual has

been under a disability (as defined in sec. 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 first day of the month and continues through the last day of the month, such month is considered as a full calendar month.

(b) Continuance of disability until application filed. Under the law in effect prior to the Social Security Amendments of 1965 (Public Law 89-97), it was necessary that the individual's disability have continued until his application for disability insurance benefits was filed, in order for a waiting period to exist. In the case of applications for disability insurance benefits filed after June 1965 and other applications described in § 404.312a, such continuance of the individual's disability is not necessary. No benefits may be paid under this provision for months before September 1965.

(c) When "waiting period" is not required. With respect to disability insurance benefits for months after August 1960, a "waiting period" is not required where:

(1) The individual had previously been entitled to disability insurance benefits which had terminated, or had a period of disability (see § 404.310) which had ceased; and

(2) The termination of entitlement to disability insurance benefits or cessation of a period of disability occurred within the 60-month period before the first month in which the individual was under the disability upon which his present claim is based.

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

§ 404.309 Disability insurance benefits; computation of benefit rate.

Except as provided in sections 202(q) (2), (3), and (4) of the Act, an individual's disability insurance benefit equals his primary insurance amount computed as if he:

(a) Had attained age 65 (if a man), or age 62 (if a woman), in the first month of the "waiting period" (see § 404.308

(a)) or, if no waiting period is required (see § 404.308 (c)), in the first month for which he becomes entitled to disability insurance benefits; and

(b) Had filed application for old-age insurance benefits in the month in which the application for disability insurance benefits was filed, and, if he became entitled to disability insurance benefits after 1965, was entitled to an old-age insurance benefit for each month for which he was entitled to a disability insurance benefit, pursuant to section 223 (b) of the Act. For the purposes of this paragraph, in the case of a woman who became entitled before 1966 to old-age insurance benefits, years in which such woman was both fully insured and had attained age 62 are excluded in computing elapsed years as described in section 215 (b)(3) of the Act; in the case of a woman who became entitled to such benefits after 1965, years in which such woman had attained age 62 are excluded in computing such elapsed years.

[33 F.R. 14, Jan. 3, 1968; 33 F.R. 2710, Feb. 8, 1968]

§ 404.310

Period of disability; conditions of entitlement.

(a) General. An individual is entitled to the establishment of a period of disability (beginning as described in § 404.311 and ending as described in § 404.311a) if:

(1) He was under a disability as defined in section 216(1) of the Act; and

(2) He was insured for establishment of a period of disability (see § 404.116) at the time specified in § 404.115(a); and

(3) Except as provided in pararaph (b) of this section, he has filed application to establish a period of disability (see sec. 216(i) (2) of the Act); and

(4) Except as provided in paragraph (c) of this section, not less than six full consecutive calendar months have elapsed from the date on which a period of disability could begin (as determined under § 404.311) for such individual and before the date on which such period of disability could end (as determined under § 404.311a). Where the beginning date of the period of disability is the first day of a month and the disability continues through the last day of the month, such month is considered a full calendar month.

(b) Relationship between claimant's disability and filing of application. Under the law in effect prior to the Social Security Amendments of 1965 (Public

Law 89-97), a period of disability could not begin unless the application was filed while the individual was under a disability. In the case of applications filed after June 1965 or other applications described in § 404.312a the application need not be filed while the individual is under a disability, except that no benefits may be paid or increased by reason of this provision for months before September 1965, and no application may be accepted as an application for the establishment of a period of disability which is filed more than 12 months after the month preceding the month in which the individual attains age 65 or the second month after the month in which the disability ceases, whichever first

occurs.

(c) Period of disability of less than 6 months. A period of disability beginning after August 1960 may be less than 6 months if the individual was entitled to disability insurance benefits for one or more months during such period.

(d) Effect of prior entitlement to other Title II benefits. With respect to benefits for months before September 1965, or for months after August 1965 on the basis of applications filed before July 1965, a period of disability could not begin for an individual if for any month before the month in which the period of disability could otherwise begin such individual 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.

[33 F.R. 14, Jan. 3, 1968]

§ 404.311 Period of disability; beginning date.

(a) General. Except as provided in paragraphs (b) and (c) of this section, an individual's period of disability begins:

(1) On the day such disability began provided he had disability insured status (see § 404.116) on such day; or

(2) If he did not have disability insured status on such day, on the first day of the first quarter thereafter in which he has disability insured status.

(b) Application filed after June 1962 and before December 1964. An individual's period of disability based upon an application filed after June 1962 and before December 1964 could not begin earlier than 18 months before the day application was filed unless such individual:

(1) Was under a disability (as defined in sec. 216(i) of the Act, as in effect prior to the Social Security Amendments of 1965 (Pub. Law 89-97)) continuously throughout the period beginning with the date such application was filed and up to whichever of the following first occurred:

(i) December 1, 1964, or

(ii) The first day of the month in which he attained age 65, and

(2) Was alive on the date specified in subparagraph (1)(i) of this paragraph.

(c) Individual attained age 65. No period of disability may begin after the individual attains age 65.

[33 F.R. 14, Jan. 3, 1968]

§ 404.31la Period of disability; ending date.

A period of disability established for an individual terminates with the earlier of the following dates:

(a) The last day of the month preceding the month in which such individual attains age 65; or

(b) The last day of the second month following the month in which such individual's disability (as defined in sec. 216(i) of the Act) ceases. [33 F.R. 14, Jan. 3, 1968]

§ 404.312 Period of disability; when disregarded.

None of the provisions relating to periods of disability shall be applicable, and all of the periods of disability established for an individual shall be disregarded, in any case where the application of such provisions:

(a) Would result in the denial of a claim for monthly benefits or the lumpsum death payment, and such monthly benefits or lump sum would be payable if no period of disability had been established for the individual upon whose earnings such monthly benefit or lump sum is claimed; or

(b) Would result in the payment of a monthly benefit or lump-sum death payment in an amount smaller than would otherwise be payable if no period of disability had been established for the individual upon whose earnings such benefit or lump sum is based. [29 F.R. 12287, Aug. 27, 1964]

§ 404.312a Applicability of section 303 of the Social Security Amendments of 1965 (Pub. Law 89-97).

(a) The amendments to the Act reflected in §§ 404.306 (a) (4), 404.307(b), 404.308(b), 404.310 (b), and 404.353 (c)

(1), and the amendments reflected in sections 216(i) (2) and 223 (b) of the Act apply with respect to:

(1) Applications filed after June 1965 for disability insurance benefits or to establish a period of disability, or

(2) Applications filed before July 1965 for disability insurance benefits or a period of disability, if the applicant is alive in such month and:

(i) Notice of the final decision of the Secretary was not given to the applicant before July 1965; or

(ii) Notice of the final decision of the Secretary was given before July 1965 but a civil action with respect to such final decision is commenced under section 205 (g) of the Act (whether before, in, or after such month) and the decision in such civil action did not become final before such month.

(b) The amendments to the Act referred to in paragraph (a) of this section also apply in the case of applications for monthly insurance benefits under Title II of the Act based on the wages and self-employment income of the individual with respect to whose application for disability insurance benefits paragraph (a) of this section applies. [33 F.R. 14, Jan. 3, 1968]

§ 404.313 Wife's insurance benefits; conditions of entitlement.

(a) Conditions of entitlement after August 1965. The wife (as defined in § 404.1103) and every divorced wife (as defined in § 404.1105 (a)) of an individual entitled to old-age or disability insurance benefits is entitled to wife's insurance benefits if she

(1) Has filed application for wife's insurance benefits (see Subpart G of this part); and

(2) Has attained age 62 or (in the case of a wife) has in her care (see §§ 404.342404.349) individually or jointly with such individual at the time of filing such application a child, other than a child specified in paragraph (c) of this section, entitled to a child's insurance benefit on the basis of the earnings record of such individual; and

(3) In the case of a divorced wife: (i) Is not married; and

(ii) At the time specified in paragraph (b) of this section, was receiving at least one-half of her support from such individual (see § 404.350), or was receiving substantial contributions from such individual pursuant to a written agreement (see 404.351(a)), or there was in effect

a court order for substantial contributions (see § 404.351 (c)) to her support from such individual; and

(4) Is not entitled to old-age or disability insurance benefits based on a primary insurance amount which equals or exceeds one-half of the primary insurance amount of such individual.

(b) Time when divorced wife must meet the requirement for support, contributions, or court order. If the individual on whose account benefits are being claimed had a period of disability which did not end before the month in which he became entitled to old-age or disability insurance benefits, the requirement specified in paragraph (a) (3) (ii) of this section must be met

(1) At the beginning of such period of disability, or

(2) At the time he became entitled to disability insurance benefits, or

(3) At the time he became entitled to old-age insurance benefits.

If the individual did not have such a period of disability, the requirement specified in paragraph (a)(3)(ii) must be met at the time he became entitled to old-age insurance benefits.

(c) Child over 18 is not disabled. For the purposes of paragraph (a) (2) of this section and § 404.314(a) (5), a child age 18 or over who is entitled to child's insurance benefits for any month but is not under a disability (as defined in section 223 (d) of the Act) which began before he attained age 18 is deemed not entitled to child's insurance benefits for such month, unless he was under such a disability in the third month before such month.

(d) Conditions of entitlement before September 1965. A woman is entitled to wife's insurance benefits if she:

(1) Is the wife

in

(as defined § 404.1103) of a man who is entitled to either old-age or disability insurance benefits; and

(2) Has filed an application (see Subpart G of this part) for wife's insurance benefits; and

(3) Has attained age 62 or, if she has not attained age 62 at the time of her application, has in her care (see §§ 404.342-404.349), individually or jointly with her husband, a child entitled to a child's insurance benefit (see § 404.320) based upon her husband's earnings record; and

(4) Is not entitled to old-age or disability insurance benefits based on a primary insurance amount which equals or