PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- ) Subpart A—Introduction, General Provisions and Definitions Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the Social Security Act (42 U.S.C. 403, 405(a), 416(j), and 902(a)(5)) and 48 U.S.C. 1801. § 404.1 Introduction. The regulations in this part 404 (Regulations No. 4 of the Social Security Administration) relate to the provisions of title II of the Social Security Act as amended on August 28, 1950, and as further amended thereafter. The regulations in this part are divided into 22 subparts: (a) Subpart A contains provisions relating to general definitions and use of terms. (b) Subpart B relates to quarters of coverage and insured status requirements. (c) Subpart C relates to the computation and recomputation of the primary insurance amount. (d) Subpart D relates to the requirements for entitlement to monthly benefits and to the lump-sum death payment duration of entitlement and benefit rates. (e) Subpart E contains provisions relating to the reduction and increase of insurance benefits and to deductions from benefits and lump-sum death payments. (f) Subpart F relates to overpayments, underpayments, waiver of adjustment or recovery of overpayments and liability of certifying officers. (g) Subpart G relates to filing of applications and other forms. (h) Subpart H relates to evidentiary requirements for establishing an initial and continuing right to monthly benefits and for establishing a right to lump-sum death payment. (Evidentiary requirements relating to disability are contained in subpart P.) (i) Subpart I relates to maintenance and revision of records of wages and self-employment income. (j) Subpart J relates to initial determinations, the administrative review process, and reopening of determinations and decisions. (k) Subpart K relates to employment, wages, self-employment and self-employment income. (l) Subpart L is reserved. (m) Subpart M relates to coverage of employees of State and local Governments. (n) Subpart N relates to benefits in cases involving veterans. (o) Subpart O relates to the interrelationship of the old-age, survivors and disability insurance program with the railroad retirement program. (p) Subpart P relates to the determination of disability or blindness. (q) Subpart Q relates to standards, requirements and procedures for States making determinations of disability for the Commissioner. It also sets out the Commissioner's responsibilities in carrying out the disability determination function. (r) Subpart R relates to the provisions applicable to attorneys and other individuals who represent applicants in connection with claims for benefits. (s) Subpart S relates to the payment of benefits to individuals who are entitled to benefits. (t) Subpart T relates to the negotiation and administration of totalization agreements between the United States and foreign countries. (u) Subpart U relates to the selection of a representative payee to receive benefits on behalf of a beneficiary and to the duties and responsibilities of a representative payee. (v) Subpart V relates to payments to State vocational rehabilitative agencies for vocational rehabilitation services. [26 FR 7054, Aug. 5, 1961; 26 FR 7760, Aug. 19, 1961, as amended at 27 FR 4513, May 11, 1962; 28 FR 14492, Dec. 31, 1963; 51 FR 11718, Apr. 7, 1986; 62 FR 38450, July 18, 1997; 83 FR 62456, Dec. 4, 2018] § 404.2 General definitions and use of terms. (a) Terms relating to the Act and regulations. The Act (2) Section (b) Commissioner; Appeals Council; Administrative Law Judge; Administrative Appeals Judge defined Commissioner (2) Appeals Council (3) Administrative Law Judge (4) Administrative Appeals Judge (c) Miscellaneous. Certify, (2) Benefit (3) Lump sum (4) Attainment of age. (5) State, (i) The District of Columbia, (ii) The Virgin Islands, (iii) The Commonwealth of Puerto Rico effective January 1, 1951, (iv) Guam and American Samoa, effective September 13, 1960, generally, and for purposes of sections 210(a) and 211 of the Act effective after 1960 with respect to service performed after 1960, and effective for taxable years beginning after 1960 with respect to crediting net earnings from self-employment and self-employment income, (v) The Territories of Alaska and Hawaii prior to January 3, 1959, and August 21, 1959, respectively, when those territories acquired statehood, and (vi) The Commonwealth of the Northern Mariana Islands (CNMI) effective January 1, 1987; Social Security coverage for affected temporary employees of the government of the CNMI is also effective on January 1, 1987, under section 210(a)(7)(E) of the Social Security Act. In addition, Social Security coverage for affected non-temporary employees of the government of the CNMI is effective on October 1, 2012, under section 210(a)(7)(C) of the Social Security Act. (6) United States, (i) The States, (ii) The Territories of Alaska and Hawaii prior to January 3, 1959, and August 21, 1959, respectively, when they acquired statehood, (iii) The District of Columbia, (iv) The Virgin Islands, (v) The Commonwealth of Puerto Rico effective January 1, 1951, (vi) Guam and American Samoa, effective September 13, 1960, generally, and for purposes of sections 210(a) and 211 of the Act, effective after 1960 with respect to service performed after 1960, and effective for taxable years beginning after 1960 with respect to crediting net earnings from self-employment and self-employment income, and (vii) The Commonwealth of the Northern Mariana Islands effective January 1, 1987. (7) Masculine gender includes the feminine, unless otherwise indicated. (8) The terms defined in sections 209, 210, and 211 of the act shall have the meanings therein assigned to them. [26 FR 7055, Aug. 5, 1961; 26 FR 7760, Aug. 19, 1961, as amended at 28 FR 1037, Feb. 2, 1963; 28 FR 14492, Dec. 31, 1963; 29 FR 15509, Nov. 19, 1964; 41 FR 32886, Aug. 6, 1976; 51 FR 11718, Apr. 7, 1986; 61 FR 41330, Aug. 8, 1996; 62 FR 38450, July 18, 1997; 69 FR 51555, Aug. 20, 2004; 79 FR 33684, June 12, 2014; 83 FR 21708, May 10, 2018; 85 FR 73156, Nov. 16, 2020] § 404.3 General provisions. (a) Effect of cross references. see (b) Periods of limitation ending on nonwork days. [26 FR 7055, Aug. 5, 1961, as amended at 29 FR 15509, Nov. 19, 1964; 51 FR 11718, Apr. 7, 1986; 61 FR 41330, Aug. 8, 1996; 62 FR 38450, July 18, 1997] Subpart B—Insured Status and Quarters of Coverage Authority: Secs. 205(a), 212, 213, 214, 216, 217, 223, and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a), 412, 413, 414, 416, 417, 423, and 902(a)(5)). Source: 45 FR 25384, Apr. 15, 1980, unless otherwise noted. General § 404.101 Introduction. (a) Insured status. (b) QCs. wages self-employment income. § 404.102 Definitions. For the purpose of this subpart— Act Age Quarter calendar quarter We, our, us You your Fully Insured Status § 404.110 How we determine fully insured status. (a) General. (b) How many QCs you need to be fully insured. (2) You are fully insured for old-age insurance benefits if you have one QC (whenever acquired) for each calendar year elapsing after 1950 or, if later, after the year in which you became age 21, and before the year you reach retirement age, that is, before— (i) The year you become age 62, if you are a woman; (ii) The year you become age 62, if you are a man who becomes age 62 after 1974; (iii) The year 1975, if you are a man who became age 62 in 1973 or 1974; or (iv) The year you became age 65, if you are a man who became age 62 before 1973. (3) A person who is otherwise eligible for survivor's benefits and who files an application will be entitled to benefits based on your earnings if you die fully insured. You will be fully insured if you had one QC (whenever acquired) for each calendar year elapsing after 1950 or, if later, after the year you became age 21, and before the earlier of the following years: (i) The year you die; or (ii) The year you reach retirement age as shown in paragraph (b)(2) of this section. (c) How a period of disability affects the number of QCs you need. (d) How we credit QCs for fully insured status based on your total wages before 1951 General. (i) We may consider you to have one QC for each $400 of your total wages before 1951, as defined in paragraph (d)(2) of this section, if you have at least 7 elapsed years as determined under paragraph (b)(2) or (b)(3) of this section; and the number of QCs determined under this paragraph plus the number of QCs credited to you for periods after 1950 make you fully insured. (ii) If you file an application in June 1992 or later and you are not entitled to a benefit under section 227 of the Act in the month the application is made, we may consider you to have at least one QC before 1951 if you have $400 or more total wages before 1951, as defined in paragraph (d)(2) of this section, provided that the number of QCs credited to you under this paragraph plus the number of QCs credited to you for periods after 1950 make you fully insured. (2) What are total wages before 1951. (i) Remuneration credited to you before 1951 on the records of the Secretary; (ii) Wages considered paid to you before 1951 under section 217 of the Act (relating to benefits in case of veterans); (iii) Compensation under the Railroad Retirement Act of 1937 before 1951 that can be credited to you under title II of the Social Security Act; and (iv) Wages considered paid to you before 1951 under section 231 of the Act (relating to benefits in case of certain persons interned in the United States during World War II). (e) When your fully insured status begins. [45 FR 25384, Apr. 15, 1980, as amended at 50 FR 36573, Sept. 9, 1985; 57 FR 23156, June 2, 1992; 83 FR 21708, May 10, 2018] § 404.111 When we consider a person fully insured based on World War II active military or naval service. We consider that a person, who was not otherwise fully insured, died fully insured if— (a) The person was in the active military or naval service of the United States during World War II; (b) The person died within three years after separation from service and before July 27, 1954; and (c) The conditions in § 404.1350 that permit us to consider the person fully insured are met. (d) The provisions of this section do not apply to persons filing applications after May 31, 1992, unless a survivor is entitled to benefits under section 202 of the Act based on the primary insurance amount of the fully insured person for the month preceding the month in which the application is made. [45 FR 25384, Apr. 15, 1980, as amended at 57 FR 23157, June 2, 1992] § 404.112 When we consider certain employees of private nonprofit organizations to be fully insured. If you are age 55 or over on January 1, 1984, and are on that date an employee of an organization described in § 404.1025(a) which does not have in effect a waiver certificate under section 3121(k) of the Code on that date and whose employees are mandatorily covered as a result of section 102 of Pub. L. 98-21, we consider you to be fully insured if you meet the following requirements: Your age on January 1, 1984 is— QC's acquired after Dec. 31, 1983 60 or over 6 59 or over but less than age 60 8 58 or over but less than age 59 12 57 or over but less than age 58 16 55 or over but less than age 57 20 [50 FR 36573, Sept. 9, 1985] § 404.115 Table for determining the quarters of coverage you need to be fully insured. (a) General. Worker who reaches retirement age as described in § 404.110(b)(2) Worker who dies before reaching retirement age as described in § 404.110(b)(2) Col. I—Date of birth Col. II 1 Col. III 2 Col. IV 3 Col. V 4 Men Women Jan. 1, 1893 or earlier 6 6 5 6 6 Jan. 2, 1893 to Jan. 1, 1894 7 6 1958 7 29 Jan. 2, 1894 to Jan. 1, 1895 8 6 1959 8 30 Jan. 2, 1895 to Jan. 1, 1896 9 6 1960 9 31 Jan. 2, 1896 to Jan. 1, 1897 10 7 1961 10 32 Jan. 2, 1897 to Jan. 1, 1898 11 8 1962 11 33 Jan. 2, 1898 to Jan. 1, 1899 12 9 1963 12 34 Jan. 2, 1899 to Jan. 1, 1900 13 10 1964 13 35 Jan. 2, 1900 to Jan. 1, 1901 14 11 1965 14 36 Jan. 2, 1901 to Jan. 1, 1902 15 12 1966 15 37 Jan. 2, 1902 to Jan. 1, 1903 16 13 1967 16 38 Jan. 2, 1903 to Jan. 1, 1904 17 14 1968 17 39 Jan. 2, 1904 to Jan. 1, 1905 18 15 1969 18 40 Jan. 2, 1905 to Jan. 1, 1906 19 16 1970 19 41 Jan. 2, 1906 to Jan. 1, 1907 20 17 1971 20 42 Jan. 2, 1907 to Jan. 1, 1908 21 18 1972 21 43 Jan. 2, 1908 to Jan. 1, 1909 22 19 1973 22 44 Jan. 2, 1909 to Jan. 1, 1910 23 20 1974 23 45 Jan. 2, 1910 to Jan. 1, 1911 24 21 1975 24 46 Jan. 2, 1911 to Jan. 1, 1912 24 22 1976 25 47 Jan. 2, 1912 to Jan. 1, 1913 24 23 1977 26 48 Jan. 2, 1913 to Jan. 1, 1914 24 24 1978 27 49 Jan. 2, 1914 to Jan. 1, 1915 25 25 1979 28 50 Jan. 2, 1915 to Jan. 1, 1916 26 26 1980 29 51 Jan. 2, 1916 to Jan. 1, 1917 27 27 1981 30 52 Jan. 2, 1917 to Jan. 1, 1918 28 28 1982 31 53 Jan. 2, 1918 to Jan. 1, 1919 29 29 1983 32 54 Jan. 2, 1919 to Jan. 1, 1920 30 30 1984 33 55 Jan. 2, 1920 to Jan. 1, 1921 31 31 1985 34 56 Jan. 2, 1921 to Jan. 1, 1922 32 32 1986 35 57 Jan. 2, 1922 to Jan. 1, 1923 33 33 1987 36 58 Jan. 2, 1923 to Jan. 1, 1924 34 34 1988 37 59 Jan. 2, 1924 to Jan. 1, 1925 35 35 1989 38 60 Jan. 2, 1925 to Jan. 1, 1926 36 36 1990 39 61 Jan. 2, 1926 to Jan. 1, 1927 37 37 7 40 62 Jan. 2, 1927 to Jan. 1, 1928 38 38 Jan. 2, 1928 to Jan. 1, 1929 39 39 Jan. 2, 1929 or later 40 1 2 3 4 5 6 7 (b) Number of QCs you need. (1) The year of death in column III, if the worker was born before January 2, 1930; or (2) The age in the year of death in column V, if the worker was born after January 1, 1930. (c) How a period of disability affects the number of QCs you need. Currently Insured Status § 404.120 How we determine currently insured status. (a) What the period is for determining currently insured status. (1) Die; (2) Most recently became entitled to disability insurance benefits; or (3) Became entitled to old-age insurance benefits. (b) What quarters are not counted as part of the 13-quarter period. Disability Insured Status § 404.130 How we determine disability insured status. (a) General. (b) Rule I—You must meet the 20/40 requirement. (1) You are fully insured; and (2) You have at least 20 QCs in the 40-quarter period (see paragraph (f) of this section) ending with that quarter. (c) Rule II—You become disabled before age 31. (1) You have not become (or would not become) age 31; (2) You are fully insured; and (3) You have QCs in at least one-half of the quarters during the period ending with that quarter and beginning with the quarter after the quarter you became age 21; however— (i) If the number of quarters during this period is an odd number, we reduce the number by one; and (ii) If the period has less than 12 quarters, you must have at least 6 QCs in the 12-quarter period ending with that quarter. (d) Rule III—You had a period of disability before age 31. (1) You are disabled again at age 31 or later after having had a prior period of disability established which began before age 31 and for which you were only insured under paragraph (c) of this section; and (2) You are fully insured and have QCs in at least one-half the calendar quarters in the period beginning with the quarter after the quarter you became age 21 and through the quarter in which the later period of disability begins, up to a maximum of 20 QCs out of 40 calendar quarters; however— (i) If the number of quarters during this period is an odd number, we reduce the number by one; (ii) If the period has less than 12 quarters, you must have at least 6 QCs in the 12-quarter period ending with that quarter; and (iii) No monthly benefits may be paid or increased under Rule III before May 1983. (e) Rule IV—You are statutorily blind. (1) You are disabled by blindness as defined in § 404.1581; and (2) You are fully insured. (f) How we determine the 40-quarter or other period. [49 FR 28547, July 13, 1984, as amended at 55 FR 7313, Mar. 1, 1990] § 404.131 When you must have disability insured status. (a) For a period of disability. (b) For disability insurance benefits. (i) The 17th month (if you have to serve a waiting period described in § 404.315(d)) before the month in which you file an application for disability insurance benefits; or (ii) The 12th month (if you do not have to serve a waiting period) before the month in which you file an application for disability insurance benefits. (2) If you do not have disability insured status in a month specified in paragraph (b)(1) of this section, you will be insured for disability insurance benefits beginning with the first month after that month in which you do meet the insured status requirement and you also meet all other requirements for disability insurance benefits described in § 404.315. § 404.132 How we determine fully insured status for a period of disability or disability insurance benefits. In determining if you are fully insured for purposes of paragraph (b), (c), (d), or (e) of § 404.130 on disability insured status, we use the fully insured status requirements in § 404.110, but apply the following rules in determining when the period of elapsed years ends: (a) If you are a woman, or a man born after January 1, 1913, the period of elapsed years in § 404.110(b) used in determining the number of quarters of coverage (QCs) you need to be fully insured ends as of the earlier of— (1) The year you become age 62; or (2) The year in which— (i) Your period of disability begins; (ii) Your waiting period begins (see § 404.315(d)); or (iii) You become entitled to disability insurance benefits (if you do not have to serve a waiting period). (b) If you are a man born before January 2, 1913, the period of elapsed years in § 404.110(b) used in determining the number of QCs you need to be fully insured ends as of the earlier of— (1) The year 1975; or (2) The year specified in paragraph (a)(2) of this section. [45 FR 25384, Apr. 15, 1980, as amended at 49 FR 28547, July 13, 1984] § 404.133 When we give you quarters of coverage based on military service to establish a period of disability. For purposes of establishing a period of disability only, we give you quarters of coverage (QCs) for your military service before 1957 (see subpart N of this part). We do this even though we may not use that military service for other purposes of title II of the Act because a periodic benefit is payable from another Federal agency based in whole or in part on the same period of military service. Quarters of Coverage § 404.140 What is a quarter of coverage. (a) General. (b) How we credit QCs based on earnings before 1978 (General). (c) How we credit QCs based on earnings after 1977 (General). (d) When a QC is acquired and when a calendar quarter is not a QC (general). § 404.141 How we credit quarters of coverage for calendar years before 1978. (a) General. (b) How we credit QCs based on wages paid in, or self-employment income credited to, a calendar quarter. (1) You were paid wages of $50 or more (see paragraph (c) of this section for an exception relating to wages paid for agricultural labor); or (2) You were credited (under § 404.142) with self-employment income of $100 or more. (c) How we credit QCs based on wages paid for agricultural labor in a calendar year after 1954. If the wages paid to you in a calendar year for agricultural labor were We credit you with And assign: 1 $400 or more 4 QCs All. At least $300 but less than $400 3 QCs Last 3. At least $200 but less than $300 2 QCs Last 2. At least $100 but less than $200 1 QC Last. Less than $100 No QCs 1 (2) When we assign QCs to calendar quarters in a year as shown in the table in paragraph (c)(1) of this section, you might not meet (or might not meet as early in the year as otherwise possible) the requirements to be fully or currently insured, to be entitled to a computation or recomputation of your primary insurance amount, or to establish a period of disability. If this happens, we assign the QCs to different quarters in that year than those shown in the table if this assignment permits you to meet these requirements (or meet them earlier in the year). We can only reassign QCs for purposes of meeting these requirements. (d) How we credit QCs based on wages paid or self-employment income derived in a year. (2) If you derived self-employment income (or derived self-employment income and also were paid wages) during a taxable year beginning after 1950 and before 1978 at least equal to the self-employment income and wage limitation in effect for that year as described in § 404.1068(b), we credit you with a QC for each calendar quarter wholly or partly in that taxable year. [45 FR 25384, Apr. 15, 1980; 45 FR 41931, June 23, 1980, as amended at 70 FR 14977, Mar. 24, 2005] § 404.142 How we credit self-employment income to calendar quarters for taxable years beginning before 1978. In crediting quarters of coverage under § 404.141(b)(2), we credit any self-employment income you derived during a taxable year that began before 1978 to calendar quarters as follows: (a) If your taxable year was a calendar year, we credit your self-employment income equally to each quarter of that calendar year. (b) If your taxable year was not a calendar year (that is, it began on a date other than January 1, or was less than a calendar year), we credit your self-employment income equally— (1) To the calendar quarter in which your taxable year ended; and (2) To each of the next three or fewer preceding quarters that were wholly or partly in your taxable year. § 404.143 How we credit quarters of coverage for calendar years after 1977. (a) Crediting quarters of coverage (QCs). (1) $250 for calendar year 1978; and (2) For each calendar year after 1978, an amount determined by the Commissioner for that year (on the basis of a formula in section 213(d)(2) of the Act which reflects national increases in average wages). The amount determined by the Commissioner is published in the Federal Register (b) Assigning QCs. (1) Give you fully or currently insured status; (2) Entitle you to a computation or recomputation of your primary insurance amount; or (3) Permit you to establish a period of disability. [45 FR 25834, Apr. 15, 1980, as amended at 62 FR 38450, July 18, 1997] § 404.144 How we credit self-employment income to calendar years for taxable years beginning after 1977. In crediting quarters of coverage under § 404.143(a), we credit self-employment income you derived during a taxable year that begins after 1977 to calendar years as follows: (a) If your taxable year is a calendar year or begins and ends within the same calendar year, we credit your self-employment income to that calendar year. (b) If your taxable year begins in one calendar year and ends in the following calendar year, we allocate proportionately your self-employment income to the two calendar years on the basis of the number of months in each calendar year which are included completely within your taxable year. We consider the calendar month in which your taxable year ends as included completely within your taxable year. Example: For the taxable year beginning May 15, 1978, and ending May 14, 1979, your self-employment income is $1200. We credit 7/12 5/12 § 404.145 When you acquire a quarter of coverage. If we credit you with a quarter of coverage (QC) for a calendar quarter under paragraph (b), (c), or (d) of § 404.141 for calendar years before 1978 or assign it to a specific calendar quarter under paragraph (b) of § 404.143 for calendar years after 1977, you acquire the QC as of the first day of the calendar quarter. § 404.146 When a calendar quarter cannot be a quarter of coverage. This section applies when we credit you with quarters of coverage (QCs) under § 404.141 for calendar years before 1978 and under § 404.143 for calendar years after 1977. We cannot credit you with a QC for— (a) A calendar quarter that has not begun; (b) A calendar quarter that begins after the quarter of your death; (c) A calendar quarter that has already been counted as a QC; or (d) A calendar quarter that is included in a period of disability established for you, unless— (1) The quarter is the first or the last quarter of this period; or (2) The period of disability is not taken into consideration (see § 404.320(a)). Appendix to Subpart B of Part 404—Quarter of Coverage Amounts for Calendar Years After 1978 This appendix shows the amount determined by the Commissioner that is needed for a quarter of coverage for each year after 1978 as explained in § 404.143. We publish the amount as a Notice in the Federal Register Calendar year Amount needed 1979 $260 1980 290 1981 310 1982 340 1983 370 1984 390 1985 410 1986 440 1987 460 1988 470 1989 500 1990 520 1991 540 1992 570 [45 FR 25384, Apr. 15, 1980, as amended at 52 FR 8247, Mar. 17, 1987; 57 FR 44096, Sept. 24, 1992; 62 FR 38450, July 18, 1997] Subpart C—Computing Primary Insurance Amounts Authority: Secs. 202(a), 205(a), 215, and 702(a)(5) of the Social Security Act (42 U.S.C. 402(a), 405(a), 415, and 902(a)(5)). Source: 47 FR 30734, July 15, 1982, unless otherwise noted. General § 404.201 What is included in this subpart? In this subpart we describe how we compute your primary insurance amount (PIA), how and when we will recalculate or recompute your PIA to include credit for additional earnings, and how we automatically adjust your PIA to reflect changes in the cost of living. (a) What is my primary insurance amount? (b) How is this subpart organized? (2) In §§ 404.210 through 404.213, we describe the average-indexed-monthly-earnings method we use to compute the primary insurance amount (PIA) for workers who attain age 62 (or become disabled or die before age 62) after 1978. (3) In §§ 404.220 through 404.222, we describe the average-monthly-wage method we use to compute the PIA for workers who attain age 62 (or become disabled or die before age 62) before 1979. (4) In §§ 404.230 through 404.233, we describe the guaranteed alternative method we use to compute the PIA for people who attain age 62 after 1978 but before 1984. (5) In §§ 404.240 through 404.243, we describe the old-start method we use to compute the PIA for those who had all or substantially all of their social security covered earnings before 1951. (6) In §§ 404.250 through 404.252, we describe special rules we use to compute the PIA for a worker who previously had a period of disability. (7) In §§ 404.260 through 404.261, we describe how we compute the special minimum PIA for long-term, low-paid workers. (8) In §§ 404.270 through 404.278, we describe how we automatically increase your PIA because of increases in the cost of living. (9) In §§ 404.280 through 404.288, we describe how and when we will recompute your PIA to include additional earnings which were not used in the original computation. (10) In § 404.290 we describe how and when we will recalculate your PIA. (11) Appendices I-VII contain material such as figures and formulas that we use to compute PIAs. [68 FR 4701, Jan. 30, 2003] § 404.202 Other regulations related to this subpart. This subpart is related to several others. In subpart B of this part, we describe how you become insured for social security benefits as a result of your work in covered employment. In subpart D, we discuss the different kinds of social security benefits available—old-age and disability benefits for you and benefits for your dependents and survivors—the amount of the benefits, and the requirements you and your family must meet to qualify for them; your work status, your age, the size of your family, and other factors may affect the amount of the benefits for you and your family. Rules relating to deductions, reductions, and nonpayment of benefits we describe in subpart E. In subpart F of this part, we describe what we do when a recalculation or recomputation of your primary insurance amount (as described in this subpart) results in our finding that you and your family have been overpaid or underpaid. In subparts G and H of this part, we tell how to apply for benefits and what evidence is needed to establish entitlement to them. In subpart J of this part, we describe how benefits are paid. Then in subparts I, K, N, and O of this part, we discuss your earnings that are taxable and creditable for social security purposes (and how we keep records of them), and deemed military wage credits which may be used in finding your primary insurance amount. § 404.203 Definitions. (a) General definitions. Ad hoc increase in primary insurance amounts Entitled We, us, our You your (b) Other definitions. [47 FR 30734, July 15, 1982, as amended at 62 FR 38450, July 18, 1997] § 404.204 Methods of computing primary insurance amounts—general. (a) General. (b) Major methods. average-indexed-monthly-earnings (2) If before 1979 you reached age 62, became disabled, or died, we compute your primary insurance amount under what we call the average-monthly-wage (c) Special methods. (2) If you reach age 62 during the period 1979-1983, your primary insurance amount is guaranteed to be the highest of— (i) The primary insurance amount we compute for you under the average-indexed-monthly-earnings method; (ii) The primary insurance amount we compute for you under the average-monthly-wage method, as modified by the rules described in §§ 404.230 through 404.233; or (iii) The primary insurance amount computed under what we call the old-start (3) If you had all or substantially all of your social security earnings before 1951, we will also compute your primary insurance amount under what we call the old-start (4) We compute your primary insurance amount under the rules in §§ 404.250 through 404.252, if— (i) You were disabled and received social security disability insurance benefits sometime in your life; (ii) Your disability insurance benefits were terminated because of your recovery or because you engaged in substantial gainful activity; and (iii) You are, after 1978, re-entitled to disability insurance benefits, or entitled to old-age insurance benefits, or have died. (5) In some situations, we use what we call a special minimum Average-Indexed-Monthly-Earnings Method of Computing Primary Insurance Amounts § 404.210 Average-indexed-monthly-earnings method. (a) Who is eligible for this method. (b) Steps in computing your primary insurance amount under the average-indexed-monthly-earnings method. (1) First, we find your average indexed monthly earnings, (2) Second, we find the benefit formula (3) Then, we apply that benefit formula to your average indexed monthly earnings to find your primary insurance amount, as described in § 404.212. (4) Next, we apply any automatic cost-of-living or ad hoc § 404.211 Computing your average indexed monthly earnings. (a) General. indexed, (b) Which earnings may be used in computing your average indexed monthly earnings Earnings. (2) Computation base years. computation base years (c) Average of the total wages. Federal Register (1) For the years 1951 through 1977, four times the amount of average taxable wages that were reported to the Social Security Administration for the first calendar quarter of each year for social security tax purposes. For years prior to 1973, these average wages were determined from a sampling of these reports. (2) For the years 1978 through 1990, all remuneration reported as wages on Form W-2 to the Internal Revenue Service for all employees for income tax purposes, divided by the number of wage earners. We adjusted those averages to make them comparable to the averages for 1951-1977. For years after 1977, the term includes remuneration for services not covered by social security and remuneration for covered employment in excess of that which is subject to FICA contributions. (3) For years after 1990, all remuneration reported as wages on Form W-2 to the Internal Revenue Service for all employees for income tax purposes, including remuneration described in paragraph (c)(2) of this section, plus contributions to certain deferred compensation plans described in section 209(k) of the Social Security Act (also reported on Form W-2), divided by the number of wage earners. If both distributions from and contributions to any such deferred compensation plan are reported on Form W-2, we will include only the contributions in the calculation of the average of the total wages. We will adjust those averages to make them comparable to the averages for 1951-1990. (d) Indexing your earnings. (i) The average wage of all workers in your computation base years; and (ii) The average wage of all workers in your indexing year. (2) To find the relationship, we divide the average wages for your indexing year, in turn, by the average wages for each year beginning with 1951 and ending with your indexing year. We use the quotients found in these divisions to index your earnings as described in paragraph (d)(3) of this section. (3) The second step in indexing your social security earnings is to multiply the actual year-by-year dollar amounts of your earnings (up to the maximum amounts creditable, as explained in §§ 404.1047 and 404.1096 of this part) by the quotients found in paragraph (d)(2) of this section for each of those years. We round the results to the nearer penny. (The quotient for your indexing year is 1.0; this means that your earnings in that year are used in their actual dollar amount; any earnings after your indexing year that may be used in computing your average indexed monthly earnings are also used in their actual dollar amount.) Example: Ms. A reaches age 62 in July 1979. Her year-by-year social security earnings since 1950 are as follows: Year Earnings 1951 $3,200 1952 3,400 1953 3,300 1954 3,600 1955 3,700 1956 3,700 1957 4,000 1958 4,200 1959 4,400 1960 4,500 1961 2,800 1962 2,200 1963 0 1964 0 1965 3,700 1966 4,500 1967 5,400 1968 6,200 1969 6,900 1970 7,300 1971 7,500 1972 7,800 1973 8,200 1974 9,000 1975 9,900 1976 11,100 1977 9,900 1978 11,000 Step 1. Year I. 1977 general wage level II. Nationwide average of the total wages III. Column I divided by column II equals relationship 1951 $9,779.44 $2,799.16 3.4937053 1952 9,779.44 2,973.32 3.2890641 1953 9,779.44 3,139.44 3.1150269 1954 9,779.44 3,155.64 3.0990354 1955 9,779.44 3,301.44 2.9621741 1956 9,779.44 3,532.36 2.7685287 1957 9,779.44 3,641.72 2.6853904 1958 9,779.44 3,673.80 2.6619413 1959 9,779.44 3,855.80 2.5362934 1960 9,779.44 4,007.12 2.4405159 1961 9,779.44 4,086.76 2.3929568 1962 9,779.44 4,291.40 2.2788461 1963 9,779.44 4,396.64 2.2242986 1964 9,779.44 4,576.32 2.1369659 1965 9,779.44 4,658.72 2.0991689 1966 9,779.44 4,938.36 1.9803012 1967 9,779.44 5,213.44 1.8758133 1968 9,779.44 5,571.76 1.7551797 1969 9,779.44 5,893.76 1.6592871 1970 9,779.44 6,186.24 1.5808375 1971 9,779.44 6,497.08 1.5052054 1972 9,779.44 7,133.80 1.3708599 1973 9,779.44 7,580.16 1.2901364 1974 9,779.44 8,030.76 1.2177478 1975 9,779.44 8,630.92 1.1330704 1976 9,779.44 9,226.48 1.0599318 1977 9,779.44 9,779.44 1.0000000 Step 2. Year I. Actual earnings II. Indexing quotient III. Column I multiplied by column II equals indexed earnings 1951 $3,200 3.4937053 $11,179.86 1952 3,400 3.2890641 11,182.82 1953 3,300 3.1150269 10,279.59 1954 3,600 3.0990354 11,156.53 1955 3,700 2.9621741 10,960.04 1956 3,700 2.7685287 10,243.56 1957 4,000 2.6853904 10,741.56 1958 4,200 2.6619413 11,180.15 1959 4,400 2.5362934 11,159.69 1960 4,500 2.4405159 10,982.32 1961 2,800 2.3929568 6,700.28 1962 2,200 2.2788461 5,013.46 1963 0 2.2242986 0 1964 0 2.1369659 0 1965 3,700 2.0991689 7,766.92 1966 4,500 1.9803012 8,911.36 1967 5,400 1.8758133 10,129.39 1968 6,200 1.7551797 10,882.11 1969 6,900 1.6592871 11,449.08 1970 7,300 1.5808375 11,540.11 1971 7,500 1.5052054 11,289.04 1972 7,800 1.3708599 10,692.71 1973 8,200 1.2901364 10,579.12 1974 9,000 1.2177478 10,959.73 1975 9,900 1.1330704 11,217.40 1976 11,100 1.0599318 11,765.24 1977 9,900 1.0000000 9,900.00 1978 11,000 0 11,000.00 (4) We calculate your indexing year under this paragraph if you, the insured worker, die before reaching age 62, your surviving spouse or surviving divorced spouse is first eligible after 1984, and the indexing year calculated under this paragraph results in a higher widow(er)'s benefit than results from the indexing year calculated under the general rule explained in paragraph (d)(1)(ii). For purposes of this paragraph, the indexing year is never earlier than the second year before the year of your death. Except for this limitation, the indexing year is the earlier of— (i) The year in which you, the insured worker, attained age 60, or would have attained age 60 if you had lived, and (ii) The second year before the year in which the surviving spouse or the surviving divorced spouse becomes eligible for widow(er)'s benefits, i.e. (e) Number of years to be considered in finding your average indexed monthly earnings. (1) We count the years beginning with 1951, or (if later) the year you reach age 22, and ending with the earliest of the year before you reach age 62, become disabled, or die. Years wholly or partially within a period of disability (as defined in § 404.1501(b) of subpart P of this part) are not counted unless your primary insurance amount would be higher. In that case, we count all the years during the period of disability, even though you had no earnings in some of those years. These are your elapsed years. (2) For computing old-age insurance benefits and survivors insurance benefits, we subtract 5 from the number of your elapsed years. See paragraphs (e) (3) and (4) of this section for the dropout as applied to disability benefits. This is the number of your benefit computation years; (3) Where the worker is first entitled to disability insurance benefits (DIB) after June 1980, there is an exception to the usual 5 year dropout provision explained in paragraph (e)(2) of this section. (For entitlement before July 1980, we use the usual dropout.) We call this exception the disability dropout. (4) For benefits payable after June 1981, the disability dropout might be increased by the child care dropout. Example: Ms. M., born August 4, 1953, became entitled to disability insurance benefits (DIB) beginning in July 1980 based on a disability which began January 15, 1980. In computing the DIB, we determined that the elapsed years are 1975 through 1979, the number of dropout years is 1 (5 elapsed years divided by 5), and the number of computation years is 4. Since Ms. M. had no earnings in 1975 and 1976, we drop out 1975 and use her earnings for the years 1977 through 1979. Ms. M. lived with her child, who was born in 1972, in all months of 1973 and 1974 and did not have any earnings in those years. We, therefore, recompute Ms. M.'s DIB beginning with July 1981 to give her the advantage of the child care dropout. To do this, we reduce the 4 computation years by 1 child care year to get 3 computation years. Because the child care dropout cannot be applied to computation years in which the worker had earnings, we can drop only one of Ms. M.'s computation years, i.e. (i) Living with (ii) Substantially throughout any part of any calendar year (iii) Earnings (f) Your average indexed monthly earnings. (1) Totalling your indexed earnings in your benefit computation years; (2) Dividing the total by the number of months in your benefit computation years; and (3) Rounding the quotient to the next lower whole dollar. if not already a multiple of $1. Example: From the example in paragraph (d) of this section, we see that Ms. A reaches age 62 in 1979. Her elapsed years are 1951-1978 (28 years). We subtract 5 from her 28 elapsed years to find that we must use 23 benefit computation years. This means that we will use her 23 highest computation base years to find her average indexed monthly earnings. We exclude the 5 years 1961-1965 and total her indexed earnings for the remaining years, i.e. [47 FR 30734, July 15, 1982; 47 FR 35479, Aug. 13, 1982, as amended at 48 FR 11695, Mar. 21, 1983; 51 FR 4482, Feb. 5, 1986; 57 FR 1381, Jan. 14, 1992] § 404.212 Computing your primary insurance amount from your average indexed monthly earnings. (a) General. benefit formula (b) Benefit formula. (2) The dollar amounts in the benefit formula are automatically increased each year for persons who attain age 62, or who become disabled or die before age 62 in that year, by the same percentage as the increase in the average of the total wages (see appendix I). (3) We will publish benefit formulas for years after 1979 in the Federal Register (4) We may use a modified formula, as explained in § 404.213, if you are entitled to a pension based on your employment which was not covered by Social Security. (c) Computing your primary insurance amount from the benefit formula. (d) Adjustment of your primary insurance amount when entitlement to benefits occurs in a year after attainment of age 62, disability or death. (1) Computing your average indexed monthly earnings as described in § 404.211; (2) Applying to your average indexed monthly earnings the benefit formula for the year in which you reach age 62, or become disabled or die before age 62; and (3) Applying to the primary insurance amount all automatic cost-of-living and ad hoc Federal Register (e) Minimum primary insurance amount. [47 FR 30734, July 15, 1982, as amended at 48 FR 46142, Oct. 11, 1983; 51 FR 4482, Feb. 5, 1986; 52 FR 47916, Dec. 17, 1987] § 404.213 Computation where you are eligible for a pension based on your noncovered employment. (a) When applicable. (1) You become eligible for old-age insurance benefits after 1985; or (2) You become eligible for disability insurance benefits after 1985; and (3) For the same months after 1985 that you are entitled to old-age or disability benefits, you are also entitled to a monthly pension(s) for which you first became eligible after 1985 based in whole or part on your earnings in employment which was not covered under Social Security. We consider you to first become eligible for a monthly pension in the first month for which you met all requirements for the pension except that you were working or had not yet applied. In determining whether you are eligible for a pension before 1986, we consider all applicable service used by the pension-paying agency. (Noncovered employment includes employment outside the United States which is not covered under the United States Social Security system. Pensions from noncovered employment outside the United States include both pensions from social insurance systems that base benefits on earnings but not on residence or citizenship, and those from private employers. However, for benefits payable for months prior to January 1995, we will not modify the computation of a totalization benefit (see §§ 404.1908 and 404.1918) as a result of your entitlement to another pension based on employment covered by a totalization agreement. Beginning January 1995, we will not modify the computation of a totalization benefit in any case (see § 404.213(e)(8)). (b) Amount of your monthly pension that we use. (1) If your pension is not paid on a monthly basis or is paid in a lump-sum, we will allocate it proportionately as if it were paid monthly. We will allocate this the same way we allocate lump-sum payments for a spouse or surviving spouse whose benefits are reduced because of entitlement to a Government pension. (See § 404.408a.) (2) If your monthly pension is reduced to provide a survivor's benefit, we will use the unreduced amount. (3) If the monthly pension amount which we will use in computing your primary insurance amount is not a multiple of $0.10, we will round it to the next lower multiple of $0.10. (c) How we compute your primary insurance amount. (1) The formula in appendix II, except that instead of the first percentage figure ( i.e. (i) 80 percent if you initially become eligible for old-age or disability insurance benefits in 1986; (ii) 70 percent for initial eligibility in 1987; (iii) 60 percent for initial eligibility in 1988; (iv) 50 percent for initial eligibility in 1989; (v) 40 percent for initial eligibility in 1990 and later years, or (2) The formula in appendix II minus one-half the portion of your monthly pension which is due to noncovered work after 1956 and for which you were entitled in the first month you were entitled to both Social Security benefits and the monthly pension. If the monthly pension amount is not a multiple of $0.10, we will round to the next lower multiple of $0.10. To determine the portion of your pension which is due to noncovered work after 1956, we consider the total number of years of work used to compute your pension and the percentage of those years which are after 1956, and in which your employment was not covered. We take that percentage of your total pension as the amount which is due to your noncovered work after 1956. (d) Alternate computation. (i) For benefits payable for months before January 1989— Years of coverage Percent 29 80 28 70 27 60 26 50 (ii) For benefits payable for months after December 1988— Years of coverage Percent 29 85 28 80 27 75 26 70 25 65 24 60 23 55 22 50 21 45 (2) If you later earn additional year(s) of coverage, we will recompute your primary insurance amount, effective with January of the following year. (e) Exceptions. (1) Payments made under the Railroad Retirement Act are not considered to be a pension from noncovered employment for the purposes of this section. See subpart O of this part for a discussion of railroad retirement benefits. (2) You were entitled before 1986 to disability insurance benefits in any of the 12 months before you reach age 62 or again become disabled. (See § 404.251 for the appropriate computation.) (3) You were a Federal employee performing service on January 1, 1984 to which Social Security coverage was extended on that date solely by reason of the amendments made by section 101 of the Social Security Amendments of 1983. (4) You were an employee of a nonprofit organization who was exempt from Social Security coverage on December 31, 1983 unless you were previously covered under a waiver certificate which was terminated prior to that date. (5) You have 30 years of coverage as defined in the column headed “Alternate Computation Under § 404.213(d)” in appendix IV of this subpart. (6) Your survivors are entitled to benefits on your record of earnings. (After your death, we will recompute the primary insurance amount to nullify the effect of any monthly pension, based in whole or in part on noncovered employment, to which you had been entitled.) (7) For benefits payable for months after December 1994, payments by the social security system of a foreign country which are based on a totalization agreement between the United States and that country are not considered to be a pension from noncovered employment for purposes of this section. See subpart T of this part for a discussion of totalization agreements. (8) For benefits payable for months after December 1994, the computations in paragraph (c) do not apply in the case of an individual whose entitlement to U.S. social security benefits results from a totalization agreement between the United States and a foreign country. (9) For benefits payable for months after December 1994, you are eligible after 1985 for monthly periodic benefits based wholly on service as a member of a uniformed service, including inactive duty training. (f) Entitlement to a totalization benefit and a pension based on noncovered employment. (1) Where the amount of your totalization benefit will be determined using a computation method that does not consider foreign earnings (see § 404.1918), we will find your total years of coverage by adding your— (i) Years of coverage from the agreement country (quarters of coverage credited under § 404.1908 divided by four) and (ii) Years of U.S. coverage as defined for the purpose of computing the special minimum primary insurance amount under § 404.261. (2) Where the amount of your totalization benefit will be determined using a computation method that does consider foreign earnings, we will credit your foreign earnings to your U.S. earnings record and then find your total years of coverage using the method described in § 404.261. [52 FR 47916, Dec. 17, 1987, as amended at 55 FR 21382, May 24, 1990; 57 FR 22429, May 28, 1992; 60 FR 17444, Apr. 6, 1995; 60 FR 56513, Nov. 9, 1995] Average-Monthly-Wage Method of Computing Primary Insurance Amounts § 404.220 Average-monthly-wage method. (a) Who is eligible for this method. old-start (b) Steps in computing your primary insurance amount under the average-monthly-wage method. (1) First, we find your average monthly wage, as described in § 404.221; (2) Second, we look at the benefit table (3) Then we find your primary insurance amount in the benefit table, as described in § 404.222. (4) Finally, we apply any automatic cost-of-living or ad hoc § 404.221 Computing your average monthly wage. (a) General. (b) Which of your earnings may be used in computing your average monthly wage. (2) We use your earnings in your computation base years (c) Number of years to be considered in computing your average monthly wage. (1) We count the years beginning with 1951 or (if later) the year you reached age 22 and ending with the year before you reached age 62, or became disabled, or died before age 62. Any part of a year—or years—in which you were disabled, as defined in § 404.1505, is not counted unless doing so would give you a higher average monthly wage. In that case, we count all the years during the period of disability, even if you had no earnings in some of those years. These are your elapsed years. (2) If you are a male and you reached age 62 in— (i) 1972 or earlier, we count the years beginning with 1951 and ending with the year before you reached age 65, or became disabled or died before age 65 to find your elapsed years; (ii) 1973, we count the years beginning with 1951 and ending with the year before you reached age 64, or became disabled or died before age 64 to find your elapsed years; or (iii) 1974, we count the years beginning with 1951 and ending with the year before you reached age 63, became disabled, or died before age 63 to find your elapsed years. (3) Then we subtract 5 from the number of your elapsed years. This is the number of your benefit computation years (d) Your average monthly wage. (1) Totalling your creditable earnings in your benefit computation years; (2) Dividing the total by the number of months in your benefit computation years; and (3) Rounding the quotient to the next lower whole dollar if not already a multiple of $1. Example: Mr. B reaches age 62 and becomes entitled to old-age insurance benefits in August 1978. He had no social security earnings before 1951 and his year-by-year social security earnings after 1950 are as follows: Year Earnings 1951 $2,700 1952 2,700 1953 3,400 1954 3,100 1955 4,000 1956 4,100 1957 4,000 1958 4,200 1959 4,800 1960 4,800 1961 4,800 1962 4,800 1963 4,800 1964 1,500 1965 0 1966 0 1967 0 1968 3,100 1969 5,200 1970 7,100 1971 7,800 1972 8,600 1973 8,900 1974 9,700 1975 10,100 1976 10,800 1977 11,900 We first find Mr. B's elapsed years, which are the 27 years 1951-1977. We subtract 5 from his 27 elapsed years to find that we must use 22 benefit computation years in computing his average monthly wage. His computation base years are 1951-1977, which are the years after 1950 and prior to the year he became entitled. This means that we will use his 22 computation base years with the highest earnings to compute his average monthly wage. Thus, we exclude the years 1964-1967 and 1951. We total his earnings in his benefit computation years and get $132,700. We then divide that amount by the 264 months in his 22 benefit computation years and find his average monthly wage to be $502.65, which is rounded down to $502. (e) “Deemed” average monthly wage for certain deceased veterans of World War II. § 404.222 Use of benefit table in finding your primary insurance amount from your average monthly wage. (a) General. (b) Finding your primary insurance amount from benefit table. Example: In the example in § 404.221(d), we computed Mr. B's average monthly wage to be $502. We refer to the December 1978 benefit table in appendix III. Then we find his average monthly wage in column III of the table. Reading across, his primary insurance amount is on the same line in column IV and is $390.50. A 9.9 percent automatic cost-of-living benefit increase was effective for June 1979, increasing Mr. B's primary insurance amount to $429.20, as explained in §§ 404.270 through 404.277. Then, we increase the $429.20 by the 14.3 percent June 1980 cost-of-living benefit increase and get $490.60, and by the 11.2 percent June 1981 increase to get $545.60. [47 FR 30734, July 15, 1982, as amended at 48 FR 46142, Oct. 11, 1983] Guaranteed Alternative for People Reaching Age 62 After 1978 but Before 1984 § 404.230 Guaranteed alternative. (a) General. guaranteed alternative (b) Restrictions. (2) You or your survivors do not qualify for a guaranteed-alternative computation if you were eligible (you attained age 62, became disabled, or died before age 62) for social security benefits based on your own earnings at any time before 1979 unless— (i) Those benefits were disability insurance benefits which were terminated because you recovered from your disability or you engaged in substantial gainful activity; and (ii) You spent at least 12 months without being eligible for disability benefits again. (3) This guaranteed alternative method applies only to old-age insurance benefits and to survivor benefits where the deceased worker reached the month of his or her 62nd birthday after 1978 but before 1984 and died after reaching age 62. § 404.231 Steps in computing your primary insurance amount under the guaranteed alternative—general. If you reach age 62 after 1978 but before 1984, we follow three major steps in finding your guaranteed alternative: (a) First, we compute your average monthly wage, as described in § 404.232; (b) Second, we find the primary insurance amount that corresponds to your average monthly wage in the benefit table in appendix III. (c) Then we apply any automatic cost-of-living or ad hoc § 404.232 Computing your average monthly wage under the guaranteed alternative. (a) General. (b) Exception. § 404.233 Adjustment of your guaranteed alternative when you become entitled after age 62. (a) If you do not become entitled to benefits at the time you reach age 62, we adjust the guaranteed alternative computed for you under § 404.232 as described in paragraph (b) of this section. (b) To the primary insurance amount computed under the guaranteed alternative, we apply any automatic cost-of-living or ad hoc Example: Mr. C reaches age 62 in January 1981 and becomes entitled to old-age insurance benefits in April 1981. He had no social security earnings before 1951 and his year-by-year social security earnings after 1950 are as follows: Year Earnings 1951 $3,600 1952 3,600 1953 3,600 1954 3,600 1955 4,200 1956 4,200 1957 4,200 1958 4,200 1959 4,800 1960 4,800 1961 4,800 1962 4,800 1963 4,800 1964 4,800 1965 4,800 1966 6,600 1967 6,600 1968 7,800 1969 7,800 1970 7,800 1971 7,800 1972 9,000 1973 10,800 1974 13,200 1975 14,100 1976 15,300 1977 16,500 1978 17,700 1979 22,900 1980 25,900 1981 29,700 Mr. C's elapsed years are the 30 years 1951 through 1980. We subtract 5 from his 30 elapsed years to find that we must use 25 benefit computation years in computing his average monthly wage. His computation base years are 1951 through 1980 which are years after 1950 up to the year he reached age 62. We will use his 25 computation base years with the highest earnings to compute his average monthly wage. Thus, we exclude the years 1951-1955. The year 1981 is not a base year for this computation. We total his earnings in his benefit computation years and get $236,000. We then divide by the 300 months in his 25 benefit computation years, and find his average monthly wage to be $786.66 which is rounded down to $786. The primary insurance amount in the benefit table in appendix III that corresponds to Mr. C's average monthly wage is $521.70. The 9.9 percent and 14.3 percent cost of living increase for 1979 and 1980, respectively, are not applicable because Mr. C reached age 62 in 1981. The average indexed monthly earnings method described in §§ 404.210 through 404.212 considers all of the earnings after 1950, including 1981 earnings which, in Mr. C's case cannot be used in the guaranteed alternative method. Mr. C's primary insurance amount under the average indexed earnings method is $548.40. Therefore, his benefit is based upon the $548.40 primary insurance amount. As in the guaranteed alternative method, Mr. C is not entitled to the cost of living increases for years before the year he reaches age 62. Old-Start Method of Computing Primary Insurance Amounts § 404.240 Old-start method—general. If you had all or substantially all your social security earnings before 1951, your primary insurance amount computed under the “1977 simplified old-start” method may be higher than any other primary insurance amount computed for you under any other method for which you are eligible. As explained in § 404.242, if you reach age 62 after 1978, your primary insurance amount computed under the old-start method is used, for purposes of the guaranteed alternative described in § 404.230, if the old-start primary insurance amount is higher than the one found under the average-monthly-wage method. We may use a modified computation, as explained in § 404.243, if you are entitled to a pension based on your employment which was not covered by Social Security. [47 FR 30734, July 15, 1982, as amended at 52 FR 47917, Dec. 17, 1987] § 404.241 1977 simplified old-start method. (a) Who is qualified. (1) You must— (i) Have one “quarter of coverage” (see §§ 404.101 and 404.110 of this part) before 1951; (ii) Have attained age 21 after 1936 and before 1950, or attained age 22 after 1950 and earned fewer than 6 quarters of coverage after 1950; (iii) Have not had a period of disability which began before 1951, unless it can be disregarded, as explained in § 404.320 of this part; and, (iv) Have attained age 62, become disabled, or died, after 1977. (2)(i) You or your survivor becomes entitled to benefits for June 1992 or later; (ii) You do not meet the conditions in paragraph (a)(1) of this section, and, (iii) No person is entitled to benefits on your earnings record in the month before the month you or your survivor becomes entitled to benefits. (3) A recomputation is first effective for June 1992 or later based on your earnings for 1992 or later. (b) Steps in old-start computation. (2) Next, we compute your average monthly wage, as described in paragraph (d) of this section. (3) Next, we apply the old-start formula to your average monthly wage, as described in paragraph (e)(1) of this section. (4) Next, we apply certain increments to the amount computed in step (3), as described in paragraph (e)(2) of this section. (5) Next, we find your primary insurance amount in the benefit table in appendix III, as described in paragraph (f)(1) of this section. (6) Then, we apply automatic cost-of-living or ad hoc (c) Finding your computation base years under the old-start method. (i) If you reached age 21 before 1950 and your total 1937-1950 earnings are not (ii) If you reached age 21 before 1950 and your total 1937-1950 earnings are (iii) If you reached age 21 in 1950 or later and your total pre-1951 earnings are $3,000 or less, we credit the total to the year you reached age 20 and that year is your pre-1951 computation base year. (iv) If you reached age 21 in 1950 or later and your total pre-1951 earnings are more than $3,000, we credit $3,000 to the year you reached age 20 and credit the remainder to earlier years (or year) in blocks of $3,000 in reverse order. We credit any remainder of less than $3,000 to the year before the earliest year to which we had credited $3,000. No more than $42,000 may be credited in this way and to no more than 14 years. Those years are your computation base years before 1951. (v) If you die before 1951, we allocate your 1937-1950 earnings under paragraphs (c)(1) (i) through (iv), except that in determining the number of years, we will use the year of death instead of 1951. If you die before you attain age 21, the number of years in the period is equal to 1. (vi) For purposes of paragraphs (c)(1) (i) through (v), if you had a period of disability which began before 1951, we will exclude the years wholly within a period of disability in determining the number of years. (2)(i) All years after 1950 up to (but not including) the year you become entitled to old-age insurance or disability insurance benefits (or through the year you die if you had not become entitled to old-age or disability benefits) are also computation base years for you. (ii) Years wholly within a period of disability are not computation base years unless your primary insurance amount would be higher if they were. In such situations, we count all the years during the period of disability, even if you had no earnings in some of them. Example: Ms. D reaches age 62 in June 1979. Her total 1937-1950 social security earnings are $40,000 and she had social security earnings of $7,100 in 1976 and $6,300 in 1977. Since she reaches age 62 after 1978, we first compute her primary insurance amount under the average-indexed-monthly-earnings method (§§ 404.210 through 404.212). As of June 1981, it is $170.50, which is the minimum primary insurance amount applicable, because her average indexed monthly earnings of $50 would yield only $56.50 under the benefit formula. Ms. D reached age 62 after 1978 but before 1984 and her guaranteed alternative under the average-monthly-wage method as of June 1981 is $170.30, which is the minimum primary insurance amount based on average monthly wages of $48. (These amounts include the 9.9, the 14.3, and the 11.2 percent cost-of-living increases effective June 1979, June 1980, and June 1981 respectively.) Ms. D is also eligible for the old-start method. We first allocate $3,000 of her 1937-1950 earnings to each of her 13 computation base years starting with the year she reached age 21 (1938) and ending with 1950. The remaining $1,000 is credited to the year she reached age 20. Ms. D, then, has 42 computation base years (14 before 1951 and 28 after 1950). (d) Computing your average monthly wage under the old-start method. (2) Next, we subtract 5 from the number of your elapsed years, and this is the number of computation years we must use. We then choose this number of your computation base years in which you had the highest earnings. These years are your benefit computation years. You must have at least 2 benefit computation years. (3) Then we compute your average monthly wage by dividing your total creditable earnings in your benefit computation years by the number of months in these years and rounding the quotient to the next lower dollar if not already a multiple of $1. (e) Old-start computation formula. (1) We take 40 percent of the first $50 of your average monthly wage, plus 10 percent of the next $200 of your average monthly wage up to a total average monthly wage of $250. (We do not use more than $250 of your average monthly wage.) (2) We increase the amount found in paragraph (e)(1) of this section by 1 percent for each $1,650 in your pre-1951 earnings, disregarding any remainder less than $1,650. We always increase the amount by at least 4 of these 1 percent increments but may not increase it by more than 14 of them. (f) Finding your primary insurance amount under the old-start method. (2) We increase that amount by any automatic cost-of-living or ad hoc Example: From the example in paragraph (c)(2) of this section, we see that Ms. D's elapsed years total 40 (number of years at ages 22 to 61, both inclusive). Her benefit computation years, therefore, must total 35. Since she has only 16 years of actual earnings, we must include 19 years of zero earnings in this old-start computation to reach the required 35 benefit computation years. We next divide her total social security earnings ($53,400) by the 420 months in her benefit computation years and find her average monthly wage to be $127. We apply the old-start computation formula to Ms. D's average monthly wage as follows: 40 percent of the first $50 of her average monthly wage ($20.00), plus 10 percent of the remaining $77 of her average monthly wage ($7.70), for a total of $27.70. We then apply 14 1-percent increments to that amount, increasing it by $3.88 to $31.58. We find $31.58 in column I of the December 1978 benefit table in appendix III and find her primary insurance amount of $195.90 on the same line in column IV. We apply the 9.9 percent automatic cost-of-living increase effective for June 1979 to $195.90 and get an old-start primary insurance amount of $215.30 which we then increase to $246.10 to reflect the 14.3 percent cost-of-living increase effective for June 1980, and to $273.70 to reflect the June 1981 increase. Since that primary insurance amount is higher than the $153.10 primary insurance amount computed under the average-monthly-wage method and the $153.30 primary insurance amount computed under the average-indexed-monthly-earnings method, we base Ms. D's benefits (and those of her family) on $215.30 (plus later cost-of-living increases), which is the highest primary insurance amount. [47 FR 30734, July 15, 1982, as amended at 55 FR 21382, May 24, 1990; 57 FR 23157, June 2, 1992] § 404.242 Use of old-start primary insurance amount as guaranteed alternative. If your primary insurance amount as computed under the old-start method is higher than your primary insurance amount computed under the average-monthly-wage method, your old-start primary insurance amount will serve as the guaranteed alternative to your primary insurance amount computed under the average-indexed-monthly-earnings method, as described in § 404.230. However, earnings that you have in or after the year you reach age 62, or become disabled or die before age 62 are not used in an old-start computation in this situation. § 404.243 Computation where you are eligible for a pension based on noncovered employment. The provisions of § 404.213 are applicable to computations under the old-start method, except for paragraphs (c) (1) and (2) and (d) of that section. Your primary insurance amount will be whichever of the following two amounts is larger: (a) One-half the primary insurance amount computed according to § 404.241 (before application of the cost of living amount); or (b) The primary insurance amount computed according to § 404.241 (before application of the cost of living amount), minus one-half the portion of your monthly pension which is due to noncovered work after 1956 and for which you were eligible in the first month you became eligible for Social Security benefits. If the result is not a multiple of $0.10, we will round to the next lower multiple of $0.10. (See § 404.213 (b)(3) if you are not eligible for a monthly pension in the first month you are entitled to Social Security benefits.) To determine the portion of your pension which is due to noncovered work after 1956, we consider the total number of years of work used to compute your pension and the percentage of those years which are after 1956 and in which your employment was not covered. We take that percentage of your total pension as the amount which is due to your noncovered work after 1956. [52 FR 47918, Dec. 17, 1987] Special Computation Rules for People Who Had a Period of Disability § 404.250 Special computation rules for people who had a period of disability. If you were disabled at some time in your life, received disability insurance benefits, and those benefits were terminated because you recovered from your disability or because you engaged in substantial gainful activity, special rules apply in computing your primary insurance amount when you become eligible after 1978 for old-age insurance benefits or if you become re-entitled to disability insurance benefits or die. (For purposes of §§ 404.250 through 404.252, we use the term second entitlement (a) Second entitlement within 12 months. (b) Second entitlement after more than 12 months. § 404.251 Subsequent entitlement to benefits less than 12 months after entitlement to disability benefits ended. (a) Disability before 1979; second entitlement after 1978. (1) The primary insurance amount to which you were entitled when you last received a benefit, increased by any automatic cost-of-living or ad hoc (2) The primary insurance amount resulting from a recomputation of your primary insurance amount, if one is possible; or (3) The primary insurance amount computed for you as of the time of your second entitlement under any method for which you are qualified at that time, including the average-indexed-monthly-earnings method if the previous period of disability is disregarded. (b) Disability and second entitlement after 1978. (1) The primary insurance amount to which you were entitled when you last received a benefit, increased by any automatic cost-of-living or ad hoc (2) The primary insurance amount resulting from a recomputation of your primary insurance amount, if one is possible (this recomputation may be under the average-indexed-monthly-earnings method only); or (3) The primary insurance amount computed for you as of the time of your second entitlement under any method (including an old-start method) for which you are qualified at that time. (c) Disability before 1986; second entitlement after 1985. [47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987] § 404.252 Subsequent entitlement to benefits 12 months or more after entitlement to disability benefits ended. In this situation, we compute your second-entitlement primary insurance amount by selecting the higher of the following: (a) New primary insurance amount. (b) Previous primary insurance amount. Special Minimum Primary Insurance Amounts § 404.260 Special minimum primary insurance amounts. Regardless of the method we use to compute your primary insurance amount, if the special minimum primary insurance amount described in § 404.261 is higher, then your benefits (and those of your dependents or survivors) will be based on the special minimum primary insurance amount. Special minimum primary insurance amounts are not based on a worker's average earnings, as are primary insurance amounts computed under other methods. Rather, the special minimum primary insurance amount is designed to provide higher benefits to people who worked for long periods in low-paid jobs covered by social security. § 404.261 Computing your special minimum primary insurance amount. (a) Years of coverage. (i) The quotient found by dividing your total creditable social security earnings during the period 1937-1950 by $900, disregarding any fractional remainder; plus (ii) The number of your computation base years after 1950 in which your social security earnings were at least the amounts shown in appendix IV. ( Computation base years (2) You must have at least 11 years of coverage to qualify for a special minimum primary insurance amount computation. However, special minimum primary insurance amounts based on little more than 10 years of coverage are usually lower than the regular minimum benefit that was in effect before 1982 (see §§ 404.212(e) and 404.222(b) of this part). In any situation where your primary insurance amount computed under another method is higher, we use that higher amount. (b) Computing your special minimum primary insurance amount. (2) Then we increase the amount found in paragraph (b)(1) of this section by any automatic cost-of-living or ad hoc Example: Ms. F, who attained age 62 in January 1979, had $10,000 in total social security earnings before 1951 and her post-1950 earnings are as follows: Year Earnings 1951 $1,100 1952 950 1953 0 1954 1,000 1955 1,100 1956 1,200 1957 0 1958 1,300 1959 0 1960 1,300 1961 0 1962 1,400 1963 1,300 1964 0 1965 500 1966 700 1967 650 1968 900 1969 1,950 1970 2,100 1971 2,000 1972 1,500 1973 2,700 1974 2,100 1975 2,600 1976 3,850 1977 4,150 1978 0 Her primary insurance amount under the average-indexed-monthly-earnings method as of June 1981 is $240.40 (based on average indexed monthly earnings of $229). Her guaranteed-alternative primary insurance amount under the average-monthly-wage method as of June 1981 is $255.80 (based on average monthly wages of $131). However, Ms. F has enough earnings before 1951 to allow her 11 years of coverage before 1951 ($10,000 ÷ $900 = 11, plus a remainder, which we drop). She has sufficient earnings in 1951-52, 1954-56, 1958, 1960, 1962-63, 1969-71, 1973, and 1976-77 to have a year of coverage for each of those years. She thus has 15 years of coverage after 1950 and a total of 26 years of coverage. We subtract 10 from her years of coverage, multiply the remainder (16) by $11.50 and get $184.00. We then apply the June 1979, June 1980, and June 1981 automatic cost-of-living increases (9.9 percent, 14.3 percent, and 11.2 percent, respectively) to that amount to find her special minimum primary insurance amount of $202.30 effective June 1979, $231.30 effective June 1980, and $257.30 effective June 1981. (See appendices V and VI.) Since her special minimum primary insurance amount is higher than the primary insurance amounts computed for her under the other methods described in this subpart for which she is eligible, her benefits (and those of her family) are based on the special minimum primary insurance amount. [47 FR 30734, July 15, 1982, as amended at 48 FR 46143, Oct. 11, 1983] Cost-of-Living Increases § 404.270 Cost-of-living increases. Your primary insurance amount may be automatically increased each December so it keeps up with rises in the cost of living. These automatic increases also apply to other benefit amounts, as described in § 404.271. [47 FR 30734, July 15, 1982, as amended at 51 FR 12603, Apr. 14, 1986] § 404.271 When automatic cost-of-living increases apply. Besides increases in the primary insurance amounts of current beneficiaries, automatic cost-of-living increases also apply to— (a) The special minimum primary insurance amounts (described in §§ 404.260 through 404.261) of current and future beneficiaries; (b) The primary insurance amounts of people who after 1978 become eligible for benefits or die before becoming eligible (beginning with December of the year they become eligible or die), although certain limitations are placed on the automatic adjustment of the frozen minimum primary insurance amount (as described in § 404.277); and (c) The maximum family benefit amounts [47 FR 30734, July 15, 1982, as amended at 51 FR 12603, Apr. 14, 1986; 83 FR 21708, May 10, 2018] § 404.272 Indexes we use to measure the rise in the cost-of-living. (a) The bases. (1) The revised Consumer Price Index (CPI) for urban wage earners and clerical workers as published by the Department of Labor, or (2) The average wage index (AWI), which is the average of the annual total wages that we use to index ( i.e. (b) Effect of the OASDI fund ratio. (c) OASDI fund ratio for years after 1984. i.e. (d) Which index we use. [51 FR 12603, Apr. 14, 1986] § 404.273 When are automatic cost-of-living increases effective? We make automatic cost-of-living increases if the applicable index, either the CPI or the AWI, rises over a specified measuring period ( see [69 FR 19925, Apr. 15, 2004] § 404.274 What are the measuring periods we use to calculate cost-of-living increases? (a) General. (b) Measuring period based on the CPI When the period begins. (i) Any calendar quarter in which an ad hoc (ii) The third calendar quarter of any year in which the last automatic increase became effective. (2) When the period ends. (c) Measuring period based on the AWI When the period begins. (i) The calendar year before the year in which an ad hoc (ii) The calendar year before the year in which the last automatic increase became effective. (2) When the period ends. ad hoc [69 FR 19925, Apr. 15, 2004] § 404.275 How is an automatic cost-of-living increase calculated? (a) Increase based on the CPI. (b) Increase based on the AWI. (c) Rounding rules. (d) Additional increase. See [69 FR 19925, Apr. 15, 2004, as amended at 72 FR 2186, Jan. 18, 2007] § 404.276 Publication of notice of increase. When we determine that an automatic cost-of-living increase is due, we publish in the Federal Register (a) The fact that an increase is due; (b) The amount of the increase; (c) The increased special minimum primary insurance amounts; and (d) The range of increased maximum family benefits that corresponds to the range of increased special minimum primary insurance amounts. § 404.277 When does the frozen minimum primary insurance amount increase because of cost-of-living adjustments? (a) What is the frozen minimum primary insurance amount (PIA)? (b) When does the frozen minimum primary insurance amount (PIA) increase automatically? (c) When are automatic increases effective for old-age or disability benefits based on a frozen minimum primary insurance amount (PIA)? (1) December of the year you become entitled to benefits and receive at least a partial benefit; (2) December of the year you reach full retirement age (as defined in § 404.409) if you are entitled to benefits in or before the month you attain full retirement age, regardless of whether you receive at least a partial benefit; or (3) December of the year you become entitled to benefits if that is after you attain full retirement age. (d) When are automatic increases effective for survivor benefits based on a frozen minimum primary insurance amount (PIA)? (2) Automatic cost-of-living increases apply beginning with December of the earlier of: (i) The year in which your surviving spouse or surviving divorced spouse (as defined in §§ 404.335 and 404.336) has attained full retirement age (as defined in § 404.409) and receives at least a partial benefit, or (ii) The year in which your surviving spouse or surviving disabled spouse becomes entitled to benefits and receives at least a partial benefit. (3) Automatic cost-of-living increases are not applied to the frozen minimum PIA in any year in which no survivor of yours is entitled to benefits on your social security record. [68 FR 4702, Jan. 30, 2003] § 404.278 Additional cost-of-living increase. (a) General. (1) The OASDI fund ratio is more than 32.0 percent in the given year in which a cost-of-living increase is due; and (2) In any prior year, the cost-of-living increase was based on the AWI as the lower of the CPI and AWI. (b) Measuring period for the additional increase (2) Ending. (c) Compounded percentage benefit increase. (d) Computing the CPBI. (1) Obtain the sum of (i) 1.000 and (ii) the actual cost-of-living increase percentage (expressed as a decimal) for each year in the measuring period; (2) Multiply the resulting amount for the first year by that for the second year, then multiply that product by the amount for the third year, and continue until the last amount has been multiplied by the product of the preceding amounts; (3) Subtract 1 from the last product; (4) Multiply the remaining product by 100. The result is what we call the actual (5) Substitute the cost-of-living increase percentage(s) that would have been used if the increase(s) had been based on the CPI (for some years, this will be the percentage that was used), and do the same computations as in paragraphs (d) (1) through (4) of this section. The result is what we call the assumed (e) Computing the additional cost-of-living increase. (1) Subtract the actual CPBI from the assumed CPBI; (2) Add 100 to the actual CPBI; (3) Divide the answer from paragraph (e)(1) of this section by the answer from paragraph (e)(2) of this section, multiply the quotient by 100, and round to the nearest 0.1. The result is the additional increase percentage, which we apply to the appropriate amount described in § 404.271 after that amount has been increased under § 404.275 for a given year. If that increased amount is not a multiple of $0.10, we will decrease it to the next lower multiple of $0.10. (f) Restrictions on paying an additional cost-of-living increase. [51 FR 12604, Apr. 21, 1986, as amended at 69 FR 19925, Apr. 15, 2004; 83 FR 21708, May 10, 2018] Recomputing Your Primary Insurance Amount § 404.280 Recomputations. At times after you or your survivors become entitled to benefits, we will recompute your primary insurance amount. Usually we will recompute only if doing so will increase your primary insurance amount. However, we will also recompute your primary insurance amount if you first became eligible for old-age or disability insurance benefits after 1985, and later become entitled to a pension based on your noncovered employment, as explained in § 404.213. There is no limit on the number of times your primary insurance amount may be recomputed, and we do most recomputations automatically. In the following sections, we explain: (a) Why a recomputation is made (§ 404.281), (b) When a recomputation takes effect (§ 404.282), (c) Methods of recomputing (§§ 404.283 and 404.284), (d) Automatic recomputations (§ 404.285), (e) Requesting a recomputation (§ 404.286), (f) Waiving a recomputation (§ 404.287), and (g) Recomputing when you are entitled to a pension based on noncovered employment (§ 404.288). [52 FR 47918, Dec. 17, 1987] § 404.281 Why your primary insurance amount may be recomputed. (a) Earnings not included in earlier computation or recomputation. (b) New computation method enacted. (c) Earnings in the year you reach age 62 or become disabled. lag earnings (d) Earnings not reported to us in time to use them in the computation of your primary insurance amount. (e) Earnings after entitlement that are used in a recomputation. (f) Entitlement to a monthly pension. [47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987] § 404.282 Effective date of recomputations. Most recomputations are effective beginning with January of the calendar year after the year in which the additional earnings used in the recomputation were paid. However, a recomputation to include earnings in the year of death (whether or not paid before death) is effective for the month of death. Additionally if you first became eligible for old-age or disability insurance benefits after 1985 and you later also become entitled to a monthly pension based on noncovered employment, we will recompute your primary insurance amount under the rules in § 404.213; this recomputed Social Security benefit amount is effective for the first month you are entitled to the pension. Finally, if your primary insurance amount was affected by your entitlement to a pension, we will recompute the amount to disregard the pension, effective with the month of your death. [47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987] § 404.283 Recomputation under method other than that used to find your primary insurance amount. In some cases, we may recompute your primary insurance amount under a computation method different from the method used in the computation (or earlier recomputation) of your primary insurance amount, if you are eligible for a computation or recomputation under the different method. § 404.284 Recomputations for people who reach age 62, or become disabled, or die before age 62 after 1978. (a) General. (b) Substituting actual dollar amounts in earnings for earlier years of indexed earnings. i.e. (c) Benefit formula used in recomputation. (d) Your recomputed primary insurance amount. ad hoc (e) Minimum increase in primary insurance amounts. Example 1. Ms. A, whose primary insurance amount we computed to be $432.40 in June 1979 in §§ 404.210 through 404.212 (based on average indexed monthly earnings of $903), had earnings of $11,000 in 1979 which were not used in the initial computation of her primary insurance amount. We may recompute her primary insurance amount effective for January 1980. In this recomputation, her 1979 earnings may be substituted in their actual dollar amount for the lowest year of her indexed earnings that was used in the initial computation. In Ms. A's case, we substitute the $11,000 for her 1966 indexed earnings of $8,911.36. Her total indexed earnings are now $251,470.05 and her new average indexed monthly earnings are $911. We apply to Ms. A's new average indexed monthly earnings the same benefit formula we used in the initial computation. Doing so produces an amount of $396.00. An automatic cost-of-living increase of 9.9 percent was effective in June 1979. We increase the $396.00 amount by 9.9 percent to find Ms. A's recomputed primary insurance amount of $435.30. Later we increased the primary insurance amount to $497.60 to reflect the 14.3 percent cost-of-living increase beginning June 1980 and to $553.40 to reflect the 11.2 percent cost-of-living increase beginning June 1981. Example 2. Mr. B, whose primary insurance amount we computed to be $429.20 (based on average monthly wages of $502) in June 1978 in §§ 404.220 through 404.222, had earnings of $12,000 in 1978 which were not used in the initial computation of his primary insurance amount. We may recompute his primary insurance amount effective for January 1979. In this recomputation, his 1978 earnings are substituted for the lowest year of earnings used in the initial computation ($2,700 in 1952). Mr. B's total earnings are now $142,000 and his new average monthly wage is $537. We next find Mr. B's new average monthly wage in column III of the December 1978 benefit table in appendix III. Reading across, we find his recomputed primary insurance amount on the same line in column IV, which is $407.70. We then apply the 9.9 percent, the 14.3 percent and the 11.2 percent automatic cost-of-living increases for June 1979, June 1980, and June 1981, respectively, to compute Mr. B's primary insurance amount of $569.60. (f) Guaranteed alternatives. (1) If you reached age 62 after 1978 and before 1984, we may recompute to include earnings for years before the year you reached age 62 by using the guaranteed alternative (§ 404.231). We will increase the result by any cost-of-living or ad hoc (2) We will also recompute under the old-start guarantee (§ 404.242) and the prior-disability guarantee (§ 404.252) if you meet the requirements of either or both these methods. [47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987] § 404.285 Recomputations performed automatically. Each year, we examine the earnings record of every retired, disabled, and deceased worker to see if the worker's primary insurance amount may be recomputed under any of the methods we have described. When a recomputation is called for, we perform it automatically and begin paying the higher benefits based on your recomputed primary insurance amount for the earliest possible month that the recomputation can be effective. You do not have to request this service, although you may request a recomputation at an earlier date than one would otherwise be performed (see § 404.286). Doing so, however, does not allow your increased primary insurance amount to be effective any sooner than it would be under an automatic recomputation. You may also waive a recomputation if one would disadvantage you or your family (see § 404.287). § 404.286 How to request an immediate recomputation. You may request that your primary insurance amount be recomputed sooner than it would be recomputed automatically. To do so, you must make the request in writing to us and provide acceptable evidence of your earnings not included in the first computation or earlier recomputation of your primary insurance amount. If doing so will increase your primary insurance amount, we will recompute it. However, we cannot begin paying higher benefits on the recomputed primary insurance amount any sooner than we could under an automatic recomputation, i.e. § 404.287 Waiver of recomputation. If you or your family would be disadvantaged in some way by a recomputation of your primary insurance amount, or you and every member of your family do not want your primary insurance amount to be recomputed for any other reason, you may waive (that is, give up your right to) a recomputation, but you must do so in writing. That you waive one recomputation, however, does not mean that you also waive future recomputations for which you might be eligible. § 404.288 Recomputing when you are entitled to a monthly pension based on noncovered employment. (a) After entitlement to old-age or disability insurance benefits. (b) Already entitled to benefits and to a pension based on noncovered employment. (c) After your death. [52 FR 47918, Dec. 17, 1987] Recalculations of Primary Insurance Amounts § 404.290 Recalculations. (a) Your primary insurance amount may be “recalculated” in certain instances. When we recalculate your primary amount, we refigure it under the same method we used in the first computation by taking into account— (1) Earnings (including compensation for railroad service) incorrectly included or excluded in the first computation; (2) Special deemed earnings credits including credits for military service (see subpart N of this part) and for individuals interned during World War II (see subpart K of this part), not available at the time of the first computation; (3) Correction of clerical or mathematical errors; or (4) Other miscellaneous changes in status. (b) Unlike recomputations, which may only serve to increase your primary insurance amount, recalculations may serve to either increase or reduce it. Appendixes to Subpart C of Part 404—Note The following appendices contain data that are needed in computing primary insurance amounts. Appendix I contains average of the total wages index old-law The figures in the appendices are by law automatically adjusted each year. We are required to announce the changes through timely publication in the Federal Register. Federal Register Federal Register. When we publish the figures in the Federal Register, We begin to use the new data in computing primary insurance amounts as soon as required by law, even before we periodically update these appendices. If the data you need to find your primary insurance amount have not yet been included in the appendices, you may find the figures in the Federal Register [52 FR 8247, Mar. 17, 1987] Appendix I to Subpart C of Part 404—Average of the Total Wages for Years After 1950 Explanation: Calendar year Average of the total wages 1951 $2,799.16 1952 2,973.32 1953 3,139.44 1954 3,155.64 1955 3,301.44 1956 3,532.36 1957 3,641.72 1958 3,673.80 1959 3,855.80 1960 4,007.12 1961 4,086.76 1962 4,291.40 1963 4,396.64 1964 4,576.32 1965 4,658.72 1966 4,938.36 1967 5,213.44 1968 5,571.76 1969 5,893.76 1970 6,186.24 1971 6,497.08 1972 7,133.80 1973 7,580.16 1974 8,030.76 1975 8,630.92 1976 9,226.48 1977 9,779.44 1978 10,556.03 1979 11,479.46 1980 12,513.46 1981 13,773.10 1982 14,531.34 1983 15,239.24 1984 16,135.07 1985 16,822.51 1986 17,321.82 1987 18,426.51 1988 19,334.04 1989 20,099.55 1990 21,027.98 [47 FR 30734, July 15, 1982, as amended at 52 FR 8247, Mar. 17, 1987; 57 FR 44096, Sept. 24, 1992] Appendix II to Subpart C of Part 404—Benefit Formulas Used With Average Indexed Monthly Earnings As explained in § 404.212, we use one of the formulas below to compute your primary insurance amount from your average indexed monthly earnings (AIME). To select the appropriate formula, we find in the left-hand column the year after 1978 in which you reach age 62, or become disabled, or die before age 62. The benefit formula to be used in computing your primary insurance amount is on the same line in the right-hand columns. For example, if you reach age 62 or become disabled or die before age 62 in 1979, then we compute 90 percent of the first $180 of AIME, 32 percent of the next $905 of AIME, and 15 percent of AIME over $1,085. After we figure your amount for each step in the formula, we add the amounts. If the total is not already a multiple of $0.10, we round the total as follows: (1) For computations using the benefit formulas in effect for 1979 through 1982, we round the total upward to the nearest $0.10, and (2) For computations using the benefit formulas in effect for 1983 and later, we round the total downward to the nearest $0.10. Benefit Formulas Year you reach age 62 1 90 percent of the first— plus 32 percent of the next— plus 15 percent of AIME over— 1979 $180 $905 $1,085 1980 194 977 1,171 1981 211 1,063 1,274 1982 230 1,158 1,388 1983 254 1,274 1,528 1984 267 1,345 1,612 1985 280 1,411 1,691 1986 297 1,493 1,790 1987 310 1,556 1,866 1988 319 1,603 1,922 1989 339 1,705 2,044 1990 356 1,789 2,145 1991 370 1,860 2,230 1992 387 1,946 2,333 1 [57 FR 44096, Sept. 24, 1992; 57 FR 45878, Oct. 5, 1992] Appendix III to Subpart C of Part 404—Benefit Table This benefit table shows primary insurance amounts and maximum family benefits in effect in December 1978 based on cost-of-living increases which became effective for June 1978. (See § 404.403 for information on maximum family benefits.) You will also be able to find primary insurance amounts for an individual whose entitlement began in the period June 1977 through May 1978. The benefit table in effect in December 1978 had a minimum primary insurance amount of $121.80. As explained in § 404.222(b), certain workers eligible, or who died without having been eligible, before 1982 had their benefit computed from this table. However, the minimum benefit provision was repealed for other workers by the 1981 amendments to the Act (the Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35 as modified by Pub. L. 97-123). As a result, this benefit table includes a downward extension from the former minimum of $121.80 to the lowest primary insurance amount now possible. The extension is calculated as follows. For each single dollar of average monthly wage in the benefit table, the primary insurance amount shown for December 1978 is $121.80 multiplied by the ratio of that average monthly wage to $76. The upper limit of each primary insurance benefit range in column I of the table is $16.20 multiplied by the ratio of the average monthly wage in column III of the table to $76. The maximum family benefit is 150 percent of the corresponding primary insurance amount. The repeal of the minimum benefit provision is effective with January 1982 for most workers and their families where the worker initially becomes eligible for benefits after 1981 or dies after 1981 without having been eligible before January 1982. For members of a religious order who are required to take a vow of poverty, as explained in 20 CFR 404.1024, and which religious order elected Social Security coverage before December 29, 1981, the repeal is effective with January 1992 based on first eligibility or death in that month or later. To use this table, you must first compute the primary insurance benefit (column I) or the average monthly wage (column III), then move across the same line to either column II or column IV as appropriate. To determine increases in primary insurance amounts since December 1978 you should see appendix VI. Appendix VI tells you, by year, the percentage of the increases. In applying each cost-of-living increase to primary insurance amounts, we round the increased primary insurance amount to the next lower multiple of $0.10 if not already a multiple of $0.10. (For cost-of-living increases which are effective before June 1982, we round to the next higher multiple of $0.10.) Extended December 1978 Table of Benefits Effective January 1982 [In dollars] I. Primary insurance benefit: If an individual's primary insurance benefit (as determined under § 404.241(e)) is— II. Primary insurance amount effective June 1977: Or his or her primary insurance amount is— III. Average monthly wage: Or his or her average monthly wage (as determined under § 404.221) is— IV. Primary insurance amount effective January 1982: Then his or her primary insurance amount is— V. Maximum family benefits: And the maximum amount of benefits payable on the basis of his or her wages and self-employment income is— At least— But not more than— At least— But not more than— 1 1.70 2.60 0.42 2 2 3.30 5.00 0.43 .63 3 3 4.90 7.40 .64 .85 4 4 6.50 9.80 .86 1.06 5 5 8.10 12.20 1.07 1.27 6 6 9.70 14.60 1.28 1.49 7 7 11.30 17.00 1.50 1.70 8 8 12.90 19.40 1.71 1.91 9 9 14.50 21.80 1.92 2.13 10 10 16.10 24.20 2.14 2.34 11 11 17.70 26.60 2.35 2.55 12 12 19.30 29.00 2.56 2.77 13 13 20.90 31.40 2.78 2.98 14 14 22.50 33.80 2.99 3.19 15 15 24.10 36.20 3.20 3.41 16 16 25.70 38.60 3.42 3.62 17 17 27.30 41.00 3.63 3.83 18 18 28.90 43.40 3.84 4.05 19 19 30.50 45.80 4.06 4.26 20 20 32.10 48.20 4.27 4.47 21 21 33.70 50.60 4.48 4.68 22 22 35.30 53.00 4.69 4.90 23 23 36.90 55.40 4.91 5.11 24 24 38.50 57.80 5.12 5.32 25 25 40.10 60.20 5.33 5.54 26 26 41.70 62.60 5.55 5.75 27 27 43.30 65.00 5.76 5.96 28 28 44.90 67.40 5.97 6.18 29 29 46.50 69.80 6.19 6.39 30 30 48.10 72.20 6.40 6.60 31 31 49.70 74.60 6.61 6.82 32 32 51.30 77.00 6.83 7.03 33 33 52.90 79.40 7.04 7.24 34 34 54.50 81.80 7.25 7.46 35 35 56.10 84.20 7.47 7.67 36 36 57.70 86.60 7.68 7.88 37 37 59.30 89.00 7.89 8.10 38 38 60.90 91.40 8.11 8.31 39 39 62.60 93.90 8.32 8.52 40 40 64.20 96.30 8.53 8.73 41 41 65.80 98.70 8.74 8.95 42 42 67.40 101.10 8.96 9.16 43 43 69.00 103.50 9.17 9.37 44 44 70.60 105.90 9.38 9.59 45 45 72.20 108.30 9.60 9.80 46 46 73.80 110.70 9.81 10.01 47 47 75.40 113.10 10.02 10.23 48 48 77.00 115.50 10.24 10.44 49 49 78.60 117.90 10.45 10.65 50 50 80.20 120.30 10.66 10.87 51 51 81.80 122.70 10.88 11.08 52 52 83.40 125.10 11.09 11.29 53 53 85.00 127.50 11.30 11.51 54 54 86.60 129.90 11.52 11.72 55 55 88.20 132.30 11.73 11.93 56 56 89.80 134.70 11.94 12.15 57 57 91.40 137.10 12.16 12.36 58 58 93.00 139.50 12.37 12.57 59 59 94.60 141.90 12.58 12.78 60 60 96.20 144.30 12.79 13.00 61 61 97.80 146.70 13.01 13.21 62 62 99.40 149.10 13.22 13.42 63 63 101.00 151.50 13.43 13.64 64 64 102.60 153.90 13.65 13.85 65 65 104.20 156.30 13.86 14.06 66 66 105.80 158.70 14.07 14.28 67 67 107.40 161.10 14.29 14.49 68 68 109.00 163.50 14.50 14.70 69 69 110.60 165.90 14.71 14.92 70 70 112.20 168.30 14.93 15.13 71 71 113.80 170.70 15.14 15.34 72 72 115.40 173.10 15.35 15.56 73 73 117.00 175.50 15.57 15.77 74 74 118.60 177.90 15.78 15.98 75 75 120.20 180.30 15.99 16.20 76 76 121.80 182.70 Table of Benefits in Effect in December 1978 [In dollars] I. Primary insurance benefit: If an individual's primary insurance benefit (as determined under § 404.241(e)) is— II. Primary insurance amount effective June 1977: Or his or her primary insurance amount is— III. Average monthly wage: Or his or her average monthly wage (as determined under § 404.221) is— IV. Primary insurance amount effective June 1978: Then his or her primary insurance amount is— V. Maximum family benefits: And the maximum amount of benefits payable on the basis of his or her wages and self-employment income is— At least— But not more than— At least— But not more than— 16.20 114.30 76 121.80 182.70 16.21 16.84 116.10 77 78 123.70 185.60 16.85 17.60 118.80 79 80 126.60 189.90 17.61 18.40 121.00 81 81 128.90 193.50 18.41 19.24 123.00 82 83 131.20 196.80 19.25 20.00 125.80 84 85 134.00 201.00 20.01 20.64 128.10 86 87 136.50 204.80 20.65 21.28 130.10 88 89 138.60 207.90 21.29 21.88 132.70 90 90 141.40 212.10 21.89 22.28 135.00 91 92 143.80 215.70 22.29 22.68 137.20 93 94 146.20 219.20 22.59 23.08 139.40 95 96 148.50 222.80 23.09 23.44 142.00 97 97 151.30 227.00 23.45 23.76 144.30 98 99 153.70 230.60 23.77 24.20 147.10 100 101 156.70 235.10 24.21 24.60 149.20 102 102 158.90 238.50 24.61 25.00 151.70 103 104 161.60 242.40 25.01 25.48 154.50 105 106 164.60 246.90 25.49 25.92 157.00 107 107 167.30 251.00 25.93 26.40 159.40 108 109 169.80 254.80 26.41 26.94 161.90 110 113 172.50 258.80 26.95 27.46 164.20 114 118 174.90 262.40 27.47 28.00 166.70 119 122 177.60 266.50 28.01 28.68 169.30 123 127 180.40 270.60 28.69 29.25 171.80 128 132 183.00 274.60 29.26 29.68 174.10 133 136 185.50 278.30 29.69 30.36 176.50 137 141 188.00 282.10 30.37 30.92 179.10 142 146 190.80 286.20 30.93 31.36 181.70 147 150 193.60 290.40 31.37 32.00 183.90 151 155 195.90 293.90 32.01 32.60 186.50 156 160 198.70 298.10 32.61 33.20 189.00 161 164 201.30 302.00 33.21 33.88 191.40 165 169 203.90 305.90 33.89 34.50 194.00 170 174 206.70 310.10 34.51 35.00 196.30 175 178 209.10 313.70 35.01 35.80 198.90 179 183 211.90 318.00 35.81 36.40 201.30 184 188 214.40 321.70 36.41 37.08 203.90 189 193 217.20 326.00 37.09 37.60 206.40 194 197 219.90 329.90 37.61 38.20 208.80 198 202 222.40 333.60 38.21 39.12 211.50 203 207 225.30 338.00 39.13 39.68 214.00 208 211 228.00 342.00 39.69 40.33 216.00 212 216 230.10 345.20 40.34 41.12 218.70 217 221 233.00 349.50 41.13 41.76 221.20 222 225 235.60 353.40 41.77 42.44 223.90 226 230 238.50 357.80 42.45 43.20 226.30 231 235 241.10 361.70 43.21 43.76 229.10 236 239 244.00 366.10 43.77 44.44 231.20 240 244 246.30 371.10 44.45 44.88 233.50 245 249 248.70 378.80 44.89 45.60 236.40 250 253 251.80 384.90 238.70 254 258 254.30 392.50 240.80 259 263 256.50 400.00 243.70 264 267 259.60 206.00 246.10 268 272 262.10 413.70 248.70 273 277 264.90 421.20 251.00 278 281 267.40 427.20 253.50 282 286 270.00 434.90 256.20 287 291 272.90 442.60 258.30 292 295 275.10 448.50 261.10 296 300 278.10 456.10 263.50 301 305 280.70 463.80 265.80 306 309 283.10 469.80 268.50 310 314 286.00 477.40 270.70 315 319 288.30 485.10 273.20 320 323 291.00 491.10 275.80 324 328 293.80 498.70 278.10 329 333 296.20 506.20 281.00 334 337 299.30 512.50 283.00 338 342 301.40 519.90 285.60 343 347 304.20 527.50 288.30 348 351 307.10 533.60 290.50 352 356 309.40 541.20 293.30 357 361 312.40 548.80 295.60 362 365 314.90 554.90 297.90 366 370 317.30 562.50 300.60 371 375 320.20 569.90 303.10 376 379 322.90 576.30 305.70 380 384 325.60 583.90 307.90 385 389 328.00 591.30 310.30 390 393 330.50 597.40 313.00 394 398 333.40 605.10 315.40 399 403 336.00 612.70 318.20 404 407 338.90 618.60 320.20 408 412 341.10 626.30 322.50 413 417 343.50 633.80 324.80 418 421 346.00 639.90 327.40 422 426 348.70 647.50 329.60 427 431 351.10 655.10 331.60 432 436 353.20 662.70 334.40 437 440 356.20 665.70 336.50 441 445 358.40 669.70 338.70 446 450 360.80 673.40 341.30 451 454 363.50 676.30 343.50 455 459 365.90 680.10 345.80 460 464 368.30 683.80 347.90 465 468 370.60 687.10 350.70 469 473 373.50 690.80 352.60 474 478 375.60 694.60 354.90 479 482 378.00 697.70 357.40 483 487 380.70 701.60 359.70 488 492 383.10 705.40 361.90 493 496 385.50 708.40 364.50 497 501 388.20 712.10 366.60 502 506 390.50 715.80 368.90 507 510 392.90 719.00 371.10 511 515 395.30 722.80 373.70 516 520 398.00 726.70 375.80 521 524 400.30 729.50 378.10 525 529 402.70 733.40 380.80 530 534 405.60 737.10 382.80 535 538 407.70 740.20 385.10 539 543 410.20 744.10 387.60 544 548 412.80 747.80 389.90 549 553 415.30 751.60 392.10 554 556 417.60 753.90 393.90 557 560 419.60 756.90 396.10 561 563 421.90 759.30 398.20 564 567 424.10 762.30 400.40 568 570 426.50 764.50 402.30 571 574 428.50 767.50 404.40 575 577 430.70 769.90 406.20 578 581 432.70 772.80 408.40 582 584 435.00 775.20 410.20 585 588 436.90 778.20 412.60 589 591 439.50 780.50 414.60 592 595 441.60 783.50 416.70 596 598 443.80 785.60 418.70 599 602 446.00 788.90 420.70 603 605 448.10 791.10 422.80 606 609 450.30 794.00 424.90 610 612 452.60 796.50 426.90 613 616 454.70 799.50 428.90 617 620 456.80 802.50 431.00 621 623 459.10 804.80 433.00 624 627 461.20 807.90 435.10 628 630 463.40 810.70 437.10 631 634 465.60 814.70 439.20 635 637 467.80 818.50 441.40 638 641 470.10 822.40 443.20 642 644 472.10 826.10 445.40 645 648 474.40 830.10 447.40 649 652 476.50 833.70 448.60 653 656 477.80 836.10 449.90 657 660 479.20 838.40 451.50 661 665 480.90 841.50 453.10 666 670 482.60 844.50 454.80 671 675 484.40 847.40 456.40 676 680 486.10 850.50 458.00 681 685 487.80 853.50 459.80 686 690 489.70 856.40 461.20 691 695 491.20 859.60 462.80 696 700 492.90 862.60 464.50 701 705 494.70 865.60 466.10 706 710 496.40 868.60 467.70 711 715 498.20 871.50 469.40 716 720 500.00 874.60 471.00 721 725 501.70 877.60 472.60 726 730 503.40 880.70 474.20 731 735 505.10 883.80 475.90 736 740 506.90 886.70 477.40 741 745 508.50 889.90 478.90 746 750 510.10 892.70 480.40 751 755 511.70 896.40 481.80 756 760 513.20 897.80 483.20 761 765 514.70 900.40 484.50 766 770 516.00 903.00 485.80 771 775 517.40 905.40 487.20 776 780 518.90 907.90 488.60 781 785 520.40 910.40 489.80 786 790 521.70 912.90 491.10 791 795 523.10 915.40 492.50 796 800 524.60 918.00 494.00 801 805 526.20 920.50 495.30 806 810 527.50 923.00 496.70 811 815 529.00 925.60 498.00 816 820 530.40 928.00 499.40 821 825 531.90 930.60 500.70 826 830 533.30 933.10 502.00 831 835 534.70 935.70 503.30 836 840 536.10 938.10 504.70 841 845 537.60 940.80 506.00 846 850 538.90 943.00 507.50 851 855 540.50 945.70 508.80 856 860 541.90 948.10 510.20 861 865 543.40 950.70 511.50 866 870 544.80 953.20 512.90 871 875 546.30 955.70 514.10 876 880 547.60 958.20 515.50 881 885 549.10 960.80 516.80 886 890 550.40 963.20 518.20 891 895 551.90 966.00 519.60 896 900 553.40 968.30 521.00 901 905 554.90 970.90 522.30 906 910 556.30 973.50 523.70 911 915 557.80 976.00 525.10 916 920 559.30 978.30 526.30 921 925 560.60 961.00 527.60 926 930 561.90 983.40 529.00 931 935 563.40 985.90 530.40 936 940 564.90 988.50 531.70 941 945 566.30 991.00 533.00 946 950 567.70 993.50 534.50 951 955 569.30 996.10 535.90 956 960 570.80 998.60 537.30 961 965 572.30 1,001.00 538.40 966 970 573.40 1,003.60 539.80 971 975 574.90 1,006.20 541.20 976 980 576.40 1,008.50 542.60 981 985 577.90 1,011.10 543.80 986 990 579.20 1,013.60 545.20 991 995 580.70 1,016.20 546.60 996 1,000 582.20 1,018.60 547.80 1,001 1,005 583.50 1,020.70 548.90 1,006 1,010 584.60 1,023.20 550.20 1,011 1,015 586.00 1,025.30 551.50 1,016 1,020 587.40 1,027.80 552.60 1,021 1,025 588.60 1,029.90 553.80 1,026 1,030 589.80 1,032.20 555.10 1,031 1,035 591.20 1,034.50 556.20 1,036 1,040 592.40 1,036.70 557.50 1,041 1,045 593.80 1,039.10 558.80 1,046 1,050 595.20 1,041.30 559.80 1,051 1,055 596.20 1,043.40 561.10 1,056 1,060 597.60 1,045.90 562.40 1,061 1,065 599.00 1,048.00 563.60 1,066 1,070 600.30 1,050.50 564.80 1,071 1,075 601.60 1,052.60 566.00 1,076 1,080 602.80 1,054.90 567.30 1,081 1,085 604.20 1,057.10 568.40 1,086 1,090 605.40 1,059.40 569.70 1,091 1,095 606.80 1,061.70 571.00 1,096 1,100 608.20 1,064.00 572.00 1,101 1,105 609.20 1,066.10 573.30 1,106 1,110 610.60 1.068.50 574.60 1,111 1,115 612.00 1,070.70 575.70 1,116 1,120 613.20 1,073.10 577.00 1,121 1,125 614.60 1,075.30 578.20 1,126 1,130 615.80 1,077.60 579.40 1,131 1,135 617.10 1,079.70 580.60 1,136 1,140 618.40 1,082.20 581.90 1,141 1,145 619.80 1,084.40 583.10 1,146 1,150 621.10 1,086.70 584.20 1,151 1,555 622.20 1,088.80 585.50 1,156 1,160 623.60 1,091.10 586.70 1,161 1,165 624.90 1,093.40 587.90 1,166 1,170 626.20 1,095.80 589.20 1,171 1,175 627.50 1,098.00 590.30 1,176 1,180 628.70 1,100.20 591.40 1,181 1,185 629.90 1,102.20 592.60 1,186 1,190 631.20 1,104.30 593.70 1,191 1,195 632.30 1,106.50 594.80 1,196 1,200 633.50 1,108.60 595.90 1,201 1,205 634.70 1,110.60 597.10 1,206 1,210 636.00 1,112.90 598.20 1,211 1,215 637.10 1,114.90 599.30 1,216 1,220 638.30 1,117.00 600.40 1,221 1,225 639.50 1,119.00 601.60 1,226 1,230 640.80 1,121.20 602.70 1,231 1,235 641.90 1,123.30 603.80 1,236 1,240 643.10 1,125.40 605.00 1,241 1,245 644.40 1,127.50 606.10 1,246 1,250 645.50 1,129.60 607.20 1,251 1,255 646.70 1,131.60 608.30 1,256 1,260 647.90 1,133.80 609.50 1,261 1,265 649.20 1,135.90 610.60 1,266 1,270 650.30 1,138.00 611.70 1,271 1,275 651.50 1,140.00 612.80 1,276 1,280 652.70 1,142.20 613.80 1,281 1,285 653.70 1,144.10 614.80 1,286 1,290 654.90 1,146.10 616.00 1,291 1,295 656.10 1,148.00 617.00 1,296 1,300 657.20 1,150.00 618.10 1,301 1,305 658.30 1,152.00 619.10 1,306 1,310 659.40 1,154.00 620.20 1,311 1,315 660.60 1,155.90 621.30 1,316 1,320 661.70 1,157.90 622.30 1,321 1,325 662.80 1,159.80 623.40 1,326 1,330 664.00 1,161.90 624.40 1,331 1,335 665.00 1,163.80 625.50 1,336 1,340 666.20 1,165.80 626.60 1,341 1,345 667.40 1,167.70 627.60 1,346 1,350 668.40 1,169.70 628.70 1,351 1,355 669.60 1,171.70 629.70 1,356 1,360 670.70 1,173.70 630.80 1,361 1,365 671.90 1,175.60 631.80 1,366 1,370 672.90 1,177.70 632.90 1,371 1,375 674.10 1,179.60 633.90 1,376 1,380 675.20 1,181.60 634.90 1,381 1,385 676.20 1,183.40 635.90 1,386 1,390 677.30 1,185.30 636.90 1,391 1,395 678.30 1,187.10 637.90 1,396 1,400 679.40 1,189.00 638.90 1,401 1,405 680.50 1,190.80 639.90 1,406 1,410 681.50 1,192.70 640.90 1,411 1,415 682.60 1,194.60 641.90 1,416 1,420 683.70 1,196.50 642.90 1,421 1,425 685.70 1,198.30 643.90 1,426 1,430 684.80 1,200.20 644.90 1,431 1,435 686.90 1,202.00 645.90 1,436 1,440 687.90 1,203.90 646.90 1,441 1,445 689.00 1,205.70 647.90 1,446 1,450 690.10 1,207.70 648.90 1,451 1,455 691.10 1,209.50 649.90 1,456 1,460 692.20 1,211.40 650.90 1,461 1,465 693.30 1,213.20 651.90 1,466 1,470 694.30 1,215.10 652.90 1,471 1,475 695.40 1,216.90 [47 FR 30734, July 15, 1982; 47 FR 35479, Aug. 16, 1982, as amended at 48 FR 46143, Oct. 11, 1983; 48 FR 50076, Oct. 31, 1983] Appendix IV to Subpart C of Part 404—Earnings Needed for a Year of Coverage After 1950 Minimum Social Security Earnings to Qualify for a Year of Coverage After 1950 for Purposes of the— Year Special minimum primary insurance amount Benefit computations described in section 404.213(d) 2 1951-1954 $900 $900 1955-1958 1,050 1,050 1959-1965 1,200 1,200 1966-1967 1,650 1,650 1968-1971 1,950 1,950 1972 2,250 2,250 1973 2,700 2,700 1974 3,300 3,300 1975 3,525 3,525 1976 3,825 3,825 1977 4,125 4,125 1978 4,425 4,425 1979 4,725 4,725 1980 5,100 5,100 1981 5,550 5,550 1982 6,075 6,075 1983 6,675 6,675 1984 7,050 7,050 1985 7,425 7,425 1986 7,875 7,875 1987 8,175 8,175 1988 8,400 8,400 1989 8,925 8,925 1990 9,525 9,525 1991 5,940 9,900 1992 6,210 10,350 2 Note: For 1951-78, the amounts shown are 25 percent of the contribution and benefit base (the contribution and benefit base is the same as the annual wage limitation as shown in § 404.1047) in effect. For years after 1978, however, the amounts are 25 percent of what the contribution and benefit base would have been if the 1977 Social Security Amendments had not been enacted, except, for special minimum benefit purposes, the applicable percentage is 15 percent for years after 1990. [57 FR 44096, Sept. 24, 1992] Appendix V to Subpart C of Part 404—Computing the Special Minimum Primary Insurance Amount and Related Maximum Family Benefits These tables are based on section 215(a)(1)(C)(i) of the Social Security Act, as amended. They include the percent cost-of-living increase shown in appendix VI for each effective date. June 1979 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $12.70 $19.10 12 25.30 38.00 13 38.00 57.00 14 50.60 75.90 15 63.20 94.90 16 75.90 113.90 17 88.50 132.80 18 101.20 151.80 19 113.80 170.70 20 126.40 189.60 21 139.10 208.70 22 151.70 227.60 23 164.40 246.60 24 177.00 265.50 25 189.60 284.50 26 202.30 303.50 27 214.90 322.40 28 227.50 341.30 29 240.20 360.30 30 252.80 379.20 June 1980 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $14.60 $21.90 12 29.00 43.50 13 43.50 65.30 14 57.90 86.90 15 72.30 108.50 16 86.80 130.20 17 101.20 151.80 18 115.70 173.60 19 130.10 195.20 20 144.50 216.80 21 159.00 238.60 22 173.40 260.20 23 188.00 282.00 24 202.40 303.60 25 216.80 325.20 26 231.30 347.00 27 245.70 368.60 28 260.10 390.20 29 274.60 411.90 30 289.00 433.50 June 1981 I. Years of coverage II. Primary insurance amount III. Maximum family benefits 11 $16.30 $24.50 12 32.30 48.50 13 48.40 72.70 14 64.40 96.70 15 80.40 120.70 16 96.60 144.90 17 112.60 168.90 18 128.70 193.10 19 144.70 217.10 20 160.70 241.10 21 176.90 265.40 22 192.90 289.40 23 209.10 313.70 24 225.10 337.70 25 241.10 361.70 26 257.30 386.00 27 273.30 410.00 28 289.30 434.00 29 305.40 458.10 30 321.40 482.10 June 1982 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $17.50 $26.30 12 34.60 52.00 13 51.90 78.00 14 69.10 103.80 15 86.30 129.60 16 103.70 155.60 17 120.90 181.30 18 138.20 207.30 19 155.40 233.10 20 172.50 258.90 21 189.90 285.00 22 207.10 310.80 23 224.50 336.90 24 241.70 362.60 25 258.90 388.40 26 276.30 414.50 27 293.50 440.30 28 310.70 466.10 29 327.90 491.90 30 345.10 517.70 December 1983 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $18.10 $27.20 12 35.80 53.80 13 53.70 80.70 14 71.50 107.40 15 89.30 134.10 16 107.30 161.00 17 125.10 187.60 18 143.00 214.50 19 160.80 241.20 20 178.50 267.90 21 196.50 294.90 22 214.30 321.60 23 232.30 348.60 24 250.10 375.20 25 267.90 401.90 26 285.90 429.00 27 303.70 455.70 28 321.50 482.40 29 339.30 509.10 30 357.10 535.80 December 1984 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $18.70 $28.10 12 37.00 55.60 13 55.50 83.50 14 74.00 111.10 15 92.40 138.70 16 111.00 166.60 17 129.40 194.10 18 148.00 222.00 19 166.40 249.60 20 184.70 277.20 21 203.30 305.20 22 221.80 332.80 23 240.40 360.80 24 258.80 388.30 25 277.20 415.90 26 295.90 444.00 27 314.30 471.60 28 332.70 499.20 29 351.10 526.90 30 369.50 554.50 December 1985 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $19.20 $28.90 12 38.10 57.30 13 57.20 86.00 14 76.20 114.50 15 95.20 142.90 16 114.40 171.70 17 133.40 200.10 18 152.50 228.80 19 171.50 257.30 20 190.40 285.70 21 209.60 314.60 22 228.60 343.10 23 247.80 371.90 24 266.80 400.30 25 285.70 428.70 26 305.00 457.70 27 324.00 486.20 28 343.00 514.60 29 361.90 543.20 30 380.90 571.60 December 1986 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $19.40 $29.20 12 38.50 58.00 13 57.90 87.10 14 77.10 115.90 15 96.40 144.70 16 115.80 173.90 17 135.10 202.70 18 154.40 231.70 19 173.70 260.60 20 192.80 289.40 21 212.30 318.60 22 231.50 347.50 23 251.00 376.70 24 270.20 405.50 25 289.40 434.20 26 308.90 463.60 27 328.20 492.50 28 347.40 521.20 29 366.60 550.20 30 385.80 579.00 December 1987 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $20.20 $30.40 12 40.10 60.40 13 60.30 90.70 14 80.30 120.70 15 100.40 150.70 16 120.60 181.20 17 140.70 211.20 18 160.80 241.40 19 180.90 271.50 20 200.80 301.50 21 221.20 331.90 22 241.20 362.00 23 261.50 392.50 24 281.50 422.50 25 301.50 452.40 26 321.80 483.00 27 341.90 513.10 28 361.90 543.00 29 381.90 573.30 30 402.00 603.30 December 1988 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $21.00 $31.60 12 41.70 62.80 13 62.70 94.30 14 83.50 125.50 15 104.40 156.70 16 125.40 188.40 17 146.30 219.60 18 167.20 251.00 19 188.10 282.30 20 208.80 313.50 21 230.00 345.10 22 250.80 376.40 23 271.90 408.20 24 292.70 439.40 25 313.50 470.40 26 334.60 502.30 27 355.50 533.60 28 376.30 564.70 29 397.10 596.20 30 418.00 627.40 December 1989 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $21.90 $33.00 12 43.60 65.70 13 65.60 98.70 14 87.40 131.30 15 109.30 164.00 16 131.20 197.20 17 153.10 229.90 18 175.00 262.70 19 196.90 295.50 20 218.60 328.20 21 240.80 361.30 22 262.50 394.00 23 284.60 427.30 24 306.40 460.00 25 328.20 492.50 26 350.30 525.90 27 372.20 558.60 28 393.90 591.20 29 415.70 624.20 30 437.60 656.80 December 1990 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $23.00 $34.70 12 45.90 69.20 13 69.10 104.00 14 92.10 138.30 15 115.20 172.80 16 138.20 207.80 17 161.30 242.30 18 184.40 276.80 19 207.50 311.40 20 230.40 345.90 21 253.80 380.80 22 276.60 415.20 23 299.90 450.30 24 322.90 484.80 25 345.90 519.00 26 369.20 554.20 27 392.20 588.70 28 415.10 623.10 29 438.10 657.90 30 461.20 692.20 December 1991 I. Years of coverage II. Primary insurance amount III. Maximum family benefit 11 $23.80 $35.90 12 47.50 71.70 13 71.60 107.80 14 95.50 143.40 15 119.40 179.10 16 143.30 215.40 17 167.20 251.20 18 191.20 287.00 19 215.10 322.90 20 238.90 358.60 21 263.10 394.80 22 286.80 430.50 23 310.90 466.90 24 334.80 502.70 25 358.60 538.20 26 382.80 574.70 27 406.70 610.40 28 430.40 646.10 29 454.30 682.20 30 478.20 717.80 Note: [47 FR 30734, July 15, 1982, as amended at 52 FR 8248, Mar. 17, 1987; 57 FR 44097, Sept. 24, 1992; 57 FR 45878, Oct. 5, 1992] Appendix VI to Subpart C of Part 404—Percentage of Automatic Increases in Primary Insurance Amounts Since 1978 Effective date Percentage increase 06/79 9.9 06/80 14.3 06/81 11.2 06/82 7.4 12/83 3.5 12/84 3.5 12/85 3.1 12/86 1.3 12/87 4.2 12/88 4.0 12/89 4.7 12/90 5.4 12/91 3.7 [57 FR 44097, Sept. 24, 1992] Appendix VII to Subpart C of Part 404—“Old-Law” Contribution and Benefit Base Explanation: Year Amount 1979 $18,900 1980 20,400 1981 22,200 1982 24,300 1983 26,700 1984 28,200 1985 29,700 1986 31,500 1987 32,700 1988 33,600 1989 35,700 1990 38,100 1991 39,600 1992 41,400 [52 FR 8248, Mar. 17, 1987, as amended at 57 FR 44097, Sept. 24, 1992; 57 FR 45878, Oct. 5, 1992] Subpart D—Old-Age, Disability, Dependents' and Survivors' Insurance Benefits; Period of Disability Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 403(a) and (b), 405(a), 416, 423, 425, and 902(a)(5)). Source: 44 FR 34481, June 15, 1979, unless otherwise noted. General § 404.301 Introduction. This subpart sets out what requirements you must meet to qualify for social security benefits, how your benefit amounts are figured, when your right to benefits begins and ends, and how family relationships are determined. These benefits are provided by title II of the Social Security Act. They include— (a) For workers, (b) For a worker's dependents, (c) For a worker's survivors, [44 FR 34481, June 15, 1979, as amended at 83 FR 21708, May 10, 2018] § 404.302 Other regulations related to this subpart. This subpart is related to several others. Subpart H sets out what evidence you need to prove you qualify for benefits. Subpart P describes what is needed to prove you are disabled. Subpart E describes when your benefits may be reduced or stopped for a time. Subpart G describes the need for and the effect of an application for benefits. Part 410 describes when you may qualify for black lung benefits. Part 416 describes when you may qualify for supplemental security income. Also 42 CFR part 405 describes when you may qualify for hospital and medical insurance if you are aged, disabled, or have chronic kidney disease. § 404.303 Definitions. As used in this subpart: Apply Eligible Entitled Insured person the insured Permanent home Primary insurance amount We Us You § 404.304 What are the general rules on benefit amounts? This subpart describes how we determine the highest monthly benefit amount you ordinarily could qualify for under each type of benefit. However, the highest monthly benefit amount you could qualify for may not be the amount you will be paid. In a particular month, your benefit amount may be reduced or not paid at all. Under some circumstances, your benefit amount may be increased. The most common reasons for a change in your benefit amount are listed below. (a) Age. (b) Earnings. (c) Overpayments and underpayments. (d) Family maximum. (e) Government pension offset. (f) Rounding. [68 FR 4702, Jan. 30, 2003, as amended at 83 FR 21708, May 10, 2018] § 404.305 When you may not be entitled to benefits. In addition to the situations described in § 404.304 when you may not receive a benefit payment, there are special circumstances when you may not be entitled to benefits. These circumstances are— (a) Waiver of benefits. (b) Person's death caused by an intentional act. [44 FR 34481, June 15, 1979, as amended at 47 FR 42098, Sept. 24, 1982; 52 FR 19136, May 21, 1987, 52 FR 21410, June 5, 1987; 58 FR 64888, Dec. 10, 1993] Old-Age and Disability Benefits § 404.310 When am I entitled to old-age benefits? We will find you entitled to old-age benefits if you meet the following three conditions: (a) You are at least 62 years old; (b) You have enough social security earnings to be fully insured as defined in §§ 404.110 through 404.115; and (c) You apply; or you are entitled to disability benefits up to the month you attain full retirement age (as defined in § 404.409). When you attain full retirement age, your disability benefits automatically become old-age benefits. [68 FR 4702, Jan. 30, 2003] § 404.311 When does my entitlement to old-age benefits begin and end? (a) We will find you entitled to old-age benefits beginning with: (1) If you have attained full retirement age (as defined in § 404.409), the first month covered by your application in (2) If you have attained age 62, but have not attained full retirement age (as defined in § 404.409), the first month covered by your application throughout (b) We will find your entitlement to old-age benefits ends with the month before the month you die. [68 FR 4702, Jan. 30, 2003] § 404.312 How is my old-age benefit amount calculated? (a) If your old-age benefits begin in the month you attain full retirement age (as defined in § 404.409), your monthly benefit is equal to the primary insurance amount (as explained in subpart C of this part). (b) If your old-age benefits begin after the month you attain full retirement age, your monthly benefit is your primary insurance amount plus an increase for retiring after full retirement age. See § 404.313 for a description of these increases. (c) If your old-age benefits begin before the month you attain full retirement age, your monthly benefit amount is the primary insurance amount minus a reduction for each month you are entitled before you attain full retirement age. These reductions are described in §§ 404.410 through 404.413. [68 FR 4702, Jan. 30, 2003] § 404.313 What are delayed retirement credits and how do they increase my old-age benefit amount? (a) What are delayed retirement credits and how do I earn them? (b) How is the amount of the increase because of delayed retirement credits computed? Computation of the increase amount. (2) Credit percentages. If your date of birth is: The credit for each month you delay Before 1/2/1917 1 12 1/2/1917—1/1/1925 1 4 1/2/1925—1/1/1927 7 24 1/2/1927—1/1/1929 1 3 1/2/1929—1/1/1931 3 8 1/2/1931—1/1/1933 5 12 1/2/1933—1/1/1935 11 24 1/2/1935—1/1/1937 1 2 1/2/1937—1/1/1939 13 24 1/2/1939—1/1/1941 7 12 1/2/1941—1/1/1943 5 8 After 1/1/1943 2 3 Example: Alan was qualified for old-age benefits when he reached age 65 on January 15, 1998. He decided not to apply for old-age benefits immediately because he was still working. When he became age 66 in January 1999, he stopped working and applied for benefits beginning with that month. Based on his earnings, his primary insurance amount was $782.60. However, because he did not receive benefits immediately upon attainment of full retirement age (65), he is due an increase based on his delayed retirement credits. He earned 12 credits, one for each month from January 1998 through December 1998. Based on his date of birth of 1/15/1933 he is entitled to a credit of 11/24 11/24 (c) When is the increase because of delayed retirement credits effective? Credits earned after entitlement and before the year of attainment of age 70. (2) Credits earned after entitlement in the year of attainment of age 70. (3) Credits earned prior to entitlement. (d) How do delayed retirement credits affect the special minimum primary insurance amount? i.e. (e) What is the effect of my delayed retirement credits on the benefit amount of others entitled on my earnings record? Surviving spouse or surviving divorced spouse. (2) Other family member. (3) Family maximum. [68 FR 4703, Jan. 30, 2003, as amended at 75 FR 76259, Dec. 8, 2010] § 404.315 Who is entitled to disability benefits? (a) General. (1) You have enough social security earnings to be insured for disability, (2) You apply; (3) You have a disability, as defined in § 404.1505, or you are not disabled, but you had a disability that ended within the 12-month period before the month you applied; and (4) You have been disabled for 5 full consecutive months or no waiting period is required. The 5-month waiting period begins with a month in which you were both insured for disability and disabled. Your waiting period can begin no earlier than the 17th month before the month you apply—no matter how long you were disabled before then. No waiting period is required if: (i) You were previously entitled to disability benefits or to a period of disability under § 404.320 any time within 5 years of the month you again became disabled; or (ii) You have been medically determined to have amyotrophic lateral sclerosis, and we approved your application for disability insurance benefits on or after July 23, 2020. (b) [Reserved] [44 FR 34481, June 15, 1979, as amended at 48 FR 21930, May 16, 1983; 51 FR 10616, Mar. 28, 1986; 51 FR 16166, May 1, 1986; 53 FR 43681, Oct. 28, 1988; 57 FR 30119, July 8, 1992; 60 FR 8145, Feb. 10, 1995; 68 FR 4704, Jan. 30, 2003; 86 FR 48021, Aug. 27, 2021; 91 FR 16829, Apr. 3, 2026] § 404.316 When entitlement to disability benefits begins and ends. (a) You are entitled to disability benefits beginning with the first month covered by your application in which you meet all the other requirements for entitlement. If a waiting period is required, your benefits cannot begin earlier than the first month following that period. (b) Your entitlement to disability benefits ends with the earliest of these months: (1) The month before the month of your death; (2) The month before the month you attain full retirement age as defined in § 404.409 (at full retirement age your disability benefits will be automatically changed to old-age benefits); (3) The second month after the month in which your disability ends as provided in § 404.1594(b)(1), unless continued subject to paragraph (c); or (4) subject to the provisions of paragraph (d) of this section, the month before your termination month (§ 404.325). (c)(1) Your benefits, and those of your dependents, may be continued after your impairment is no longer disabling if— (i) You are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services, as described in § 404.327(a) and (b); (ii) You began participating in the program before the date your disability ended; and (iii) We have determined under § 404.328 that your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls. (2) We generally will stop your benefits with the earliest of these months— (i) The month in which you complete the program; or (ii) The month in which you stop participating in the program for any reason (see § 404.327(b) for what we mean by “participating” in the program); or (iii) The month in which we determine under § 404.328 that your continuing participation in the program will no longer increase the likelihood that you will not have to return to the disability benefit rolls. Exception to paragraph (c): (d) If, after November 1980, you have a disabling impairment (§ 404.1511), you will be paid benefits for all months in which you do not do substantial gainful activity during the reentitlement period (§ 404.1592a) following the end of your trial work period (§ 404.1592). If you are unable to do substantial gainful activity in the first month following the reentitlement period, we will pay you benefits until you are able to do substantial gainful activity. (Earnings during your trial work period do not affect the payment of your benefit.) You will also be paid benefits for the first month after the trial work period in which you do substantial gainful activity and the two succeeding months, whether or not you do substantial gainful activity during those succeeding months. After those three months, you cannot be paid benefits for any months in which you do substantial gainful activity. [44 FR 34481, June 15, 1979, as amended at 47 FR 31542, July 21, 1982; 47 FR 52693, Nov. 23, 1982; 49 FR 22270, May 29, 1984; 51 FR 17617, May 14, 1986; 60 FR 8145, Feb. 10, 1995; 68 FR 4704, Jan. 30, 2003; 70 FR 36505, June 24, 2005; 91 FR 16829, Apr. 3, 2026] § 404.317 How is the amount of my disability benefit calculated? Your monthly benefit is equal to the primary insurance amount (PIA). This amount is computed under the rules in subpart C of this part as if it was an old-age benefit, and as if you were 62 years of age at the beginning of the 5-month waiting period mentioned in § 404.315(a). If the 5-month waiting period is not required because of your previous entitlement, your PIA is figured as if you were 62 years old when you become entitled to benefits this time. If the 5-month waiting period is not required because you have been medically determined to have amyotrophic lateral sclerosis (see § 404.315), your PIA is figured as if you were 62 years old when you become entitled to benefits. Your monthly benefit amount may be reduced if you receive workers' compensation or public disability payments before you attain full retirement age (as defined in § 404.409) (see § 404.408). Your benefits may also be reduced if you were entitled to other retirement-age benefits before you attained full retirement age (as defined in § 404.409). [68 FR 4704, Jan. 30, 2003, as amended at 81 FR 10033, Apr. 4, 2016; 86 FR 48021, Aug. 27, 2021] § 404.320 Who is entitled to a period of disability. (a) General. (b) Who is entitled. (1) You have or had a disability as defined in § 404.1505. (2) You are insured for disability, (3) You file an application while disabled, or no later than 12 months after the month in which your period of disability ended. If you were unable to apply within the 12-month period after your period of disability ended because of a physical or mental condition as described in § 404.322, you may apply not more than 36 months after the month your disability ended. (4) At least 5 consecutive months go by from the month in which your period of disability begins and before the month in which it would end. [44 FR 34481, June 15, 1979, as amended at 48 FR 21930, May 16, 1983; 51 FR 10616, Mar. 28, 1986] § 404.321 When a period of disability begins and ends. (a) When a period of disability begins. (b) When disability ended before December 1, 1980. (c) When disability ends after November 1980. (1) The month before the month in which you attain full retirement age as defined in § 404.409. (2) The month immediately preceding your termination month (§ 404.325); or (3) If you perform substantial gainful activity during the reentitlement period described in § 404.1592a, the last month for which you received benefits. [49 FR 22271, May 29, 1984, as amended at 60 FR 8145, Feb. 10, 1995; 65 FR 42782, July 11, 2000; 68 FR 4704, Jan. 30, 2003; 91 FR 16829, Apr. 3, 2026] § 404.322 When you may apply for a period of disability after a delay due to a physical or mental condition. If because of a physical or mental condition you did not apply for a period of disability within 12 months after your period of disability ended, you may apply not more than 36 months after the month in which your disability ended. Your failure to apply within the 12-month time period will be considered due to a physical or mental condition if during this time— (a) Your physical condition limited your activities to such an extent that you could not complete and sign an application; or (b) You were mentally incompetent. § 404.325 The termination month. If you do not have a disabling impairment, your termination month is the third month following the month in which your impairment is not disabling even if it occurs during the trial work period or the reentitlement period. If you continue to have a disabling impairment and complete 9 months of trial work, your termination month will be the third month following the earliest month you perform substantial gainful activity or are determined able to perform substantial gainful activity; however, in no event will the termination month under these circumstances be earlier than the first month after the end of the reentitlement period described in § 404.1592a. Example 1: You complete your trial work period in December 1999. You then work at the substantial gainful activity level and continue to do so throughout the 36 months following completion of your trial work period and thereafter. Your termination month will be January 2003, which is the first month in which you performed substantial gainful activity after the end of your 36-month reentitlement period. This is because, for individuals who have disabling impairments (see § 404.1511) and who work, the termination month cannot occur before the first month after the end of the 36-month reentitlement period. Example 2: You complete your trial work period in December 1999, but you do not do work showing your ability to do substantial gainful activity during your trial work period or throughout your 36-month reentitlement period. In April 2003, 4 months after your reentitlement period ends, you become employed at work that we determine is substantial gainful activity, considering all of our rules in §§ 404.1574 and 404.1574a. Your termination month will be July 2003; that is, the third month after the earliest month you performed substantial gainful activity. [65 FR 42782, July 11, 2000] Rules Relating to Continuation of Benefits After Your Impairment Is No Longer Disabling Source: 70 FR 36505, June 24, 2005, unless otherwise noted. § 404.327 When you are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services. (a) What is an appropriate program of vocational rehabilitation services, employment services, or other support services? (1) A program that is carried out under an individual work plan with an employment network under the Ticket to Work and Self-Sufficiency Program under part 411 of this chapter; (2) A program that is carried out under an individualized plan for employment with— (i) A State vocational rehabilitation agency ( i.e. (ii) An organization administering a Vocational Rehabilitation Services Project for American Indians with Disabilities authorized under section 121 of part C of title I of the Rehabilitation Act of 1973, as amended (29 U.S.C. 741); (3) A program of vocational rehabilitation services, employment services, or other support services that is carried out under a similar, individualized written employment plan with— (i) An agency of the Federal Government (for example, the Department of Veterans Affairs); (ii) A one-stop delivery system or specialized one-stop center described in section 134(c) of the Workforce Investment Act of 1998 (29 U.S.C. 2864(c)); or (iii) Another provider of services approved by us; providers we may approve include, but are not limited to— (A) A public or private organization with expertise in the delivery or coordination of vocational rehabilitation services, employment services, or other support services; or (B) A public, private or parochial school that provides or coordinates a program of vocational rehabilitation services, employment services, or other support services carried out under an individualized program or plan; (4) An individualized education program developed under policies and procedures approved by the Secretary of Education for assistance to States for the education of individuals with disabilities under the Individuals with Disabilities Education Act, as amended (20 U.S.C. 1400 et seq. (b) When are you participating in the program? (2) If you are a student age 18 through 21 receiving services under an individualized education program described in paragraph (a)(4) of this section, you are participating in your program when you are taking part in the activities and services outlined in your program or plan. (3) You are participating in your program under paragraph (b)(1) or (2) of this section during temporary interruptions in your program. For an interruption to be considered temporary, you must resume taking part in the activities and services outlined in your plan or program, as appropriate, no more than three months after the month the interruption occurred. § 404.328 When your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls. (a) We will determine that your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls if your completion of or your continuation in the program will provide you with— (1) Work experience (see § 404.1565) so that you would more likely be able to do past relevant work (see § 404.1560(b)), despite a possible future reduction in your residual functional capacity (see § 404.1545); or (2) Education (see § 404.1564) and/or skilled or semi-skilled work experience (see § 404.1568) so that you would more likely be able to adjust to other work that exists in the national economy (see § 404.1560(c)), despite a possible future reduction in your residual functional capacity (see § 404.1545). (b) If you are a student age 18 through age 21 participating in an individualized education program described in § 404.327(a)(4), we will find that your completion of or continuation in the program will increase the likelihood that you will not have to return to the disability benefit rolls. (c) If you are receiving transition services after having completed an individualized education program as described in paragraph (b) of this section, we will determine that the transition services will increase the likelihood that you will not have to return to the disability benefit rolls if they meet the requirements in § 404.328(a). Benefits for Spouses and Divorced Spouses § 404.330 Who is entitled to wife's or husband's benefits. You are entitled to benefits as the wife or husband of an insured person who is entitled to old-age or disability benefits if— (a) You are the insured's wife or husband based upon a relationship described in §§ 404.345 through 404.346 and one of the following conditions is met: (1) Your relationship to the insured as a wife or husband has lasted at least 1 year. (You will be considered to meet the 1-year duration requirement throughout the month in which the first anniversary of the marriage occurs.) (2) You and the insured are the natural parents of a child; or (3) In the month before you married the insured you were entitled to, or if you had applied and been old enough you could have been entitled to, any of these benefits or payments: Wife's, husband's, widow's, widower's, or parent's benefits; disabled child's benefits; or annuity payments under the Railroad Retirement Act for widows, widowers, parents, or children 18 years old or older; (b) You apply; (c) You are age 62 or older throughout a month and you meet all other conditions of entitlement, or you are the insured's wife or husband and have in your care (d) You are not entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full wife's or husband's benefit. [44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended at 45 FR 68932, Oct. 17, 1980; 48 FR 21926, May 16, 1983] § 404.331 Who is entitled to wife's or husband's benefits as a divorced spouse. You are entitled to wife's or husband's benefits as the divorced wife or divorced husband of an insured person who is entitled to old-age or disability benefits if you meet the requirements of paragraphs (a) through (e). You are entitled to these benefits even though the insured person is not yet entitled to benefits, if the insured person is at least age 62 and if you meet the requirements of paragraphs (a) through (f). The requirements are that— (a) You are the insured's divorced wife or divorced husband and— (1) You were validly married to the insured under State law as described in § 404.345 or you were deemed to be validly married as described in § 404.346; and (2) You were married to the insured for at least 10 years immediately before your divorce became final; (b) You apply; (c) You are not married. (For purposes of meeting this requirement, you will be considered not to be married throughout the month in which the divorce occurred); (d) You are age 62 or older throughout a month in which all other conditions of entitlement are met; and (e) You are not entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full wife's or husband's benefit. (f) You have been divorced from the insured person for at least 2 years. [44 FR 34481, June 15, 1979, as amended at 48 FR 21926, May 16, 1983; 51 FR 11911, Apr. 8, 1986; 58 FR 64891, Dec. 10, 1993] § 404.332 When wife's and husband's benefits begin and end. (a) You are entitled to wife's or husband's benefits beginning with the first month covered by your application in which you meet all the other requirements for entitlement under § 404.330 or § 404.331. However, if you are entitled as a divorced spouse before the insured person becomes entitled, your benefits cannot begin before January 1985 based on an application filed no earlier than that month. (b) Your entitlement to benefits ends with the month before the month in which one of the following events first occurs: (1) You become entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full wife's or husband's benefit. (2) You are the wife or husband and are divorced from the insured person unless you meet the requirements for benefits as a divorced wife or divorced husband as described in § 404.331. (3) You are the divorced wife or divorced husband and you marry someone, other than the insured who is entitled to old-age benefits, unless that other person is someone entitled to benefits as a wife, husband, widow, widower, father, mother, parent or disabled child. Your benefits will end if you remarry the insured who is not yet entitled to old-age benefits. (4) If you are under age 62, there is no longer a child of the insured who is under age 16 or disabled and entitled to child's benefits on the insured's earnings record. (See paragraph (c) of this section if you were entitled to wife's or husband's benefits for August 1981 on the basis of having a child in care.) (If you no longer have in your care a child who is under age 16 or disabled and entitled to child's benefits on the insured's earnings record, your benefits may be subject to deductions as provided in § 404.421.) (5) The insured person dies or is no longer entitled to old age or disability benefits. (6) If your benefits are based upon a deemed valid marriage and you have not divorced the insured, you marry someone other than the insured. (7) You die. (8) You became entitled as the divorced wife or the divorced husband before the insured person became entitled, but he or she is no longer insured. (c) If you were entitled to wife's or husband's benefits for August 1981 on the basis of having a child in care, your entitlement will continue until September 1983, until the child reaches 18 (unless disabled) or is otherwise no longer entitled to child's benefits, or until one of the events described in paragraph (b) (1), (2), (3), (5), (6) or (7) of this section occurs, whichever is earliest. [44 FR 34481, June 15, 1979, as amended at 48 FR 21926, May 16, 1983; 49 FR 24115, June 12, 1984; 51 FR 11911, Apr. 8, 1986; 58 FR 64891, Dec. 10, 1993; 60 FR 8145, Feb. 10, 1995; 64 FR 14608, Mar. 26, 1999; 91 FR 16829, Apr. 3, 2026] § 404.333 Wife's and husband's benefit amounts. Your wife's or husband's monthly benefit is equal to one-half the insured person's primary insurance amount. If you are entitled as a divorced wife or as a divorced husband before the insured person becomes entitled, we will compute the primary insurance amount as if he or she became entitled to old-age benefits in the first month you are entitled as a divorced wife or as a divorced husband. The amount of your monthly benefit may change as explained in § 404.304. [51 FR 11912, Apr. 8, 1986] § 404.335 How do I become entitled to widow's or widower's benefits? We will find you entitled to benefits as the widow or widower of a person who died fully insured if you meet the requirements in paragraphs (a) through (e) of this section: (a) You are the insured's widow or widower based upon a relationship described in §§ 404.345 through 404.346, and you meet one of the conditions in paragraphs (a)(1) through (4) of this section: (1) Your relationship to the insured as a wife or husband lasted for at least 9 months immediately before the insured died. (2) Your relationship to the insured as a wife or husband did not last 9 months before the insured died, but you meet one of the conditions in paragraphs (a)(2)(i) through (iv) of this section. (i) At the time of your marriage the insured was reasonably expected to live for 9 months, and the death of the insured was accidental. The death is accidental if it was caused by an event that the insured did not expect, if it was the result of bodily injuries received from violent and external causes, and if, as a direct result of these injuries, death occurred not later than 3 months after the day on which the bodily injuries were received. An intentional and voluntary suicide will not be considered an accidental death. (ii) At the time of your marriage the insured was reasonably expected to live for 9 months, and the death of the insured occurred in the line of duty while he or she was serving on active duty as a member of the uniformed services as defined in § 404.1019. (iii) At the time of your marriage the insured was reasonably expected to live for 9 months, and you had been previously married to the insured for at least 9 months. (iv) The insured had been married prior to his or her marriage to you and the prior spouse was institutionalized during the marriage to the insured due to mental incompetence or similar incapacity. During the period of the prior spouse's institutionalization, the insured, as determined based on evidence satisfactory to the Agency, would have divorced the prior spouse and married you, but the insured did not do so because the divorce would have been unlawful, by reason of the institutionalization, under the laws of the State in which the insured was domiciled at the time. Additionally, the prior spouse must have remained institutionalized up to the time of his or her death and the insured must have married you within 60 days after the prior spouse's death. (3) You and the insured were the natural parents of a child; or you were married to the insured when either of you adopted the other's child or when both of you adopted a child who was then under 18 years old. (4) In the month before you married the insured, you were entitled to or, if you had applied and had been old enough, could have been entitled to any of these benefits or payments: widow's, widower's, father's (based on the record of a fully insured individual), mother's (based on the record of a fully insured individual), wife's, husband's, parent's, or disabled child's benefits; or annuity payments under the Railroad Retirement Act for widows, widowers, parents, or children age 18 or older. (b) You apply, except that you need not apply again if you meet one of the conditions in paragraphs (b)(1) through (4) of this section: (1) You are entitled to wife's or husband's benefits for the month before the month in which the insured dies and you have attained full retirement age (as defined in § 404.409) or you are not entitled to either old-age or disability benefits. (2) You are entitled to mother's or father's benefits for the month before the month in which you attained full retirement age (as defined in § 404.409). (3) You are entitled to wife's or husband's benefits and to either old-age or disability benefits in the month before the month of the insured's death, you are under full retirement age (as defined in § 404.409) in the month of death, and you have filed a Certificate of Election in which you elect to receive reduced widow's or widower's benefits. (4) You applied in 1990 for widow's or widower's benefits based on disability and you meet both of the conditions in paragraphs (b)(4)(i) and (ii) of this section: (i) You were entitled to disability insurance benefits for December 1990, or eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, for January 1991. (ii) You were found not disabled for any month based on the definition of disability in §§ 404.1577 and 404.1578, as in effect prior to January 1991, but would have been entitled if the standard in § 404.1505(a) had applied. (This exception to the requirement for filing an application is effective only with respect to benefits payable for months after December 1990.) (c) You are at least 60 years old; or you are at least 50 years old and have a disability as defined in § 404.1505 and you meet all of the conditions in paragraphs (c)(1) through (4) of this section: (1) Your disability started not later than 7 years after the insured died or 7 years after you were last entitled to mother's or father's benefits or to widow's or widower's benefits based upon a disability, whichever occurred last. (2) Your disability continued during a waiting period of 5 full consecutive months, unless months beginning with the first month of eligibility for supplemental security income or federally administered State supplementary payments are counted, as explained in the Exception in paragraph (c)(3) of this section. The waiting period may begin no earlier than the 17th month before you applied; the fifth month before the insured died; or if you were previously entitled to mother's, father's, widow's, or widower's benefits, the 5th month before your entitlement to benefits ended. If you were previously entitled to widow's or widower's benefits based upon a disability, no waiting period is required. (3) Exception: For monthly benefits payable for months after December 1990, if you were or have been eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, your disability need not have continued through a separate, full 5-month waiting period before you may begin receiving benefits. We will include as months of the 5-month waiting period the months in a period beginning with the first month you received supplemental security income or a federally administered State supplementary payment and continuing through all succeeding months, regardless of whether the months in the period coincide with the months in which your waiting period would have occurred, or whether you continued to be eligible for supplemental security income or a federally administered State supplementary payment after the period began, or whether you met the nondisability requirements for entitlement to widow's or widower's benefits. However, we will not pay you benefits under this provision for any month prior to January 1991. (d) You are not entitled to an old-age benefit that is equal to or larger than the insured person's primary insurance amount. (e) You are unmarried, unless for benefits for months after 1983 you meet one of the conditions in paragraphs (e)(1) through (3) of this section: (1) You remarried after you became 60 years old. (2) You are now age 60 or older and you meet both of the conditions in paragraphs (e)(2)(i) and (ii) of this section: (i) You remarried after attaining age 50 but before attaining age 60. (ii) At the time of the remarriage, you were entitled to widow's or widower's benefits as a disabled widow or widower. (3) You are now at least age 50, but not yet age 60 and you meet both of the conditions in paragraphs (e)(3)(i) and (ii) of this section: (i) You remarried after attaining age 50. (ii) You met the disability requirements in paragraph (c) of this section at the time of your remarriage ( i.e., [68 FR 4704, Jan. 30, 2003, as amended at 70 FR 61365, Oct. 24, 2005; 91 FR 16829, Apr. 3, 2026] § 404.336 How do I become entitled to widow's or widower's benefits as a surviving divorced spouse? We will find you entitled to widow's or widower's benefits as the surviving divorced wife or the surviving divorced husband of a person who died fully insured if you meet the requirements in paragraphs (a) through (e) of this section: (a) You are the insured's surviving divorced wife or surviving divorced husband and you meet both of the conditions in paragraphs (a)(1) and (2) of this section: (1) You were validly married to the insured under State law as described in § 404.345 or are deemed to have been validly married as described in § 404.346. (2) You were married to the insured for at least 10 years immediately before your divorce became final. (b) You apply, except that you need not apply again if you meet one of the conditions in paragraphs (b)(1) through (4) of this section: (1) You are entitled to wife's or husband's benefits for the month before the month in which the insured dies and you have attained full retirement age (as defined in § 404.409) or you are not entitled to old-age or disability benefits. (2) You are entitled to mother's or father's benefits for the month before the month in which you attain full retirement age (as defined in § 404.409). (3) You are entitled to wife's or husband's benefits and to either old-age or disability benefits in the month before the month of the insured's death, you have not attained full retirement age (as defined in § 404.409) in the month of death, and you have filed a Certificate of Election in which you elect to receive reduced widow's or widower's benefits. (4) You applied in 1990 for widow's or widower's benefits based on disability, and you meet the requirements in both paragraphs (b)(4)(i) and (ii) of this section: (i) You were entitled to disability insurance benefits for December 1990 or eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, for January 1991. (ii) You were found not disabled for any month based on the definition of disability in §§ 404.1577 and 404.1578, as in effect prior to January 1991, but would have been entitled if the standard in § 404.1505(a) had applied. (This exception to the requirement for filing an application is effective only with respect to benefits payable for months after December 1990.) (c) You are at least 60 years old; or you are at least 50 years old and have a disability as defined in § 404.1505 and you meet all of the conditions in paragraphs (c)(1) through (4) of this section: (1) Your disability started not later than 7 years after the insured died or 7 years after you were last entitled to mother's or father's benefits or to widow's or widower's benefits based upon a disability, whichever occurred last. (2) Your disability continued during a waiting period of 5 full consecutive months, unless months beginning with the first month of eligibility for supplemental security income or federally administered State supplementary payments are counted, as explained in the Exception in paragraph (c)(3) of this section. This waiting period may begin no earlier than the 17th month before you applied; the fifth month before the insured died; or if you were previously entitled to mother's, father's, widow's, or widower's benefits, the 5th month before your previous entitlement to benefits ended. If you were previously entitled to widow's or widower's benefits based upon a disability, no waiting period is required. (3) Exception: For monthly benefits payable for months after December 1990, if you were or have been eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, your disability does not have to have continued through a separate, full 5-month waiting period before you may begin receiving benefits. We will include as months of the 5-month waiting period the months in a period beginning with the first month you received supplemental security income or a federally administered State supplementary payment and continuing through all succeeding months, regardless of whether the months in the period coincide with the months in which your waiting period would have occurred, or whether you continued to be eligible for supplemental security income or a federally administered State supplementary payment after the period began, or whether you met the nondisability requirements for entitlement to widow's or widower's benefits. However, we will not pay you benefits under this provision for any month prior to January 1991. (d) You are not entitled to an old-age benefit that is equal to or larger than the insured person's primary insurance amount. (e) You are unmarried, unless for benefits for months after 1983 you meet one of the conditions in paragraphs (e)(1) through (3) of this section: (1) You remarried after you became 60 years old. (2) You are now age 60 or older and you meet both of the conditions in paragraphs (e)(2)(i) and (ii) of this section: (i) You remarried after attaining age 50 but before attaining age 60. (ii) At the time of the remarriage, you were entitled to widow's or widower's benefits as a disabled widow or widower. (3) You are now at least age 50 but not yet age 60 and you meet both of the conditions in paragraphs (e)(3)(i) and (ii) of this section: (i) You remarried after attaining age 50. (ii) You met the disability requirements in paragraph (c) of this section at the time of your remarriage ( i.e., [68 FR 4705, Jan. 30, 2003, as amended at 71 FR 24814, Apr. 27, 2006; 91 FR 16829, Apr. 3, 2026] § 404.337 When does my entitlement to widow's and widower's benefits start and end? (a) We will find you entitled to widow's or widower's benefits under § 404.335 or § 404.336 beginning with the first month covered by your application in which you meet all other requirements for entitlement. (b) We will end your entitlement to widow's or widower's benefits at the earliest of the following times: (1) The month before the month in which you become entitled to an old-age benefit that is equal to or larger than the insured's primary insurance amount. (2) The second month after the month your disability ends or, where disability ends on or after December 1, 1980, the month before your termination month (§ 404.325). However your payments are subject to the provisions of paragraphs (c) and (d) of this section. Note: You may remain eligible for payment of benefits if you attained full retirement age (as defined in § 404.409) before your termination month and you meet the other requirements for widow's or widower's benefits. (3) [Reserved] (4) The month before the month in which you die. (c)(1) Your benefits may be continued after your impairment is no longer disabling if— (i) You are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services, as described in § 404.327(a) and (b); (ii) You began participating in the program before the date your disability ended; and (iii) We have determined under § 404.328 that your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls. (2) We generally will stop your benefits with the earliest of these months— (i) The month in which you complete the program; or (ii) The month in which you stop participating in the program for any reason (see § 404.327(b) for what we mean by “participating” in the program); or (iii) The month in which we determine under § 404.328 that your continuing participation in the program will no longer increase the likelihood that you will not have to return to the disability benefit rolls. Exception to paragraph (c) (d) If, after November 1980, you have a disabling impairment (§ 404.1511), we will pay you benefits for all months in which you do not do substantial gainful activity during the reentitlement period (§ 404.1592a) following the end of your trial work period (§ 404.1592). If you are unable to do substantial gainful activity in the first month following the reentitlement period, we will pay you benefits until you are able to do substantial gainful activity. (Earnings during your trial work period do not affect the payment of your benefits.) We will also pay you benefits for the first month after the trial work period in which you do substantial gainful activity and the two succeeding months, whether or not you do substantial gainful activity during those succeeding months. After those three months, we cannot pay you benefits for any months in which you do substantial gainful activity. [68 FR 4706, Jan. 30, 2003, as amended at 70 FR 36506, June 24, 2005; 91 FR 16829, Apr. 3, 2026] § 404.338 Widow's and widower's benefits amounts. (a) Your monthly benefit is equal to the insured person's primary insurance amount. If the insured person dies before reaching age 62 and you are first eligible after 1984, we may compute a special primary insurance amount to determine the amount of the monthly benefit (see § 404.212(b)). (b) We may increase your monthly benefit amount if the insured person delays filing for benefits or requests voluntary suspension of benefits, and thereby earns delayed retirement credit (see § 404.313), and/or works before the year 2000 after reaching full retirement age (as defined in § 404.409(a)). The amount of your monthly benefit may change as explained in § 404.304. (c) Your monthly benefit will be reduced if the insured person chooses to receive old-age benefits before reaching full retirement age. If so, your benefit will be reduced to the amount the insured person would be receiving if alive, or 82 1/2 [70 FR 28811, May 19, 2005] § 404.339 How do I become entitled to mother's or father's benefits as a surviving spouse? You may be entitled as the widow or widower to mother's or father's benefits on the earnings record of someone who was fully or currently insured when he or she died. You are entitled to these benefits if— (a) You are the widow or widower of the insured and meet the conditions described in § 404.335(a); (b) You apply for these benefits; or you were entitled to wife's benefits for the month before the insured died; (c) You are unmarried; (d) You are not entitled to widow's or widower's benefits, or to an old-age benefit that is equal to or larger than the full mother's or father's benefit; and (e) You have in your care in your care. [44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 73 FR 40967, July 17, 2008] § 404.340 How do I become entitled to mother's or father's benefits as a surviving divorced spouse? You may be entitled to mother's or father's benefits as the surviving divorced wife or the surviving divorced husband on the earnings record of someone who was fully or currently insured when she or he died. You are entitled to these benefits if— (a) You were validly married to the insured under State law as described in § 404.345 or you were deemed to be validly married as described in § 404.346 but the marriage ended in a final divorce and— (1) You are the mother or father of the insured's child; or (2) You were married to the insured when either of you adopted the other's child or when both of you adopted a child and the child was then under 18 years old; (b) You apply for these benefits; or you were entitled to wife's or husband's benefits for the month before the insured died; (c) You are unmarried; (d) You are not entitled to widow's or widower's benefits, or to an old-age benefit that is equal to or larger than the full mother's or father's benefit; and (e) You have in your care in your care. [44 FR 34481, June 15, 1979, as amended at 45 FR 68932, Oct. 17, 1980; 48 FR 21927, May 16, 1983; 58 FR 64891, Dec. 10, 1993; 73 FR 40967, July 17, 2008] § 404.341 When mother's and father's benefits begin and end. (a) You are entitled to mother's or father's benefits beginning with the first month covered by your application in which you meet all the other requirements for entitlement. (b) Your entitlement to benefits ends with the month before the month in which one of the following events first occurs: (1) You become entitled to a widow's or widower's benefit or to an old-age benefit that is equal to or larger than the full mother's or father's benefit. (2) There is no longer a child of the insured who is under age 16 or disabled and entitled to a child's benefit on the insured's earnings record. (See paragraph (c) of this section if you were entitled to mother's or father's benefits for August 1981.) (If you no longer have in your care a child who is under age 16 or disabled and entitled to child's benefits on the insured's earnings record, your benefits may be subject to deductions as provided in § 404.421.) (3) You remarry. Your benefits will not end, however, if you marry someone entitled to old-age, disability, wife's, husband's, widow's, widower's, father's, mother's, parent's or disabled child's benefits. (4) You die. (c) If you were entitled to spouse's benefits on the basis of having a child in care, or to mother's or father's benefits for August 1981, your entitlement will continue until September 1983, until the child reaches 18 (unless disabled) or is otherwise no longer entitled to child's benefits, or until one of the events described in paragraph (b) (1), (3), or (4) of this section occurs, whichever is earliest. [44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 49 FR 24115, June 12, 1984; 58 FR 64891, Dec. 10, 1993; 64 FR 14608, Mar. 26, 1999] § 404.342 Mother's and father's benefit amounts. Your mother's or father's monthly benefit is equal to 75 percent of the insured person's primary insurance amount. The amount of your monthly benefit may change as explained in § 404.304. § 404.344 Your relationship by marriage to the insured. You may be eligible for benefits if you are related to the insured person as a wife, husband, widow, or widower. To decide your relationship to the insured, we look first to State laws. The State laws that we use are discussed in § 404.345. If your relationship cannot be established under State law, you may still be eligible for benefits if your relationship as the insured's wife, husband, widow, or widower is based upon a deemed valid marriage § 404.345 Your relationship as wife, husband, widow, or widower under State law. To decide your relationship as the insured's wife or husband, we look to the laws of the State where the insured had a permanent home when you applied for wife's or husband's benefits. To decide your relationship as the insured's widow or widower, we look to the laws of the State where the insured had a permanent home when he or she died. If the insured's permanent home is not or was not in one of the 50 States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or American Samoa, we look to the laws of the District of Columbia. For a definition of permanent home, see § 404.303. If you and the insured were validly married under State law at the time you apply for wife's or husband's benefits or at the time the insured died if you apply for widow's, widower's, mother's, or father's benefits, the relationship requirement will be met. The relationship requirement will also be met if under State law you would be able to inherit a wife's, husband's, widow's, or widower's share of the insured's personal property if he or she were to die without leaving a will. § 404.346 Your relationship as wife, husband, widow, or widower based upon a deemed valid marriage. (a) General. (b) Entitlement based upon a deemed valid marriage. [44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980; 48 FR 21927, May 16, 1983; 58 FR 64892, Dec. 10, 1993] § 404.347 “Living in the same household” defined. Living in the same household means that you and the insured customarily lived together as husband and wife in the same residence. You may be considered to be living in the same household although one of you is temporarily absent from the residence. An absence will be considered temporary if: (a) It was due to service in the U.S. Armed Forces; (b) It was 6 months or less and neither you nor the insured were outside of the United States during this time and the absence was due to business, employment, or confinement in a hospital, nursing home, other medical institution, or a penal institution; (c) It was for an extended separation, regardless of the duration, due to the confinement of either you or the insured in a hospital, nursing home, or other medical institution, if the evidence indicates that you were separated solely for medical reasons and you otherwise would have resided together; or (d) It was based on other circumstances, and it is shown that you and the insured reasonably could have expected to live together in the near future. [61 FR 41330, Aug. 8, 1996] § 404.348 When is a child living with me in my care? A child who has been living with you for at least 30 days is in your care (a) The child is in active military service; (b) The child is 16 years old or older and not disabled; (c) The child is 16 years old or older with a mental disability, but you do not actively supervise his or her activities and you do not make important decisions about his or her needs, either alone or with help from your spouse; or (d) The child is 16 years old or older with a physical disability, but it is not necessary for you to perform personal services for him or her. Personal services are services such as dressing, feeding, and managing money that the child cannot do alone because of a disability. [44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 73 FR 40967, July 17, 2008] § 404.349 When is a child living apart from me in my care? (a) In your care. (1) The child lived apart from you for not more than 6 months, or the child's current absence from you is not expected to last over 6 months; (2) The child is under 16 years old, you supervise his or her activities and make important decisions about his or her needs, and one of the following circumstances exist: (i) The child is living apart because of school but spends at least 30 days vacation with you each year unless some event makes having the vacation unreasonable; and if you and the child's other parent are separated, the school looks to you for decisions about the child's welfare; (ii) The child is living apart because of your employment but you make regular and substantial contributions to his or her support; see § 404.366(a) for a definition of contributions for support (iii) The child is living apart because of a physical disability that the child has or that you have; or (3) The child is 16 years old or older, is mentally disabled, and you supervise his or her activities, make important decisions about his or her needs, and help in his or her upbringing and development. (b) Not in your care. (1) The child is in active military service; (2) The child is living with his or her other parent; (3) The child is removed from your custody and control by a court order; (4) The child is 16 years old or older, is mentally competent, and either has been living apart from you for 6 months or more or begins living apart from you and is expected to be away for more than 6 months; (5) You gave your right to have custody and control of the child to someone else; or (6) You are mentally disabled. [44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983] Child's Benefits § 404.350 Who is entitled to child's benefits? (a) General. (1) You are the insured person's child, based upon a relationship described in §§ 404.355 through 404.359; (2) You are dependent on the insured, as defined in §§ 404.360 through 404.365; (3) You apply; (4) You are unmarried; and (5) You are under age 18; you are 18 years old or older and have a disability that began before you became 22 years old; or you are 18 years or older and qualify for benefits as a full-time student as described in § 404.367. (b) [Reserved] [44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 60 FR 8146, Feb. 10, 1995; 61 FR 38363, July 24, 1996; 91 FR 16829, Apr. 3, 2026] § 404.351 Who may be reentitled to child's benefits? If your entitlement to child's benefits has ended, you may be reentitled on the same earnings record if you have not married and if you apply for reentitlement. Your reentitlement may begin with— (a) The first month in which you qualify as a full-time student. (See § 404.367.) (b) The first month in which you are disabled, if your disability began before you became 22 years old. (c) The first month you are under a disability that began before the end of the 84th month following the month in which your benefits had ended because an earlier disability had ended; or (d) With respect to benefits payable for months beginning October 2004, you can be reentitled to childhood disability benefits at anytime if your prior entitlement terminated because you ceased to be under a disability due to the performance of substantial gainful activity and you meet the other requirements for reentitlement. The 84-month time limit in paragraph (c) in this section continues to apply if your previous entitlement to childhood disability benefits terminated because of medical improvement. [44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 61 FR 38363, July 24, 1996; 71 FR 66865, Nov. 17, 2006] § 404.352 When does my entitlement to child's benefits begin and end? (a) We will find your entitlement to child's benefits begins at the following times: (1) If the insured is deceased, with the first month covered by your application in which you meet all other requirements for entitlement. (2) If the insured is living and your first month of entitlement is September 1981 or later, with the first month covered by your application throughout which you meet all other requirements for entitlement. (3) If the insured is living and your first month of entitlement is before September 1981, with the first month covered by your application in which you meet all other requirements for entitlement. (b) We will find your entitlement to child's benefits ends at the earliest of the following times: (1) With the month before the month in which you become 18 years old, if you are not disabled or a full-time student. (2) With the second month following the month in which your disability ends, if you become 18 years old and you are disabled. If your disability ends on or after December 1, 1980, your entitlement to child's benefits continues, subject to the provisions of paragraphs (c) and (d) of this section, until the month before your termination month (§ 404.325). (3) With the last month you are a full-time student or, if earlier, with the month before the month you become age 19, if you become 18 years old and you qualify as a full-time student who is not disabled. If you become age 19 in a month in which you have not completed the requirements for, or received, a diploma or equivalent certificate from an elementary or secondary school and you are required to enroll for each quarter or semester, we will find your entitlement ended with the month in which the quarter or semester in which you are enrolled ends. If the school you are attending does not have a quarter or semester system which requires reenrollment, we will find your entitlement to benefits ended with the month you complete the course or, if earlier, the first day of the third month following the month in which you become 19 years old. (4) With the month before the month you marry. We will not find your benefits ended, however, if you are age 18 or older, disabled, and you marry a person entitled to child's benefits based on disability or person entitled to old-age, divorced wife's, divorced husband's, widow's, widower's, mother's, father's, parent's, or disability benefits. (5) With the month before the month the insured's entitlement to old-age or disability benefits ends for a reason other than death or the attainment of full retirement age (as defined in § 404.409). (6) With the month before the month you die. (7) With the month in which the divorce between your parent (including an adoptive parent) and the insured stepparent becomes final if you are entitled to benefits as a stepchild and the marriage between your parent (including an adoptive parent) and the insured stepparent ends in divorce. (c) [Reserved] (d)(1) Your benefits may be continued after your impairment is no longer disabling if— (i) You are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services, as described in § 404.327(a) and (b); (ii) You began participating in the program before the date your disability ended; and (iii) We have determined under § 404.328 that your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls. (2) We generally will stop your benefits with the earliest of these months— (i) The month in which you complete the program; or (ii) The month in which you stop participating in the program for any reason (see § 404.327(b) for what we mean by “participating” in the program); or (iii) The month in which we determine under § 404.328 that your continuing participation in the program will no longer increase the likelihood that you will not have to return to the disability benefit rolls. Exception to paragraph (d) (e) If, after November 1980, you have a disabling impairment (§ 404.1511), we will pay you benefits for all months in which you do not do substantial gainful activity during the reentitlement period (§ 404.1592a) following the end of your trial work period (§ 404.1592). If you are unable to do substantial gainful activity in the first month following the reentitlement period, we will pay you benefits until you are able to do substantial gainful activity. (Earnings during your trial work period do not affect the payment of your benefits during that period.) We will also pay you benefits for the first month after the trial work period in which you do substantial gainful activity and the two succeeding months, whether or not you do substantial gainful activity during those succeeding months. After those three months, we cannot pay you benefits for any months in which you do substantial gainful activity. [68 FR 4707, Jan. 30, 2003, as amended at 70 FR 36506, June 24, 2005; 75 FR 52621, Aug. 27, 2010; 91 FR 16829, Apr. 3, 2026] § 404.353 Child's benefit amounts. (a) General. (b) Entitlement to more than one benefit. [44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended at 48 FR 21928, May 16, 1983; 51 FR 12606, Apr. 14, 1986; 61 FR 38363, July 24, 1996] § 404.354 Your relationship to the insured. You may be related to the insured person in one of several ways and be entitled to benefits as his or her child, i.e. [63 FR 57593, Oct. 28, 1998] § 404.355 Who is the insured's natural child? (a) Eligibility as a natural child. (1) You could inherit the insured's personal property as his or her natural child under State inheritance laws, as described in paragraph (b) of this section. (2) You are the insured's natural child and the insured and your mother or father went through a ceremony which would have resulted in a valid marriage between them except for a “legal impediment” as described in § 404.346(a). (3) You are the insured's natural child and your mother or father has not married the insured, but the insured has either acknowledged in writing that you are his or her child, been decreed by a court to be your father or mother, or been ordered by a court to contribute to your support because you are his or her child. If the insured is deceased, the acknowledgment, court decree, or court order must have been made or issued before his or her death. To determine whether the conditions of entitlement are met throughout the first month as stated in § 404.352(a), the written acknowledgment, court decree, or court order will be considered to have occurred on the first day of the month in which it actually occurred. (4) Your mother or father has not married the insured but you have evidence other than the evidence described in paragraph (a)(3) of this section to show that the insured is your natural father or mother. Additionally, you must have evidence to show that the insured was either living with you or contributing to your support at the time you applied for benefits. If the insured is not alive at the time of your application, you must have evidence to show that the insured was either living with you or contributing to your support when he or she died. See § 404.366 for an explanation of the terms “living with” and “contributions for support.” (b) Use of State Laws General. (2) Standards. (3) Insured is living. (4) Insured is deceased. (i) If a State inheritance law enacted after the insured's death indicates that the law would be retroactive to the time of death, we will apply that law; or (ii) If the inheritance law in effect at the time of the insured's death was later declared unconstitutional, we will apply the State law which superseded the unconstitutional law. [63 FR 57593, Oct. 28, 1998] § 404.356 Who is the insured's legally adopted child? You may be eligible for benefits as the insured's child if you were legally adopted by the insured. If you were legally adopted after the insured's death by his or her surviving spouse you may also be considered the insured's legally adopted child. We apply the adoption laws of the State or foreign country where the adoption took place, not the State inheritance laws described in § 404.355, to determine whether you are the insured's legally adopted child. [44 FR 34481, June 15, 1979, as amended at 63 FR 57594, Oct. 28, 1998] § 404.357 Who is the insured's stepchild? You may be eligible for benefits as the insured's stepchild if, after your birth, your natural or adopting parent married the insured. You also may be eligible as a stepchild if you were conceived prior to the marriage of your natural parent to the insured but were born after the marriage and the insured is not your natural parent. The marriage between the insured and your parent must be a valid marriage under State law or a marriage which would be valid except for a legal impediment throughout [48 FR 21928, May 16, 1983, as amended at 64 FR 14608, Mar. 26, 1999; 70 FR 61365, Oct. 24, 2005] § 404.358 Who is the insured's grandchild or stepgrandchild? (a) Grandchild and stepgrandchild defined. throughout (b) Legally adopted grandchild or stepgrandchild. [44 FR 34481, June 15, 1979, as amended at 48 FR 21928, May 16, 1983] § 404.359 Who is the insured's equitably adopted child? You may be eligible for benefits as an equitably adopted child if the insured had agreed to adopt you as his or her child but the adoption did not occur. The agreement to adopt you must be one that would be recognized under State law so that you would be able to inherit a child's share of the insured's personal property if he or she were to die without leaving a will. The agreement must be in whatever form, and you must meet whatever requirements for performance under the agreement, that State law directs. If you apply for child's benefits after the insured's death, the law of the State where the insured had his or her permanent home at the time of his or her death will be followed. If you apply for child's benefits during the insured's life, the law of the State where the insured has his or her permanent home at the time or your application will be followed. § 404.360 When a child is dependent upon the insured person. One of the requirements for entitlement to child's benefits is that you be dependent upon the insured. The evidence you need to prove your dependency is determined by how you are related to the insured. To prove your dependency you may be asked to show that at a specific time you lived with the insured, that you received contributions for your support from the insured, or that the insured provided at least one-half of your support. These dependency requirements, and the time at which they must be met, are explained in §§ 404.361 through 404.365. The terms living with, contributions for support, one-half support § 404.361 When a natural child is dependent. (a) Dependency of natural child. (b) Dependency of natural child legally adopted by someone other than the insured. (i) When you applied; (ii) When the insured died; or (iii) If the insured had a period of disability that lasted until he or she became entitled to disability or old-age benefits or died, at the beginning of the period of disability or at the time he or she became entitled to disability or old-age benefits. (2) You are considered dependent upon the insured (your natural parent) if: (i) You were adopted by someone other than the insured after you applied for child's benefits; or (ii) The insured had a period of disability that lasted until he or she became entitled to old-age or disability benefits or died, and you are adopted by someone other than the insured after the beginning of that period of disability. [64 FR 14608, Mar. 26, 1999] § 404.362 When a legally adopted child is dependent. (a) General. (b) Adoption by the insured after he or she became entitled to benefits General. (i) You had not attained age 18 when adoption proceedings were started, and your adoption was issued by a court of competent jurisdiction within the United States; or (ii) You had attained age 18 before adoption proceedings were started; your adoption was issued by a court of competent jurisdiction within the United States; and you were living with or receiving at least one-half of your support from the insured for the year immediately preceding the month in which your adoption was issued. (2) Natural child and stepchild. (c) Adoption by the insured's surviving spouse General. (i) You were either living with or receiving at least one-half of your support from the insured at the time of his or her death; and, (ii) The insured had started adoption proceedings before he or she died; or if the insured had not started the adoption proceedings before he or she died, his or her surviving spouse began and completed the adoption within 2 years of the insured's death. (2) Grandchild or stepgrandchild adopted by the insured's surviving spouse. (i) Your adoption took place in the United States; (ii) At the time of the insured's death, your natural, adopting or stepparent was not living in the insured's household and making regular contributions toward your support; and (iii) You meet the dependency requirements stated in § 404.364. [44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended at 56 FR 24000, May 28, 1991; 57 FR 3938, Feb. 3, 1992] § 404.363 When is a stepchild dependent? If you are the insured's stepchild, as defined in § 404.357, we consider you dependent on him or her if you were receiving at least one-half of your support from him or her at one of these times— (a) When you applied; (b) When the insured died; or (c) If the insured had a period of disability that lasted until his or her death or entitlement to disability or old-age benefits, at the beginning of the period of disability or at the time the insured became entitled to benefits. [44 FR 34481, June 15, 1979, as amended at 75 FR 52621, Aug. 27, 2010] § 404.364 When is a grandchild or stepgrandchild dependent? If you are the insured's grandchild or stepgrandchild, as defined in § 404.358(a), you are considered dependent upon the insured if— (a) You began living with the insured before you became 18 years old; and (b) You were living with the insured in the United States and receiving at least one-half of your support from him or her for the year before he or she became entitled to old-age or disability benefits or died; or if the insured had a period of disability that lasted until he or she became entitled to benefits or died, for the year immediately before the month in which the period of disability began. If you were born during the 1-year period, the insured must have lived with you and provided at least one-half of your support for substantially all substantially all (c) The “substantially all” requirement will be met if, at one of the times described in paragraph (b) of this section, the insured was living with you and providing at least one-half of your support, and any period during which he or she was not living with you and providing one-half of your support did not exceed the lesser of 3 months or one-half of the period beginning with the month of your birth. [44 FR 34481, June 15, 1979, as amended at 73 FR 40967, July 17, 2008] § 404.365 When an equitably adopted child is dependent. If you are the insured's equitably adopted child, as defined in § 404.359, you are considered dependent upon him or her if you were either living with or receiving contributions for your support from the insured at the time of his or her death. If your equitable adoption is found to have occurred after the insured became entitled to old-age or disability benefits, your dependency cannot be established during the insured's life. If your equitable adoption is found to have occurred before the insured became entitled to old-age or disability benefits, you are considered dependent upon him or her if you were either living with or receiving contributions for your support from the insured at one of these times— (a) When you applied; or (b) If the insured had a period of disability that lasted until he or she became entitled to old-age or disability benefits, at the beginning of the period of disability or at the time the insured became entitled to benefits. § 404.366 “Contributions for support,” “one-half support,” and “living with” the insured defined—determining first month of entitlement. To be eligible for child's or parent's benefits, and in certain Government pension offset cases, you must be dependent upon the insured person at a particular time or be assumed dependent upon him or her. What it means to be a dependent child is explained in §§ 404.360 through 404.365; what it means to be a dependent parent is explained in § 404.370(f); and the Government pension offset is explained in § 404.408a. Your dependency upon the insured person may be based upon whether at a specified time you were receiving contributions for your support one-half of your support living with (a) Contributions for support. (1) The insured gives some of his or her own cash or goods to help support you. Support includes food, shelter, routine medical care, and other ordinary and customary items needed for your maintenance. The value of any goods the insured contributes is the same as the cost of the goods when he or she gave them for your support. If the insured provides services for you that would otherwise have to be paid for, the cash value of his or her services may be considered a contribution for your support. An example of this would be work the insured does to repair your home. The insured person is making a contribution for your support if you receive an allotment, allowance, or benefit based upon his or her military pay, veterans' pension or compensation, or social security earnings. (2) Contributions must be made regularly and must be large enough to meet an important part of your ordinary living costs. Ordinary living costs are the costs for your food, shelter, routine medical care, and similar necessities. If the insured person only provides gifts or donations once in a while for special purposes, they will not be considered contributions for your support. Although the insured's contributions must be made on a regular basis, temporary interruptions caused by circumstances beyond the insured person's control, such as illness or unemployment, will be disregarded unless during this interruption someone else takes over responsibility for supporting you on a permanent basis. (b) One-half support. (1) At some point within the 12-month period, the insured either begins or stops providing at least one-half of your support on a permanent basis and this is a change in the way you had been supported up to then. In these circumstances, the time from the change up to the end of the 12-month period will be considered a reasonable period, unless paragraph (b)(2) of this section applies. The change in your source of support must be permanent and not temporary. Changes caused by seasonal employment or customary visits to the insured's home are considered temporary. (2) The insured provided one-half or more of your support for at least 3 months of the 12-month period, but was forced to stop or reduce contributions because of circumstances beyond his or her control, such as illness or unemployment, and no one else took over the responsibility for providing at least one-half of your support on a permanent basis. Any support you received from a public assistance program is not considered as a taking over of responsibility for your support by someone else. Under these circumstances, a reasonable period is that part of the 12-month period before the insured was forced to reduce or stop providing at least one-half of your support. (c) “Living with” the insured. living with (d) Determining first month of entitlement. throughout [44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980; 48 FR 21928, May 16, 1983; 52 FR 26955, July 17, 1987; 64 FR 14608, Mar. 26, 1999] § 404.367 When you are a “full-time elementary or secondary school student”. You may be eligible for child's benefits if you are a full-time elementary or secondary school student. For the purposes of determining whether the conditions of entitlement are met throughout the first month as stated in § 404.352(a)(2)(i), if you are entitled as a student on the basis of attendance at an elementary or secondary school, you will be considered to be in full-time attendance for a month during any part of which you are in full-time attendance. You are a full-time elementary or secondary school student if you meet all the following conditions: (a) You attend a school which provides elementary or secondary education as determined under the law of the State or other jurisdiction in which it is located. Participation in the following programs also meets the requirements of this paragraph: (1) You are instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which you reside; or (2) You are in an independent study elementary or secondary education program in accordance with the law of the State or other jurisdiction in which you reside which is administered by the local school or school district/jurisdiction. (b) You are in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration and you are carrying a subject load which is considered full-time for day students under the institution's standards and practices. If you are in a home schooling program as described in paragraph (a)(1) of this section, you must be carrying a subject load which is considered full-time for day students under standards and practices set by the State or other jurisdiction in which you reside; (c) To be considered in full-time attendance, your scheduled attendance must be at the rate of at least 20 hours per week unless one of the exceptions in paragraphs (c) (1) and (2) of this section applies. If you are in an independent study program as described in paragraph (a)(2) of this section, your number of hours spent in school attendance are determined by combining the number of hours of attendance at a school facility with the agreed upon number of hours spent in independent study. You may still be considered in full-time attendance if your scheduled rate of attendance is below 20 hours per week if we find that: (1) The school attended does not schedule at least 20 hours per week and going to that particular school is your only reasonable alternative; or (2) Your medical condition prevents you from having scheduled attendance of at least 20 hours per week. To prove that your medical condition prevents you from scheduling 20 hours per week, we may request that you provide appropriate medical evidence or a statement from the school. (d) You are not being paid while attending the school by an employer who has requested or required that you attend the school; (e) You are in grade 12 or below; and (f) You are not subject to the provisions in § 404.468 for nonpayment of benefits to certain prisoners and certain other inmates of publicly funded institutions. [48 FR 21928, May 16, 1983, as amended at 48 FR 55452, Dec. 13, 1983; 56 FR 35999, July 30, 1991; 61 FR 38363, July 24, 1996] § 404.368 When you are considered a full-time student during a period of nonattendance. If you are a full-time student, your eligibility may continue during a period of nonattendance (including part-time attendance) if all the following conditions are met: (a) The period of nonattendance is 4 consecutive months or less; (b) You show us that you intend to resume your studies as a full-time student at the end of the period or at the end of the period you are a full-time student; and (c) The period of nonattendance is not due to your expulsion or suspension from the school. [48 FR 21929, May 16, 1983] Parent's Benefits § 404.370 Who is entitled to parent's benefits? You may be entitled to parent's benefits on the earnings record of someone who has died and was fully insured. You are entitled to these benefits if all the following conditions are met: (a) You are related to the insured person as his or her parent in one of the ways described in § 404.374. (b) You are at least 62 years old. (c) You have not married since the insured person died. (d) You apply. (e) You are not entitled to an old-age benefit equal to or larger than the parent's benefit amount. (f) You were receiving at least one-half of your support from the insured at the time he or she died, or at the beginning of any period of disability he or she had that continued up to death. See § 404.366(b) for a definition of one-half support. (1) If there is a good cause for failure to provide proof of support within the 2-year period, we will consider the proof you give us as though it were provided within the 2-year period. Good cause does not exist if you were informed of the need to provide the proof within the 2-year period and you neglected to do so or did not intend to do so. Good cause will be found to exist if you did not provide the proof within the time limit due to— (i) Circumstances beyond your control, such as extended illness, mental or physical incapacity, or a language barrier; (ii) Incorrect or incomplete information we furnished you; (iii) Your efforts to get proof of the support without realizing that you could submit the proof after you gave us some other evidence of that support; or (iv) Unusual or unavoidable circumstances that show you could not reasonably be expected to know of the 2-year time limit. (2) The Soldiers' and Sailors' Civil Relief Act of 1940 provides for extending the filing time. § 404.371 When parent's benefits begin and end. (a) You are entitled to parent's benefits beginning with the first month covered by your application in which you meet all the other requirements for entitlement. (b) Your entitlement to benefits ends with the month before the month in which one of the following events first occurs: (1) You become entitled to an old-age benefit equal to or larger than the parent's benefit. (2) You marry, unless your marriage is to someone entitled to wife's, husband's, widow's, widower's, mother's, father's, parent's or disabled child's benefits. If you marry a person entitled to these benefits, the marriage does not affect your benefits. (3) You die. [44 FR 34481, June 15, 1979, as amended at 49 FR 24116, June 12, 1984] § 404.373 Parent's benefit amounts. Your parent's monthly benefit before any reduction that may be made as explained in § 404.304, is figured in one of the following ways: (a) One parent entitled. 1/2 (b) More than one parent entitled. § 404.374 Parent's relationship to the insured. You may be eligible for benefits as the insured person's parent if— (a) You are the mother or father of the insured and would be considered his or her parent under the laws of the State where the insured had a permanent home when he or she died; (b) You are the adoptive parent of the insured and legally adopted him or her before the insured person became 16 years old; or (c) You are the stepparent of the insured and you married the insured's parent or adoptive parent before the insured became 16 years old. The marriage must be valid under the laws of the State where the insured had his or her permanent home when he or she died. See § 404.303 for a definition of permanent home. §§ 404.380-404.384 [Reserved] Lump-Sum Death Payment § 404.390 General. If a person is fully or currently insured when he or she dies, a lump-sum death payment of $255 may be paid to the widow or widower of the deceased if he or she was living in the same household with the deceased at the time of his or her death. If the insured is not survived by a widow(er) who meets this requirement, all or part of the $255 payment may be made to someone else as described in § 404.392. [44 FR 34481, June 15, 1979, as amended at 48 FR 21929, May 16, 1983; 61 FR 41330, Aug. 8, 1996] § 404.391 Who is entitled to the lump-sum death payment as a widow or widower who was living in the same household? You are entitled to the lump-sum death payment as a widow or widower who was living in the same household if— (a) You are the widow or widower of the deceased insured individual based upon a relationship described in § 404.345 or § 404.346; (b) You apply for this payment within two years after the date of the insured's death. You need not apply again if, in the month prior to the death of the insured, you were entitled to wife's or husband's benefits on his or her earnings record; and (c) You were living in the same household with the insured at the time of his or her death. The term living in the same household [44 FR 34481, June 15, 1979, as amended at 48 FR 21929, May 16, 1983] § 404.392 Who is entitled to the lump-sum death payment when there is no widow(er) who was living in the same household? (a) General. (1) To a person who is entitled (or would have been entitled had a timely application been filed) to widow's or widower's benefits (as described in § 404.335) or mother's or father's benefits (as described in § 404.339) on the work record of the deceased worker for the month of that worker's death; or (2) If no person described in (1) survives, in equal shares to each person who is entitled (or would have been entitled had a timely application been filed) to child's benefits (as described in § 404.350) on the work record of the deceased worker for the month of that worker's death. (b) Application requirement. [48 FR 21929, May 16, 1983; 61 FR 41330, Aug. 8, 1996] Subpart E—Deductions; Reductions; and Nonpayments of Benefits Authority: Secs. 202, 203, 204(a) and (e), 205(a) and (c), 216(l), 222(c), 223(e), 224, 225, 702(a)(5), and 1129A of the Social Security Act (42 U.S.C. 402, 403, 404(a) and (e), 405(a) and (c), 416(l), 422(c), 423(e), 424a, 425, 902(a)(5), and 1320a-8a); 48 U.S.C. 1801. Source: 32 FR 19159, Dec. 20, 1967, unless otherwise noted. § 404.401 Deduction, reduction, and nonpayment of monthly benefits or lump-sum death payments. Under certain conditions, the amount of a monthly insurance benefit or the lump-sum death payment as calculated under the pertinent provisions of sections 202 and 203 of the Act (including reduction for age under section 202(q) of a monthly benefit) must be increased or decreased to determine the amount to be actually paid to a beneficiary. Increases in the amount of a monthly benefit or lump-sum death payment are based upon recomputation and recalculations of the primary insurance amount (see subpart C of this part). A decrease in the amount of a monthly benefit or lump-sum death payment is required in the following instances: (a) Reductions. (1) The total amount of the monthly benefits payable on an earnings record exceeds the maximum that may be paid (see § 404.403); (2) An application for monthly benefits is effective for a month during a retroactive period, and the maximum has already been paid for that month or would be exceeded if such benefit were paid for that month (see § 404.406); (3) An individual is entitled to old-age or disability insurance benefits in addition to any other monthly benefit (see § 404.407); (4) An individual under full retirement age (see § 404.409) is concurrently entitled to disability insurance benefits and to certain public disability benefits (see § 404.408); (5) An individual is entitled in a month to a widow's or widower's insurance benefit that is reduced under section 202 (e)(4) or (f)(5) of the Act and to any other monthly insurance benefit other than an old-age insurance benefit (see § 404.407(b)); or (6) An individual is entitled in a month to old-age, disability, wife's, husband's, widow's, or widower's insurance benefit and reduction is required under section 202(q) of the Act (see § 404.410). (b) Deductions. (1) An individual's earnings or work (see §§ 404.415 and 404.417); (2) Failure of certain beneficiaries receiving wife's or mother's insurance benefits to have a child in her care (see § 404.421); (3) The earnings or work of an old-age insurance beneficiary where a wife, husband, or child is also entitled to benefits (see §§ 404.415 and 404.417); (4) Failure to report within the prescribed period either certain work outside the United States or not having the care of a child (see § 404.451); (5) Failure to report within the prescribed period earnings from work in employment or self-employment ( see (6) Certain taxes which were neither deducted from the wages of maritime employees nor paid to the Federal Government (see § 404.457). (c) Adjustments. (d) Nonpayments. (1) The individual is an alien who has been outside the United States for more than 6 months (see § 404.460); (2) The individual on whose earnings record entitlement is based has been deported (see § 404.464); (3) The individual is engaged in substantial gainful activity while entitled to disability insurance benefits based on “statutory blindness” (see § 404.467); or (4) The individual has not provided satisfactory proof that he or she has a Social Security number or has not properly applied for a Social Security number (see § 404.469). (e) Recalculation. (f) Suspensions. [40 FR 30813, July 23, 1975, as amended at 48 FR 37016, Aug. 16, 1983; 56 FR 41789, Aug. 23, 1991; 65 FR 16813, Mar. 30, 2000; 66 FR 38906, July 26, 2001; 68 FR 40122, July 7, 2003; 69 FR 25955, May 10, 2004; 81 FR 19033, Apr. 4, 2016; 83 FR 21708, May 10, 2018] § 404.401a When we do not pay benefits because of a disability beneficiary's work activity. If you are receiving benefits because you are disabled or blind as defined in title II of the Social Security Act, we will stop your monthly benefits even though you have a disabling impairment (§ 404.1511), if you engage in substantial gainful activity during the reentitlement period (§ 404.1592a) following completion of the trial work period (§ 404.1592). You will, however, be paid benefits for the first month after the trial work period in which you do substantial gainful activity and the two succeeding months, whether or not you do substantial gainful activity in those two months. If anyone else is receiving monthly benefits based on your earnings record, that individual will not be paid benefits for any month for which you cannot be paid benefits during the reentitlement period. Except as provided in § 404.471, earnings from work activity during a trial work period will not stop your benefits. [49 FR 22271, May 29, 1984, as amended at 58 FR 64883, Dec. 10, 1993; 71 FR 66865, Nov. 17, 2006] § 404.402 Interrelationship of deductions, reductions, adjustments, and nonpayment of benefits. (a) Deductions, reductions, adjustment. see see see see (1) Before making any reductions because of the maximum (2) Before applying the benefit rounding (3) Except for deductions imposed as a penalty (see §§ 404.451 and 404.453), before making any adjustment necessary because an error has been made in the payment of benefits (see subpart F). However, for purposes of charging excess earnings for taxable years beginning after December 1960 or ending after June 1961, see paragraph (b) of this section and § 404.437 for reductions that apply before such charging. (b) Reductions, nonpayments. maximum (i) Before reduction because of simultaneous entitlement to old-age or disability insurance benefits and to other benefits (see § 404.407); (ii) Before reduction in benefits for age (see §§ 404.410 through 404.413); (iii) Before adjustment necessary because an error has been made in the payment of benefits (see subpart F of this part); (iv) Before reduction because of entitlement to certain public disability benefits provided under Federal, State, or local laws or plans (see § 404.408); (v) Before nonpayment of an individual's benefits because he is an alien living outside the United States for 6 months (see § 404.460), or because of deportation (see § 404.464); (vi) Before the redetermination of the amount of benefit payable to an individual who has been convicted of certain offenses (see § 404.465); and (vii) Before suspension of benefits due to earnings (see § 404.456), for benefits payable or paid for months after December 1995 to a non-working auxiliary or survivor who resides in a different household than the working auxiliary or survivor whose benefits are suspended. (2) Reduction of benefits because of entitlement to certain public disability benefits ( see see see (3) Reduction of the benefit of a spouse who is receiving a Government pension (see § 404.408(a)) is made after the withholding of payments as listed in paragraph (d)(1) of this section and after reduction because of receipt of certain public disability benefits (paragraph (b)(2) of this section). (c) Alien outside the United States; deportation nonpayment—deduction. (d) Order of priority—deductions and other withholding provisions. (1) Current nonpayments under §§ 404.460, 404.464, 404.465, 404.467, and 404.469; (2) Current reductions under § 404.408; (3) Current reductions under § 404.408a; (4) Current deductions under §§ 404.417 and 404.421; (5) Current withholding of benefits under § 404.456; (6) Unpaid maritime tax deductions (§ 404.457); (7) Withholdings to recover overpayments (see subpart F of this part); (8) Penalty deductions under §§ 404.451 and 404.453. [40 FR 30813, July 23, 1975, as amended at 44 FR 29047, May 18, 1979; 48 FR 37016, Aug. 16, 1983; 48 FR 46148, Oct. 11, 1983; 56 FR 41789, Aug. 23, 1991; 60 FR 8146, Feb. 10, 1995; 68 FR 15659, Apr. 1, 2003; 68 FR 40122, July 7, 2003; 91 FR 16829, Apr. 3, 2026] § 404.403 Reduction where total monthly benefits exceed maximum family benefits payable. (a) General. (2) The method of determining the total benefits payable (the family maximum (3) The benefits of an individual entitled as a divorced spouse or surviving divorced spouse will not be reduced pursuant to this section. The benefits of all other individuals entitled on the same record will be determined under this section as if no such divorced spouse or surviving divorced spouse were entitled to benefits. (4) In any case where more than one individual is entitled to benefits as the spouse or surviving spouse of a worker for the same month, and at least one of those individuals is entitled based on a marriage not valid under State law (see §§ 404.345 and 404.346), the benefits of the individual whose entitlement is based on a valid marriage under State law will not be reduced pursuant to this section. The benefits of all other individuals entitled on the same record (unless excluded by paragraph (a)(3) of this section) will be determined under this section as if such validly married individual were not entitled to benefits. (5) When a person entitled on a worker's earnings record is also entitled to benefits on another earnings record, we consider only the amount of benefits actually due or payable on the worker's record to the dually-entitled person when determining how much to reduce total monthly benefits payable on the worker's earnings record because of the maximum. We do not include, in total benefits payable, any amount not paid because of that person's entitlement on another earnings record (see § 404.407). The effect of this provision is to permit payment of up to the full maximum benefits to other beneficiaries who are not subject to a deduction or reduction. (See § 404.402 for other situations where we apply deductions or reductions before reducing total benefits for the maximum.) Example 1: A wage earner, his wife and child are entitled to benefits. The wage earner's primary insurance amount is $600.00. His maximum is $900.00. Due to the maximum limit, the monthly benefits for the wife and child must be reduced to $150.00 each. Their original benefit rates are $300.00 each. Maximum—$900.00 Subtract primary insurance amount—$600.00 Amount available for wife and child—$300.00 Divide by 2—$150.00 each for wife and child The wife is also entitled to benefits on her own record of $120.00 monthly. This reduces her wife's benefit to $30.00. The following table illustrates this calculation. Wife's benefit, reduced for maximum—$150.00 Subtract reduction due to dual entitlement—$120.00 Wife's benefit—$30.00 In computing the total benefits payable on the record, we disregard the $120.00 we cannot pay the wife. This allows us to increase the amount payable to the child to $270.00. The table below shows the steps in our calculation. Amount available under maximum—$300.00 Subtract amount due wife after reduction due to entitlement to her own benefit—$30.00 Child's benefit—$270.00 Example 2: A wage earner, his wife and 2 children are entitled to benefits. The wage earner's primary insurance amount is $1,250.00. His maximum is $2,180.00. Due to the maximum limit, the monthly benefits for the wife and children must be reduced to $310.00 each. Their original rates (50 percent of the worker's benefit) are $625.00 each. The following shows the calculation. Maximum—$2,180.00 Subtract primary insurance amount—$1,250.00 Amount available for wife and children—$930.00 Divide by 3—$310 each for wife and children The children are also entitled to benefits on their own records. Child one is entitled to $390.00 monthly and child two is entitled to $280.00 monthly. This causes a reduction in the benefit to child one to 0.00 and the benefit to child two to $30.00. Again, the following illustrates the calculation. Benefit payable to child 1 reduced for maximum—$310.00 Subtract reduction due to dual entitlement—$390.00 Benefit payable to child 1—$0.00 Benefit payable to child 2, reduced for maximum—$310.00 Subtract reduction for dual entitlement—$280.00 Benefit payable to child 2—$30.00 In computing the total benefits payable on the record, we consider only the benefits actually paid to the children, or $30. This allows payment of an additional amount to the wife, increasing her benefit to $625.00. This is how the calculation works. Amount available under maximum for wife and children—$930.00 Subtract amount due children after reduction due to entitlement to their own benefits—$30.00 Amount available for wife—$900.00 Amount payable to wife (original benefit)—$625.00 Example 3: A wage earner, his wife and 4 children are entitled to benefits. The wage earner's primary insurance amount is $1,250.00. His maximum is $2,180.00. Due to the maximum limit, the monthly benefits for the wife and children must be reduced to $186.00 each. Their original rates are $625.00 each. This is how the calculation works. Maximum—$2,180.00 Subtract primary insurance amount—$1,250.00 Amount available for wife and children—$930.00 Divide by 5—$186.00 each for wife and four children Two children are also entitled to benefits on their own records. Child one is entitled to $390.00 monthly and child two is entitled to $280.00 monthly. This causes a reduction in the benefit to child one to $0.00 and the benefit to child two to $0.00. This calculation is as follows. Benefit to child 1, reduced for maximum—$186.00 Subtract reduction due to dual entitlement—$390.00 Benefit payable to child 1—$0.00 Benefit to child 2, reduced for maximum—$186.00 Subtract reduction for dual entitlement—$280.00 Benefit payable to child two—$0.00 In computing the total benefits payable on the record, we disregard the $372.00 we cannot pay the children. This allows payment of an additional amount to the wife, and the two remaining children as follows: Amount available under maximum for wife and children—$930.00 Subtract amount due child one and child two after reduction due to entitlement to their own benefits—$0.00 Amount available for wife and the other two children—$930.00 Amount payable to the wife and each of the remaining two children—$310.00 (b) Eligibility or death before 1979. saving clause (1) The sum of the maximum amounts of benefits payable on the basis of the earnings records of all such insured individuals, or (2) The last figure in column V of the applicable table in (or deemed to be in) section 215(a) of the Act. The applicable (c) Eligible for old-age insurance benefits or dies in 1979. (1) 150 percent of the first $230 of the individual's primary insurance amount, plus (2) 272 percent of the primary insurance amount over $230 but not over $332, plus (3) 134 percent of the primary insurance amount over $332 but not over $433, plus (4) 175 percent of the primary insurance amount over $433. If the total of this computation is not a multiple of $0.10, it will be rounded to the next lower multiple of $0.10. (d) Eligible for old-age insurance benefits or dies after 1979. (2) Before November 2 of each calendar year after 1978, the Commissioner will publish in the Federal Register (d-1) Entitled to disability insurance benefits after June 1980. (1) We take 85 percent of your average indexed monthly earnings and compare that figure with your primary insurance amount (see § 404.212 of this part). We work with the larger of these two amounts. (2) We take 150 percent of your primary insurance amount. (3) We compare the results of paragraphs (d-1) (1) and (2) of this section. The smaller amount is the monthly family maximum. As a result of this rule, the entitled spouse and children of some workers will not be paid any benefits because the family maximum does not exceed the primary insurance amount. (e) Person entitled on more than one record during years after 1978 and before 1984. (2) If benefits are payable on the earnings of more than one individual and the primary insurance amount of one of the insured individuals was computed under the provisions in effect before 1979 and the primary insurance amount of the others was computed under the provisions in effect after 1978, the maximum monthly benefits cannot be more than the amount computed under paragraph (e)(1) of this section. (f) Person entitled on more than one record for years after 1983. (i) The sum of the maximum amounts of benefits payable on the earnings records of all the insured individuals, or (ii) 1.75 times the highest primary insurance amount possible for January 1983, or if later, January of the year that the person becomes entitled or reentitled on more than one record. This highest primary insurance amount possible for that year will be based on the average indexed monthly earnings equal to one-twelfth of the contribution and benefit base determined for that year. Thereafter, the total monthly benefits payable to persons on the earnings record of those insured individuals will then be increased only when monthly benefits are increased because of cost-of-living adjustments (see § 404.270ff). (2) If benefits are payable on the earnings of more than one individual and the primary insurance amount of one of the insured individuals was computed under the provisions in effect before 1979 and the primary insurance amount of the other was computed under the provisions in effect after 1978, the maximum monthly benefits cannot be more than the amount computed under paragraph (f)(1) of this section. (g) Person previously entitled to disability insurance benefits. (1) If the primary insurance amount is determined under §§ 404.251(a)(1) or 404.251(b)(1), the monthly maximum equals the maximum in the last month of the insured individual's earlier entitlement to disability benefits, increased by any cost-of-living or ad hoc increases since then. (2) If the primary insurance amount is determined under § 404.252(b), the monthly maximum equals the maximum in the last month of the insured individual's earlier entitlement to disability benefits. (3) Notwithstanding paragraphs (g)(1) and (g)(2) of this section, if the second entitlement is due to the insured individual's retirement or death, and the monthly maximum in the last month of the insured individual's earlier entitlement to disability benefits was computed under paragraph (d-1) of this section, the monthly maximum is equal to the maximum that would have been determined for the last month of such earlier entitlement if computed without regard for paragraph (d-1) of this section. [45 FR 1611, Jan. 8, 1980, as amended at 46 FR 25601, May 8, 1981; 48 FR 46148, Oct. 11, 1983; 51 FR 12606, Apr. 14, 1986; 58 FR 64892, Dec. 10, 1993; 62 FR 38450, July 18, 1997; 64 FR 17101, Apr. 8, 1999; 64 FR 57775, Oct. 27, 1999; 65 FR 16813, Mar. 30, 2000] § 404.404 How reduction for maximum affects insured individual and other persons entitled on his earnings record. If a reduction of monthly benefits is required under the provisions of § 404.403, the monthly benefit amount of each of the persons entitled to a monthly benefits on the same earnings record (with the exception of the individual entitled to old-age or disability insurance benefits) is proportionately reduced so that the total benefits that can be paid in 1 month (including an amount equal to the primary insurance amount of the old-age or disability insurance beneficiary, when applicable) does not exceed the maximum family benefit (except as provided in § 404.405 where various savings clause provisions are described). § 404.405 Situations where total benefits can exceed maximum because of “savings clause.” The following provisions are savings clauses savings clause (a)-(m) [Reserved] (n) Months after August 1972. (1) The maximum family benefits for such month determined under the applicable table in section 215(a) of the Act (the applicable (2) The total obtained by multiplying each benefit for August 1972 after reduction for the maximum but before deduction or reduction for age, by 120 percent and raising each such increased amount, if it is not a multiple of 10 cents, to the next higher multiple of 10 cents. (o) Months after December 1972. (1) In the case of a redetermination of widow's or widower's benefits, the reduction described in § 404.403 shall not apply if: (i) Two or more persons were entitled to benefits for December 1972 on the earnings records of a deceased individual and at least one such person is entitled to benefits as the deceased individual's widow or widower for December 1972 and for January 1973; and (ii) The total of benefits to which all persons are entitled for January 1973 is reduced (or would be reduced if deductions were not applicable) for the maximum under § 404.403. In such case, the benefit of each person referred to in paragraph (o)(1)(i) of this section for months after December 1972 shall be no less than the amount it would have been if the widow's or widower's benefit had not been redetermined under the Social Security Amendments of 1972. (2) In the case of entitlement to child's benefits based upon disability which began between ages 18 and 22 the reduction described in § 404.403 shall not apply if: (i) One or more persons were entitled to benefits on the insured individual's earnings record for December 1972 based upon an application filed in that month or earlier; and (ii) One or more persons not included in paragraph (o)(2)(i) of this section are entitled to child's benefits on that earnings record for January 1973 based upon disability which began in the period from ages 18 to 22; and (iii) The total benefits to which all persons are entitled on that record for January 1973 is reduced (or would be reduced if deductions were not applicable) for the maximum under § 404.403. In such case, the benefit of each person referred to in paragraph (o)(2)(i) of this section for months after December 1972 shall be no less than the amount it would have been if the person entitled to child's benefits based upon disability in the period from ages 18 to 22 were not so entitled. (3) In the case of entitlement of certain surviving divorced mothers, the reduction described in § 404.403 shall not apply if: (i) One or more persons were entitled to benefits on the insured individual's earnings record for December 1972 based upon an application filed in December 1972 or earlier; and (ii) One or more persons not included in paragraph (o)(3)(i) of this section are entitled to benefits on that earnings record as a surviving divorced mother for a month after December 1972; and (iii) The total of benefits to which all persons are entitled on that record for any month after December 1972 is reduced (or would be reduced if deductions were not applicable) for the maximum under § 404.403. In such case, the benefit of each such person referred to in paragraph (o)(3)(i) of this section for months after December 1972 in which any person referred to in paragraph (o)(3)(ii) of this section is entitled shall be no less than it would have been if the person(s) referred to in paragraph (o)(3)(ii) of this section had not become entitled to benefits. (p) Months after December 1973. (1) The maximum family benefit for such month shown in the applicable table in section 215(a) of the Act (the applicable (2) The largest amount which has been determined payable for any month for persons entitled to benefits on the insured individual's earnings records; or (3) In the case of persons entitled to benefits on the insured individual's earnings record for the month immediately preceding the month of a general benefit or cost-of-living increase after September 1972, an amount equal to the sum of the benefit amount for each person (excluding any part of an old-age insurance benefit increased because of delayed retirement under the provisions of § 404.305(a) for the month immediately before the month of increase in the primary insurance amount (after reduction for the family maximum but before deductions or reductions for age) multiplied by the percentage of increase. Any such increased amount, if it is not a multiple of $0.10, will be raised to the next higher multiple of $0.10 for months before June 1982 and reduced to the next lower multiple of $0.10 for months after May 1982. (q) Months after May 1978. family maximum (1) One or more persons were entitled (without the reduction required by § 404.406) to monthly benefits for May 1978 on the wages and self-employment income of a deceased wage earner; (2) The benefit for June 1978 of at least one of those persons is increased by reason of a delayed retirement credit (see § 404.330(b)(4) or § 404.333(b)(4)); and (3) The total amount of monthly benefits to which all those persons are entitled is reduced because of the maximum or would be so reduced except for certain restrictions (see § 404.403 and § 404.402(a)). [32 FR 19159, Dec. 20, 1967, as amended at 40 FR 30814, July 23, 1975; 43 FR 8132, Feb. 28, 1978; 43 FR 29277, July 7, 1978; 48 FR 46148, Oct. 11, 1983] § 404.406 Reduction for maximum because of retroactive effect of application for monthly benefits. Under the provisions described in § 404.403, beginning with the month in which a person files an application and becomes entitled to benefits on an insured individual's earnings record, the benefit rate of other persons entitled on the same earnings record (aside from the individual on whose earnings record entitlement is based) are adjusted downward, if necessary, so that the maximum benefits payable on one earnings record will not be exceeded. An application may also be effective (retroactively) for benefits for months before the month of filing (see § 404.603). For any month before the month of filing, however, benefits that have been previously certified by the Administration for payment to other persons (on the same earnings record) are not changed. Rather, the benefit payment of the person filing the application in the later month is reduced for each month of the retroactive period to the extent that may be necessary, so that no earlier payment to some other person is made erroneous. This means that for each month of the retroactive period the amount payable to the person filing the later application is the difference, if any, between (a) the total amount of benefits actually certified for payment to other persons for that month, and (b) the maximum amount of benefits payable for that month to all persons, including the person filing later. [32 FR 19159, Dec. 20, 1967, as amended at 64 FR 14608, Mar. 26, 1999] § 404.407 Reduction because of entitlement to other benefits. (a) Entitlement to old-age or disability insurance benefit and other monthly benefit. (b) Entitlement to widow's or widower's benefit and other monthly benefit. (c) Entitlement to old-age insurance benefit and disability insurance benefit. (d) Child's insurance benefits. (e) Entitlement to more than one benefit where not all benefits are child's insurance benefits and no benefit is an old-age or disability insurance benefit. [32 FR 19159, Dec. 20, 1967, as amended at 51 FR 12606, Apr. 14, 1986; 54 FR 5603, Feb. 6, 1989] § 404.408 Reduction of benefits based on disability on account of receipt of certain other disability benefits provided under Federal, State, or local laws or plans. (a) When reduction required. (1) The individual first became entitled to disability insurance benefits after 1965 but before September 1981 based on a period of disability that began after June 1, 1965, and before March 1981, and (i) The individual entitled to the disability insurance benefit is also entitled to periodic benefits under a workers' compensation law or plan of the United States or a State for that month for a total or partial disability (whether or not permanent), and (ii) The Commissioner has, in a month before that month, received a notice of the entitlement, and (iii) The individual has not attained age 62, or (2) The individual first became entitled to disability insurance benefits after August 1981 based on a disability that began after February 1981, and (i) The individual entitled to the disability insurance benefit is also, for that month, concurrently entitled to a periodic benefit (including workers' compensation or any other payments based on a work relationship) on account of a total or partial disability (whether or not permanent) under a law or plan of the United States, a State, a political subdivision, or an instrumentality of two or more of these entities, and (ii) The individual has not attained full retirement age as defined in § 404.409. (b) When reduction not made. (2) The reduction of a benefit otherwise required by paragraph (a)(2) of this section is not to be made if: (i) The law or plan under which the periodic public disability benefit is payable provides for the reduction of that benefit when anyone is entitled to a benefit under title II of the Act on the basis of the earnings record of an individual entitled to a disability insurance benefit under section 223 of the Act and that law or plan so provided on February 18, 1981. (The reduction required by paragraph (a)(2) of this section will not be affected by public disability reduction provisions not actually in effect on this date or by changes made after February 18, 1981, to provisions that were in effect on this date providing for the reduction of benefits previously not subject to a reduction); or (ii) The benefit is a Veterans Administration benefit, a public disability benefit (except workers' compensation) payable to a public employee based on employment covered under Social Security, a public benefit based on need, or a wholly private pension or private insurance benefit. (c) Amount of reduction General. (i) Eighty percent of his average current earnings, (ii) The total of such individual's disability insurance benefit for such month and all other benefits payable for such month based on such individual's earnings record, prior to reduction under this section. (2) Limitation on reduction. (i) The total of the benefits payable (after reduction under paragraph (a) of this section) to such beneficiaries for the first month for which reduction under this section is made, and (ii) Any increase in such benefits which is made effective for months after the first month for which reduction under this section is made. (3) Average current earnings defined. average current earnings a b c (A) The average monthly wage (determined under section 215(b) of the Act as in effect prior to January 1979) used for purposes of computing the individual's disability insurance benefit under section 223 of the Act; (B) One-sixtieth of the total of the individual's wages and earnings from self-employment, without the limitations under sections 209(a) and 211(b)(1) of the Act (see paragraph (c)(3)(ii) of this section), for the 5 consecutive calendar years after 1950 for which the wages and earnings from self-employment were highest; or (C) One-twelfth of the total of the individual's wages and earnings from self-employment, without the limitations under sections 209(a) and 211(b)(1) of the Act (see paragraph (c)(3)(ii) of this section), for the calendar year in which the individual had the highest wages and earnings from self-employment during the period consisting of the calendar year in which the individual became disabled and the 5 years immediately preceding that year. Any amount so computed which is not a multiple of $1 is reduced to the next lower multiple of $1. (ii) Method of determining calendar year earnings in excess of the limitations under sections 209(a) and 211(b)(1) of the Act. (4) Reentitlement to disability insurance benefits. (5) Computing disability insurance benefits. (d) Items not counted for reduction. (1) A detailed statement by the individual's attorney, physician, or the employer's insurance carrier; or (2) Bills, receipts, or canceled checks; or (3) Other clear and convincing evidence indicating the amount of expenses; or (4) Any combination of the foregoing evidence from which the amount of expenses may be determinable. (e) Certification by individual concerning eligibility for public disability benefits. (1) Whether he or she has filed or intends to file any claim for a public disability benefit, and (2) If he or she has so filed, whether there has been a decision on the claim. The Commissioner may rely, in the absence of evidence to the contrary, upon a certification that he or she has not filed and does not intend to file such a claim, or that he or she has filed and no decision has been made, in certifying any benefit for payment pursuant to section 205(i) of the Act. (f) Verification of eligibility or entitlement to a public disability benefit under paragraph (a). (g) Public disability benefit payable on other than a monthly basis. (h) Priorities. (2) Whenever a reduction in the total of benefits for any month based on an individual's earnings record is made under paragraph (a) of this section, each benefit, except the disability insurance benefit, is first proportionately decreased. Any excess reduction over the sum of all the benefits, other than the disability insurance benefit, is then applied to the disability insurance benefit. Example 1: Effective September 1981, Harold is entitled to a monthly disability primary insurance amount of $507.90 and a monthly public disability benefit of $410.00 from the State. Eighty percent of Harold's average current earnings is $800.00. Because this amount ($800.00) is higher than Harold's disability insurance benefit ($507.90), we subtract Harold's monthly public disability benefit ($410.00) from eighty percent of his average current earnings ($800.00). This leaves Harold a reduced monthly disability benefit of $390.00. Example 2: In September 1981, Tom is entitled to a monthly disability primary insurance amount of $559.30. His wife and two children are also entitled to monthly benefits of $93.20 each. The total family benefit is $838.90. Tom is also receiving a monthly workers' compensation benefit of $500.00 from the State. Eighty percent of Tom's average current earnings is $820.10. Because the total family benefit ($838.90) is higher than 80 percent of the average current earnings ($820.10), we subtract the monthly workers' compensation benefit ($500.00) from the total family benefit ($838.90), leaving $338.90 payable. This means the monthly benefits to Tom's wife and children are reduced to zero, and Tom's monthly disability benefit is reduced to $338.90. (i) Effect of changes in family composition. Example 1: Frank is receiving $500.00 a month under the provisions of a State workers' compensation law. He had a prior period of disability which terminated in June 1978. In September 1981, Frank applies for a second period of disability and is awarded monthly disability insurance benefits with a primary insurance amount of $370.20. His child, Doug, qualifies for benefits of $135.10 a month on Frank's earnings record. The total family benefits is $505.30 monthly. Frank's average monthly wage (as used to compute the primary insurance amount) is $400.00; eighty percent of his average current earnings (computed by using the 5 consecutive years in which his earnings were highest) is $428.80 (80% of $536.00); eighty percent of Frank's average current earnings (computed by using the 1 calendar year in which his earnings were highest) is $509.60 (80% of $637.00). The highest value for 80 percent of average current earnings is therefore $509.60 (80%). Since this is higher than the total family benefit ($505.30), the $509.60 is the applicable limit in determining the amount of the reduction (or offset). The amount payable after the reduction is— 80% of Frank's average current earnings $509.60 Frank's monthly workers' compensation benefit −500.00 Monthly benefit payable to Frank 9.60 No monthly benefits are payable to Doug because the reduction is applied to Doug's benefit first. In December 1981, another child, Mike, becomes entitled on Frank's earnings record. The monthly benefit to each child before reduction is now $109.10, the amount payable when there are two beneficiaries in addition to the wage earner. Thus, the total family benefit becomes $588.40. Because this is now higher than $509.60 (80% of Frank's average current earnings), $588.40 becomes the applicable limit in determining the amount of reduction. The amount payable after the increase in the total family benefit is— The new total family benefit $588.40 Frank's monthly workers' compensation rate −500.00 Monthly benefit payable to Frank 88.40 No monthly benefits are payable to either child because the reduction (or offset) is applied to the family benefits first. Example 2: Jack became entitled to disability insurance benefits in December 1973 (12/73), with a primary insurance amount (PIA) of $220.40. He was also receiving a workers' compensation benefit. An offset was imposed against the disability insurance benefit. By June 1977 (6/77), Jack's PIA had increased to $298.00 because of several statutory benefit increases. In December 1977 (12/77), his wife, Helen, attained age 65 and filed for unreduced wife's benefits. (She was not entitled to a benefit on her own earnings record.) This benefit was terminated in May 1978 (5/78), at her death. Helen's benefit was computed back to 12/73 as though she were entitled in the first month that offset was imposed against Jack. Since there were no other beneficiaries entitled and Helen's entire monthly benefit amount is subject to offset, the benefit payable to her for 12/77 through April 1978 (4/78), would be $38.80. This gives Helen the protected statutory benefit increases since 12/73. The table below shows how Helen's benefit was computed beginning with the first month offset was imposed. Month of entitlement/statutory increase Jack's PIA Helen's benefit prior to offset Helen's statutory increase December 1973 $220.40 $110.20 March 1974 236.00 118.00 $7.80 June 1974 244.80 122.40 + 4.40 June 1975 264.40 132.20 + 9.80 June 1976 281.40 140.70 + 8.50 June 1977 298.00 149.00 + 8.30 December 1977 through April 1978 1 38.80 1 (j) Effect of social security disability insurance benefit increases. Example: In March 1981, Chuck became entitled to disability insurance benefits with a primary insurance amount of $362.40 a month. He has a wife and two children who are each entitled to a monthly benefit of $60.40. Chuck is receiving monthly disability compensation from a worker's compensation plan of $410.00. Eighty percent of his average current earnings is $800.00. Because this is higher than the total family benefit ($543.60), $800.00 is the applicable limit in computing the amount of reduction. The amount of monthly benefits payable after the reduction is— Applicable limit $800.00 Chuck's monthly disability compensation −410.00 Total amount payable to Chuck and the family after reduction $390.00 Amount payable to Chuck −362.40 Total amount payable to the family $27.60 $9.20 payable to each family member equals $27.60 3 In June 1981, the disability benefit rates were raised to reflect an increase in the cost-of-living. Chuck is now entitled to $403.00 a month and each family member is entitled to $67.20 a month (an increase of $6.80 to each family member). The monthly amounts payable after the cost-of-living increase are now $403.00 to Chuck and $16.00 to each family member ($9.20 plus the $6.80 increase). In September 1981, another child becomes entitled to benefits based on Chuck's earnings record. The monthly amount payable to the family (excluding Chuck) must now be divided by 4: $6.90 payable to each family member equals $27.60 4 The June 1981 cost-of-living increase is added to determine the amount payable. Chuck continues to receive $403.00 monthly. Each family member receives a cost-of-living increase of $5.10. Thus, the amount payable to each is $12.00 in September 1981 ($6.90 plus the $5.10 increase). (See Example 2 under (i).) (k) Effect of changes in the amount of the public disability benefit. Example: In September 1981, based on a disability which began March 12, 1981, Theresa became entitled to Social Security disability insurance benefits with a primary insurance amount of $445.70 a month. She had previously been entitled to Social Security disability insurance benefits from March 1967 through July 1969. She is receiving a temporary total workers' compensation payment of $227.50 a month. Eighty percent of her average current earnings is $610.50. The amount of monthly disability insurance benefit payable after reduction is— 80 percent of Theresa's average current earnings $610.50 Theresa's monthly workers' compensation payment −227.50 Total amount payable to Theresa after reduction 383.00 On November 15, 1981, the Commissioner was notified that Theresa's workers' compensation rate was increased to $303.30 a month effective October 1, 1981. This increase reflected a cost-of-living adjustment granted to all workers' compensation recipients in her State. The reduction to her monthly disability insurance benefit is recomputed to take this increase into account— 80 percent of Theresa's average current earnings $610.50 Theresa's monthly workers' compensation payment beginning October 1, 1981 −303.30 Total new amount payable to Theresa beginning October 1981 after recalculation of the reduction $307.20 Effective January, 1, 1982, Theresa's workers' compensation payment is decreased to $280.10 a month when she begins to receive a permanent partial payment. The reduction to her monthly disability insurance benefit is again recalculated to reflect her decreased workers' compensation amount— 80 percent of Theresa's average current earnings $610.50 Theresa's monthly workers' compensation payment beginning January 1, 1982 −280.10 Total new amount payable to Theresa beginning January 1982 after recalculation of the reduction $330.40 If, in the above example, Theresa had become entitled to disability insurance benefits in August 1981, the increased reduction to her benefit, due to the October 1, 1981 increase in her workers' compensation payment, would have been imposed beginning with December 1981, the month after the month she notified the Social Security Administration of the increase. The later decrease in her workers' compensation payment would still affect her disability insurance benefit beginning with January 1982. (l) Redetermination of benefits General. (2) Average current earnings. (i) The ratio of the average of the total wages (as defined in § 404.1049) of all persons for whom wages were reported to the Secretary of the Treasury or his delegate for the calendar year before the year in which the redetermination is made, to the average of the total wages of all person reported to the Secretary of the Treasury or his delegate for calendar year 1977 or, if later, the calendar year before the year in which the reduction was first computed (but not counting any reduction made in benefits for a previous period of disability); and (ii) In any case in which the reduction was first computed before 1978, the ratio of the average of the taxable wages reported to the Commissioner of Social Security for the first calendar quarter of 1977 to the average of the taxable wages reported to the Commissioner of Social Security for the first calendar quarter of the calendar year before the year in which the reduction was first computed (but not counting any reduction made in benefits for a previous period of disability). Any amount determined under the preceding two sentences which is not a multiple of $1 is reduced to the next lower multiple of $1. (3) Effect of redetermination. Example: In October 1978, Alice became entitled to disability insurance benefits with a primary insurance amount of $505.10. Her two children were also entitled to monthly benefits of $189.40 each. Alice was also entitled to monthly disability compensation benefits of $667.30 from the State. Eighty percent of Alice's average current earnings is $1340.80, and that amount is the applicable limit. The amount of monthly benefits payable after the reduction is— Applicable limit $1,340.80 Alice's State disability compensation benefit −667.30 Total benefits payable to Alice and both children after reduction $673.50 Alice's disability insurance benefit −505.10 Payable to the children $168.40 $84.20 payable to each child after reduction equals $168.40 2 In June 1979 and June 1980, cost-of-living increases in Social Security benefits raise Alice's benefit by $50.10 (to $555.20) and $79.40 (to $634.60) respectively. The children's benefits (before reduction) are each raised by $18.80 (to $208.20) and $29.80 (to $238.00). These increases in Social Security benefits are not subject to the reduction ( i.e. In 1980, Alice's average current earnings are redetermined as required by law. The offset is recalculated, and if the amount payable to the family is higher than the current amount payable to the family, that higher amount becomes payable the following January ( i.e. Alice's 1978 benefit after reduction $505.10 Alice's cost-of-living increase in June 1979 + 50.10 Alice's cost-of-living increase in June 1980 + 79.40 One child's 1978 benefit after reduction + 84.20 That child's cost-of-living increase in June 1979 + 18.70 That child's cost-of-living increase in June 1980 + 29.70 The other child's 1978 benefit after reduction + 84.20 The other child's cost-of-living increase in June 1979 + 18.70 The other child's cost-of-living increase in June 1980 + 29.70 Total amount payable to the family after reduction in January 1981 899.80 The amount payable to the family after reduction is then recalculated using the redetermined average current earnings— Average current earnings before redetermination $1,676.00 Redetermination ratio effective for January 1981 × 1.174 Redetermined average current earnings $1,967.00 × 80% 80% of the redetermined average current earnings $1,573.60 Alice's State disability compensation benefit −667.30 Total benefits payable to the family after offset $906.30 We then compare the total amount currently being paid to the family ($899.80) to the total amount payable after the redetermination ($906.30). In this example, the redetermination yields a higher amount and, therefore, becomes payable the following January ( i.e. Total benefits payable to the family using the redetermined average current earnings $906.30 Total cost-of-living increases to both children −96.80 Balance payable 809.50 Alice's current benefit amount before reduction −634.60 Payable to the children 174.90 Total cost-of-living increases to both children + 96.80 Total payable to children after reduction 271.70 $135.90 (rounded from $135.85) payable to each child equals $271.70 2 [32 FR 19159, Dec. 20, 1967; 33 FR 3060, Feb. 16, 1968, as amended at 37 FR 3425, Feb. 16, 1972; 48 FR 37017, Aug. 16, 1983; 48 FR 38814, Aug. 26, 1983; 62 FR 38450, July 18, 1997; 81 FR 19033, Apr. 4, 2016] § 404.408a Reduction where spouse is receiving a Government pension. (a) General Terms used in this section. Government pension (ii) Noncovered employment (iii) Spouse's benefits (2) When reduction is required. (b) Exceptions. (1) If you are receiving a Government pension based on employment for an interstate instrumentality. (2) If you received or are eligible to receive a Government pension for one or more months in the period December 1977 through November 1982 and you meet the requirements for Social Security benefits that were applied in January 1977, even though you don't claim benefits, and you don't actually meet the requirements for receiving benefits until a later month. The January 1977 requirements are, for a man, a one-half support test (see paragraph (c) of this section), and, for a woman claiming benefits as a divorced spouse, marriage for at least 20 years to the insured worker. You are considered eligible for a Government pension for any month in which you meet all the requirements for payment except that you are working or have not applied. (3) If you were receiving or were eligible (as defined in paragraph (b)(2) of this section) to receive a Government pension for one or more months before July 1983, and you meet the dependency test of one-half support that was applied to claimants for husband's and widower's benefits in 1977, even though you don't claim benefits, and you don't actually meet the requirements for receiving benefits until a later month. If you meet the exception in this paragraph but you do not meet the exception in paragraph (b)(2), December 1982 is the earliest month for which the reduction will not affect your benefits. (4) If you would have been eligible for a pension in a given month except for a requirement which delayed eligibility for such pension until the month following the month in which all other requirements were met, we will consider you to be eligible in that given month for the purpose of meeting one of the exceptions in paragraphs (b) (2) and (3) of this section. If you meet an exception solely because of this provision, your benefits will be unreduced for months after November 1984 only. (5) If, with respect to monthly benefits payable for months after December 1994, you are receiving a Government pension based wholly upon service as a member of a uniformed service, regardless of whether on active or inactive duty and whether covered by social security. However, if the earnings on the last day of employment as a military reservist were not covered, January 1995 is the earliest month for which the reduction will not affect your benefits. (6) If you are receiving a government pension and the last 60 months of your government employment were covered by both Social Security and the pension plan that provides your government pension. (i) If the last day of your government employment was after June 30, 2004 and on or before March 2, 2009, we will apply a transitional rule to reduce the last 60-month requirement under the following conditions: (A) You worked 60 months in Federal, State, or local government employment covered by Social Security before March 2, 2004, and you worked at least 1 month of covered government employment after March 2, 2004, or (B) You worked fewer than 60 months in government employment covered by Social Security on or before March 2, 2004 and you worked the remaining number of months needed to total 60 months after March 2, 2004. The months that you worked before or after March 2, 2004 do not have to be consecutive. (ii) We will always reduce your monthly spouse's benefit if you receive a government pension based on noncovered employment and you later go back to work for a Federal, State, or local government, unless: (A) Your final 60 months of Federal, State, or local government employment were covered by Social Security; and (B) Both your earlier and later Federal, State, or local government employment were under the same pension plan. (7) If you are a former Federal employee and you receive a government pension based on work that included at least 60 months in employment covered by Social Security in the period beginning January 1, 1988 and ending with the first month you became entitled to spouse's benefits, whether or not the 60 months are consecutive), and: (i) You worked in the Civil Service Retirement System (CSRS), but switched after 1987 to either the Federal Employees Retirement System (FERS) or the Foreign Service Pension System; or (ii) You worked in the legislative branch and left CSRS after 1987 or received a lump sum payment from CSRS or another retirement system after 1987. (8) You were a State or local government employee, or a Federal employee who worked in the CSRS but switched to the FERS before 1988, your last day of service was in covered employment, and (i) You filed for spouse's benefits before April 1, 2004 and became entitled to benefits based on that filing, or (ii) Your last day of service was before July 1, 2004, (c) The one-half support test. (1) If the insured person had a period of disability which did not end before he or she became entitled to old-age or disability insurance benefits, or died, you must have been receiving at least one-half support from the insured either— (i) At the beginning of his or her period of disability; (ii) At the time he or she became entitled to old-age or disability insurance benefits; or (iii) If deceased, at the time of his or her death. (2) If the insured did not have a period of disability at the time of his or her entitlement or death, you must have been receiving at least one-half support from the insured either— (i) At the time he or she became entitled to old-age insurance benefits; or (ii) If deceased, at the time of his or her death. (d) Amount and priority of reduction Post-June 1983 government pensions. (ii) If you earned part of your pension based on employment other than Federal, State, or local government employment, we will only use the part of your pension earned in government employment to compute the GPO. (iii) If the reduction is not a multiple of 10 cents, we will round it to the next higher multiple of 10 cents. (2) Pre-July 1983 government pensions. (A) By the full amount of your pension for months before December 1984; and (B) By two-thirds the amount of your monthly pension for months after November 1984. (ii) If the reduction is not a multiple of 10 cents, we will round it to the next higher multiple of 10 cents. (3) Reductions for age and simultaneous entitlement. (4) Reduction not a multiple of $1.00. (5) Lump sum payments. (i) We will generally obtain information about the number of years covered by a lump-sum payment from the pension plan. (ii) If one of the alternatives to a lump-sum payment is a life annuity, and we can determine the amount of the monthly annuity, we will base the reduction on that monthly amount. (iii) If the period or the equivalent monthly pension benefit is not clear, we may determine the reduction period and the equivalent monthly benefit on an individual basis. (e) When effective. [49 FR 41245, Oct. 22, 1984; 50 FR 20902, May 21, 1985, as amended at 51 FR 23052, June 25, 1986; 60 FR 56513, Nov. 9, 1995; 80 FR 34050, June 15, 2015] § 404.408b Reduction of retroactive monthly social security benefits where supplemental security income (SSI) payments were received for the same period. (a) When reduction is required. (1) You are entitled to monthly social security benefits for a month or months before the first month in which those benefits are paid; and (2) SSI payments (including federally administered State supplementary payments) which were made to you for the same month or months would have been reduced or not made if your social security benefits had been paid when regularly due instead of retroactively. (b) Amount of reduction. (c) Benefits subject to reduction. (d) Refiguring the amount of the reduction. (e) Reimbursement of reduced retroactive monthly social security benefits. (1) First used to reimburse the States for the amount of any federally administered State supplementary payments that would not have been made to you if the monthly social security benefits had been paid when regularly due instead of retroactively; and (2) The remainder, if any, shall be covered into the general fund of the U.S. Treasury for the amount of SSI benefits that would not have been paid to you if the monthly social security benefits had been paid to you when regularly due instead of retroactively. [47 FR 4988, Feb. 3, 1982] § 404.409 What is full retirement age? Full retirement age is the age at which you may receive unreduced old-age, wife's, husband's, widow's, or widower's benefits. Full retirement age has been 65 but is being gradually raised to age 67 beginning with people born after January 1, 1938. See § 404.102 regarding determination of age. (a) What is my full retirement age for old-age benefits or wife's or husband's benefits? If your birth date is: Full retirement age is: Before 1/2/1938 65 years. 1/2/1938—1/1/1939 65 years and 2 months. 1/2/1939—1/1/1940 65 years and 4 months. 1/2/1940—1/1/1941 65 years and 6 months. 1/2/1941—1/1/1942 65 years and 8 months. 1/2/1942—1/1/1943 65 years and 10 months. 1/2/1943—1/1/1955 66 years. 1/2/1955—1/1/1956 66 years and 2 months. 1/2/1956—1/1/1957 66 years and 4 months. 1/2/1957—1/1/1958 66 years and 6 months. 1/2/1958—1/1/1959 66 years and 8 months. 1/2/1959—1/1/1960 66 years and 10 months. 1/2/1960 and later 67 years. (b) What is my full retirement age for widow's or widower's benefits? If your birth date is: Full retirement age is: Before 1/2/1912 62 years. 1/2/1912—1/1/1940 65 years. 1/2/1940—1/1/1941 65 years and 2 months. 1/2/1941—1/1/1942 65 years and 4 months. 1/2/1942—1/1/1943 65 years and 6 months. 1/2/1943—1/1/1944 65 years and 8 months. 1/2/1944—1/1/1945 65 years and 10 months. 1/2/1945—1/1/1957 66 years. 1/2/1957—1/1/1958 66 years and 2 months. 1/2/1958—1/1/1959 66 years and 4 months. 1/2/1959—1/1/1960 66 years and 6 months. 1/2/1960—1/1/1961 66 years and 8 months. 1/2/1961—1/1/1962 66 years and 10 months. 1/2/1962 and later 67 years. (c) Can I still retire before full retirement age? [68 FR 4707, Jan. 30, 2003] § 404.410 How does SSA reduce my benefits when my entitlement begins before full retirement age? Generally your old-age, wife's, husband's, widow's, or widower's benefits are reduced if entitlement begins before the month you attain full retirement age (as defined in § 404.409). However, your benefits as a wife or husband are not reduced for any month in which you have in your care a child of the worker on whose earnings record you are entitled. The child must be entitled to child's benefits. Your benefits as a widow or widower are not reduced below the benefit amount you would receive as a mother or father for any month in which you have in your care a child of the worker on whose record you are entitled. The child must be entitled to child's benefits. Subject to §§ 404.411 through 404.413, reductions in benefits are made in the amounts described. (a) How does SSA reduce my old-age benefits? 5/9 5/12 Example: Alex's full retirement age for unreduced benefits is 65 years and 8 months. She elects to begin receiving benefits at age 62. Her primary insurance amount of $980.50 must be reduced because of her entitlement to benefits 44 months prior to full retirement age. The reduction is 36 months at 5/9 5/12 980.50 × 36 × 5/9 980.50 × 8 × 5/12 The two added together equal a total reduction of $228.78. This amount is rounded to $228.80 (the next higher multiple of 10 cents) and deducted from the primary insurance amount. The resulting $751.70 is the monthly benefit payable. (b) How does SSA reduce my wife's or husband's benefits? 25/36 5/12 Example: Sam is entitled to old-age benefits. His spouse Ashley elects to begin receiving wife's benefits at age 63. Her full retirement age for unreduced benefits is 65 and 4 months. Her benefit will be reduced for 28 months of entitlement prior to full retirement age. If her unreduced benefit is $412.40 the reduction will be $412.40 × 28 × 25/36 (c) How does SSA reduce my widow's or widower's benefits? (1) Widow's or widower's benefits based on age. Example: Ms. Bogle is entitled to an unreduced widow benefit of $785.70 beginning at age 64. Her full retirement age for unreduced old-age benefits is 65 years and 4 months. She will receive benefits for 16 months prior to attainment of full retirement age. The number of months in the period from age 60 through full retirement age of 65 and 4 months is 64. The reduction in her benefit is $785.70 × 16 × .285 divided by 64 or $55.98. $55.98 is rounded to the next higher multiple of 10 cents ($56.00) and subtracted from $785.70. The result is a monthly benefit of $729.70. (2) Widow's or widower's benefits based on disability. (ii) For months from January 1973 through December 1983, benefits as a disabled widow or widower were reduced under paragraph (c)(1) of this section. The benefits were then subject to an additional reduction of 43/240 (3) Widow's or widower's benefits prior to 1973. 5/9 43/198 (d) If my benefits are reduced under this section does SSA ever change the reduction? (e) Are my widow's or widower's benefits affected if the deceased worker was entitled to old-age benefits? [68 FR 4708, Jan. 30, 2003] § 404.411 How are benefits reduced for age when a person is entitled to two or more benefits? (a) What is the general rule? (b) How is my disability benefit reduced after entitlement to an old-age benefit or widow's or widower's benefit? (1) Individuals born January 2, 1928, or later whose disability began January 1, 1990, or later. (2) Individuals born January 2, 1928, or later whose disability began before January 1, 1990, and, all individuals born before January 2, 1928, regardless of when their disability began First entitled to disability in or after the month of attainment of age 62. (A) The amount the disability benefit would have been reduced under paragraph (b)(1) of this section; or (B) The amount equal to the sum of the amount the widow's or widower's benefit would have been reduced under the provisions of § 404.410 if full retirement age for unreduced benefits were age 62 plus the amount by which the disability benefit would have been reduced under paragraph (b)(1) of this section if the benefit were equal to the excess of such benefit over the amount of the widow's or widower's benefit (without consideration of this paragraph). (ii) First entitled to disability before age 62. (c) How is my old-age benefit reduced after entitlement to a widow's or widower's benefit? Individual born after January 1, 1928. (2) Individual born before January 2, 1928. (i) The amount by which the old-age benefit would be reduced under the regular age reduction provisions of § 404.410; or (ii) An amount equal to the sum of: (A) The amount by which the widow's or widower's benefit would be reduced under § 404.410 for months prior to age 62; and (B) The amount by which the old-age benefit would be reduced under § 404.410 if it were equal to the excess of the individual's primary insurance amount over the widow's or widower's benefit before any reduction for age (but after any reduction for the family maximum under § 404.403). (d) How is my wife's or husband's benefit reduced when I am entitled to a reduced old-age benefit in the same month? (1) The amount by which the old-age benefit would be reduced under the provisions of § 404.410; and (2) The amount by which the spouse benefit would be reduced under the provisions of § 404.410 if it were equal to the excess of such benefit (before any reduction for age but after reduction for the family maximum under § 404.403) over the individual's own primary insurance amount. (e) How is my wife's or husband's or widow's or widower's benefit reduced when I am entitled to a reduced disability benefit in the same month? (1) The amount (if any) by which the disability benefit is reduced under paragraph (b)(1) of this section, and (2) The amount by which the wife's or husband's or widow's or widower's benefit would be reduced under § 404.410 if it were equal to the excess of such benefit (before any reduction for age but after reduction for the family maximum under § 404.403) over the disability benefit (before any reduction under paragraph (b) of this section). [68 FR 4709, Jan. 30, 2003] § 404.412 After my benefits are reduced for age when and how will adjustments to that reduction be made? (a) When may adjustment be necessary? (1) Months subject to deduction under § 404.415 or § 404.417; (2) In the case of a wife's or husband's benefit, any month in which she or he had a child of the insured individual in her or his care and for which the child was entitled to child's benefits; (3) In the case of a wife's or husband's benefit, any month for which entitlement to such benefits is precluded because the insured person's disability ceased (and, as a result, the insured individual's entitlement to disability benefits ended); (4) In the case of a widow's or widower's benefit, any month in which she or he had in her or his care a child of the deceased insured individual and for which the child was entitled to child's benefits; (5) In the case of a widow's or widower's benefit, any month before attainment of full retirement age for which she or he was not entitled to such benefits; (6) In the case of an old-age benefit, any month for which the individual was entitled to disability benefits. (b) When is the adjustment made? [68 FR 4710, Jan. 30, 2003, as amended at 68 FR 40122, July 7, 2003] § 404.413 After my benefits are reduced for age what happens if there is an increase in my primary insurance amount? (a) What is the general rule on reduction of increases? (b) How are subsequent increases in the primary insurance amount reduced after 1977? (c) How is the reduction computed for increases after 1977? Entitlement to reduced benefits after 1977. (2) Entitlement to reduced benefits before 1978. (d) How was the reduction computed for increases prior to 1978? [68 FR 4710, Jan. 30, 2003] § 404.415 Deductions because of excess earnings. (a) Deductions because of insured individual's earnings. (b) Deductions from husband's, wife's, and child's benefits because of excess earnings of the insured individual. (c) Deductions because of excess earnings of beneficiary other than the insured. [70 FR 28811, May 19, 2005] § 404.417 Deductions because of noncovered remunerative activity outside the United States; 45 hour and 7-day work test. (a) Deductions because of individual's activity Prior to May 1983. (2) From May 1983 on. (b) Deductions from benefits because of the earnings or work of an insured individual Prior to September 1984. (i) Wife's, husband's, or child's insurance benefit payable on the insured individual's earnings record; and (ii) Mother's, father's, or child's insurance benefit based on child's disability, which under § 404.420 is deemed payable on the insured individual's earnings record because of the beneficiary's marriage to the insured individual. (2) From September 1984 on. (3) Amount of deduction. (4) From January 1985 on. [49 FR 24117, June 12, 1984, as amended at 51 FR 11912, Apr. 21, 1986; 52 FR 26145, July 13, 1987] § 404.418 “Noncovered remunerative activity outside the United States,” defined. An individual is engaged in noncovered remunerative activity outside the United States for purposes of deductions described in § 404.417 if: (a) He performs services outside the United States as an employee and the services do not constitute employment as defined in subpart K of this part and, for taxable years ending after 1955, the services are not performed in the active military or naval service of the United States; or (b) He carries on a trade or business outside the United States (other than the performance of services as an employee) the net income or loss of which is not includable in computing his net earnings from self-employment (as defined in § 404.1050) for a taxable year and would not be excluded from net earnings from self-employment (see § 404.1052) if the trade or business were carried on in the United States. When used in the preceding sentence with respect to a trade or business, the term United States trade or business § 404.420 Persons deemed entitled to benefits based on an individual's earnings record. For purposes of imposing deductions under the annual earnings test (see § 404.415) and the foreign work test (see § 404.417), a person who is married to an old-age insurance beneficiary and who is entitled to a mother's or father's insurance benefit or a child's insurance benefit based on the child's disability (and all these benefits are based on the earnings record of some third person) is deemed entitled to such benefit based on the earnings record of the old-age insurance beneficiary to whom he or she is married. This section is effective for months in any taxable year of the old-age insurance beneficiary that begins after August 1958. [49 FR 24117, June 12, 1984] § 404.421 How are deductions made when a beneficiary fails to have a child in his or her care? Deductions for failure to have a child in care (as defined in subpart D of this part) are made as follows: (a) Wife's or husband's benefit. (b) Mother's or father's benefits Widow or widower. (2) Surviving divorced mother or father. (c) Amount to be deducted. (d) When a child is considered not entitled to benefits. [68 FR 4710, Jan. 30, 2003, as amended at 68 FR 40122, July 7, 2003] § 404.423 Manner of making deductions. Deductions provided for in §§ 404.415, 404.417, and 404.421 (as modified in § 404.458) are made by withholding benefits (in whole or in part, depending upon the amount to be withheld) for each month in which an event causing a deduction occurred. If the amount to be deducted is not withheld from the benefits payable in the month in which the event causing the deduction occurred, such amount constitutes a deduction overpayment [32 FR 19159, Dec. 20, 1967, as amended at 68 FR 40122, July 7, 2003] § 404.424 Total amount of deductions where more than one deduction event occurs in a month. If more than one of the deduction events specified in §§ 404.415, 404.417, and 404.421 occurred in any 1 month, each of which would occasion a deduction equal to the benefit for such month, only an amount equal to such benefit is deducted. § 404.425 Total amount of deductions where deduction events occur in more than 1 month. If a deduction event described in §§ 404.415, 404.417, and 404.421 occurs in more than 1 month, the total amount deducted from an individual's benefits is equal to the sum of the deductions for all months in which any such event occurred. [68 FR 40122, July 7, 2003] § 404.428 Earnings in a taxable year. (a) When we apply the annual earnings test to your earnings as a beneficiary under this subpart (see § 404.415), we count all of your earnings (as defined in § 404.429) for all months of your taxable year even though you may not be entitled to benefits during all months of that year. (See § 404.430 for the rule that applies to the earnings of a beneficiary who attains full retirement age (as described in § 404.409(a))). (b) Your taxable year is presumed to be a calendar year until you show to our satisfaction that you have a different taxable year. If you are self-employed, your taxable year is a calendar year unless you have a different taxable year for the purposes of subtitle A of the Internal Revenue Code of 1986. In either case, the number of months in a taxable year is not affected by: (1) The date a claim for Social Security benefits is filed; (2) Attainment of any particular age; (3) Marriage or the termination of marriage; or (4) Adoption. (c) The month of death is counted as a month of the deceased beneficiary's taxable year in determining whether the beneficiary had excess earnings for the year under § 404.430. For beneficiaries who die after November 10, 1988, we use twelve as the number of months to determine whether the beneficiary had excess earnings for the year under § 404.430. (d) Wages, as defined in § 404.429(c), are charged as earnings for the months and year in which you rendered the services. Net earnings or net losses from self-employment count as earnings or losses in the year for which such earnings or losses are reportable for Federal income tax purposes. [70 FR 28811, May 19, 2005] § 404.429 Earnings; defined. (a) General. (b) Net earnings or net loss from self-employment. (1) In this section, the following occupations are included in the definition of “trade or business” (although they may be excluded in subpart K): (i) The performance of the functions of a public office; (ii) The performance of a service of a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by the order; (iii) The performance of service by an individual in the exercise of his or her profession as a Christian Science practitioner; (iv) The performance by an individual in the exercise of his or her profession as a doctor of medicine, lawyer, dentist, osteopath, veterinarian, chiropractor, naturopath, or optometrist. (2) For the sole purpose of the earnings test under this subpart: (i) If you reach full retirement age, as defined in § 404.409(a), on or before the last day of your taxable year, you will have excluded from your gross earnings from self-employment, your royalties attributable to a copyright or patent obtained before the taxable year in which you reach full retirement age; and (ii) If you are entitled to insurance benefits under title II of the Act, other than disability insurance benefits or child's insurance benefits payable by reason of being disabled, we will exclude from gross earnings any self-employment income you received in a year after your initial year of entitlement that is not attributable to services you performed after the first month you became entitled to benefits. In this section, services means any significant work activity you performed in the operation or management of a trade, profession, or business which can be related to the income received. If a part of the income you receive in a year is not related to any significant services you performed after the month of initial entitlement, only that part of your income may be excluded from gross earnings for deduction purposes. We count the balance of the income for deduction purposes. Your royalties or other self-employment income is presumed countable for purposes of the earnings test until it is shown to our satisfaction that such income may be excluded under this section. (3) We do not count as significant services: (i) Actions you take after the initial month of entitlement to sell a crop or product if it was completely produced in or before the month of entitlement. This rule does not apply to income you receive from a trade or business of buying and selling products produced or made by others; for example, a grain broker. (ii) Your activities to protect an investment in a currently operating business or activities that are too irregular, occasional, or minor to be considered as having a bearing on the income you receive, such as— (A) Hiring an agent, manager, or other employee to operate the business; (B) Signing contracts where your signature is required, so long as the major contract negotiations were handled by others in running the business for you; (C) Looking over the company's financial records to assess the effectiveness of those agents, managers, or employees in running the business for you; (D) Personally contacting an old and valued customer solely for the purpose of maintaining good will when such contact has a minimal effect on the ongoing operation of the trade or business; or (E) Occasionally filling in for an agent, manager, or other employee or partner in an emergency. (4) In figuring your net earnings or net loss from self-employment, we count all net income or net loss even though: (i) You did not perform personal services in carrying on the trade or business; (ii) The net profit was less than $400; (iii) The net profit was in excess of the maximum amount creditable to your earnings record; or (iv) The net profit was not reportable for social security tax purposes. (5) Your net earnings from self-employment is the excess of gross income over the allowable business deductions (allowed under the Internal Revenue Code). Net loss from self-employment is the excess of business deductions (that are allowed under the Internal Revenue Code) over gross income. You cannot deduct, from wages or net earnings from self-employment, expenses in connection with the production of income excluded from gross income under paragraph (b)(2)(ii) of this section. (c) Wages. (1) Remuneration in excess of the amounts in the annual wage limitation table in § 404.1047; (2) Wages of less than the amount stipulated in section § 404.1057 that you receive in a calendar year for domestic service in the private home of your employer, or service not in the course of your employer's trade or business; (3) Payments for agricultural labor excluded under § 404.1055; (4) Remuneration, cash and non-cash, for service as a home worker even though the cash remuneration you received is less than the amount stipulated in § 404.1058(a) in a calendar year; (5) Services performed outside the United States in the Armed Forces of the United States. (d) Presumptions concerning wages. [70 FR 28812, May 19, 2005] § 404.430 Monthly and annual exempt amounts defined; excess earnings defined. (a) Monthly and annual exempt amounts. 1/12 (2) We determine the monthly exempt amounts for each year by a method that depends on the type of exempt amount. In each case, the exempt amount so determined must be greater than or equal to the corresponding exempt amount in effect for months in the taxable year in which the exempt amount determination is being made. (i) To calculate the lower exempt amount (the one applicable before the calendar year of attaining full retirement age) for any year after 1994, we multiply $670 (the lower exempt amount for 1994) by the ratio of the national average wage index for the second prior year to that index for 1992. If the amount so calculated is not a multiple of $10, we round it to the nearest multiple of $10 ( i.e. (ii) The higher exempt amount (the one applicable in months of the year of attaining full retirement age (as defined in section 404.409(a)) that precede such attainment) was set by legislation (Public Law 104-121) for years 1996-2002. To calculate the higher exempt amount for any year after 2002, we multiply $2,500 (the higher exempt amount for 2002) by the ratio of the national average wage index for the second prior year to that index for 2000. We round the result as described in paragraph (a)(2)(i) of this section for the lower exempt amount. (iii) The following are the annual and monthly exempt amounts for taxable years 2000 through 2005. Year For years through taxable year preceding year of reaching full retirement age Months of taxable year prior to month of full of retirement age Reduction: $1 for every $2 over the exempt amount Reduction: $1 for every $3 over the exempt amount Annual Monthly Annual Monthly 2000 $10,080 $840 $17,000 $1,417 2001 10,680 890 25,000 2,084 2002 11,280 940 30,000 2,500 2003 11,520 960 30,720 2,560 2004 11,640 970 31,080 2,590 2005 12,000 1,000 31,800 2,650 (b) Method of determining excess earnings for years after December 1999. 1/3 [70 FR 28813, May 19, 2005] § 404.434 Excess earnings; method of charging. (a) Months charged. (b) Amount of excess earnings charged Insured individual's excess earnings. (2) Excess earnings of beneficiary other than insured individual. (3) You, the insured individual, and a person entitled (or deemed entitled) on your earnings record both have excess earnings. (c) Earnings test applicability. [70 FR 28813, May 19, 2005] § 404.435 Excess earnings; months to which excess earnings can or cannot be charged; grace year defined. (a) Monthly benefits payable. (1) Were not entitled to a monthly benefit; (2) Were considered not entitled to benefits (due to non-covered work outside the United States or no child in care, as described in § 404.436); (3) Were at full retirement age (as described in § 404.409(a)); (4) Were entitled to payment of a disability insurance benefit as defined in § 404.315; (see §§ 404.1592 and 404.1592a(b) which describes the work test if you are entitled to disability benefits); (5) Are age 18 or over and entitled to a child's insurance benefit based on disability; (6) Are entitled to a widow's or widower's insurance benefit based on disability; or (7) Had a non-service month in your grace year (see paragraph (b) of this section). A non-service month is any month in which you, while entitled to retirement or survivors benefits: (i) Do not work in self-employment (see paragraphs (c) and (d) of this section); (ii) Do not perform services for wages greater than the monthly exempt amount set for that month (see paragraph (e) of this section and § 404.430); and (iii) Do not work in non-covered remunerative activity on 7 or more days in a month while outside the United States. A non-service month occurs even if there are no excess earnings in the year. (b) Grace year defined. (2) A beneficiary may have another grace year each time his or her entitlement to one type of benefit ends and, after a break in entitlement of at least one month, the beneficiary becomes entitled to a different type of retirement or survivors benefit. The new grace year would then be the taxable year in which the first non-service month occurs after the break in entitlement. (3) For purposes of determining whether a given year is a beneficiary's grace year, we will not count as a non-service month, a month that occurred while the beneficiary was entitled to disability benefits under section 223 of the Social Security Act or as a disabled widow, widower, or child under section 202. (4) A beneficiary entitled to child's benefits, to spouse's benefits before age 62 (entitled only by reason of having a child in his or her care), or to mother's or father's benefits is entitled to a termination grace year in any year the beneficiary's entitlement to these types of benefits terminates. This provision does not apply if the termination is because of death or if the beneficiary is entitled to a Social Security benefit for the month following the month in which the entitlement ended. The beneficiary is entitled to a termination grace year in addition to any other grace year(s) available to him or her. Example 1: Don, age 62, will retire from his regular job in April of next year. Although he will have earned $15,000 for January-April of that year and plans to work part time, he will not earn over the monthly exempt amount after April. Don's taxable year is the calendar year. Since next year will be the first year in which he has a non-service month while entitled to benefits, it will be his grace year and he will be entitled to the monthly earnings test for that year only. He will receive benefits for all months in which he does not earn over the monthly exempt amount (May-December) even though his earnings have substantially exceeded the annual exempt amount. However, in the years that follow, up to the year of full retirement age, only the annual earnings test will be applied if he has earnings that exceed the annual exempt amount, regardless of his monthly earnings amounts. Example 2: Marion was entitled to mother's insurance benefits from 1998 because she had a child in her care. Because she had a non-service month in 1998, 1998 was her initial grace year. Marion's child turned 16 in May 2000, and the child's benefits terminated in April 2000. Marion's entitlement to mother's benefits also terminated in April 2000. Since Marion's entitlement did not terminate by reason of her death and she was not entitled to another type of Social Security benefit in the month after her entitlement to a mother's benefit ended, she is entitled to a termination grace year for 2000, the year in which her entitlement to mother's insurance benefits terminated. She applied for and became entitled to widow's insurance benefits effective February 2001. Because there was a break in entitlement to benefits of at least one month before entitlement to another type of benefit, 2001 will be a subsequent grace year if Marion has a non-service month in 2001. (c) You worked in self-employment. (d) Presumption regarding work in self-employment. (e) Presumption regarding services for wages. [70 FR 28814, May 19, 2005] § 404.436 Excess earnings; months to which excess earnings cannot be charged because individual is deemed not entitled to benefits. Under the annual earnings test, excess earnings (as described in § 404.430) are not charged to any month in which an individual is deemed not entitled to a benefit. A beneficiary ( i.e. (a) Engaging in noncovered remunerative activity outside the United States (as described in §§ 404.417 and 404.418); or (b) Failure to have a child in his or her care (as described in § 404.421). [32 FR 19159, Dec. 20, 1967, as amended at 38 FR 9429, Apr. 16, 1973; 38 FR 17716, July 3, 1973; 43 FR 8133, Feb. 28, 1978; 68 FR 40123, July 7, 2003] § 404.437 Excess earnings; benefit rate subject to deductions because of excess earnings. We will further reduce your benefits (other than a disability insurance benefit) because of your excess earnings (see § 404.430), after your benefits may have been reduced because of the following: (a) The family maximum (see §§ 404.403 and 404.404), which applies to entitled beneficiaries remaining after exclusion of beneficiaries deemed not entitled under § 404.436 (due to a deduction for engaging in non-covered remunerative activity outside the United States or failure to have a child in one's care); (b) Your entitlement to benefits (see § 404.410) for months before you reach full retirement age (see § 404.409(a)) (this applies only to old-age, wife's, widow's, widower's or husband's benefits); (c) Your receipt of benefits on your own earnings record, which reduces (see § 404.407) your entitlement (or deemed entitlement; see § 404.420) to benefits on another individual's earnings record; and (d) Your entitlement to benefits payable (or deemed payable) to you based on the earnings record of an individual entitled to a disability insurance benefit because of that individual's entitlement to workers' compensation (see § 404.408). [70 FR 28814, May 19, 2005] § 404.439 Partial monthly benefits; excess earnings of the individual charged against his benefits and the benefits of persons entitled (or deemed entitled) to benefits on his earnings record. Deductions are made against the total family benefits where the excess earnings (as described in § 404.430) of an individual entitled to old-age insurance benefits are charged to a month and require deductions in an amount less than the total family benefits payable on his earnings record for that month (including the amount of a mother's or child's insurance benefit payable to a spouse who is deemed entitled on the individual's earnings record—see § 404.420). The difference between the total benefits payable and the deductions made under the annual earnings test for such month is paid (if otherwise payable under title II of the Act) to each person in the proportion that the benefit to which each is entitled (before the application of the reductions described in § 404.403 for the family maximum, § 404.407 for entitlement to more than one type of benefit, and section 202(q) of the Act for entitlement to benefits before retirement age) and before the application of § 404.304(f) to round to the next lower dollar bears to the total of the benefits to which all of them are entitled, except that the total amount payable to any such person may not exceed the benefits which would have been payable to that person if none of the insured individual's excess earnings had been charged to that month. Example: A is entitled to an old-age insurance benefit of $165 and his wife is entitled to $82.50 before rounding, making a total of $247.50. After A's excess earnings have been charged to the appropriate months, there remains a partial benefit of $200 payable for October, which is apportioned as follows: Original benefit Fraction of original Benefit 1 A $165 2/3 $133 Wife 82.50 1/3 66 Total 247.50 199 1 [38 FR 9429, Apr. 16, 1973, as amended at 38 FR 17717, July 3, 1973; 43 FR 8133, Feb. 28, 1978; 48 FR 46149, Oct. 11, 1983] § 404.440 Partial monthly benefits; pro-rated share of partial payment exceeds the benefit before deduction for excess earnings. Where, under the apportionment described in § 404.439, a person's prorated share of the partial benefit exceeds the benefit rate to which he was entitled before excess earnings of the insured individual were charged, such person's share of the partial benefit is reduced to the amount he would have been paid had there been no deduction for excess earnings (see example). The remainder of the partial benefit is then paid to other persons eligible to receive benefits in the proportion that the benefit of each such other person bears to the total of the benefits to which all such other persons are entitled (before reduction for the family maximum). Thus, if only two beneficiaries are involved, payment is made to one as if no deduction had been imposed; and the balance of the partial benefit is paid to the other. If three or more beneficiaries are involved, however, reapportionment of the excess of the beneficiary's share of the partial benefit over the amount he would have been paid without the deduction is made in proportion to his original entitlement rate (before reduction for the family maximum). If the excess amount involved at any point totals less than $1, it is not reapportioned; instead, each beneficiary is paid on the basis of the last calculation. Example: Family maximum is $150. Insured individual's excess earnings charged to the month are $25. The remaining $125 is prorated as partial payment. Original benefit Fraction of original total benefit Benefit after deductions for excess earnings but before reduction for family maximum Benefit reduced for maximum but without deductions for excess earnings Benefit payable after both deductions and reductions (and rounded) Insured Individual $100 2 5 50 100.00 75 Wife 50 1 5 25 16.60 16 Child 50 1 5 25 16.60 16 Child 50 1 5 25 16.60 16 [32 FR 19159, Dec. 20, 1967, as amended at 48 FR 46149, Oct. 11, 1983] § 404.441 Partial monthly benefits; insured individual and another person entitled (or deemed entitled) on the same earnings record both have excess earnings. Where both the insured individual and another person entitled (or deemed entitled) on the same earnings record have excess earnings (as described in § 404.430), their excess earnings are charged, and their partial monthly benefit is apportioned, as follows: Example: M and his wife are initially entitled to combined total benefits of $264 per month based on M's old-age insurance benefit of $176. For the taxable year in question, M's excess earnings were $1,599 and his wife's excess earnings were $265. Both were under age 65. M had wages of more than $340 in all months of the year except February, while his wife had wages of more than $340 in all months of the year. After M's excess earnings have been charged to the appropriate months (all months through July except February), there remains a partial benefit payment for August of $249, which is allocated to M and his wife in the ratio that the original benefit of each bears to the sum of their original benefits: $166 and $83. His wife's excess earnings are charged against her full benefit for February ($88), her partial benefit for August ($83), her full benefit for September, and from $6 of her October benefit, leaving an $82 benefit payable to her for that month. [48 FR 46149, Oct. 11, 1983] § 404.446 Definition of “substantial services” and “services.” (a) General. (1) The amount of time the individual devoted to all trades and businesses; (2) The nature of the services rendered by the individual; (3) The extent and nature of the activity performed by the individual before he allegedly retired as compared with that performed thereafter; (4) The presence or absence of an adequately qualified paid manager, partner, or family member who manages the business; (5) The type of business establishment involved; (6) The amount of capital invested in the trade or business; and (7) The seasonal nature of the trade or business. (b) Individual engaged in more than one trade or business. (c) Evidentiary requirements. [32 FR 19159, Dec. 20, 1967, as amended at 47 FR 46691, Oct. 20, 1982] § 404.447 Evaluation of factors involved in substantial services test. In determining whether an individual's services are substantial, consideration is given to the following factors: (a) Amount of time devoted to trades or businesses. (1) Forty-five hours or less in a month devoted to trade or business. (2) More than 45 hours in a month devoted to trades and businesses. (b) Nature of services rendered. (c) Comparison of services rendered before and after retirement. retirement, (d) Setting in which services performed. § 404.450 Required reports of work outside the United States or failure to have care of a child. (a) Beneficiary engaged in noncovered remunerative activity; report by beneficiary. (b) Beneficiary receiving wife's, husband's, mother's or father's insurance benefits does not have care of a child; report by beneficiary. (c) Report required by person receiving benefits on behalf of another. (d) Report; content and form. [32 FR 19159, Dec. 20, 1967, as amended at 49 FR 24117, June 12, 1984; 51 FR 10616, Mar. 28, 1986; 65 FR 16813, Mar. 30, 2000] § 404.451 Penalty deductions for failure to report within prescribed time limit noncovered remunerative activity outside the United States or not having care of a child. (a) Penalty for failure to report. (b) Determining amount of penalty deduction. (1) First failure to make timely report. (2) Second failure to make timely report. (3) Subsequent failures to make timely reports. (c) Determining whether a failure to file a timely report is first, second, third, or subsequent failure Failure period. good cause (2) First failure. good cause (3) Second failure. (4) Third and subsequent failures. Example: M became entitled in January 1966 to mother's benefits; these benefits are not payable for any month in which the mother does not have a child in her care. M accepted benefits for each month from January 1966 through June 1967. In July 1967 she reported that she had not had a child in her care in January 1967. As she was not eligible for a benefit for any month in which she did not have a child in her care, M's July 1967 benefit was withheld to recover the overpayment she had received for January 1967, and the next payment she received was for August 1967. No penalty was imposed for her failure to make a timely report of the deduction event that occurred in January 1967 because it was determined that good cause In March 1968 M reported that she had not had a child in her care in September or October 1967; however, she had accepted benefit payments for each month from August 1967 through February 1968. Her benefits for March and April 1968 were withheld to recover the overpayment for September and October 1967. Also, it was determined that good cause first failure On November 4, 1968, it was learned that M had not had a child in her care in November 1967 or in June, July, or August 1968 although she had accepted benefits for June through October 1968. Consequently, M's benefits for November 1968 through February 1969 were withheld to recover the 4 months' overpayment she received for months in which she did not have a child in her care. In addition, it was determined that good cause second failure first-failure (5) Penalty deductions imposed under § 404.453 not considered. (d) Limitation on amount of penalty deduction. [38 FR 3596, Feb. 8, 1973, as amended at 38 FR 9430, Apr. 16, 1973] § 404.452 Reports to Social Security Administration of earnings; wages; net earnings from self-employment. (a) Reporting requirements and conditions under which a report of earnings, that is, wages and/or net earnings from self-employment, is required. (2) If your wages and/or net earnings from self-employment in any month(s) of the year are below the allowable amount (see §§ 404.446 and 404.447), your report should include this information in order to establish your grace year (see § 404.435) and possible eligibility for benefits for those months. (3) Your report to us for a taxable year should be filed on or before the 15th day of the fourth month following the close of the taxable year; for example, April 15 when the beneficiary's taxable year is a calendar year. An income tax return or form W-2, filed timely with the Internal Revenue Service, may serve as the report required to be filed under the provisions of this section, where the income tax return or form W-2 shows the same wages and/or net earnings from self-employment that must be reported to us. Although we may accept W-2 information and special payment information from employers, you still have primary responsibility for making sure that the earnings we use for deduction purposes are correct. If there is a valid reason for a delay, we may grant you an extension of up to 4 months to file this report. (4) You are not required to report to us if: (i) You reached full retirement age before the first month of your entitlement to benefits; or (ii) Your benefit payments were suspended under the provisions described in § 404.456 for all months of a taxable year before the year of full retirement age, or for all months prior to your full retirement age in the full retirement age year, unless you are entitled to benefits as an auxiliary or survivor and your benefits are reduced for any month in the taxable year because of earnings and there is another person entitled to auxiliary or survivor's benefits on the same record, but living in a different household. (b) Report required by person receiving benefits on behalf of another. (c) Information required. (d) Requirement to furnish requested information. (e) Extension of time for filing report Request for extension to file report. (2) Evidence that extension of time has been granted. [70 FR 28815, May 19, 2005] § 404.453 Penalty deductions for failure to report earnings timely. (a) Penalty for failure to report earnings; general. (1) He fails to make a timely report of his earnings as specified in § 404.452 for a taxable year beginning after 1954; (2) It is found that good cause for failure to report earnings timely (see § 404.454) does not exist; (3) A deduction is imposed because of his earnings (see § 404.415) for that year; and (4) He received and accepted any payment of benefits for that year. (b) Determining amount of penalty deduction. (1) First failure to file timely report. (2) Second failure to file timely report. (3) Subsequent failures to file timely reports. (c) Determining whether a failure to file a timely report is first, second, or subsequent failure No prior failure. good cause Example: X became entitled to benefits in 1964 and had reportable earnings for 1964, 1965, and 1966. He did not make his annual reports for those years until July 1967. At that time it was found that 1966 was the only year for which he has good cause for not making a timely report of his earnings. Since all taxable years for which a report is overdue as of the date of the first delinquent report are included in the first failure period, it was found that his first failure to make a timely report was for 1965. The penalty is equal to his December 1965 benefit rate. If good cause had also been found for both 1965 and 1964, then X would have no prior failure (2) Second and subsequent failures. good cause Example: Y incurred a penalty deduction for not making his 1963 annual report until July 1964. In August 1966 it was found that he had not made a timely report of either his 1964 or 1965 earnings, and good cause was not present with respect to either year. The penalty for 1964 is equal to twice his benefit rate for December 1964. The penalty for 1965 is equal to three times his benefit rate for December 1965. (3) Penalty deduction imposed under § 404.451 not considered. (d) Limitation on amount of penalty deduction. [32 FR 19159, Dec. 20, 1967, as amended at 38 FR 3597, Feb. 8, 1973; 38 FR 9431, Apr. 16, 1973] § 404.454 Good cause for failure to make required reports. (a) General. good cause (1) Serious illness of the individual, or death or serious illness in his immediate family; (2) Inability of the individual to obtain, within the time required to file the report, earnings information from his employer because of death or serious illness of the employer or one in the employer's immediate family; or unavoidable absence of his employer; or destruction by fire or other damage of the employer's business records; (3) Destruction by fire, or other damage, of the individual's business records; (4) Transmittal of the required report within the time required to file the report, in good faith to another Government agency even though the report does not reach the Administration until after the period for reporting has expired; (5) Unawareness of the statutory provision that an annual report of earnings is required for the taxable year in which the individual attained age 72 provided his earnings for such year exceeded the applicable amount, e.g., $1,680 for a 12-month taxable year ending after December 1967; (6) Failure on the part of the Administration to furnish forms in sufficient time for an individual to complete and file the report on or before the date it was due, provided the individual made a timely request to the Administration for the forms; (7) Belief that an extension of time for filing income tax returns granted by the Internal Revenue Service was also applicable to the annual report to be made to the Social Security Administration; (8) Reliance upon a written report to the Social Security Administration made by, or on behalf of, the beneficiary before the close of the taxable year, if such report contained sufficient information about the beneficiary's earnings or work, to require suspension of his benefits (see § 404.456) and the report was not subsequently refuted or rescinded; or (9) Failure of the individual to understand reporting responsibilities due to his or her physical, mental, educational, or linguistic limitation(s). (b) Notice of determination. (c) Good cause for subsequent failure. [38 FR 3597, Feb. 8, 1973, as amended at 43 FR 8133, Feb. 28, 1978; 59 FR 1634, Jan. 12, 1994] § 404.455 Request by Social Security Administration for reports of earnings and estimated earnings; effect of failure to comply with request. (a) Request by Social Security Administration for report during taxable year; effect of failure to comply. (b) Request by Social Security Administration for report after close of taxable year; failure to comply. [56 FR 11373, Mar. 18, 1991] § 404.456 Current suspension of benefits because an individual works or engages in self-employment. (a) Circumstances under which benefit payments may be suspended. (b) Duration of suspension. (c) When suspension of benefits becomes final. [32 FR 19159, Dec. 20, 1967, as amended at 65 FR 16813, Mar. 30, 2000] § 404.457 Deductions where taxes neither deducted from wages of certain maritime employees nor paid. (a) When deduction is required. (1) An individual performed services after September 1941 and before the termination of Title I of the First War Powers Act, 1941, on or in connection with any vessel as an officer or crew member; and (2) The services were performed in the employ of the United States and employment was through the War Shipping Administration or, for services performed before February 11, 1942, through the United States Maritime Commission; and (3) The services, under the provisions of § 404.1041 of this part, constituted employment for the purposes of title II of the Social Security Act; and (4) The taxes imposed (by section 1400 of the Internal Revenue Code of 1939, as amended) with respect to such services were neither deducted from the individual's wages nor paid by the employer. (b) Amount of deduction. (c) How deduction is made. [32 FR 19159, Dec. 20, 1967, as amended at 65 FR 16813, Mar. 30, 2000] § 404.458 Limiting deductions where total family benefits payable would not be affected or would be only partly affected. Notwithstanding the provisions described in §§ 404.415, 404.417, 404.421, 404.451, and 404.453 about the amount of the deduction to be imposed for a month, no such deduction is imposed for a month when the benefits payable for that month to all persons entitled to benefits on the same earnings record and living in the same household remain equal to the maximum benefits payable to them on that earnings record. Where making such deductions and increasing the benefits to others in the household (for the month in which the deduction event occurred) would give members of the household less than the maximum [47 FR 43673, Oct. 4, 1982, as amended at 68 FR 15659, Apr. 1, 2003; 68 FR 40123, July 7, 2003] § 404.459 Penalty for making false or misleading statements or withholding information. (a) Why would SSA penalize me? (1) You make, or cause to be made, a statement or representation of a material fact, for use in determining any initial or continuing right to, or the amount of, monthly insurance benefits under title II or benefits or payments under title XVI, that you know or should know is false or misleading; or (2) You make a statement or representation of a material fact for use as described in paragraph (a)(1) of this section with knowing disregard for the truth; or (3) You omit from a statement or representation made for use as described in paragraph (a)(1) of this section, or otherwise withhold disclosure (for example, fail to come forward to notify us) of, a fact which you know or should know is material to the determination of any initial or continuing right to, or the amount of, monthly insurance benefits under title II or benefits or payments under title XVI, if you know, or should know, that the statement or representation with such omission is false or misleading or that the withholding of such disclosure is misleading. (b) What is the penalty? (c) How long will the penalty last? (1) Six consecutive months the first time we penalize you; (2) Twelve consecutive months the second time we penalize you; and (3) Twenty-four consecutive months the third or subsequent time we penalize you. (d) Will this penalty affect any of my other government benefits? (1) Your eligibility for benefits that you would otherwise be eligible for under titles XVIII and XIX but for the imposition of the penalty; and (2) The eligibility or amount of benefits payable under titles II or XVI to another person. For example, another person (such as your spouse or child) may be entitled to benefits under title II based on your earnings record. Benefits would still be payable to that person to the extent that you would be receiving such benefits but for the imposition of the penalty. As another example, if you are receiving title II benefits that are limited under the family maximum provision (§ 404.403) and we stop your benefits because we impose a penalty on you, we will not increase the benefits of other family members who are limited by the family maximum provision simply because you are not receiving benefits because of the penalty. (e) How will SSA make its decision to penalize me? (f) What should I do if I disagree with SSA's initial determination to penalize me? (g) When will the penalty period begin and end? (1) If you do not request reconsideration of our initial determination to penalize you, the penalty period will begin no earlier than the first day of the second month following the month in which the time limit for requesting reconsideration ends. The penalty period will end on the last day of the final month of the penalty period. For example, if the time period for requesting reconsideration ends on January 10, a 6-month period of nonpayment begins on March 1 if you would otherwise be eligible to receive benefits for that month, and ends on August 31. (2) If you request reconsideration of our initial determination to penalize you and the reconsidered determination does not change our original decision to penalize you, the penalty period will begin no earlier than the first day of the second month following the month we notify you of our reconsidered determination. The penalty period will end on the last day of the final month of the penalty period. For example, if we notify you of our reconsidered determination on August 31, 2001, and you are not otherwise eligible for payment of benefits at that time, but would again be eligible to receive payment of benefits on October 1, 2003, a 6-month period of nonpayment would begin on October 1, 2003 and end on March 31, 2004. [65 FR 42285, July 10, 2000, as amended at 71 FR 61407, Oct. 18, 2006] § 404.460 Nonpayment of monthly benefits to aliens outside the United States. (a) Nonpayment of monthly benefits to aliens outside the United States more than 6 months. (1) For nonpayment of benefits under this section, it is necessary that the beneficiary be an alien, and while an alien, be outside the United States for more than six full consecutive calendar months. In determining whether, at the time of a beneficiary's initial entitlement to benefits, he or she has been outside the United States for a period exceeding six full consecutive calendar months, not more than the six calendar months immediately preceding the month of initial entitlement may be considered. For the purposes of this section, outside the United States (2) Effective with 6-month periods beginning after January 2, 1968, after an alien has been outside the United States for any period of 30 consecutive days, he is deemed to be outside the United States continuously until he has returned to the United States and remained in the United States for a period of 30 consecutive days. (3) Payments which have been discontinued pursuant to the provisions of this section will not be resumed until the alien beneficiary has been in the United States for a full calendar month. A full calendar month includes 24 hours of each day of the calendar month. (4) Nonpayment of benefits to an individual under this section does not cause nonpayment of benefits to other persons receiving benefits based on the individual's earnings record. Example: R, an alien, leaves the United States on August 15, 1967, and returns on February 1, 1968. He leaves again on February 15, 1968, and does not return until May 15, 1968, when he spends 1 day in the United States. He has been receiving monthly benefits since July 1967. R's first 6-month period of absence begins September 1, 1967. Since this period begins before January 2, 1968, his visit (Feb. 1, 1968, to Feb. 15, 1968) to the United States for less than 30 consecutive days is sufficient to break this 6-month period. R's second 6-month period of absence begins March 1, 1968. Since this period begins after January 2, 1968, and he was outside the United States for 30 consecutive days, he must return and spend 30 consecutive days in the United States prior to September 1, 1968, to prevent nonpayment of benefits beginning September 1968. If R fails to return to the United States for 30 consecutive days prior to September 1, 1968, payments will be discontinued and will not be resumed until R spends at least 1 full calendar month in the United States. (b) When nonpayment provisions do not apply. (1) The individual was, or upon application would have been, entitled to a monthly benefit for December 1956, based upon the same earnings record; or (2)(i) The individual upon whose earnings the benefit is based, before that month, has resided in the United States for a period or periods aggregating 10 years or more or has earned not less than 40 quarters of coverage; (ii) Except that, effective with July 1968, § 404.460(b)(2)(i) does not apply if: (A) The beneficiary is a citizen of a country with a social insurance or pension system meeting the conditions described in paragraphs (b)(7)(i), (ii), and (iii) of this section but does not meet the condition described in paragraph (b)(7)(iv) of this section; or (B) The beneficiary is a citizen of a country with no social insurance or pension system of general application and at any time within 5 years before January 1968 (or the first month after December 1967 in which benefits are subject to suspension pursuant to paragraph (a) of this section) such beneficiary was residing in a country to which payments were withheld by the Treasury Department pursuant to Vol. II, 31 U.S.C. 3329. See (iii) For purposes of this subparagraph a period of residence begins with the day the insured individual arrives in the United States with the intention of establishing at least a temporary home here; it continues so long as he maintains an attachment to an abode in the United States, accompanied by actual physical presence in the United States for a significant part of the period; and ends with the day of departure from the United States with the intention to reside elsewhere; or (3) The individual is outside the United States while in the active military or naval service of the United States; or (4) The individual on whose earnings the benefit is based died before that month and: (i) Death occurred while the individual was on active duty or inactive duty training as a member of a uniformed service, or (ii) Death occurred after the individual was discharged or released from a period of active duty or inactive duty training as a member of a uniformed service, and the Administrator of Veterans' Affairs determines, and certifies to the Commissioner, that the discharge or release was under conditions other than dishonorable and that death was as a result of a disease or injury incurred or aggravated in line of duty while on active duty or inactive duty training; or (5) The individual on whose earnings record the benefit is based worked in service covered by the Railroad Retirement Act, and such work is treated as employment covered by the Social Security Act under the provisions described in subpart O of this part; or (6) The nonpayment of monthly benefits under the provisions described in paragraph (a) of this section would be contrary to a treaty obligation of the United States in effect on August 1, 1956 (see § 404.463(b)); or (7) The individual is a citizen of a foreign country that the Commissioner determines has in effect a social insurance or pension system (see § 404.463) which meets all of the following conditions: (i) Such system pays periodic benefits or the actuarial equivalent thereof; and (ii) The system is of general application; and (iii) Benefits are paid in this system on account of old age, retirement, or death; and (iv) Individuals who are citizens of the United States but not citizens of the foreign country and who qualify for such benefits are permitted to receive benefits without restriction or qualification, at their full rate, or the actuarial equivalent thereof, while outside of the foreign country and without regard to the duration of their absence therefrom. (c) Nonpayment of monthly benefits to aliens residing in certain countries Benefits for months after June 1968. (2) Benefits for months before July 1968. (i) To any person other than such individual, or, if such individual dies before such benefits can be paid, to any person other than an individual who was entitled for the month in which the deceased individual died (with the application of section 202(j)(1) of the Social Security Act) to a monthly benefit under title II of such Act on the basis of the same wages and self-employment income as such deceased individual; or (ii) In excess of an amount equal to the amount of the last 12 months' benefits that would have been payable to such individual. (3) List of countries under Treasury Department alien payment restriction. Federal Register (d) Nonpayment of monthly benefits to certain aliens entitled to benefits on a worker's earnings record. (1) An alien entitled to benefits as a child of a living or deceased worker— (i) Must have resided in the U.S. for 5 or more years as the child of the parent on whose earnings record entitlement is based; or (ii) The parent on whose earnings record the child is entitled and the other parent, if any, must each have either resided in the United States for 5 or more years or died while residing in the U.S. (2) An alien who meets the requirements for child's benefits based on paragraph (d)(1) of this section above, whose status as a child is based on an adoptive relationship with the living or deceased worker, must also— (i) Have been adopted within the United States by the worker on whose earnings record the child's entitlement is based; and (ii) Have lived in the United States with, and received one-half support from, the worker for a period, beginning prior to the child's attainment of age 18, of (A) At least one year immediately before the month in which the worker became eligible for old-age benefits or disability benefits or died (whichever occurred first), or (B) If the worker had a period of disability which continued until the worker's entitlement to old-age or disability benefits or death, at least one year immediately before the month in which that period of disability began. (3) An alien entitled to benefits as a spouse, surviving spouse, divorced spouse, surviving divorced spouse, or surviving divorced mother or father must have resided in the United States for 5 or more years while in a spousal relationship with the person on whose earnings record the entitlement is based. The spousal relationship over the required period can be that of wife, husband, widow, widower, divorced wife, divorced husband, surviving divorced wife, surviving divorced husband, surviving divorced mother, surviving divorced father, or a combination of two or more of these categories. (4) An alien who is entitled to parent's benefits must have resided in the United States for 5 or more years as a parent of the person on whose earnings record the entitlement is based. (5) Individuals eligible for benefits before January 1, 1985 (including those eligible for one category of benefits on a particular worker's earnings record after December 31, 1984, but also eligible for a different category of benefits on the same worker's earnings record before January 1, 1985), will not have to meet the residency requirement. (6) Definitions applicable to paragraph (d) of this section are as follows: Eligible for benefits Other parent other parent. other parent Resided in the United States (7) The provisions described in paragraph (d) of this section shall not apply if the beneficiary is a citizen or resident of a country with which the United States has a totalization agreement in force, except to the extent provided by that agreement. [32 FR 19159, Dec. 20, 1967, as amended at 34 FR 13366, Aug. 19, 1969; 52 FR 8249, Mar. 17, 1987; 52 FR 26145, July 13, 1987; 60 FR 17445, Apr. 6, 1995; 62 FR 38450, July 18, 1997; 69 FR 51555, Aug. 20, 2004; 74 FR 48856, Sept. 25, 2009; 83 FR 21709, May 10, 2018] § 404.461 Nonpayment of lump sum after death of alien outside United States for more than 6 months. Where an individual dies outside the United States after January 1957 and no monthly benefit was or could have been paid to him for the month preceding the month in which he died because of the provisions described in § 404.460, no lump-sum death payment may be made upon the basis of the individual's earnings record. § 404.462 Nonpayment of hospital and medical insurance benefits of alien outside United States for more than 6 months. No payments may be made under part A (hospital insurance benefits) of title XVIII for items or services furnished to an individual in any month for which the prohibition described in § 404.460 against payment of benefits to an individual outside the United States for more than six full consecutive calendar months is applicable (or would be if he were entitled to any such benefits). Also, no payments may be made under part B (supplementary medical insurance benefits) of title XVIII for expenses incurred by an individual during any month the individual is not paid a monthly benefit by reason of the provisions described in § 404.460 or for which no monthly benefit would be paid if he were otherwise entitled thereto. § 404.463 Nonpayment of benefits of aliens outside the United States; “foreign social insurance system,” and “treaty obligation” exceptions defined. (a) Foreign social insurance system exception. (1) Social insurance or pension system. social insurance system social insurance system pension system (2) In effect. in effect. in effect (3) General application. of general application (4) Periodic benefit or actuarial equivalent. periodic benefit Actuarial equivalent (5) Benefits payable on account of old age, retirement, or death. on account of old age, retirement, or death, (6) System under which U.S. citizens who qualify may receive payment while outside the foreign country. (7) List of countries which meet the social insurance or pension system exception in section 202(t)(2) of the act. Federal Register. Antigua and Barbuda (effective November 1981) Argentina (effective July 1968) Austria (except from January 1958 through June 1961) Bahamas, Commonwealth of the (effective October 1974) Barbados (effective July 1968) Belgium (effective July 1968) Belize (effective September 1981) Bolivia Brazil Burkina Faso, Republic of (formerly Upper Volta) Canada (effective January 1966) Chile Colombia (effective January 1967) Costa Rica (effective May 1962) Cyprus (effective October 1964) Czechoslovakia (effective July 1968) Denmark (effective April 1964) Dominica (effective November 1978) Dominican Republic (effective November 1984) Ecuador El Salvador (effective January 1969) Finland (effective May 1968) France (effective June 1968) Gabon (effective June 1964) Grenada (effective April 1983) Guatemala (effective October 1978) Guyana (effective September 1969) Iceland (effective December 1980) Ivory Coast Jamaica (effective July 1968) Liechtenstein (effective July 1968) Luxembourg Malta (effective September 1964) Mexico (effective March 1968) Monaco Netherlands (effective July 1968) Nicaragua (effective May 1986) Norway (effective June 1968) Panama Peru (effective February 1969) Philippines (effective June 1960) Poland (effective March 1957) Portugal (effective May 1968) San Marino (effective January 1965) Spain (effective May 1966) St. Christopher and Nevis (effective September 1983) St. Lucia (effective August 1984) Sweden (effective July 1966) Switzerland (effective July 1968) Trinidad and Tobago (effective July 1975) Trust Territory of the Pacific Islands (Micronesia) (effective July 1976) Turkey United Kingdom Western Samoa (effective August 1972) Yugoslavia Zaire (effective July 1961) (formerly Congo (Kinshasa)) (b) The “treaty obligation” exception. [32 FR 19159, Dec. 20, 1967, as amended at 43 FR 2628, Jan. 18, 1978; 52 FR 8249, Mar. 17, 1987] § 404.464 How does deportation or removal from the United States affect the receipt of benefits? (a) Old-age or disability insurance benefits. (i) Deported under the provisions of section 241(a) of the Immigration and Nationality Act (INA) that were in effect before April 1, 1997, unless your deportation was under: (A) Paragraph (1)(C) of that section; or (B) Paragraph (1)(E) of that section and we received notice of your deportation under this paragraph before March 3, 2004; (ii) Removed as deportable under the provisions of section 237(a) of the INA as in effect beginning April 1, 1997, unless your removal was under: (A) Paragraph (1)(C) of that section; or (B) Paragraph (1)(E) of that section and we received notice of your removal under this paragraph before March 3, 2004; or (iii) Removed as inadmissible under the provisions of section 212(a)(6)(A) of the INA as in effect beginning April 1, 1997. (2) Benefits that cannot be paid to you because of your deportation or removal under paragraph (a)(1) of this section may again be payable for any month subsequent to your deportation or removal that you are lawfully admitted to the United States for permanent residence. You are considered lawfully admitted for permanent residence as of the month you enter the United States with permission to reside here permanently. (b) Dependents or survivors benefits. (1) You are a U.S citizen; or (2) You were present in the United States for the entire month. (This means you were not absent from the United States for any period during the month, no matter how short.) (c) Lump sum death payment. (1) In or after the month we receive from the Secretary of Homeland Security or the Attorney General of the United States notice of his or her deportation or removal under the provisions of the INA specified in paragraph (a)(1) of this section (excluding the exceptions under paragraphs (a)(1)(i)(A) and (B) and (ii)(A) and (B) of this section); and (2) Before the month in which the deceased person was thereafter lawfully admitted to the United States for permanent residence. [70 FR 16411, Mar. 31, 2005] § 404.465 Conviction for subversive activities; effect on monthly benefits and entitlement to hospital insurance benefits. (a) Effect of conviction. (1) Any wages paid to such individual, or to any other individual, in the calendar quarter in which such conviction occurred or in any prior calendar quarter, and (2) Any net earnings from self-employment derived by the individual, or any other individual, during the taxable year in which the conviction occurred or during any prior taxable year. (b) Recalculation of benefit. (c) Effect of pardon. § 404.466 Conviction for subversive activities; effect on enrollment for supplementary medical insurance benefits. An individual may not enroll under part B (supplementary medical insurance benefits) of title XVIII if he has been convicted of any offense described in § 404.465. § 404.467 Nonpayment of benefits; individual entitled to disability insurance benefits or childhood disability benefits based on statutory blindness is engaging in substantial gainful activity. (a) Disability insurance benefits. statutory blindness, (b) Childhood disability benefits. [39 FR 43715, Dec. 18, 1974, as amended at 51 FR 10616, Mar. 28, 1986] § 404.468 Nonpayment of benefits to prisoners. (a) General. (b) Felonious offenses. (1) It is a felony under applicable law: or (2) In a jurisdiction which does not classify any crime as a felony, it is an offense punishable by death or imprisonment for a term exceeding one year. (c) Confinement. (d) Vocational rehabilitation exception. [49 FR 48182, Dec. 11, 1984, as amended at 62 FR 38450, July 18, 1997] § 404.469 Nonpayment of benefits where individual has not furnished or applied for a Social Security number. No monthly benefits will be paid to an entitled individual unless he or she either furnishes to the Social Security Administration (SSA) satisfactory proof of his or her Social Security number, or, if the individual has not been assigned a number, he or she makes a proper application for a number (see § 422.103). An individual submits satisfactory proof of his or her Social Security number by furnishing to SSA the number and sufficient additional information that can be used to determine whether that Social Security number or another number has been assigned to the individual. Sufficient additional information may include the entitled individual's date and place of birth, mother's maiden name, and father's name. If the individual does not know his or her Social Security number, SSA will use this additional information to determine the Social Security number, if any, that it assigned to the individual. This rule applies to individuals who become entitled to benefits beginning on or after June 1, 1989. [56 FR 41789, Aug. 23, 1991] § 404.471 Nonpayment of disability benefits for trial work period service months upon a conviction of fraudulently concealing work activity. (a) Nonpayment of benefits during the trial work period. (b) Concealment of work activity. (1) You provide false information to us concerning the amount of earnings you received or are receiving for a particular period; (2) You received or are receiving disability benefits while engaging in work activity under another identity (this would include working under another social security number or a forged social security number); or (3) You take other actions to conceal work activity with the intent of fraudulently obtaining benefits in excess of amounts that are due. [71 FR 66866, Nov. 17, 2006] Subpart F—Overpayments, Underpayments, Waiver of Adjustment or Recovery of Overpayments, and Liability of a Certifying Officer Authority: Secs. 204, 205(a), 702(a)(5), and 1147 of the Social Security Act (42 U.S.C. 404, 405(a), 902(a)(5), and 1320b-17); 31 U.S.C. 3711; 31 U.S.C. 3716; 31 U.S.C. 3720A. § 404.501 General applicability of section 204 of the Act. (a) In general. overpayment pandemic period underpayment (1) A reduction required under section 202(j)(1), 202(k)(3), 203(a), or 205(n) of the Act is not made, or (2) An increase or decrease required under section 202(d)(2), or 215 (f) or (g) of the Act is not made, or (3) A deduction required under section 203(b) (as may be modified by the provisions of section 203(h)), 203(c), 203(d), 203(i), 222(b), or 223(a)(1)(D) of the Act or section 907 of the Social Security Amendments of 1939 is not made, or (4) A suspension required under section 202(n) or 202(t) of the Act is not made, or (5) A reduction under section 202(q) of the Act is not made, or (6) A reduction, increase, deduction, or suspension is made which is either more or less than required, or (7) A payment in excess of the amount due under title XVIII of the Act was made to or on behalf of an individual (see 42 CFR 405.350 through 405.351) entitled to benefits under title II of the Act, or (8) A payment of past due benefits is made to an individual and such payment had not been reduced by the amount of attorney's fees payable directly to an attorney under section 206 of the Act (see § 404.977). (9) A reduction under § 404.408b is made which is either more or less than required. (b) Payments made on the basis of an erroneous report of death. (c) Payments made by direct deposit to a financial institution. [34 FR 14887, Sept. 27, 1969, as amended at 44 FR 34942, June 18, 1979; 47 FR 4988, Feb. 3, 1982; 48 FR 46149, Oct. 11, 1983; 55 FR 7313, Mar. 1, 1990; 85 FR 52914, Aug. 27, 2020] § 404.502 Overpayments. Upon determination that an overpayment has been made, adjustments will be made against monthly benefits and lump sums as follows: (a) Individual overpaid is living. (2) If any other individual is entitled to benefits for any month on the basis of the same earnings as the overpaid individual, except as adjustment is to be effected pursuant to paragraphs (c) and (d) of this section by withholding a part of the monthly benefit of either the overpaid individual or any other individual entitled to benefits on the basis of the same earnings, no benefit for any month will be paid on such earnings to such other individual until an amount equal to the amount of the overpayment has been withheld or refunded. (3) If a representative payee receives a payment on behalf of a beneficiary after that beneficiary dies, the representative payee or his estate is solely liable for repaying the overpayment. If the representative payee is entitled to a monthly benefit or a lump sum under title II of the Act at the time we determine that an overpayment exists or at any time thereafter, except as provided in paragraphs (c) and (d) of this section, we will not pay the monthly benefits or the lump sum to the representative payee until the amount of the overpayment has been repaid. We will make such adjustments against any monthly benefit or lump sum under title II of the Act to which the representative payee is entitled whether payable on the basis of such representative payee's earnings or the earnings of another individual. (b) Individual overpaid dies before adjustment. (1) Payment by the estate of the deceased overpaid individual, (2) Withholding of amounts due the estate of such individual under title II of the Act, (3) Withholding a lump sum or monthly benefits due any other individual on the basis of the same earnings which were the basis of the overpayment to the deceased overpaid individual, or (4) Any combination of the amount above. (5) The methods in paragraphs (b)(1) and (b)(2) of this section for overpayments owed by a representative payee for payments made after the beneficiary's death. We will not recover such overpayments from any person other than the individual who was representative payee or his estate, but we may recover these overpayments from such other person under § 404.503(b). (c) Adjustment by withholding part of a monthly benefit. defeat the purpose of title II, i.e. (2) Adjustment as provided by this paragraph will not be available if the overpayment was caused by the individual's intentional false statement or representation, or willful concealment of, or deliberate failure to furnish, material information. In such cases, recovery of the overpayment will be accomplished as provided in paragraph (a) of this section. (d) Individual overpaid enrolled under supplementary insurance plan. [35 FR 5943, Apr. 10, 1970, as amended at 44 FR 20653, Apr. 6, 1979; 73 FR 65542, Nov. 4, 2008] § 404.502a Notice of right to waiver consideration. Whenever an initial determination is made that more than the correct amount of payment has been made, and we seek adjustment or recovery of the overpayment, the individual from whom we are seeking adjustment or recovery is immediately notified. The notice includes: (a) The overpayment amount and how and when it occurred; (b) A request for full, immediate refund, unless the overpayment can be withheld from the next month's benefit; (c) The proposed adjustment of benefits if refund is not received within 30 days after the date of the notice and adjustment of benefits is available; (d) An explanation of the availability of a different rate of withholding when full withholding is proposed, installment payments when refund is requested and adjustment is not currently available, and/or cross-program recovery when refund is requested and the individual is receiving another type of payment from SSA (language about cross-program recovery is not included in notices sent to individuals in jurisdictions where this recovery option is not available); (e) An explanation of the right to request waiver of adjustment or recovery and the automatic scheduling of a file review and pre-recoupment hearing (commonly referred to as a personal conference) if a request for waiver cannot be approved after initial paper review; (f) An explanation of the right to request reconsideration of the fact and/or amount of the overpayment determination; (g) Instructions about the availability of forms for requesting reconsideration and waiver; (h) An explanation that if the individual does not request waiver or reconsideration within 30 days of the date of the overpayment notice, adjustment or recovery of the overpayment will begin; (i) A statement that an SSA office will help the individual complete and submit forms for appeal or waiver requests; and (j) A statement that the individual receiving the notice should notify SSA promptly if reconsideration, waiver, a lesser rate of withholding, repayment by installments or cross-program adjustment is wanted. [61 FR 56131, Oct. 31, 1996] § 404.503 Underpayments. Underpayments will be adjusted as follows: (a) Individual underpaid is living. (b) Individual dies before adjustment of underpayment. (1) The deceased individual's surviving spouse as defined in section 216(c), (g), or (h) of the Act who was either: (i) Living in the same household (as defined in § 404.347) with the deceased individual at the time of such individual's death, or (ii) Entitled to a monthly benefit on the basis of the same earnings record as was the deceased individual for the month in which such individual died. (2) The child or children of the deceased individual (as defined in section 216 (e) or (h) of the Act) entitled to a monthly benefit on the basis of the same earnings record as was the deceased individual for the month in which such individual died (if more than one such child, in equal shares to each such child). (3) The parent or parents of the deceased individual, entitled to a monthly benefit on the basis of the same earnings record as was the deceased individual for the month in which such individual died (if more than one such parent, in equal shares to each such parent). For this purpose, the definition of “parent” in § 404.374 includes the parent(s) of any deceased individual who was entitled to benefits under title II of the Act. (4) The surviving spouse of the deceased individual (as defined in section 216(c), (g), or (h) of the Act) who does not qualify under paragraph (b)(1) of this section. (5) The child or children of the deceased individual (as defined in section 216 (e) or (h) of the Act) who do not qualify under paragraph (b)(2) of this section (if more than one such child, in equal shares to each such child). (6) The parent or parents of the deceased individual, who do not qualify under paragraph (b)(3) of this section (if more than one such parent, in equal shares to each such parent). For this purpose, the definition of “parent” in § 404.374 includes the parent(s) of any deceased individual who was entitled to benefits under title II of the Act. (7) The legal representative of the estate of the deceased individual as defined in paragraph (d) of this section. (c) In the event that a person who is otherwise qualified to receive an underpayment under the provisions of paragraph (b) of this section, dies before receiving payment or before negotiating the check or checks representing such payment, his share of the underpayment will be divided among the remaining living person(s) in the same order of priority. In the event that there is (are) no other such person(s), the underpayment will be paid to the living person(s) in the next lower order of priority under paragraph (b) of this section. (d) Definition of legal representative. legal representative, (1) A person who qualifies under a State's small estate (2) A person resident in a foreign country who, under the laws and customs of that country, has the right to receive assets of the estate, (3) A public administrator, or (4) A person who has the authority, under applicable law, to collect the assets of the estate of the deceased individual. (e) Definition of “good acquittance.” good acquittance [34 FR 14487, Sept. 27, 1969, as amended at 35 FR 14129, Sept. 5, 1970; 55 FR 7313, Mar. 1, 1990; 60 FR 17445, Apr. 6, 1995; 73 FR 65543, Nov. 4, 2008] § 404.504 Relation to provisions for reductions and increases. The amount of an overpayment or underpayment is the difference between the amount paid to the beneficiary and the amount of the payment to which the beneficiary was actually entitled. Such payment, for example, would be equal to the difference between the amount of a benefit in fact paid to the beneficiary and the amount of such benefit as reduced under section 202(j)(1), 202(k)(3), 203(a), or 224(a), or as increased under section 202(d)(2), 202(m), or 215 (f) and (g). In effecting an adjustment with respect to an overpayment, no amount can be considered as having been withheld from a particular benefit which is in excess of the amount of such benefit as so decreased. [34 FR 14888, Sept. 27, 1969] § 404.505 Relationship to provisions requiring deductions. Adjustments required by any of the provisions in this subpart F are made in addition to, but after, any deductions required by section 202(t), 203(b), 203(c), 203(d), and 222(b) of the Act, or section 907 of the Social Security Act Amendments of 1939, and before any deductions required by section 203(g) or 203(h)(2) of the Act. [34 FR 14888, Sept. 27, 1969] § 404.506 When waiver may be applied and how to process the request. (a) Section 204(b) of the Act provides that there shall be no adjustment or recovery in any case where an overpayment under title II has been made to an individual who is without fault if adjustment or recovery would either defeat the purpose of title II of the Act, or be against equity and good conscience. (b) We will apply the procedures in this paragraph (b) when an individual requests waiver of all or part of a qualifying overpayment. (1) For purposes of this paragraph (b), a qualifying overpayment is one that accrued during the pandemic period (2) Notwithstanding any other provision of this subpart, we will presume that an individual who requests waiver of a qualifying overpayment is without fault in causing the overpayment (see § 404.507) unless we determine that the qualifying overpayment made to a beneficiary or a representative payee was the result of fraud or similar fault or involved misuse of benefits by a representative payee (see § 404.2041). (3) If we determine under paragraph (b)(2) of this section that an individual or a representative payee is without fault in causing a qualifying overpayment we will also determine that recovery of the qualifying overpayment would be against equity and good conscience. For purposes of this paragraph (b)(3) only, “against equity and good conscience” is not limited to the meaning used in § 404.509 but means a broad concept of fairness that takes into account all of the facts and circumstances of the case. (4) If we determine that a primary beneficiary is not without fault with respect to a qualifying overpayment under paragraph (b)(2) of this section, because it was caused by fraud or similar fault or because of representative payee misuse, we may still find that any auxiliary beneficiaries on the primary beneficiary's record are eligible for waiver of recovery of the qualifying overpayment under this paragraph (b). If an auxiliary beneficiary requests waiver of a qualifying overpayment in accordance with this paragraph (b), we will waive recovery of the overpayment if the auxiliary beneficiary meets all of the requirements of this paragraph (b). (5) The provisions of this paragraph (b) will apply to a qualifying overpayment identified by December 31, 2020. (c) If an individual requests waiver of adjustment or recovery of a title II overpayment within 30 days after receiving a notice of overpayment that contains the information in § 404.502a, no adjustment or recovery action will be taken until after the initial waiver determination is made. If the individual requests waiver more than 30 days after receiving the notice of overpayment, SSA will stop any adjustment or recovery actions until after the initial waiver determination is made. (d) When waiver is requested, the individual gives SSA information to support his/her contention that he/she is without fault in causing the overpayment (see § 404.507) and that adjustment or recovery would either defeat the purpose of title II of the Act (see § 404.508) or be against equity and good conscience (see § 404.509). That information, along with supporting documentation, is reviewed to determine if waiver can be approved. If waiver cannot be approved after this review, the individual is notified in writing and given the dates, times and place of the file review and personal conference; the procedure for reviewing the claims file prior to the personal conference; the procedure for seeking a change in the scheduled dates, times, and/or place; and all other information necessary to fully inform the individual about the personal conference. The file review is always scheduled at least 5 days before the personal conference. We will offer to the individual the option of conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference. The notice will advise the individual of the date and time of the personal conference. (e) At the file review, the individual and the individual's representative have the right to review the claims file and applicable law and regulations with the decisionmaker or another SSA representative who is prepared to answer questions. We will provide copies of material related to the overpayment and/or waiver from the claims file or pertinent sections of the law or regulations that are requested by the individual or the individual's representative. (f) At the personal conference, the individual is given the opportunity to: (1) Appear personally, testify, cross-examine any witnesses, and make arguments; (2) Be represented by an attorney or other representative (see § 404.1700), although the individual must be present at the conference; and (3) Submit documents for consideration by the decisionmaker. (g) At the personal conference, the decisionmaker: (1) Tells the individual that the decisionmaker was not previously involved in the issue under review, that the waiver decision is solely the decisionmaker's, and that the waiver decision is based only on the evidence or information presented or reviewed at the conference; (2) Ascertains the role and identity of everyone present; (3) Indicates whether or not the individual reviewed the claims file; (4) Explains the provisions of law and regulations applicable to the issue; (5) Briefly summarizes the evidence already in file which will be considered; (6) Ascertains from the individual whether the information presented is correct and whether he/she fully understands it; (7) Allows the individual and the individual's representative, if any, to present the individual's case; (8) Secures updated financial information and verification, if necessary; (9) Allows each witness to present information and allows the individual and the individual's representative to question each witness; (10) Ascertains whether there is any further evidence to be presented; (11) Reminds the individual of any evidence promised by the individual which has not been presented; (12) Lets the individual and the individual's representative, if any, present any proposed summary or closing statement; (13) Explains that a decision will be made and the individual will be notified in writing; and (14) Explains repayment options and further appeal rights in the event the decision is adverse to the individual. (h) SSA issues a written decision to the individual (and his/her representative, if any) specifying the findings of fact and conclusions in support of the decision to approve or deny waiver and advising of the individual's right to appeal the decision. If waiver is denied, adjustment or recovery of the overpayment begins even if the individual appeals. (i) If it appears that the waiver cannot be approved, and the individual declines a personal conference or fails to appear for a second scheduled personal conference, a decision regarding the waiver will be made based on the written evidence of record. Reconsideration is then the next step in the appeals process (but see § 404.930(a)(7)). [61 FR 56131, Oct. 31, 1996, as amended at 73 FR 1973, Jan. 11, 2008; 85 FR 52914, Aug. 27, 2020] § 404.507 Fault. Fault without fault deduction overpayments (a) An incorrect statement made by the individual which he knew or should have known to be incorrect; or (b) Failure to furnish information which he knew or should have known to be material; or (c) With respect to the overpaid individual only, acceptance of a payment which he either knew or could have been expected to know was incorrect. [34 FR 14888, Sept. 27, 1969; 34 FR 15646, Oct. 9, 1969, as amended at 44 FR 34942, June 18, 1979; 59 FR 1634, Jan. 12, 1994; 85 FR 52914, Aug. 27, 2020] § 404.508 Defeat the purpose of Title II. (a) General. Defeat the purpose of title II, i.e. (1) Fixed living expenses, such as food and clothing, rent, mortgage payments, utilities, maintenance, insurance (e.g., life, accident, and health insurance including premiums for supplementary medical insurance benefits under title XVIII), taxes, installment payments, etc.; (2) Medical, hospitalization, and other similar expenses; (3) Expenses for the support of others for whom the individual is legally responsible; and (4) Other miscellaneous expenses which may reasonably be considered as part of the individual's standard of living. (b) When adjustment or recovery will defeat the purpose of title II. [32 FR 18026, Dec. 16, 1967, as amended at 34 FR 14888, Sept. 27, 1969] § 404.509 Against equity and good conscience; defined. (a) Recovery of an overpayment is against equity and good conscience (1) Changed his or her position for the worse (Example 1) or relinquished a valuable right (Example 2) because of reliance upon a notice that a payment would be made or because of the overpayment itself; or (2) Was living in a separate household from the overpaid person at the time of the overpayment and did not receive the overpayment (Examples 3 and 4). (b) The individual's financial circumstances are not material to a finding of against equity and good conscience. Example 1. A widow, having been awarded benefits for herself and daughter, entered her daughter in private school because the monthly benefits made this possible. After the widow and her daughter received payments for almost a year, the deceased worker was found to be not insured and all payments to the widow and child were incorrect. The widow has no other funds with which to pay the daughter's private school expenses. Having entered the daughter in private school and thus incurred a financial obligation toward which the benefits had been applied, she was in a worse position financially than if she and her daughter had never been entitled to benefits. In this situation, the recovery of the payments would be against equity and good conscience. Example 2. After being awarded old-age insurance benefits, an individual resigned from employment on the assumption he would receive regular monthly benefit payments. It was discovered 3 years later that (due to a Social Security Administration error) his award was erroneous because he did not have the required insured status. Due to his age, the individual was unable to get his job back and could not get any other employment. In this situation, recovery of the overpayments would be against equity and good conscience Example 3. M divorced K and married L. M died a few years later. When K files for benefits as a surviving divorced wife, she learns that L had been overpaid $3,200 on M's earnings record. Because K and L are both entitled to benefits on M's record of earnings and we could not recover the overpayment from L, we sought recovery from K. K was living in a separate household from L at the time of the overpayment and did not receive the overpayment. K requests waiver of recovery of the $3,200 overpayment from benefits due her as a surviving divorced wife of M. In this situation, it would be against equity and good conscience Example 4. G filed for and was awarded benefits. His daughter, T, also filed for student benefits on G's earnings record. Since T was an independent, full-time student living in another State, she filed for benefits on her own behalf. Later, after T received 12 monthly benefits, the school reported that T had been a full-time student only 2 months and had withdrawn from school. Since T was overpaid 10 monthly benefits, she was requested to return the overpayment to SSA. T did not return the overpayment and further attempts to collect the overpayment were unsuccessful. G was asked to repay the overpayment because he was receiving benefits on the same earnings record. G requested waiver. To support his waiver request G established that he was not at fault in causing the overpayment because he did not know that T was receiving benefits. Since G is without fault and, in addition, meets the requirements of not living in the same household at the time of the overpayment and did not receive the overpayment, it would be against equity and good conscience [53 FR 25483, July 7, 1988] § 404.510 When an individual is “without fault” in a deduction overpayment. In determining whether an individual is “without fault” with respect to a deduction overpayment, the Social Security Administration will consider all pertinent circumstances, including the individual's age and intelligence, and any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) the individual has. Except as provided in § 404.511 or elsewhere in this subpart F, situations in which an individual will be considered to be “without fault” with respect to a deduction overpayment include, but are not limited to, those that are described in this section. An individual will be considered “without fault” in accepting a payment which is incorrect because he/she failed to report an event specified in sections 203 (b) and (c) of the Act, or an event specified in section 203(d) of the Act as in effect for monthly benefits for months after December 1960, or because a deduction is required under section 203 (b), (c), (d), or section 222(b) of the Act, or payments were not withheld as required by section 202(t) or section 228 of the Act, if it is shown that such failure to report or acceptance of the overpayment was due to one of the following circumstances: (a) Reasonable belief that only his net cash earnings ( take-home (b) Reliance upon erroneous information from an official source within the Social Security Administration (or other governmental agency which the individual had reasonable cause to believe was connected with the administration of benefits under title II of the Act) with respect to the interpretation of a pertinent provision of the Social Security Act or regulations pertaining thereto. For example, this circumstance could occur where the individual is misinformed by such source as to the interpretation of a provision in the Act or regulations relating to deductions, or relating to the effect of residence of an alien outside the United States for more than 6 months. (c) The beneficiary's death caused the earnings limit applicable to his earnings for purposes of deduction and the charging of excess earnings to be reduced below $1,680 for a taxable year ending after 1967. (d) [Reserved] (e) Reasonable belief that in determining, for deduction purposes, his earnings from employment and/or net earnings from self-employment in the taxable year in which he became entitled to benefits, earnings in such year prior to such entitlement would be excluded. However, this provision does not apply if his earnings in the taxable year, beginning with the first month of entitlement, exceeded the earnings limitation amount for such year. (f) Unawareness that his earnings were in excess of the earnings limitation applicable to the imposition of deductions and the charging of excess earnings or that he should have reported such excess where these earnings were greater than anticipated because of: (1) Retroactive increases in pay, including back-pay awards; (2) Work at a higher pay rate than realized; (3) Failure of the employer of an individual unable to keep accurate records to restrict the amount of earnings or the number of hours worked in accordance with a previous agreement with such individual; (4) The occurrence of five Saturdays (or other work days, e.g., five Mondays) in a month and the earnings for the services on the fifth Saturday or other work day caused the deductions. (g) The continued issuance of benefit checks to him after he sent notice to the Administration of the event which caused or should have caused the deductions provided that such continued issuance of checks led him to believe in good faith that he was entitled to checks subsequently received. (h) Lack of knowledge that bonuses, vacation pay, or similar payments, constitute earnings for purposes of the annual earnings limitation. (i) [Reserved] (j) Reasonable belief that earnings in excess of the earnings limitation amount for the taxable year would subject him to deductions only for months beginning with the first month in which his earnings exceeded the earnings limitation amount. However, this provision is applicable only if he reported timely to the Administration during the taxable year when his earnings reached the applicable limitation amount for such year. (k) Lack of knowledge by a wife, husband, or child entitled to wife's, husband's, or child's insurance benefits, as the case may be, that the individual entitled to old-age insurance benefits on the same earnings record has incurred or would incur deductions because of a violation of the annual earnings or 7-day foreign work test, whichever is applicable, provided the wife, husband, or child is not living with such old-age insurance beneficiary and did not know and had no reason to know that such beneficiary's earnings activity or the income derived therefrom has caused or would cause such deductions. (l) Reasonable belief, with respect to earnings activity for months after December 1982, that net earnings from self-employment after attainment of age 70 (age 72 for months after December 1972 and before January 1983) in the taxable year in which such age was attained would not cause deductions (see § 404.430(a)) with respect to benefits payable for months in that taxable year prior to the attainment of such age. (m) Reasonable belief by an individual entitled to child's, wife's, husband's, widow's, widower's, mother's, or parent's insurance benefits that earnings from employment and/or net earnings from self-employment after the termination of entitlement (other than termination by reason of entitlement to an old-age insurance benefit) in the taxable year in which the termination event occurred would not cause deductions with respect to benefits payable for months in that taxable year prior to the month in which the termination event occurred. (n) Failure to understand the deduction provisions of the Act or the occurrence of unusual or unavoidable circumstances the nature of which clearly shows that the individual was unaware of a violation of such deduction provisions. [27 FR 1162, Feb. 8, 1962, as amended at 28 FR 14492, Dec. 31, 1963; 34 FR 14888, Sept. 27, 1969; 36 FR 23361, Dec. 9, 1971; 43 FR 31318, July 21, 1978; 44 FR 20653, Apr. 6, 1979; 59 FR 1634, Jan. 12, 1994; 60 FR 17445, Apr. 6, 1995] § 404.510a When an individual is “without fault” in an entitlement overpayment. A benefit payment under title II or title XVIII of the Act to or on behalf of an individual who fails to meet one or more requirements for entitlement to such payment or a benefit payment exceeding the amount to which he is entitled, constitutes an entitlement overpayment. Where an individual or other person on behalf of an individual accepts such overpayment because of reliance on erroneous information from an official source within the Social Security Administration (or other governmental agency which the individual had reasonable cause to believe was connected with the administration of benefits under title II or title XVIII of the Act) with respect to the interpretation of a pertinent provision of the Social Security Act or regulations pertaining thereto, or where an individual or other person on behalf of an individual is overpaid as a result of the adjustment upward (under the family maximum provision in section 203 of the Act) of the benefits of such individual at the time of the proper termination of one or more beneficiaries on the same social security record and the subsequent reduction of the benefits of such individual caused by the reentitlement of the terminated beneficiary(ies) pursuant to a change in a provision of the law, such individual, in accepting such overpayment, will be deemed to be without fault. governmental agency [39 FR 43716, Dec. 18, 1974] § 404.511 When an individual is at “fault” in a deduction overpayment. (a) Degree of care. without fault deduction overpayment. (b) Subsequent deduction overpayments. [16 FR 13054, Dec. 28, 1951, as amended at 59 FR 1634, Jan. 12, 1994] § 404.512 When adjustment or recovery of an overpayment will be waived. (a) Adjustment or recovery deemed “against equity and good conscience.” against equity and good conscience. against equity and good conscience (b) Adjustment or recovery considered to defeat the purpose of title II against equity and good conscience [27 FR 1163, Feb. 8, 1962, as amended at 35 FR 6321, Apr. 18, 1970; 36 FR 23361, Dec. 9, 1971] § 404.513 Liability of a certifying officer. No certifying or disbursing officer shall be held liable for any amount certified or paid by him to any individual. (a) Where adjustment or recovery of such amount is waived under section 204(b) of the Act; or (b) Where adjustment under section 204(a) of the Act is not completed prior to the death of all individuals against whose benefits or lump sums deductions are authorized; or (c) Where a claim for recovery of an overpayment is compromised or collection or adjustment action is suspended or terminated pursuant to the Federal Claims Collection Act of 1966 (31 U.S.C. 951-953) (see § 404.515). [34 FR 14889, Sept. 27, 1969] § 404.515 Collection and compromise of claims for overpayment. (a) General effect of the Debt Collection Improvement Act of 1996. (b) When there will be no compromise, suspension or termination of collection of a claim for overpayment Overpaid individual alive. (2) Overpaid individual deceased. (c) Inability to pay claim for recovery of overpayment. (d) Cost of collection or litigative probabilities. (e) Amount of compromise. (f) Payment. [34 FR 14889, Sept. 27, 1969; 34 FR 15413, Oct. 3, 1969, as amended at 79 FR 33684, June 12, 2014] § 404.520 Referral of overpayments to the Department of the Treasury for tax refund offset—General. (a) The standards we will apply and the procedures we will follow before requesting the Department of the Treasury to offset income tax refunds due taxpayers who have an outstanding overpayment are set forth in §§ 404.520 through 404.526. These standards and procedures are authorized by 31 U.S.C. 3720A and are implemented through Department of the Treasury regulations at 31 CFR 285.2. (b) We will use the Department of the Treasury tax refund offset procedure to collect overpayments that are certain in amount, past due and legally enforceable, and eligible for tax refund offset under regulations issued by the Department of the Treasury. We will use these procedures to collect overpayments only from persons who are not currently entitled to monthly Social Security benefits under title II of the Act. We will refer overpayments to the Department of the Treasury for offset against Federal tax refunds regardless of the length of time the debts have been outstanding. [62 FR 64277, Dec. 5, 1997, as amended at 76 FR 65108, Oct. 20, 2011] § 404.521 Notice to overpaid persons. Before we request the collection of an overpayment by reduction of Federal and State income tax refunds, we will send a written notice of intent to the overpaid person. In our notice of intent to collect an overpayment through tax refund offset, we will state: (a) The amount of the overpayment; and (b) That we will collect the overpayment by requesting that the Department of the Treasury reduce any amounts payable to the overpaid person as refunds of Federal and State income taxes by an amount equal to the amount of the overpayment unless, within 60 calendar days from the date of our notice, the overpaid person: (1) Repays the overpayment in full; or (2) Provides evidence to us at the address given in our notice that the overpayment is not past due or legally enforceable; or (3) Asks us to waive collection of the overpayment under section 204(b) of the Act. (c) The conditions under which we will waive recovery of an overpayment under section 204(b) of the Act; (d) That we will review any evidence presented that the overpayment is not past due or not legally enforceable; (e) That the overpaid person has the right to inspect and copy our records related to the overpayment as determined by us and will be informed as to where and when the inspection and copying can be done after we receive notice from the overpaid person that inspection and copying are requested. [56 FR 52468, Oct. 21, 1991, as amended at 62 FR 64278, Dec. 5, 1997; 76 FR 65108, Oct. 20, 2011] § 404.522 Review within SSA that an overpayment is past due and legally enforceable. (a) Notification by overpaid individual. (b) Submission of evidence. (c) Review of the evidence. [56 FR 52469, Oct. 21, 1991, as amended at 62 FR 64278, Dec. 5, 1997] § 404.523 Findings by SSA. (a) Following the hearing or a review of the record, we will issue written findings which include supporting rationale for the findings. Issuance of these findings concerning whether the overpayment or part of the overpayment is past due and legally enforceable is the final Agency action with respect to the past-due status and enforceability of the overpayment. If we make a determination that a waiver request cannot be granted, we will issue a written notice of this determination in accordance with the regulations in subpart J of this part. Our referral of the overpayment to the Department of the Treasury will not be suspended under § 404.525 pending any further administrative review of the waiver request that the individual may seek. (b) Copies of the findings described in paragraph (a) of this section will be distributed to the overpaid individual and the overpaid individual's attorney or other representative, if any. (c) If the findings referred to in paragraph (a) of this section affirm that all or part of the overpayment is past due and legally enforceable and, if waiver is requested, we determine that the request cannot be granted, we will refer the overpayment to the Department of the Treasury. No referral will be made to the Department of the Treasury if, based on our review of the overpayment, we reverse our prior finding that the overpayment is past due and legally enforceable or, upon consideration of a waiver request, we determine that waiver of our collection of the overpayment is appropriate. [56 FR 52469, Oct. 21, 1991, as amended at 62 FR 64278, Dec. 5, 1997] § 404.524 Review of our records related to the overpayment. (a) Notification by the overpaid individual. (b) Our response. [56 FR 52469, Oct. 21, 1991] § 404.525 Suspension of offset. If, within 60 days of the date of the notice described in § 404.521, the overpaid individual notifies us that he or she is exercising a right described in § 404.522(a) and submits evidence pursuant to § 404.522(b) or requests a waiver under § 404.506, we will suspend any notice to the Department of the Treasury until we have issued written findings that affirm that an overpayment is past due and legally enforceable and, if applicable, make a determination that a waiver request cannot be granted. [56 FR 52469, Oct. 21, 1991, as amended at 62 FR 64278, Dec. 5, 1997] § 404.526 Tax refund insufficient to cover amount of overpayment. If a tax refund for a given taxable year is insufficient to recover an overpayment completely, the case will remain with the Department of the Treasury for offset, assuming that all criteria for offset continue to be met. [62 FR 64278, Dec. 5, 1997] § 404.527 Additional methods for recovery of title II benefit overpayments. (a) General. (1) The overpayment occurred after the individual has attained age 18; (2) The overpaid individual is no longer entitled to benefits under title II of the Act; and (3) Pursuant to paragraph (b) of this section, we have determined that the overpayment is otherwise unrecoverable under section 204 of the Act. (b) When an overpayment is considered to be otherwise unrecoverable. (1) Our billing system sequence has been completed ( i.e. (2) We have not entered into an installment payment arrangement with the overpaid individual or, if we have entered into such an arrangement, the overpaid individual has failed to make any payment for two consecutive months. (3) The overpaid individual has not requested waiver pursuant to § 404.506 or § 404.522 or, after a review conducted pursuant to those sections, we have determined that we will not waive collection of the overpayment. (4) The overpaid individual has not requested reconsideration of the initial overpayment determination pursuant to §§ 404.907 and 404.909 or, after a review conducted pursuant to § 404.913, we have affirmed, in whole or in part, the initial overpayment determination. (5) The overpayment cannot be recovered pursuant to § 404.502 by adjustment of benefits payable to any individual other than the overpaid individual. For purposes of this paragraph, an overpayment will be deemed to be unrecoverable from any individual who was living in a separate household from the overpaid person at the time of the overpayment and did not receive the overpayment. [62 FR 64278, Dec. 5, 1997, as amended at 68 FR 74183, Dec. 23, 2003] § 404.530 Are title VIII and title XVI benefits subject to adjustment to recover title II overpayments? (a) Definitions Cross-program recovery. (2) Benefits payable. (b) When may we collect title II overpayments using cross-program recovery? [70 FR 15, Jan. 3, 2005] § 404.535 How much will we withhold from your title VIII and title XVI benefits to recover a title II overpayment? (a) If past-due benefits are payable to you, we will withhold the lesser of the entire overpayment balance or the entire amount of past-due benefits. (b)(1) We will collect the overpayment from current monthly benefits due in a month under title VIII and title XVI by withholding the lesser of the amount of the entire overpayment balance or: (i) 10 percent of the monthly title VIII benefits payable for that month and (ii) in the case of title XVI benefits, an amount no greater than the lesser of the benefit payable for that month or an amount equal to 10 percent of your income for that month (including such monthly benefit but excluding payments under title II when recovery is also made from title II benefits and excluding income excluded pursuant to §§ 416.1112 and 416.1124 of this chapter). (2) Paragraph (b)(1) of this section does not apply if: (i) You request and we approve a different rate of withholding, or (ii) You or your spouse willfully misrepresented or concealed material information in connection with the overpayment. (c) In determining whether to grant your request that we withhold less than the amount described in paragraph (b)(1) of this section, we will use the criteria applied under § 404.508 to similar requests about withholding from title II benefits. (d) If you or your spouse willfully misrepresented or concealed material information in connection with the overpayment, we will collect the overpayment by withholding the lesser of the overpayment balance or the entire amount of title VIII and title XVI benefits payable to you. We will not collect at a lesser rate. (See § 416.571 of this chapter for what we mean by concealment of material information.) [70 FR 15, Jan. 3, 2005] § 404.540 Will you receive notice of our intention to apply cross-program recovery? Before we collect an overpayment from you using cross-program recovery, we will send you a written notice that tells you the following information: (a) We have determined that you owe a specific overpayment balance that can be collected by cross-program recovery; (b) We will withhold a specific amount from the title VIII or title XVI benefits (see § 404.535); (c) You may ask us to review this determination that you still owe this overpayment balance; (d) You may request that we withhold a different amount from your current monthly benefits (the notice will not include this information if § 404.535(d) applies); and (e) You may ask us to waive collection of this overpayment balance. [70 FR 15, Jan. 3, 2005] § 404.545 When will we begin cross-program recovery from current monthly benefits? (a) We will begin collecting the overpayment balance from your title VIII or title XVI current monthly benefits or payments by cross-program recovery no sooner than 30 calendar days after the date of the notice described in § 404.540. If within that 30-day period you pay us the full overpayment balance stated in the notice, we will not begin cross-program recovery. (b) If within that 30-day period you ask us to review our determination that you still owe us this overpayment balance, we will not begin cross-program recovery from your current monthly benefits before we review the matter and notify you of our decision in writing. (c) If within that 30-day period you ask us to withhold a different amount than the amount stated in the notice, we will not begin cross-program recovery from your current monthly benefits until we determine the amount we will withhold. This paragraph does not apply when § 404.535(d) applies. (d) If within that 30-day period you ask us to waive recovery of the overpayment balance, we will not begin cross-program recovery from your current monthly benefits before we review the matter and notify you of our decision in writing. See §§ 404.506 through 404.512. [70 FR 15, Jan. 3, 2005] Subpart G—Filing of Applications and Other Forms Authority: Secs. 202(i), (j), (o), (p), and (r), 205(a), 216(i)(2), 223(b), 228(a), and 702(a)(5) of the Social Security Act (42 U.S.C. 402(i), (j), (o), (p), and (r), 405(a), 416(i)(2), 423(b), 428(a), and 902(a)(5)). Source: 44 FR 37209, June 26, 1979, unless otherwise noted. General Provisions § 404.601 Introduction. This subpart contains the Social Security Administration's rules for filing a claim for old-age, disability, dependents', and survivors' insurance benefits as described in subpart D of part 404. It tells what an application is, who may sign it, where and when it must be signed and filed, the period of time it is in effect and how it may be withdrawn. This subpart also explains when a written statement, request, or notice will be considered filed. Since the application form and procedures for filing a claim under this subpart are the same as those used to establish entitlement to Medicare benefits under 42 CFR part 405, persons who wish to become entitled to Medicare benefits should refer to the provisions of this subpart. Requirements concerning applications for the black lung benefits program are contained in part 410. Requirements concerning applications for the supplemental security income program are contained in part 416. Part 422 contains the requirements for applying for a social security number. § 404.602 Definitions. For the purpose of this subpart— Applicant applicant claimant. Application Benefits Claimant We, us, our You your § 404.603 You must file an application to receive benefits. In addition to meeting other requirements, you must file an application to become entitled to benefits. If you believe you may be entitled to benefits, you should file an application. Filing an application will— (a) Permit a formal decision to be made on your entitlement to benefits; (b) Protect your entitlement to any benefits that may be payable for as many as 6 months or 12 months (depending on the type of benefit, as explained in § 404.621) before the application was filed; and (c) Give you the right to appeal if you are dissatisfied with the decision. [44 FR 37209, June 26, 1979, as amended at 46 FR 47444, Sept. 28, 1981] Applications § 404.610 What makes an application a claim for benefits? We will consider your application a claim for benefits if it generally meets all of the following conditions: (a) You must file on a prescribed form, as stated in § 404.611. See (b) You must complete and file the application with us as stated in §§ 404.611 and 404.614. (c) You, or someone described in § 404.612 who may sign an application for you, must sign the application. (d) You must be alive at the time you file (unless one of the limited exceptions in § 404.615 applies). [69 FR 498, Jan. 6, 2004] § 404.611 How do I file an application for Social Security benefits? (a) General rule. See See (b) What if I file a claim with the Railroad Retirement Board (RRB)? (c) What if I file a claim with the Department of Veterans Affairs (DVA)? see [69 FR 498, Jan. 6, 2004] § 404.612 Who may sign an application. We will determine who may sign an application according to the following rules: (a) A claimant who is 18 years old or over, mentally competent, and physically able to do so, must sign his or her own application. If the claim is for child's benefits for a person who is not yet 22 years old, the application may be signed by a parent or a person standing in place of the parent. (b) A claimant who is between 16 and 18 years old may sign his or her own application if he or she is mentally competent, has no court appointed representative, and is not in the care of any person. (c) If the claimant is under age 18, or mentally incompetent, or physically unable to sign, the application may be signed by a court appointed representative or a person who is responsible for the care of the claimant, including a relative. If the claimant is in the care of an institution, the manager or principal officer of the institution may sign the application. (d) If a person who could receive disability benefits or who could have a period of disability established dies before filing, an application for disability benefits or for a period of disability may be signed by a person who would be qualified to receive any benefits due the deceased. (e) If a written statement showing an intent to claim benefits is filed with us, but the person for whom the benefits are claimed dies before an application is filed, an application may be filed as explained in § 404.630(d). (f) If a person who could receive benefits on the basis of a “deemed” filing date of an application under § 404.633 (b)(1)(i) or (b)(2)(i) dies before an application for the benefits is filed, the application may be signed by a person who would be qualified to receive any benefits due the deceased person as explained in § 404.633 (b)(1)(ii) and (b)(2)(ii). (g) If it is necessary to protect a claimant from losing benefits and there is good cause for the claimant not signing the application, we may accept an application signed by some one other than a person described in this section. Example: Mr. Smith comes to a social security office a few days before the end of a month to file an application for old-age benefits for his neighbor, Mr. Jones. Mr. Jones, a 63 year old widower, just suffered a heart attack and is in the hospital. He asked Mr. Smith to file the application for him. We will accept an application signed by Mr. Smith since it would not be possible to have Mr. Jones sign and file the application until the next calendar month and a loss of one month's benefits would result. [44 FR 37209, June 26, 1979, as amended at 59 FR 44923, Aug. 31, 1994; 61 FR 41330, Aug. 8, 1996] § 404.613 Evidence of authority to sign an application for another. (a) A person who signs an application for someone else will be required to provide evidence of his or her authority to sign the application for the person claiming benefits under the following rules: (1) If the person who signs is a court appointed representative, he or she must submit a certificate issued by the court showing authority to act for the claimant. (2) If the person who signs is not a court appointed representative, he or she must submit a statement describing his or her relationship to the claimant. The statement must also describe the extent to which the person is responsible for the care of the claimant. This latter information will not be requested if the application is signed by a parent for a child with whom he or she is living. (3) If the person who signs is the manager or principal officer of an institution which is responsible for the care of the claimant, he or she must submit a statement indicating the person's position of responsibility at the institution. (b) We may, at any time, require additional evidence to establish the authority of a person to sign an application for someone else. § 404.614 When an application or other form is considered filed. (a) General rule. (b) Other places and dates of filing. (1) The date an application for benefits, or a written statement, request or notice is received by any office of the U.S. Foreign Service or by the Veterans Administration Regional Office in the Philippines; (2) The date an application for benefits or a written statement, request or notice is mailed to us by the U.S. mail, if using the date we receive it would result in the loss or lessening of rights. The date shown by a U.S. postmark will be used as the date of mailing. If the postmark is unreadable, or there is no postmark, we will consider other evidence of when you mailed it to us; or (3) The date an application for benefits is filed with the Railroad Retirement Board or the Veterans Administration. See § 404.611 (b) and (c) for an explanation of when an application for benefits filed with the Railroad Retirement Board or the Veterans Administration is considered an application for social security benefits. [44 FR 37209, June 26, 1979, as amended at 59 FR 44923, Aug. 31, 1994] § 404.615 Claimant must be alive when an application is filed. A claimant must be alive at the time an application is filed. There are the following exceptions to this general rule: (a) If a disabled person dies before filing an application for disability benefits or a period of disability, a person who would be qualified to receive any benefits due the deceased may file an application. The application must be filed within 3 months after the month in which the disabled person died. (b) If a written statement showing an intent to claim benefits is filed with us, but the person for whom the benefits are claimed dies before an application is filed, an application may be filed as explained in § 404.630(d). (c) If a person who could receive benefits on the basis of a “deemed” filing date of an application under § 404.633 (b)(1)(i) or (b)(2)(i) dies before an application for the benefits is filed, the application may be signed by a person who would be qualified to receive any benefits due the deceased person as explained in § 404.633 (b)(1)(ii) and (b)(2)(ii). [44 FR 37209, June 26, 1979, as amended at 59 FR 44923, Aug. 31, 1994; 61 FR 41330, Aug. 8, 1996] § 404.617 Pilot program for photographic identification of disability benefit applicants in designated geographic areas. (a) To be eligible for Social Security disability insurance benefits in the designated pilot geographic areas during the time period of the pilot, you or a person acting on your behalf must give SSA permission to take your photograph and make this photograph a part of the claims folder. You must give us this permission when you apply for benefits and/or when we ask for it at a later time. Failure to cooperate will result in denial of benefits. We will permit an exception to the photograph requirement when an individual has a sincere religious objection. This pilot will be in effect for a six-month period after these final rules become effective. (b) Designated pilot geographic areas means: (1) All SSA field offices in the State of South Carolina. (2) The Augusta, Georgia SSA field office. (3) All SSA field offices in the State of Kansas. (4) Selected SSA field offices located in New York City. [68 FR 23194, May 1, 2003] Effective Filing Period of Application § 404.620 Filing before the first month you meet the requirements for benefits. (a) General rule. (1) If you meet all the requirements for entitlement while your application is in effect, we may pay you benefits from the first month that you meet all the requirements. (2) If you first meet all the requirements for entitlement after the period for which your application was in effect, you must file a new application for benefits. In this case, we may pay you benefits only from the first month that you meet all the requirements based on the new application. (b) [Reserved] [44 FR 37209, June 26, 1979, as amended at 52 FR 4003, Feb. 9, 1987; 83 FR 21709, May 10, 2018] § 404.621 What happens if I file after the first month I meet the requirements for benefits? (a) Filing for disability benefits and for old-age, survivors', or dependents' benefits. (2) If you file an application for old-age benefits, widow's or widower's benefits not based on disability, wife's, husband's, or child's benefits based on the earnings record of a person not entitled to disability benefits, or mother's, father's, or parent's benefits, after the first month you could have been entitled to them, you may receive benefits for up to 6 months immediately before the month in which your application is filed. Your benefits may begin with the first month in this 6-month period in which you meet all the requirements for entitlement. Your entitlement, however, to old-age, wife's, husband's, widow's, or widower's benefits under this rule is limited by paragraph (a)(3) of this section. (3) If the effect of the payment of benefits for a month before the month you file would be to reduce your benefits because of your age, you cannot be entitled to old-age, wife's, husband's, widow's, or widower's benefits for any month before the month in which your application is filed, unless you meet one of the conditions in paragraph (a)(4) of this section. (An explanation of the reduction that occurs because of age if you are entitled to these benefits for a month before you reach full retirement age, as defined in § 404.409, is in § 404.410.) An example follows that assumes you do not meet any of the conditions in paragraph (a)(4) of this section. Example: You will attain full retirement age in March 2003. If you apply for old-age benefits in March, you cannot be entitled to benefits in the 6-month period before March because the payment of benefits for any of these months would result in your benefits being reduced for age. If you do not file your application until June 2003, you may be entitled to benefits for the month of March, April and May because the payment of benefits for these months would not result in your benefits being reduced for age. You will not, however, receive benefits for the 3 months before March. (4) The limitation in paragraph (a)(3) of this section on your entitlement to old-age, wife's, husband's, widow's, or widower's benefits for months before you file an application does not apply if: (i) You are a widow, widower, surviving divorced wife, or surviving divorced husband who is disabled and could be entitled to retroactive benefits for any month before age 60. If you could not be entitled before age 60, the limitation will prevent payment of benefits to you for past months, but it will not affect the month you become entitled to hospital insurance benefits. (ii) You are a widow, widower, or surviving divorced spouse of the insured person who died in the month before you applied and you were at least age 60 in the month of death of the insured person on whose earnings record you are claiming benefits. In this case, you can be entitled beginning with the month the insured person died if you choose and if you file your application on or after July 1, 1983. (b) Filing for lump-sum death payment. (1) If there is a good cause for failure to file within the 2-year period, we will consider your application as though it were filed within the 2-year period. Good cause does not exist if you were informed of the need to file an application within the 2-year period and you neglected to do so or did not desire to make a claim. Good cause will be found to exist if you did not file within the time limit due to— (i) Circumstances beyond your control, such as extended illness, mental or physical incapacity, or a language barrier; (ii) Incorrect or incomplete information we furnished you; (iii) Your efforts to get evidence to support your claim without realizing that you could submit the evidence after filing an application; or (iv) Unusual or unavoidable circumstances which show that you could not reasonably be expected to know of the time limit. (2) The Soldiers' and Sailors' Civil Relief Act of 1940 provides for extending the filing time. (c) Filing for a period of disability. (d) Filing after death of person eligible for disability benefits or period of disability. [68 FR 4711, Jan. 30, 2003, as amended at 83 FR 21709, May 10, 2018] § 404.622 Limiting an application. Your application may entitle you to benefits for up to 6 months or 12 months (depending on the type of benefit, as explained in § 404.621) before the month in which it is filed. You may limit the number of months of your entitlement in the 6-month or 12-month period. You may state this choice any time before a decision is made on your claim by indicating, in writing, the month you want your benefits to begin. You may change the first month of entitlement in this 6-month or 12-month period after a decision has been made on your claim under the following conditions: (a) You file the request in writing. (b) If you are filing for the claimant, he or she is alive when the request is filed. (c) If any other person who is entitled to benefits would lose some or all of those benefits because of the change, that person, or the person who filed for him or her, consents in writing. (d) Any benefit payments that would become improper as a result of the change in entitlement month are repaid, or we are satisfied that they will be repaid. [44 FR 37209, June 26, 1979, as amended at 46 FR 47445, Sept. 28, 1981] § 404.623 Am I required to file for all benefits if I am eligible for old-age and husband's or wife's benefits? (a) Presumed filing for husband's or wife's benefits. (1) Your old-age benefits are reduced for age because you choose to receive them before you reach full retirement age (as defined in § 404.409); and (2) You are eligible for either a husband's or a wife's benefit for the first month of your entitlement to old-age benefits. (b) Presumed filing for old-age benefits. (1) Your husband's or wife's benefits are reduced for age because you choose to receive them before you reach full retirement age (as defined in § 404.409); and (2) You are eligible for old-age benefits for the first month of your entitlement to husband's or wife's benefits. (c) Exception. [68 FR 4712, Jan. 30, 2003] Filing Date Based on Written Statement § 404.630 Use of date of written statement as filing date. If a written statement, such as a letter, indicating your intent to claim benefits either for yourself or for another person is filed with us under the rules stated in § 404.614, we will use the filing date of the written statement as the filing date of the application, if all of the following requirements are met: (a) The statement indicates an intent to claim benefits. (b) The statement is signed by the claimant, the claimant's spouse, or a person described in § 404.612. If the claimant, the claimant's spouse, or a person described in § 404.612 telephones us and advises us of his or her intent to file a claim but cannot file an application before the end of the month, we will prepare and sign a written statement if it is necessary to prevent the loss of benefits. If the claimant, the claimant's spouse, or a person described in § 404.612 contacts us through the Internet by completing and transmitting the Personal Identification Information data on the Internet Social Security Benefit Application to us, we will use the date of the transmission as the filing date if it is necessary to prevent the loss of benefits. (c) The claimant files an application with us on an application form as described in § 404.611, or one is filed for the claimant by a person described in § 404.612, within 6 months after the date of a notice we will send advising of the need to file an application. We will send the notice to the claimant. However, if it is clear from the information we receive that the claimant is a minor or is mentally incompetent, we will send the notice to the person who submitted the written statement. (d) The claimant is alive when the application is filed; or if the claimant has died after the written statement was filed, an application is filed— (1) By or for a person who would be eligible to receive benefits on the deceased's earnings record; (2) By a person acting for the deceased's estate; or (3) If the statement was filed with a hospital under § 404.632, by the hospital if— (i) No person described in paragraph (d) (1) or (2) of this section can be located; or (ii) A person described in paragraphs (d) (1) or (2) of this section is located but refuses or fails to file the application unless the refusal or failure to file is because it would be harmful to the deceased person or the deceased's estate. [44 FR 37209, June 26, 1979, as amended at 71 FR 24814, Apr. 27, 2006] § 404.631 Statements filed with the Railroad Retirement Board. A written statement filed with the Railroad Retirement Board will be considered a written statement filed with us under the rules in § 404.630 if— (a) The statement indicates an intent to claim any payments under the Railroad Retirement Act; (b) It bears the signature of the person filing the statement; (c) No application is filed with the Railroad Retirement Board on one of its forms. If an application has been filed, we will use the date of filing of that application as determined by the Railroad Retirement Board (see § 404.614(b)(3)); and (d) The statement is sent to us by the Railroad Retirement Board. § 404.632 Statements filed with a hospital. A statement (generally a hospital admission form) filed with a hospital may serve as a written statement under § 404.630 if the requirements of this section are met. The statement will be considered filed with us as of the date it was filed with the hospital and will serve to protect entitlement to benefits. A statement filed with a hospital by you or some other person for you requesting or indicating an intent to claim benefits will be considered a written statement filed with us and § 404.630 will apply to it if— (a) You are a patient in the hospital; (b) The hospital provides services covered by hospital insurance under the Medicare program; (c) An application has not already been filed; and (d) The statement is sent to us. Deemed Filing Date Based on Misinformation § 404.633 Deemed filing date in a case of misinformation. (a) General. Example 1: Mrs. Smith, a widow of an insured individual, contacts a Social Security office when she reaches age 60 to inquire about applying for widow's insurance benefits. She is told by an SSA employee that she must be age 62 to be eligible for these benefits. This information, which was incorrect, causes Mrs. Smith not to file an application for benefits. When Mrs. Smith reaches age 62, she again contacts a Social Security office to ask about filing for widow's insurance benefits and learns that she could have received the benefits at age 60. She files an application for these benefits, provides the information required under paragraph (f) of this section to show that an SSA employee provided misinformation, and requests a deemed filing date based on the misinformation which she received from an SSA employee when she was age 60. Example 2: Ms. Hill, a 22-year-old, is forced to stop work because of illness. When she contacts a Social Security office to inquire about applying for disability insurance benefits, she is told by an SSA employee that she must have 20 quarters of coverage out of the last 40 calendar quarters to be insured for disability insurance benefits. The employee fails to consider the special rules for insured status for persons who become disabled before age 31 and, consequently, tells Ms. Hill that she is not insured because she only has 16 quarters of coverage. The misinformation causes Ms. Hill not to file an application for disability insurance benefits. Because of her illness, she is unable to return to work. A year later, Ms. Hill reads an article that indicates that there are special rules for insured status for young workers who become disabled. She again contacts a Social Security office to inquire about benefits based on disability and learns that she was misinformed earlier about her insured status. She files an application for disability insurance benefits, provides the information required under paragraph (f) of this section to show that an SSA employee provided misinformation, and requests a deemed filing date based on the misinformation provided to her earlier. (b) Deemed filing date of an application based on misinformation. (1)(i) If we determine that you failed to apply for monthly benefits for yourself because we gave you misinformation about your eligibility for such benefits, we will deem an application for such benefits to have been filed with us on the later of— (A) The date on which the misinformation was provided to you; or (B) The date on which you met all of the requirements for entitlement to such benefits, other than the requirement of filing an application. (ii) Before we may establish a deemed filing date of an application for benefits for you under paragraph (b)(1)(i) of this section, you or a person described in § 404.612 must file an application for such benefits. If you die before an application for the benefits is filed with us, we will consider establishing a deemed filing date of an application for such benefits only if an application for the benefits is filed with us by a person who would be qualified to receive any benefits due you. (2)(i) If you had authority under § 404.612 to sign an application for benefits for another person, and we determine that you failed to apply for monthly benefits for that person because we gave you misinformation about that person's eligibility for such benefits, we will deem an application for such benefits to have been filed with us on the later of— (A) The date on which the misinformation was provided to you; or (B) The date on which the person met all of the requirements for entitlement to such benefits, other than the requirement of filing an application. (ii) Before we may establish a deemed filing date of an application for benefits for the person under paragraph (b)(2)(i) of this section, you, such person, or another person described in § 404.612 must file an application for such benefits. If the person referred to in paragraph (b)(2)(i) of this section dies before an application for the benefits is filed with us, we will consider establishing a deemed filing date of an application for such benefits only if an application for the benefits is filed with us by a person who would be qualified to receive any benefits due the deceased person. (c) Requirements concerning the misinformation. (1) The misinformation must have been provided to you by one of our employees while he or she was acting in his or her official capacity as our employee. For purposes of this section, an employee includes an officer of SSA. (2) Misinformation is information which we consider to be incorrect, misleading, or incomplete in view of the facts which you gave to the employee, or of which the employee was aware or should have been aware, regarding your particular circumstances, or the particular circumstances of the person referred to in paragraph (b)(2)(i) of this section. In addition, for us to find that the information you received was incomplete, the employee must have failed to provide you with the appropriate, additional information which he or she would be required to provide in carrying out his or her official duties. (3) The misinformation may have been provided to you orally or in writing. (4) The misinformation must have been provided to you in response to a specific request by you to us for information about your eligibility for benefits or the eligibility for benefits of the person referred to in paragraph (b)(2)(i) of this section for which you were considering filing an application. (d) Evidence that misinformation was provided. (1) Preferred evidence. (i) A notice, letter or other document which was issued by us and addressed to you; or (ii) Our record of your telephone call, letter or in-person contact. (2) Other evidence. (i) Your statements about the alleged misinformation, including statements about— (A) The date and time of the alleged contact(s); (B) How the contact was made, e.g., by telephone or in person; (C) The reason(s) the contact was made; (D) Who gave the misinformation; and (E) The questions you asked and the facts you gave us, and the questions we asked and the information we gave you, at the time of the contact; (ii) Statements from others who were present when you were given the alleged misinformation, e.g., a neighbor who accompanied you to our office; (iii) If you can identify the employee or the employee can recall your inquiry about benefits— (A) Statements from the employee concerning the alleged contact, including statements about the questions you asked, the facts you gave, the questions the employee asked, and the information provided to you at the time of the alleged contact; and (B) Our assessment of the likelihood that the employee provided the alleged misinformation; (iv) An evaluation of the credibility and the validity of your allegations in conjunction with other relevant information; and (v) Any other information regarding your alleged contact. (e) Information which does not constitute satisfactory proof that misinformation was given. (1) General informational pamphlets that we issue to provide basic program information; (2) The Personal Earnings and Benefit Estimate Statement that is based on an individual's reported and projected earnings and is an estimate which can be requested at any time; (3) General information which we review or prepare but which is disseminated by the media, e.g., radio, television, magazines, and newspapers; and (4) Information provided by other governmental agencies, e.g., the Department of Veterans Affairs, the Department of Defense, State unemployment agencies, and State and local governments. (f) Claim for benefits based on misinformation. (1) An application for the benefits described in paragraph (b)(1)(i) or (b)(2)(i) of this section is filed with us by someone described in paragraph (b)(1)(ii) or (b)(2)(ii) of this section, as appropriate. The application must be filed after the alleged misinformation was provided. This application may be— (i) An application on which we have made a previous final determination or decision awarding the benefits, but only if the claimant continues to be entitled to benefits based on that application; (ii) An application on which we have made a previous final determination or decision denying the benefits, but only if such determination or decision is reopened under § 404.988; or (iii) A new application on which we have not made a final determination or decision. (2) The establishment of a deemed filing date of an application for benefits based on misinformation could result in the claimant becoming entitled to benefits or to additional benefits. (3) We have not made a previous final determination or decision to which you were a party on a claim for benefits based on alleged misinformation involving the same facts and issues. This provision does not apply, however, if the final determination or decision may be reopened under § 404.988. (g) Effective date. [59 FR 44924, Aug. 31, 1994] Withdrawal of Application § 404.640 Withdrawal of an application. (a) Request for withdrawal filed before a determination is made. (1) A written request for withdrawal is filed at a place described in § 404.614 by the claimant or a person who may sign an application for the claimant under § 404.612; and (2) The claimant is alive at the time the request is filed. (b) Request for withdrawal filed after a determination is made. (1) The conditions in paragraph (a) of this section are met; (2) Any other person whose entitlement would be rendered erroneous because of the withdrawal consents in writing to it. Written consent for the person may be given by someone who could sign an application for him or her under § 404.612; and (3) All benefits already paid based on the application being withdrawn are repaid or we are satisfied that they will be repaid. (4) Old age benefits. (i) The request for withdrawal is filed within 12 months of the first month of entitlement; and (ii) The claimant has not previously withdrawn an application for old age benefits. (c) Request for withdrawal filed after the claimant's death. (1) The claimant's application was for old-age benefits that would be reduced because of his or her age; (2) The claimant died before we certified his or her benefit entitlement to the Treasury Department for payment; (3) A written request for withdrawal is filed at a place described in § 404.614 by or for the person eligible for widow's or widower's benefits based on the claimant's earnings; and (4) The conditions in paragraphs (b) (2) and (3) of this section are met. (d) Effect of withdrawal. [44 FR 37209, June 26, 1979, as amended at 48 FR 21931, May 16, 1983; 51 FR 37720, Oct. 24, 1986; 75 FR 76259, Dec. 8, 2010] § 404.641 Cancellation of a request to withdraw. A request to withdraw an application may be cancelled and the application reinstated if— (a) A written request for cancellation is filed at a place described in § 404.614 by the claimant or someone who may sign an application for the claimant under § 404.612; (b) The claimant is alive at the time the request for cancellation is filed; and (c) For a cancellation request received after we have approved the withdrawal, the request is filed no later than 60 days after the date of the notice of approval. Subpart H—Evidence Authority: 42 U.S.C. 405(a), 902(a)(5), and 1320e-3. General § 404.701 Introduction. This subpart contains the Social Security Administration's basic rules about what evidence is needed when a person claims old-age, disability, dependents' and survivors' insurance benefits as described in subpart D. In addition, there are special evidence requirements for disability benefits. These are contained in subpart P. Evidence of a person's earnings under social security is described in subpart I. Evidence needed to obtain a social security number card is described in part 422. Evidence requirements for the supplemental security income program are contained in part 416. § 404.702 Definitions. As used in this subpart: Apply Benefits Convincing evidence Eligible Entitled Evidence Insured person fully insured, transitionally insured, currently insured, insured for disability Participating payroll data provider Payroll data provider We Us You [43 FR 24795, June 7, 1978, as amended at 89 FR 107258, Dec. 31, 2024] § 404.703 When evidence is needed. (a) Evidence. (b) Authorization to obtain data from a payroll data provider. (2) When we ask for your authorization, we will explain the authorization's scope and duration. (i) We will explain to you that we will use the information obtained from a payroll data provider when it is needed in connection with a determination of initial or ongoing entitlement to title II benefits based on disability, or for eligibility or the amount of benefits under the Supplemental Security Income program of title XVI of the Social Security Act, and to prevent improper payments. We will explain to you that we may also use the authorization to obtain wage and employment information from a payroll data provider for claims associated with the claim filed, such as a claim for benefits by a spouse or child. We will also explain that we may use and disclose your information consistent with applicable Federal law (see, e.g., (ii) We will also inform you that your authorization will remain effective until the earliest of one of the following occurrences: (A) You revoke your authorization in writing (see § 404.1588(b)(4)); (B) We have terminated all entitlement for benefits, you have no other claims or appeals pending under this title, and the period for appealing the determination or decision terminating entitlement has lapsed; or (C) There has been an adverse determination or decision on your claim, you have no other claims or appeals pending under this title, and the period for appealing the adverse determination or decision has lapsed. [89 FR 107258, Dec. 31, 2024] § 404.704 Your responsibility for giving evidence. When evidence is needed to prove your eligibility or your right to continue to receive benefit payments, you will be responsible for obtaining and giving the evidence to us. We will be glad to advise you what is needed and how to get it and we will consider any evidence you give us. If your evidence is a foreign-language record or document, we can have it translated for you. Evidence given to us will be kept confidential and not disclosed to anyone but you except under the rules set out in part 401. You should also be aware that Section 208 of the Social Security Act provides criminal penalties for misrepresenting the facts or for making false statements to obtain social security benefits for yourself or someone else. § 404.705 Failure to give requested evidence. Generally, you will be asked to give us by a certain date specific kinds of evidence or information to prove you are eligible for benefits. If we do not receive the evidence or information by that date, we may decide you are not eligible for benefits. If you are already receiving benefits, you may be asked to give us by a certain date information needed to decide whether you continue to be entitled to benefits or whether your benefits should be stopped or reduced. If you do not give us the requested information by the date given, we may decide that you are no longer entitled to benefits or that your benefits should be stopped or reduced. You should let us know if you are unable to give us the requested evidence within the specified time and explain why there will be a delay. If this delay is due to illness, failure to receive timely evidence you have asked for from another source, or a similar circumstance, you will be given additional time to give us the evidence. § 404.706 Where to give evidence. Evidence should be given to the people at a Social Security Administration office. In the Philippines evidence should be given to the people at the Veterans Administration Regional Office. Elsewhere outside the United States, evidence should be given to the people at a United States Foreign Service Office. § 404.707 Original records or copies as evidence. (a) General. (b) Certified copies of original records. (1) The official custodian of the record; (2) A Social Security Administration employee authorized to certify copies; (3) A Veterans Administration employee if the evidence was given to that agency to obtain veteran's benefits; (4) A U.S. Consular Officer or employee of the Department of State authorized to certify evidence received outside the United States; or (5) An employee of a State Agency or State Welfare Office authorized to certify copies of original records in the agency's or office's files. (c) Uncertified copies of original records. § 404.708 How we decide what is enough evidence. When you give us evidence, we examine it to see if it is convincing evidence. If it is, no other evidence is needed. In deciding if evidence is convincing, we consider whether— (a) Information contained in the evidence was given by a person in a position to know the facts; (b) There was any reason to give false information when the evidence was created; (c) Information contained in the evidence was given under oath, or with witnesses present, or with the knowledge there was a penalty for giving false information; (d) The evidence was created at the time the event took place or shortly thereafter; (e) The evidence has been altered or has any erasures on it; and (f) Information contained in the evidence agrees with other available evidence, including our records. § 404.709 Preferred evidence and other evidence. If you give us the type of evidence we have shown as preferred preferred Evidence of Age, Marriage, and Death § 404.715 When evidence of age is needed. (a) If you apply for benefits, we will ask for evidence of age which shows your date of birth unless you are applying for— (1) A lump-sum death payment; (2) A wife's benefit and you have the insured person's child in your care; (3) A mother's or father's benefit; or (4) A disability benefit (or for a period of disability) and neither your eligibility nor benefit amount depends upon your age. (b) If you apply for wife's benefits while under age 62 or if you apply for a mother's or father's benefit, you will be asked for evidence of the date of birth of the insured person's children in your care. (c) If you apply for benefits on the earnings record of a deceased person, you may be asked for evidence of his or her age if this is needed to decide whether he or she was insured at the time of death or what benefit amount is payable to you. § 404.716 Type of evidence of age to be given. (a) Preferred evidence. (b) Other evidence of age. § 404.720 Evidence of a person's death. (a) When evidence of death is required. (b) Preferred evidence of death. (1) A certified copy or extract from the public record of death, coroner's report of death, or verdict of a coroner's jury; or a certificate by the custodian of the public record of death; (2) A statement of the funeral director, attending physician, intern of the institution where death occurred; (3) A certified copy of, or extract from an official report or finding of death made by an agency or department of the United States; or (4) If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department; or a copy of the public record of death in the foreign country. (c) Other evidence of death. § 404.721 Evidence to presume a person is dead. If you cannot prove the person is dead but evidence of death is needed, we will presume he or she died at a certain time if you give us the following evidence: (a) A certified copy of, or extract from, an official report or finding by an agency or department of the United States that a missing person is presumed to be (b) Signed statements by those in a position to know and other records which show that the person has been absent from his or her residence and has not been heard from for at least 7 years. If the presumption of death is not rebutted pursuant to § 404.722, we will use as the person's date of death either the date he or she left home, the date ending the 7 year period, or some other date depending upon what the evidence shows is the most likely date of death. (c) If you are applying for benefits as the insured person's grandchild or stepgrandchild but the evidence does not identify a parent, we will presume the parent died in the first month in which the insured person became entitled to benefits. [43 FR 24795, June 7, 1978, as amended at 60 FR 19164, Apr. 17, 1995] § 404.722 Rebuttal of a presumption of death. A presumption of death made based on § 404.721(b) can be rebutted by evidence that establishes that the person is still alive or explains the individual's absence in a manner consistent with continued life rather than death. Example 1: Evidence in a claim for surviving child's benefits showed that the worker had wages posted to his earnings record in the year following the disappearance. It was established that the wages belonged to the worker and were for work done after his “disappearance.” In this situation, the presumption of death is rebutted by evidence (wages belonging to the worker) that the person is still alive after the disappearance. Example 2: Evidence shows that the worker left the family home shortly after a woman, whom he had been seeing, also disappeared, and that the worker phoned his wife several days after the disappearance to state he intended to begin a new life in California. In this situation the presumption of death is rebutted because the evidence explains the worker's absence in a manner consistent with continued life. [60 FR 19165, Apr. 17, 1995] § 404.723 When evidence of marriage is required. If you apply for benefits as the insured person's husband or wife, widow or widower, divorced wife or divorced husband, we will ask for evidence of the marriage and where and when it took place. We may also ask for this evidence if you apply for child's benefits or for the lump-sum death payment as the widow or widower. If you are a widow, widower, or divorced wife who remarried after your marriage to the insured person ended, we may also ask for evidence of the remarriage. You may be asked for evidence of someone else's marriage if this is necessary to prove your marriage to the insured person was valid. In deciding whether the marriage to the insured person is valid or not, we will follow the law of the State where the insured person had his or her permanent home when you applied or, if earlier, when he or she died—see § 404.770. What evidence we will ask for depends upon whether the insured person's marriage was a ceremonial marriage, a common-law marriage, or a marriage we will deem to be valid. [43 FR 24795, June 7, 1978, as amended at 44 FR 34493, June 15, 1979] § 404.725 Evidence of a valid ceremonial marriage. (a) General. ceremonial marriage (b) Preferred evidence. (1) If you are applying for wife's or husband's benefits, signed statements from you and the insured about when and where the marriage took place. If you are applying for the lump-sum death payment as the widow or widower, your signed statement about when and where the marriage took place; or (2) If you are applying for any other benefits or there is evidence causing some doubt about whether there was a ceremonial marriage: a copy of the public record of marriage or a certified statement as to the marriage; a copy of the religious record of marriage or a certified statement as to what the record shows; or the original marriage certificate. (c) Other evidence of a ceremonial marriage. § 404.726 Evidence of common-law marriage. (a) General. common-law marriage (b) Preferred evidence. (1) If both the husband and wife are alive, their signed statements and those of two blood relatives; (2) If either the husband or wife is dead, the signed statements of the one who is alive and those of two blood relatives of the deceased person; or (3) If both the husband and wife are dead, the signed statements of one blood relative of each; Note: All signed statements should show why the signer believes there was a marriage between the two persons. If a written statement cannot be gotten from a blood relative, one from another person can be used instead. (c) Other evidence of common-law marriage. § 404.727 Evidence of a deemed valid marriage. (a) General. deemed valid marriage (b) Preferred evidence. (1) Evidence of the ceremonial marriage as described in § 404.725(b)(2); (2) If the insured person is alive, his or her signed statement that the other party to the marriage went through the ceremony in good faith and his or her reasons for believing the marriage was valid or believing the other party thought it was valid; (3) The other party's signed statement that he or she went through the marriage ceremony in good faith and his or her reasons for believing it was valid; (4) If needed to remove a reasonable doubt, the signed statements of others who might have information about what the other party knew about any previous marriage or other facts showing whether he or she went through the marriage in good faith; and (5) Evidence the parties to the marriage were living in the same household when you applied for benefits or, if earlier, when the insured person died (see § 404.760). (c) Other evidence of a deemed valid marriage. § 404.728 Evidence a marriage has ended. (a) When evidence is needed that a marriage has ended. (b) Preferred evidence. (1) A certified copy of the decree of divorce or annulment; or (2) Evidence the person you married has died (see § 404.720). (c) Other evidence a marriage has ended. [43 FR 24795, June 7, 1978, as amended at 44 FR 34493, June 15, 1979] Evidence for Child's and Parent's Benefits § 404.730 When evidence of a parent or child relationship is needed. If you apply for parent's or child's benefits, we will ask for evidence showing your relationship to the insured person. What evidence we will ask for depends on whether you are the insured person's natural parent or child; or whether you are the stepparent, stepchild, grandchild, stepgrandchild, adopting parent or adopted child. § 404.731 Evidence you are a natural parent or child. If you are the natural parent of the insured person, we will ask for a copy of his or her public or religious birth record made before age 5. If you are the natural child of the insured person, we will ask for a copy of your public or religious birth record made before age 5. In either case, if this record shows the same last name for the insured and the parent or child, we will accept it as convincing evidence of the relationship. However, if other evidence raises some doubt about this record or if the record cannot be gotten, we will ask for other evidence of the relationship. We may also ask for evidence of marriage of the insured person or of his or her parent if this is needed to remove any reasonable doubt about the relationship. To show you are the child of the insured person, you may be asked for evidence you would be able to inherit his or her personal property under State law where he or she had a permanent home (see § 404.770). In addition, we may ask for the insured persons signed statement that you are his or her natural child, or for a copy of any court order showing the insured has been declared to be your natural parent or any court order requiring the insured to contribute to you support because you are his or her son or daughter. § 404.732 Evidence you are a stepparent or stepchild. If you are the stepparent or stepchild of the insured person, we will ask for the evidence described in § 404.731 or § 404.733 that which shows your natural or adoptive relationship to the insured person's husband, wife, widow, or widower. We will also ask for evidence of the husband's, wife's, widow's, or widower's marriage to the insured person—see § 404.725. § 404.733 Evidence you are the legally adopting parent or legally adopted child. If you are the adopting parent or adopted child, we will ask for the following evidence: (a) A copy of the birth certificate made following the adoption; or if this cannot be gotten, other evidence of the adoption; and, if needed, evidence of the date of adoption; (b) If the widow or widower adopted the child after the insured person died, the evidence described in paragraph (a) of this section; your written statement whether the insured person was living in the same household with the child when he or she died (see § 404.760); what support the child was getting from any other person or organization; and if the widow or widower had a deemed valid marriage with the insured person, evidence of that marriage—see § 404.727; (c) If you are the insured's stepchild, grandchild, or stepgrandchild as well as his or her adopted child, we may also ask you for evidence to show how you were related to the insured before the adoption. § 404.734 Evidence you are an equitably adopted child. In many States, the law will treat someone as a child of another if he or she agreed to adopt the child, the natural parents or the person caring for the child were parties to the agreement, he or she and the child then lived together as parent and child, and certain other requirements are met. If you are a child who had this kind or relationship to the insured person (or to the insured person's wife, widow, or husband), we will ask for evidence of the agreement if it is in writing. If it is not in writing or cannot be gotten, other evidence may be accepted. Also, the following evidence will be asked for: Written statements of your natural parents and the adopting parents and other evidence of the child's relationship to the adopting parents. § 404.735 Evidence you are the grandchild or stepgrandchild. If you are the grandchild or stepgrandchild of the insured person, we will ask you for the kind of evidence described in §§ 404.731 through 404.733 that shows your relationship to your parent and your parent's relationship to the insured. § 404.736 Evidence of a child's dependency. (a) When evidence of a child's dependency is needed. (b) Natural or adopted child. (1) A signed statement by someone who knows the facts that confirms this relationship and which shows whether you were legally adopted by someone other than the insured. If you were adopted by someone else while the insured person was alive, but the adoption was annulled, we may ask for a certified copy of the annulment decree or other convincing evidence of the annulment. (2) A signed statement by someone in a position to know showing when and where you lived with the insured and when and why you may have lived apart; and showing what contributions the insured made to your support and when and how they were made. (c) Stepchild. (1) A signed statement by someone in a position to know—showing when and where you lived with the insured and when and why you may have lived apart. (2) A signed statement by someone in a position to know showing you received at least one-half of your support from the insured for the one-year period ending at one of the times mentioned in paragraph (a) of this section; and the income end support you had in this period from any other source. (d) Grandchild or Stepgrandchild. § 404.745 Evidence of school attendance for child age 18 or older. If you apply for child's benefits as a student age 18 or over, we may ask for evidence you are attending school. We may also ask for evidence from the school you attend showing your status at the school. We will ask for the following evidence: (a) Your signed statement that you are attending school full-time and are not being paid by an employer to attend school. (b) If you apply before the school year has started and the school is not a high school, a letter of acceptance from the school, receipted bill, or other evidence showing you have enrolled or been accepted at that school. § 404.750 Evidence of a parent's support. If you apply for parent's benefits, we will ask you for evidence to show that you received at least one-half of your support from the insured person in the one-year period before he or she died or became disabled. We may also ask others who know the facts for a signed statement about your sources of support. We will ask you for the following evidence: (a) The parent's signed statement showing his or her income, any other sources of support, and the amount from each source over the one-year period. (b) If the statement described in paragraph (a) of this section cannot be obtained, other convincing evidence that the parent received one-half of his or her support from the insured person. Other Evidence Requirements § 404.760 Evidence of living in the same household with insured person. If you apply for the lump-sum death payment as the insured person's widow or widower, or for wife's, husband's, widow's, or widower's benefits based upon a deemed valid marriage as described in § 404.727, we will ask for evidence you and the insured were living together in the same household when he or she died; or if the insured is alive, when you applied for benefits. We will ask for the following as evidence of this: (a) If the insured person is living, his or her signed statement and yours showing whether you were living together when you applied for benefits. (b) If the insured person is dead, your signed statement showing whether you were living together when he or she died. (c) If you and the insured person were temporarily living apart, a signed statement explaining where each was living, how long the separation lasted, and why you were separated. If needed to remove any reasonable doubts about this, we may ask for the signed statements of others in a position to know, or for other convincing evidence you and the insured were living together in the same household. § 404.762 What is acceptable evidence of having a child in my care? What evidence we will ask for depends upon whether the child is living with you or with someone else. You will be asked to give the following evidence: (a) If the child is living with you, your signed statement showing that the child is living with you. (b) If the child is living with someone else— (1) Your signed statement showing with whom he or she is living and why he or she is living with someone else. We will also ask when he or she last lived with you and how long this separation will last, and what care and contributions you provide for the child; (2) The signed statement of the one with whom the child is living showing what care you provide and the sources and amounts of support received for the child. If the child is in an institution, an official there should sign the statement. These statements are preferred evidence. If there is a court order or written agreement showing who has custody of the child, you may be asked to give us a copy; and (3) If you cannot get the preferred evidence described in paragraph (b)(2) of this section, we will ask for other convincing evidence that the child is in your care. [43 FR 24795, June 7, 1978, as amended at 73 FR 40967, July 17, 2008] § 404.770 Evidence of where the insured person had a permanent home. (a) When evidence of the insured's permanent home is needed. (1) You apply for benefits as the insured's wife, husband, widow, widower, parent or child; and (2) Your relationship to the insured depends upon the State law that would be followed in the place where the insured had his or her permanent home when you applied for benefits or when he or she died. (b) What evidence is needed. (1) Your signed statement showing where the insured considered his permanent home to be. (2) If the statement in paragraph (b)(1) of this section or other evidence we have raises a reasonable doubt about where the insured's permanent home was, evidence of where he or she paid personal, property, or income taxes, or voted; or other convincing evidence of where his or her permanent home was. § 404.780 Evidence of “good cause” for exceeding time limits on accepting proof of support or application for a lump-sum death payment. (a) When evidence of good cause good cause good cause good cause (1) You are the insured person's parent giving us proof of support more than 2 years after he or she died, or became disabled; or (2) You are applying for the lump-sum death payment more than 2 years after the insured died. (b) What evidence of good cause (1) Your signed statement explaining why you did not give us the proof of support or the application for lump-sum death payment within the specified 2 year period. (2) If the statement in paragraph (b)(1) of the section or other evidence raises a reasonable doubt whether there was good cause, other convincing evidence of this. [43 FR 24795, June 7, 1978, as amended at 44 FR 34493, June 15, 1979] Subpart I—Records of Earnings Authority: Secs. 205(a), (c)(1), (c)(2)(A), (c)(4), (c)(5), (c)(6), and (p), 702(a)(5), and 1143 of the Social Security Act (42 U.S.C. 405(a), (c)(1), (c)(2)(A), (c)(4), (c)(5), (c)(6), and (p), 902(a)(5), and 1320b-13). Source: 44 FR 38454, July 2, 1979, unless otherwise noted. General Provisions § 404.801 Introduction. The Social Security Administration (SSA) keeps a record of the earnings of all persons who work in employment or self-employment covered under social security. We use these earnings records to determine entitlement to and the amount of benefits that may be payable based on a person's earnings under the retirement, survivors', disability and health insurance program. This subpart tells what is evidence of earnings, how you can find out what the record of your earnings shows, and how and under what circumstances the record of your earnings may be changed to correct errors. § 404.802 Definitions. For the purpose of this subpart— Earnings Period Record of earnings, earnings record, record Survivor Survivor Tax return Time limit Wage report We, us, our Year You your § 404.803 Conclusiveness of the record of your earnings. (a) Generally. (b) Before time limit ends. (c) After time limit ends. (1) If SSA records show an entry of self-employment income or wages for an employer for a period in that year, our records are conclusive evidence of your self-employment income in that year or the wages paid to you by that employer and the periods in which they were received unless one of the exceptions in § 404.822 applies; (2) If SSA records show no entry of wages for an employer for a period in that year, our records are conclusive evidence that no wages were paid to you by that employer in that period unless one of the exceptions in § 404.822 applies; and (3) If SSA records show no entry of self-employment income for that year, our records are conclusive evidence that you did not receive self-employment income in that year unless the exception in § 404.822(b)(2) (i) or (iii) applies. Obtaining Earnings Information § 404.810 How to obtain a statement of earnings and a benefit estimate statement. (a) Right to a statement of earnings and a benefit estimate. (b) Contents of request. [57 FR 54918, Nov. 23, 1992] § 404.811 The statement of earnings and benefit estimates you requested. (a) General. (b) Contents of statement of earnings and benefit estimates. (1) Your social security taxed earnings as shown by our records as of the date of your request; (2) An estimate of the social security and medicare hospital insurance taxes paid on your earnings (although we do not maintain such tax information); (3) The number of credits, i.e. (4) A statement as to whether you meet the credits (quarters of coverage) requirements, as described in subpart B of this part, for each type of social security benefit when we prepare the benefit estimates, and also whether you are eligible for medicare hospital insurance coverage; (5) Estimates of the monthly retirement (old-age), disability, dependents' and survivors' insurance benefits potentially payable on your record if you meet the credits (quarters of coverage) requirements. The benefit estimates we send you will be based partly on your stated earnings for last year (if not yet on your record), your estimate of your earnings for the current year and for future years before you plan to retire, and on the age at which you plan to retire. The estimate will include the retirement (old-age) insurance benefits you could receive at age 62 (or your current age if you are already over age 62), at full retirement age (currently age 65 to 67, depending on your year of birth) or at your current age if you are already over full retirement age, and at age 70; (6) A description of the coverage under the medicare program; (7) A reminder of your right to request a correction of your earnings record; and (8) A remark that an annually updated statement is available on request. [61 FR 18076, Apr. 24, 1996] § 404.812 Statement of earnings and benefit estimates sent without request. (a) Who will be sent a statement. (1) You have a social security account number; (2) You have wages or net earnings from self-employment on your social security record; (3) You have attained age 25 or older, as explained in paragraph (c)(3) of this section; and (4) We can determine your current mailing address. (b) Who will not be sent a statement. (1) You do not meet one or more of the conditions of paragraph (a) of this section; (2) Our records contain a notation of your death; (3) You are entitled to benefits under title II of the Act; (4) We have already sent you a statement, based on your request, in the fiscal year we selected you to receive an unrequested statement; (5) We cannot obtain your address (see paragraph (c)(2) of this section); or (6) We are correcting your social security earnings record when we select you to receive a statement of earnings and benefit estimates. (c) The selection and mailing process. (1) Selection. (2) Addresses. (3) Age. (4) Ineligible. (5) Undeliverable. (d) Contents of statement of earnings and benefit estimates. (1) Your social security taxed earnings as shown by our records as of the date we select you to receive a statement; (2) An estimate of the social security and medicare hospital insurance taxes paid on your earnings (although we do not maintain such tax information); (3) The number of credits, i.e. (4) A statement as to whether you meet the credit (quarters of coverage) requirements, as described in subpart B of this part, for each type of social security benefit when we prepare the benefit estimates, and also whether you are eligible for medicare hospital insurance coverage; (5) Estimates of the monthly retirement (old-age), disability, dependents' and survivors' insurance benefits potentially payable on your record if you meet the credits (quarters of coverage) requirements. If you are age 50 or older, the estimates will include the retirement (old-age) insurance benefits you could receive at age 62 (or your current age if you are already over age 62), at full retirement age (currently age 65 to 67, depending on your year of birth) or at your current age if you are already over full retirement age, and at age 70. If you are under age 50, instead of estimates, we may provide a general description of the benefits (including auxiliary benefits) that are available upon retirement; (6) A description of the coverage provided under the medicare program; (7) A reminder of your right to request a correction of your earnings record; and (8) A remark that an annually updated statement is available on request. [61 FR 18077, Apr. 24, 1996] Correcting the Earnings Record § 404.820 Filing a request for correction of the record of your earnings. (a) When to file a request for correction. (b) Contents of a request. (2) A request must be signed by you or your survivor or by a person who may sign an application for benefits for you or for your survivor as described in § 404.612. (3) A request should state the period being questioned. (4) A request should describe, or have attached to it, any available evidence which shows that the record of earnings is incorrect. (c) Where to file a request. (d) When a request is considered filed. (e) Withdrawal of a request for correction. (f) Cancellation of a request to withdraw. (g) Determinations on requests. § 404.821 Correction of the record of your earnings before the time limit ends. Before the time limit ends for any year, we will correct the record of your earnings for that year for any reason if satisfactory evidence shows SSA records are incorrect. We may correct the record as the result of a request filed under § 404.820 or we may correct it on our own. § 404.822 Correction of the record of your earnings after the time limit ends. (a) Generally. (b) Correcting SSA records to agree with tax returns. (1) Tax returns of wages. (2) Tax returns of self-employment income Return filed before the time limit ended. (ii) Return filed after time limit ended. (iii) Self-employment income entered in place of erroneously entered wages. (A) An amended tax return is filed before the time limit ends for the year in which the erroneously entered wages were removed; or (B) Net earnings from self-employment, which are not already entered in the record of your earnings, were included in a tax return filed before the end of the time limit for the year in which the erroneously entered wages were removed. (c) Written request for correction or application for benefits filed before the time limit ends Written request for correction. (2) Application for benefits. (3) See subpart J for the rules on the finality of determinations. (d) Transfer of wages to or from the Railroad Retirement Board Wages erroneously reported. (2) Earnings certified by Railroad Retirement Board. (e) Other circumstances permitting correction Investigation started before time limit ends. (2) Error apparent on face of records. (3) Fraud. (4) Entries for wrong person or period. (5) Less than correct wages on SSA records. (6) Wage payments under a statute. [44 FR 38454, July 2, 1979, as amended at 57 FR 21600, May 21, 1992] § 404.823 Correction of the record of your earnings for work in the employ of the United States. We may correct the record of your earnings to remove, reduce, or enter earnings for work in the employ of the United States only if— (a) Correction is permitted under § 404.821 or § 404.822; and (b) Any necessary determinations concerning the amount of remuneration paid for your work and the periods for which such remuneration was paid have been made as shown by— (1) A tax return filed under section 3122 of the Internal Revenue Code (26 U.S.C. 3122); or (2) A certification by the head of the Federal agency or instrumentality of which you have been an employee or his or her agent. A Federal instrumentality for these purposes includes a nonappropriated fund activity of the armed forces or Coast Guard. [44 FR 38454, July 2, 1979, as amended at 55 FR 24891, June 19, 1990] Notice of Removal or Reduction of an Entry of Earnings § 404.830 Notice of removal or reduction of your wages. If we remove or reduce an amount of wages entered on the record of your earnings, we will notify you of this correction if we previously notified you of the amount of your wages for the period involved. We will notify your survivor if we previously notified you or your survivor of the amount of your earnings for the period involved. § 404.831 Notice of removal or reduction of your self-employment income. If we remove or reduce an amount of self-employment income entered on the record of your earnings, we will notify you of this correction. We will notify your survivor if we previously notified you or your survivor of the amount of your earnings for the period involved. Subpart J—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j), 221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i), 425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note). Introduction, Definitions, and Initial Determinations § 404.900 Introduction. (a) Explanation of the administrative review process. (1) Initial determination. (2) Reconsideration. (3) Hearing before an administrative law judge. (4) Appeals Council review. (5) Federal court review. (6) Expedited appeals process. (b) Nature of the administrative review process. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 300, Jan. 3, 1986; 51 FR 8808, Mar. 14, 1986; 52 FR 4004, Feb. 9, 1987; 78 FR 57259, Sept. 18, 2013; 80 FR 14835, Mar. 20, 2015; 81 FR 90992, Dec. 16, 2016] § 404.901 Definitions. As used in this subpart: Date you receive notice Decision Determination Preponderance of the evidence Remand Substantial evidence Vacate Waive We, us, our You your [45 FR 52081, Aug. 5, 1980, as amended at 73 FR 76943, Dec. 18, 2008] § 404.902 Administrative actions that are initial determinations. Initial determinations are the determinations we make that are subject to administrative and judicial review. We will base our initial determination on the preponderance of the evidence. We will state the important facts and give the reasons for our conclusions in the initial determination. In the old age, survivors' and disability insurance programs, initial determinations include, but are not limited to, determinations about— (a) Your entitlement or your continuing entitlement to benefits; (b) Your reentitlement to benefits; (c) The amount of your benefit; (d) A recomputation of your benefit; (e) A reduction in your disability benefits because you also receive benefits under a workmen's compensation law; (f) A deduction from your benefits on account of work; (g) [Reserved] (h) Termination of your benefits; (i) Penalty deductions imposed because you failed to report certain events; (j) Any overpayment or underpayment of your benefits; (k) Whether an overpayment of benefits must be repaid to us; (l) How an underpayment of benefits due a deceased person will be paid; (m) The establishment or termination of a period of disability; (n) A revision of your earnings record; (o) Whether the payment of your benefits will be made, on your behalf, to a representative payee; (p) Your drug addiction or alcoholism; (q) Who will act as your payee if we determine that representative payment will be made; (r) An offset of your benefits under § 404.408b because you previously received supplemental security income payments for the same period; (s) Whether your completion of, or continuation for a specified period of time in, an appropriate program of vocational rehabilitation services, employment services, or other support services will increase the likelihood that you will not have to return to the disability benefit rolls, and thus, whether your benefits may be continued even though you are not disabled; (t) Nonpayment of your benefits under § 404.468 because of your confinement in a jail, prison, or other penal institution or correctional facility for conviction of a felony; (u) Whether or not you have a disabling impairment(s) as defined in § 404.1511; (v) Nonpayment of your benefits under § 404.469 because you have not furnished us satisfactory proof of your Social Security number, or, if a Social Security number has not been assigned to you, you have not filed a proper application for one; (w) A claim for benefits under § 404.633 based on alleged misinformation; and (x) Whether we were negligent in investigating or monitoring or failing to investigate or monitor your representative payee, which resulted in the misuse of benefits by your representative payee. [45 FR 52081, Aug. 5, 1980, as amended at 47 FR 4988, Feb. 3, 1982; 47 FR 31543, July 21, 1982; 49 FR 22272, May 29, 1984; 50 FR 20902, May 21, 1985; 56 FR 41790, Aug. 23, 1991; 59 FR 44925, Aug. 31, 1994; 60 FR 8147, Feb. 10, 1995; 68 FR 40123, July 7, 2003; 69 FR 60232, Oct. 7, 2004; 70 FR 36507, June 24, 2005; 73 FR 76943, Dec. 18, 2008] § 404.903 Administrative actions that are not initial determinations. Administrative actions that are not initial determinations may be reviewed by us, but they are not subject to the administrative review process provided by this subpart, and they are not subject to judicial review. These actions include, but are not limited to, an action— (a) Suspending benefits pending an investigation and determination of any factual issue relating to a deduction on account of work; (b) Suspending benefits pending an investigation to determine if your disability has ceased; (c) Denying a request to be made a representative payee; (d) Certifying two or more family members for joint payment of benefits; (e) Withholding less than the full amount of your monthly benefit to recover an overpayment; (f) Determining the fee that may be charged or received by a person who has represented you in connection with a proceeding before us; (g) Refusing to recognize, disqualifying, or suspending a person from acting as your representative in a proceeding before us (see §§ 404.1705 and 404.1745); (h) Compromising, suspending or terminating collection of an overpayment under the Federal Claims Collection Act; (i) Extending or not extending the time to file a report of earnings; (j) Denying your request to extend the time period for requesting review of a determination or a decision; (k) Denying your request to use the expedited appeals process; (l) Denying your request to reopen a determination or a decision; (m) Withholding temporarily benefits based on a wage earner's estimate of earnings to avoid creating an overpayment; (n) Determining whether (and the amount of) travel expenses incurred are reimbursable in connection with proceedings before us; (o) Denying your request to readjudicate your claim and apply an Acquiescence Ruling; (p) Findings on whether we can collect an overpayment by using the Federal income tax refund offset procedure (see § 404.523); (q) Determining whether an organization may collect a fee from you for expenses it incurred in serving as your representative payee (see § 404.2040a); (r) Declining under § 404.633(f) to make a determination on a claim for benefits based on alleged misinformation because one or more of the conditions specified in § 404.633(f) are not met; (s) The assignment of a monthly payment day (see § 404.1807); (t) Determining whether we will refer information about your overpayment to a consumer reporting agency (see §§ 404.527 and 422.305 of this chapter); (u) Determining whether we will refer your overpayment to the Department of the Treasury for collection by offset against Federal payments due you (see §§ 404.527 and 422.310 of this chapter); (v) Determining whether we will order your employer to withhold from your disposable pay to collect an overpayment you received under title II of the Social Security Act (see part 422, subpart E, of this chapter); (w) Determining whether provisional benefits are payable, the amount of the provisional benefits, and when provisional benefits terminate (see § 404.1592e); (x) Determining whether to select your claim for the quick disability determination process under § 404.1619; (y) The removal of your claim from the quick disability determination process under § 404.1619; (z) Starting or discontinuing a continuing disability review; (aa) Issuing a receipt in response to your report of a change in your work activity; and (bb) Determining whether a non-attorney representative is eligible to receive direct fee payment as described in § 404.1717 of this part. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 8808, Mar. 14, 1986; 55 FR 1018, Jan. 11, 1990; 56 FR 52469, Oct. 21, 1991; 57 FR 23057, June 1, 1992; 59 FR 44925, Aug. 31, 1994; 62 FR 6120, Feb. 11, 1997; 62 FR 64278, Dec. 5, 1997; 68 FR 74183, Dec. 23, 2003; 70 FR 57142, Sept. 30, 2005; 71 FR 16443, Mar. 31, 2006; 71 FR 66853, 66866, Nov. 17, 2006; 72 FR 51177, Sept. 6, 2007; 76 FR 45192, July 28, 2011; 76 FR 80245, Dec. 23, 2011; 80 FR 400, Jan. 6, 2015] § 404.904 Notice of the initial determination. We will mail a written notice of our initial determination to you at your last known address. The written notice will explain in simple and clear language what we have determined and the reasons for and the effect of our determination. If our determination involves a determination of disability that is in whole or in part unfavorable to you, our written notice also will contain in understandable language a statement of the case setting forth the evidence on which our determination is based. The notice also will inform you of your right to reconsideration. We will not mail a notice if the beneficiary's entitlement to benefits has ended because of his or her death. [72 FR 51177, Sept. 6, 2007] § 404.905 Effect of an initial determination. An initial determination is binding unless you request a reconsideration within the stated time period, or we revise the initial determination. [51 FR 300, Jan. 3, 1986] § 404.906 Testing modifications to the disability determination procedures. (a) Applicability and scope. (b) Procedures for cases included in the tests. Federal Register. (1) In the disability claim manager model, when you file an application for benefits based on disability, a disability claim manager will assume primary responsibility for the processing of your claim. The disability claim manager will be the focal point for your contacts with us during the claims intake process and until an initial determination on your claim is made. The disability claim manager will explain the disability programs to you, including the definition of disability and how we determine whether you meet all the requirements for benefits based on disability. The disability claim manager will explain what you will be asked to do throughout the claims process and how you can obtain information or assistance through him or her. The disability claim manager will also provide you with information regarding your right to representation, and he or she will provide you with appropriate referral sources for representation. The disability claim manager may be either a State agency employee or a Federal employee. In some instances, the disability claim manager may be assisted by other individuals. (2) In the single decisionmaker model, the decisionmaker will make the disability determination and may also determine whether the other conditions for entitlement to benefits based on disability are met. The decisionmaker will make the disability determination after any appropriate consultation with a medical or psychological consultant. The medical or psychological consultant will not be required to sign the disability determination forms we use to have the State agency certify the determination of disability to us (see § 404.1615). However, before an initial determination is made in any case where there is evidence which indicates the existence of a mental impairment, the decisionmaker will make every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment pursuant to our existing procedures (see § 404.1617). In some instances the decisionmaker may be the disability claim manager described in paragraph (b)(1) of this section. When the decisionmaker is a State agency employee, a team of individuals that includes a Federal employee will determine whether the other conditions for entitlement to benefits are met. (3) In the predecision interview model, if the decisionmaker(s) finds that the evidence in your file is insufficient to make a fully favorable determination or requires an initial determination denying your claim, a predecision notice will be mailed to you. The notice will tell you that, before the decisionmaker(s) makes an initial determination about whether you are disabled, you may request a predecision interview with the decisionmaker(s). The notice will also tell you that you may submit additional evidence. You must request a predecision interview within 10 days after the date you receive the predecision notice. You must also submit any additional evidence within 10 days after you receive the predecision notice. If you request a predecision interview, the decisionmaker(s) will conduct the predecision interview in person, by videoconference, or by telephone as the decisionmaker(s) determines is appropriate under the circumstances. If you make a late request for a predecision interview, or submit additional evidence late, but show in writing that you had good cause under the standards in § 404.911 for missing the deadline, the decisionmaker(s) will extend the deadline. If you do not request the predecision interview, or if you do not appear for a scheduled predecision interview and do not submit additional evidence, or if you do not respond to our attempts to communicate with you, the decisionmaker(s) will make an initial determination based upon the evidence in your file. If you identify additional evidence during the predecision interview, which was previously not available, the decisionmaker(s) will advise you to submit the evidence. If you are unable to do so, the decisionmaker(s) may assist you in obtaining it. The decisionmaker(s) also will advise you of the specific timeframes you have for submitting any additional evidence identified during the predecision interview. If you have no treating source(s) (see § 404.1502), or your treating source(s) is unable or unwilling to provide the necessary evidence, or there is a conflict in the evidence that cannot be resolved through evidence from your treating source(s), the decisionmaker(s) may arrange a consultative examination or resolve conflicts according to existing procedures (see § 404.1519a). If you attend the predecision interview, or do not attend the predecision interview but you submit additional evidence, the decisionmaker(s) will make an initial determination based on the evidence in your file, including the additional evidence you submit or the evidence obtained as a result of the predecision notice or interview, or both. (4) In the reconsideration elimination model, we will modify the disability determination process by eliminating the reconsideration step of the administrative review process. If you receive an initial determination on your claim for benefits based on disability, and you are dissatisfied with the determination, we will notify you that you may request a hearing before an administrative law judge. [60 FR 20026, Apr. 24, 1995, as amended at 73 FR 2415, Jan. 15, 2008; 76 FR 24806, May 3, 2011; 82 FR 5863, Jan. 18, 2017] Reconsideration § 404.907 Reconsideration—general. If you are dissatisfied with the initial determination, reconsideration is the first step in the administrative review process that we provide, except that we provide the opportunity for a hearing before an administrative law judge as the first step for those situations described in §§ 404.930 (a)(6) and (a)(7), where you appeal an initial determination denying your request for waiver of adjustment or recovery of an overpayment (see § 404.506). If you are dissatisfied with our reconsidered determination, you may request a hearing before an administrative law judge. [61 FR 56132, Oct. 31, 1996] § 404.908 Parties to a reconsideration. (a) Who may request a reconsideration. (b) Who are parties to a reconsideration. § 404.909 How to request reconsideration. (a) We shall reconsider an initial determination if you or any other party to the reconsideration files a written request— (1) Within 60 days after the date you receive notice of the initial determination (or within the extended time period if we extend the time as provided in paragraph (b) of this section); (2) At one of our offices, the Veterans Administration Regional Office in the Philippines, or an office of the Railroad Retirement Board if you have 10 or more years of service in the railroad industry. (b) Extension of time to request a reconsideration. § 404.911 Good cause for missing the deadline to request review. (a) In determining whether you have shown that you had good cause for missing a deadline to request review we consider— (1) What circumstances kept you from making the request on time; (2) Whether our action misled you; (3) Whether you did not understand the requirements of the Act resulting from amendments to the Act, other legislation, or court decisions; and (4) Whether you had any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which prevented you from filing a timely request or from understanding or knowing about the need to file a timely request for review. (b) Examples of circumstances where good cause may exist include, but are not limited to, the following situations: (1) You were seriously ill and were prevented from contacting us in person, in writing, or through a friend, relative, or other person. (2) There was a death or serious illness in your immediate family. (3) Important records were destroyed or damaged by fire or other accidental cause. (4) You were trying very hard to find necessary information to support your claim but did not find the information within the stated time periods. (5) You asked us for additional information explaining our action within the time limit, and within 60 days of receiving the explanation you requested reconsideration or a hearing, or within 30 days of receiving the explanation you requested Appeal Council review or filed a civil suit. (6) We gave you incorrect or incomplete information about when and how to request administrative review or to file a civil suit. (7) You did not receive notice of the determination or decision. (8) You sent the request to another Government agency in good faith within the time limit and the request did not reach us until after the time period had expired. (9) Unusual or unavoidable circumstances exist, including the circumstances described in paragraph (a)(4) of this section, which show that you could not have known of the need to file timely, or which prevented you from filing timely. [45 FR 52081, Aug. 5, 1980, as amended at 59 FR 1634, Jan. 12, 1994] § 404.913 Reconsideration procedures. (a) Case review. (b) Disability hearing. [51 FR 300, Jan. 3, 1986] § 404.914 Disability hearing—general. (a) Availability. (1) You have been receiving benefits based on a medical impairment that renders you disabled; (2) We have made an initial or revised determination based on medical factors that you are not now disabled because your impairment: (i) Has ceased; (ii) Did not exist; or (iii) Is no longer disabling; and (3) You make a timely request for reconsideration of the initial or revised determination. (b) Scope. (c) Time and place General. (2) Change of time or place. (d) Combined issues. (e) Definition. we, us our [51 FR 300, Jan. 3, 1986, as amended at 51 FR 8808, Mar. 14, 1986; 71 FR 10427, Mar. 1, 2006] § 404.915 Disability hearing—disability hearing officers. (a) General. (b) State agency hearing officers Appointment of State agency hearing officers. (2) State agency State agency (c) Federal hearing officers. (1) A component of our office other than a State agency made the determination you are appealing; or (2) The State agency does not appoint a disability hearing officer to conduct your disability hearing under paragraph (b) of this section. [51 FR 301, Jan. 3, 1986, as amended at 71 FR 10428, Mar. 1, 2006] § 404.916 Disability hearing—procedures. (a) General. (b) Your procedural rights. (1) You may request that we assist you in obtaining pertinent evidence for your disability hearing and, if necessary, that we issue a subpoena to compel the production of certain evidence or testimony. We will follow subpoena procedures similar to those described in § 404.950(d) for the administrative law judge hearing process; (2) You may have a representative at the hearing appointed under subpart R of this part, or you may represent yourself; (3) You or your representative may review the evidence in your case file, either on the date of your hearing or at an earlier time at your request, and present additional evidence; (4) You may present witnesses and question any witnesses at the hearing; (5) You may waive your right to appear at the hearing. If you do not appear at the hearing, the disability hearing officer will prepare and issue a written reconsidered determination based on the information in your case file. (c) Case preparation. (d) Favorable reconsideration determination without a hearing. (e) Opportunity to submit additional evidence after the hearing. (1) The disability hearing officer determines that the evidence has a direct bearing on the outcome of the hearing; and (2) The evidence could not have been obtained before the hearing. (f) Opportunity to review and comment on evidence obtained or developed by us after the hearing. [51 FR 301, Jan. 3, 1986] § 404.917 Disability hearing—disability hearing officer's reconsidered determination. (a) General. (1) The disability hearing officer sends the case back for additional development by the component that prepared the case for the hearing, and that component issues a favorable determination, as permitted by § 404.916(c); (2) It is determined that you are engaging in substantial gainful activity and that you are therefore not disabled; or (3) The reconsidered determination prepared by the disability hearing officer is reviewed under § 404.918. (b) Content. (c) Notice. (d) Effect. [51 FR 302, Jan. 3, 1986, as amended at 71 FR 10428, Mar. 1, 2006; 73 FR 76943, Dec. 18, 2008] § 404.918 Disability hearing—review of the disability hearing officer's reconsidered determination before it is issued. (a) General. (1) There appears to be an abuse of discretion by the hearing officer; (2) There is an error of law; or (3) The action, findings or conclusions of the disability hearing officer are not supported by substantial evidence. Note to paragraph ( a If the review indicates that the reconsidered determination prepared by the disability hearing officer is correct, it will be dated and issued immediately upon completion of the review. If the reconsidered determination prepared by the disability hearing officer is found by the Associate Commissioner or his or her delegate to be deficient, it will be changed as described in paragraph (b) of this section. (b) Methods of correcting deficiencies in the disability hearing officer's reconsidered determination. (1) The Associate Commissioner or his or her delegate may return the case file either to the component responsible for preparing the case for hearing or to the disability hearing officer, for appropriate further action; or (2) The Associate Commissioner or his or her delegate may issue a written reconsidered determination which corrects the deficiency. (c) Further action on your case if it is sent back by the Associate Commissioner for Disability Determinations or his or her delegate either to the component that prepared your case for hearing or to the disability hearing officer. (d) Opportunity to comment before the Associate Commissioner for Disability Determinations or his or her delegate issues a reconsidered determination that is unfavorable to you. [71 FR 10428, Mar. 1, 2006] § 404.919 Notice of another person's request for reconsideration. If any other person files a request for reconsideration of the initial determination in your case, we shall notify you at your last known address before we reconsider the initial determination. We shall also give you an opportunity to present any evidence you think helpful to the reconsidered determination. [45 FR 52081, Aug. 5, 1980. Redesignated at 51 FR 302, Jan. 3, 1986] § 404.920 Reconsidered determination. After you or another person requests a reconsideration, we will review the evidence we considered in making the initial determination and any other evidence we receive. We will make our determination based on the preponderance of the evidence. [73 FR 76943, Dec. 18, 2008] § 404.921 Effect of a reconsidered determination. The reconsidered determination is binding unless— (a) You or any other party to the reconsideration requests a hearing before an administrative law judge within the stated time period and a decision is made; (b) The expedited appeals process is used; or (c) The reconsidered determination is revised. [51 FR 302, Jan. 3, 1986] § 404.922 Notice of a reconsidered determination. We shall mail a written notice of the reconsidered determination to the parties at their last known address. We shall state the specific reasons for the determination and tell you and any other parties of the right to a hearing. If it is appropriate, we will also tell you and any other parties how to use the expedited appeals process. [45 FR 52081, Aug. 5, 1980. Redesignated at 51 FR 302, Jan. 3, 1986] Expedited Appeals Process § 404.923 Expedited appeals process—general. By using the expedited appeals process you may go directly to a Federal district court without first completing the administrative review process that is generally required before the court will hear your case. § 404.924 When the expedited appeals process may be used. You may use the expedited appeals process if all of the following requirements are met: (a) We have made an initial and a reconsidered determination; an administrative law judge has made a hearing decision; or Appeals Council review has been requested, but a final decision has not been issued. (b) You are a party to the reconsidered determination or the hearing decision. (c) You have submitted a written request for the expedited appeals process. (d) You have claimed, and we agree, that the only factor preventing a favorable determination or decision is a provision in the law that you believe is unconstitutional. (e) If you are not the only party, all parties to the determination or decision agree to request the expedited appeals process. § 404.925 How to request expedited appeals process. (a) Time of filing request. (1) Within 60 days after the date you receive notice of the reconsidered determination (or within the extended time period if we extend the time as provided in paragraph (c) of this section); (2) At any time after you have filed a timely request for a hearing but before you receive notice of the administrative law judge's decision; (3) Within 60 days after the date you receive a notice of the administrative law judge's decision or dismissal (or within the extended time period if we extend the time as provided in paragraph (c) of this section); or (4) At any time after you have filed a timely request for Appeals Council review, but before you receive notice of the Appeals Council's action. (b) Place of filing request. (c) Extension of time to request expedited appeals process. § 404.926 Agreement in expedited appeals process. If you meet all the requirements necessary for the use of the expedited appeals process, our authorized representative shall prepare an agreement. The agreement must be signed by you, by every other party to the determination or decision and by our authorized representative. The agreement must provide that— (a) The facts in your claim are not in dispute; (b) The sole issue in dispute is whether a provision of the Act that applies to your case is unconstitutional; (c) Except for your belief that a provision of the Act is unconstitutional, you agree with our interpretation of the law; (d) If the provision of the Act that you believe is unconstitutional were not applied to your case, your claim would be allowed; and (e) Our determination or the decision is final for the purpose of seeking judicial review. § 404.927 Effect of expedited appeals process agreement. After an expedited appeals process agreement is signed, you will not need to complete the remaining steps of the administrative review process. Instead, you may file an action in a Federal district court within 60 days after the date you receive notice (a signed copy of the agreement will be mailed to you and will constitute notice) that the agreement has been signed by our authorized representative. [45 FR 52081, Aug. 5, 1980, as amended at 49 FR 46369, Nov. 26, 1984] § 404.928 Expedited appeals process request that does not result in agreement. If you do not meet all of the requirements necessary to use the expedited appeals process, we shall tell you that your request to use this process is denied and that your request will be considered as a request for a hearing or Appeals Council review, whichever is appropriate. Hearing Before an Administrative Law Judge § 404.929 Hearing before an administrative law judge—general. If you are dissatisfied with one of the determinations or decisions listed in § 404.930, you may request a hearing. Subject to § 404.956, the Deputy Commissioner for Hearings Operations, or their delegate, will appoint an administrative law judge to conduct the hearing. If circumstances warrant, the Deputy Commissioner for Hearings Operations, or their delegate, may assign your case to another administrative law judge. We will schedule you to appear by audio, agency video, online video, or in person as set forth in § 404.936. Audio means telephone or similar audio-based technology in a private location you choose. Agency video means video, with audio functionality, using our equipment in one of our offices. Online video means video, with audio functionality, using a personal electronic device in a private location you choose. When we determine your manner of appearance, we consider the factors described in § 404.936(c)(1)(i) through (ii). You may submit new evidence (subject to the provisions of § 404.935), examine the evidence used in making the determination or decision under review, and present and question witnesses. The administrative law judge who conducts the hearing may ask you questions. The administrative law judge will issue a decision based on the preponderance of the evidence in the hearing record. If you waive your right to appear at the hearing, the administrative law judge will make a decision based on the preponderance of the evidence that is in the file and, subject to the provisions of § 404.935, any new evidence that may have been submitted for consideration. [89 FR 68360, Aug. 26, 2024] § 404.930 Availability of a hearing before an administrative law judge. (a) You or another party may request a hearing before an administrative law judge if we have made— (1) A reconsidered determination; (2) A revised determination of an initial determination, unless the revised determination concerns the issue of whether, based on medical factors, you are disabled; (3) A reconsideration of a revised initial determination concerning the issue of whether, based on medical factors, you are disabled; (4) A revised reconsidered determination; (5) A revised decision based on evidence not included in the record on which the prior decision was based; (6) An initial determination denying waiver of adjustment or recovery of an overpayment based on a personal conference (see § 404.506); or (7) An initial determination denying waiver of adjustment or recovery of an overpayment based on a review of the written evidence of record (see § 404.506), and the determination was made concurrent with, or subsequent to, our reconsideration determination regarding the underlying overpayment but before an administrative law judge holds a hearing. (b) We will hold a hearing only if you or another party to the hearing file a written request for a hearing. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986; 61 FR 56132, Oct. 31, 1996; 73 FR 2415, Jan. 15, 2008; 76 FR 24806, May 3, 2011] § 404.932 Parties to a hearing before an administrative law judge. (a) Who may request a hearing. (b) Who are parties to a hearing. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986; 75 FR 39160, July 8, 2010] § 404.933 How to request a hearing before an administrative law judge. (a) Written request. (1) The name and social security number of the wage earner; (2) The reasons you disagree with the previous determination or decision; (3) A statement of additional evidence to be submitted and the date you will submit it; and (4) The name and address of any designated representative. (b) When and where to file. (1) Within 60 days after the date you receive notice of the previous determination or decision (or within the extended time period if we extend the time as provided in paragraph (c) of this section); (2) At one of our offices, the Veterans Administration Regional Office in the Philippines, or an office of the Railroad Retirement Board for persons having 10 or more years of service in the railroad industry. (c) Extension of time to request a hearing. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986] § 404.935 Submitting written evidence to an administrative law judge. (a) When you submit your request for hearing, you should also submit information or evidence as required by § 404.1512 or any summary of the evidence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply. (b) If you have evidence required under § 404.1512 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you did not inform us about or submit the evidence before the deadline because: (1) Our action misled you; (2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to: (i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person; (ii) There was a death or serious illness in your immediate family; (iii) Important records were destroyed or damaged by fire or other accidental cause; or (iv) You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing. [81 FR 90993, Dec. 16, 2016] § 404.936 Time, place, and manner of appearance for a hearing before an administrative law judge. (a) General. (b) Place of hearing. (c) Determining manner of appearance to schedule. (1) When we determine your manner of appearance at the hearing, we consider the following factors: (i) Which manner of appearance would be the most efficient for conducting the hearing; and (ii) Any facts in your particular case that provide a good reason to schedule your appearance by audio, agency video, online video, or in person. (2) We will generally direct any person we call as a witness, other than you or any other party to the hearing, to appear by audio, by agency video, or by online video. Witnesses include medical experts and vocational experts. Witnesses you call will appear at the hearing pursuant to § 404.950(e). If they are unable to appear with you in the same manner as you, we will generally direct them to appear by agency video or by audio. We will consider directing witnesses to appear in person only when: (i) A witness is unable to appear by other available manners of appearance; (ii) We determine that an alternate manner of appearance would be less efficient than conducting the appearance in person; or (iii) We find that there are facts in your particular case that provide a good reason to schedule this individual's appearance in person. (3) We follow the procedures set forth in § 404.937 to ensure the safety of the public and our employees in our hearing process. (d) Objecting to appearing by audio, by agency video, or both. (1) If you notify us that you object to appearing by audio, by agency video, or both, more than 30 days after the date you receive our notice, we will extend the time period if you show you had good cause for missing the deadline. To determine whether good cause exists for extending the deadline, we use the standards explained in § 404.911. (2) Notwithstanding any objections you may have to appearing by audio and subject to paragraph (d)(3) of this section, we will schedule you or any other party to the hearing to appear by audio when we cannot schedule you to appear by agency video or by online video and extraordinary circumstances prevent you from appearing in person. For audio appearances under this subsection, we will call you or any other party to the hearing using your or their telephone number(s). (3) Notwithstanding any objections you may have to appearing by audio, if you are incarcerated and an appearance by agency video and online video is not available, we will schedule you to appear by audio, unless we find that there are facts in your particular case that provide a good reason to schedule you to appear in person, if allowed by the place of confinement, or by agency video, online video, or in person upon your release. For audio appearances under this subsection, we will call you or any other party to the hearing using your or their telephone number(s). (4) Notwithstanding any objections you may have to appearing by audio, by agency video, or both, if you change your residence while your request for hearing is pending, we will determine how you will appear, including by audio or by agency video, as provided in paragraph (c) of this section. For us to consider your change of residence when we schedule your hearing, you must submit evidence verifying your new residence. For audio appearances under this subsection, we will call you or any other party to the hearing using your or their telephone number(s). (5) Notwithstanding any objection you may have to appearing by audio, we will schedule you or any other party to the hearing to appear by audio in the circumstances provided in § 404.937(b)(2)(ii) and (c). For audio appearances under this subsection, we will call you or any other party to the hearing using your or their telephone number(s). (e) Time period to agree to an appearance by online video. (f) Objecting to the time or place of the hearing. (i) Notify us in writing at the earliest possible opportunity, but not later than 5 days before the date set for the hearing or 30 days after receiving notice of the hearing, whichever is earlier; and (ii) State the reason(s) for your objection and state the time or place you want the hearing to be held. If the administrative law judge finds you have good cause, as determined under paragraph (e) of this section, we will change the time or place of the hearing. (2) If you notify us that you object to the time or place of hearing less than 5 days before the date set for the hearing or, if earlier, more than 30 days after receiving notice of the hearing, we will consider this objection only if you show you had good cause for missing the deadline. To determine whether good cause exists for missing this deadline, we use the standards explained in § 404.911. (g) Good cause for changing the time or place. (1) The administrative law judge will find good cause to change the time or place of your hearing if he or she determines that, based on the evidence: (i) A serious physical or mental condition or incapacitating injury makes it impossible for you or your representative to travel to the hearing, or a death in the family occurs; or (ii) Severe weather conditions make it impossible for you or your representative to travel to the hearing. (2) In determining whether good cause exists in circumstances other than those set out in paragraph (f)(1) of this section, the administrative law judge will consider your reason(s) for requesting the change, the facts supporting it, and the impact of the proposed change on the efficient administration of the hearing process. Factors affecting the impact of the change include, but are not limited to, the effect on the processing of other scheduled hearings, delays that might occur in rescheduling your hearing, and whether we previously granted you any changes in the time or place of your hearing. Examples of such other circumstances that you might give for requesting a change in the time or place of the hearing include, but are not limited to, the following: (i) You unsuccessfully attempted to obtain a representative and need additional time to secure representation; (ii) Your representative was appointed within 30 days of the scheduled hearing and needs additional time to prepare for the hearing; (iii) Your representative has a prior commitment to be in court or at another administrative hearing on the date scheduled for the hearing; (iv) A witness who will testify to facts material to your case would be unavailable to attend the scheduled hearing and the evidence cannot be otherwise obtained; (v) Transportation is not readily available for you to travel to the hearing; or (vi) You are unrepresented, and you are unable to respond to the notice of hearing because of any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have. [84 FR 69305, Dec. 18, 2019, as amended at 89 FR 68360, Aug. 26, 2024] § 404.937 Protecting the safety of the public and our employees in our hearing process. (a) Notwithstanding any other provision in this part or part 422 of this chapter, we are establishing the procedures set out in this section to ensure the safety of the public and our employees in our hearing process. (b)(1) At the request of any hearing office employee, the Hearing Office Chief Administrative Law Judge will determine, after consultation with the presiding administrative law judge, whether a claimant or other individual poses a reasonable threat to the safety of our employees or other participants in the hearing. The Hearing Office Chief Administrative Law Judge will find that a claimant or other individual poses a threat to the safety of our employees or other participants in the hearing when he or she determines that the individual has made a threat and there is a reasonable likelihood that the claimant or other individual could act on the threat or when evidence suggests that a claimant or other individual poses a threat. In making a finding under this paragraph, the Hearing Office Chief Administrative Law Judge will consider all relevant evidence, including any information we have in the claimant's record and any information we have regarding the claimant's or other individual's past conduct. (2) If the Hearing Office Chief Administrative Law Judge determines that the claimant or other individual poses a reasonable threat to the safety of our employees or other participants in the hearing, the Hearing Office Chief Administrative Law Judge will either: (i) Require the presence of a security guard at the hearing; or (ii) Require that the hearing be conducted by audio, notwithstanding any objection to appearing by audio, or, if the claimant agrees, by online video. (c) If we have banned a claimant from any of our facilities, we will provide the claimant with the opportunity for a hearing that will be conducted by audio, notwithstanding any objection to appearing by audio, or, if the claimant agrees, by online video. (d) The actions of the Hearing Office Chief Administrative Law Judge taken under this section are final and not subject to further review. (e) For audio appearances under this section, we will call you or any other party to the hearing using your or their telephone number(s). [76 FR 13508, Mar. 14, 2011, as amended at 77 FR 10658, Feb. 23, 2012; 89 FR 68361, Aug. 26, 2024] § 404.938 Notice of a hearing before an administrative law judge. (a) Issuing the notice. (b) Notice information. (1) The specific issues to be decided in your case; (2) That you may designate a person to represent you during the proceedings; (3) How to request that we change the time or place of your hearing; (4) That your hearing may be dismissed if neither you nor the person you designate to act as your representative appears at your scheduled hearing without good reason under § 404.957; (5) The time and manner(s) in which you, or any other party or witness, will appear. If we schedule you to appear in person or by agency video, as set forth in § 404.936, the notice of hearing will tell you the place of the hearing. (6) That you must make every effort to inform us about or submit all written evidence that is not already in the record no later than 5 business days before the date of the scheduled hearing, unless you show that your circumstances meet the conditions described in § 404.935(b); and (7) Any other information about the scheduling and conduct of your hearing. (c) Acknowledging the notice of hearing. (d) Amended notice of hearing or notice of supplemental hearing. [68 FR 5219, Feb. 3, 2003, as amended at 75 FR 39160, July 8, 2010; 78 FR 29627, May 21, 2013; 79 FR 35932, June 25, 2014; 81 FR 90993, Dec. 16, 2016; 84 FR 69306, Dec. 18, 2019; 89 FR 68362, Aug. 26, 2024] § 404.939 Objections to the issues. If you object to the issues to be decided at the hearing, you must notify the administrative law judge in writing at the earliest possible opportunity, but no later than 5 business days before the date set for the hearing, unless you show that your circumstances meet the conditions described in § 404.935(b). You must state the reason(s) for your objection(s). The administrative law judge will make a decision on your objection(s) either at the hearing or in writing before the hearing. [81 FR 90993, Dec. 16, 2016] § 404.940 Disqualification of the administrative law judge. An administrative law judge shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision. If you object to the administrative law judge who will conduct the hearing, you must notify the administrative law judge at your earliest opportunity. The administrative law judge shall consider your objections and shall decide whether to proceed with the hearing or withdraw. If he or she withdraws, the Associate Commissioner for Hearings and Appeals, or his or her delegate, will appoint another administrative law judge to conduct the hearing. If the administrative law judge does not withdraw, you may, after the hearing, present your objections to the Appeals Council as reasons why the hearing decision should be revised or a new hearing held before another administrative law judge. § 404.941 Prehearing case review. (a) General. (b) When a prehearing case review may be conducted. (1) Additional evidence is submitted; (2) There is an indication that additional evidence is available; (3) There is a change in the law or regulation; or (4) There is an error in the file or some other indication that the prior determination may be revised. (c) Notice of a prehearing revised determination. (d) Effect of a fully favorable revised determination. (e) Effect of a partially favorable revised determination. [45 FR 52081, Aug. 5, 1980, as amended at 73 FR 76943, Dec. 18, 2008; 75 FR 33168, June 11, 2010; 76 FR 65369, Oct. 21, 2011] § 404.942 Prehearing proceedings and decisions by attorney advisors. (a) General. (b) When prehearing proceedings may be conducted by an attorney advisor. (1) New and material evidence is submitted; (2) There is an indication that additional evidence is available; (3) There is a change in the law or regulations; or (4) There is an error in the file or some other indication that a fully favorable decision may be issued. (c) Nature of the prehearing proceedings that may be conducted by an attorney advisor. (1) Request additional evidence that may be relevant to the claim, including medical evidence; and (2) If necessary to clarify the record for the purpose of determining if a fully favorable decision is warranted, schedule a conference with the parties. (d) Notice of a decision by an attorney advisor. (e) Effect of an attorney advisor's decision. (1) You or another party to the hearing submits a timely request that an administrative law judge reinstate the request for a hearing under paragraph (d) of this section; (2) The Appeals Council reviews the decision on its own motion pursuant to § 404.969 as explained in paragraph (f)(3) of this section; or (3) The decision of the attorney advisor is revised under the procedures explained in § 404.987. (f) Ancillary provisions. (1) Authorize an attorney advisor to exercise the functions performed by an administrative law judge under §§ 404.1513a, 404.1520a, 404.1526, and 404.1546. (2) Define the term “decision” to include a decision made by an attorney advisor, as well as the decisions identified in § 404.901; and (3) Make the decision of an attorney advisor under paragraph (d) of this section subject to review by the Appeals Council if the Appeals Council decides to review the decision of the attorney advisor anytime within 60 days after the date of the decision under § 404.969. [60 FR 34131, June 30, 1995, as amended at 63 FR 35516, June 30, 1998; 64 FR 13678, Mar. 22, 1999; 64 FR 51893, Sept. 27, 1999; 72 FR 44765, Aug. 9, 2007; 73 FR 76944, Dec. 18, 2008; 74 FR 33328, July 13, 2009; 76 FR 18384, Apr. 4, 2011; 76 FR 65370, Oct. 21, 2011; 78 FR 45460, July 29, 2013; 80 FR 31991, June 5, 2015; 82 FR 5863, Jan. 18, 2017; 83 FR 712, Jan. 8, 2018; 83 FR 40453, Aug. 15, 2018] § 404.943 Responsibilities of the adjudication officer. (a)(1) General. (2) Procedures for cases included in the tests. Federal Register. (b)(1) Prehearing procedures conducted by an Adjudication Officer. (2) Representation. (3) Evidence. (4) Referral for a hearing. (c)(1) Fully favorable decisions issued by an adjudication officer. (2) Effect of a decision by an adjudication officer. (i) You or another party requests that the hearing continue, as provided in paragraph (c)(1) of this section; (ii) The Appeals Council decides to review the decision on its own motion under the authority provided in § 404.969; (iii) The decision is revised under the procedures explained in §§ 404.987 through 404.989; or (iv) In a case remanded by a Federal court, the Appeals Council assumes jurisdiction under the procedures in § 404.984. (3) Fee for a representative's services. (d) Who may be an adjudication officer. [60 FR 47475, Sept. 13, 1995, as amended at 75 FR 33168, June 11, 2010] Administrative Law Judge Hearing Procedures § 404.944 Administrative law judge hearing procedures—general. A hearing is open to the parties and to other persons the administrative law judge considers necessary and proper. At the hearing, the administrative law judge looks fully into the issues, questions you and the other witnesses, and, subject to the provisions of § 404.935, accepts as evidence any documents that are material to the issues; may stop the hearing temporarily and continue it at a later date if the administrative law judge finds that there is material evidence missing at the hearing or one or more variables outside of our control, such as audio quality or video quality, materially affects the hearing; and may reopen the hearing at any time before the administrative law judge mails a notice of the decision in order to receive new and material evidence. For purposes of this section, materially affects means prevents the hearing from proceeding. The administrative law judge may decide when the evidence will be presented and when the issues will be discussed. [89 FR 68362, Aug. 26, 2024] § 404.946 Issues before an administrative law judge. (a) General. (b) New issues General. (2) Notice of a new issue. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986] § 404.948 Deciding a case without an oral hearing before an administrative law judge. (a) Decision fully favorable. (b) Parties do not wish to appear. (i) You and all the parties indicate in writing that you do not wish to appear before the administrative law judge at an oral hearing; or (ii) You live outside the United States, you do not inform us that you wish to appear, and there are no other parties who wish to appear. (2) When an oral hearing is not held, the administrative law judge shall make a record of the material evidence. The record will include the applications, written statements, certificates, reports, affidavits, and other documents that were used in making the determination under review and any additional evidence you or any other party to the hearing present in writing. The decision of the administrative law judge must be based on this record. (c) Case remanded for a revised determination. (2) Unless you request the remand, the administrative law judge shall notify you that your case has been remanded and tell you that if you object, you must notify him or her of your objections within 10 days of the date the case is remanded or we will assume that you agree to the remand. If you object to the remand, the administrative law judge will consider the objection and rule on it in writing. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986; 73 FR 76944, Dec. 18, 2008; 75 FR 33168, June 11, 2010; 76 FR 65370, Oct. 21, 2011] § 404.949 Presenting written statements and oral arguments. You or a person you designate to act as your representative may appear before the administrative law judge to state your case, present a written summary of your case, or enter written statements about the facts and law material to your case in the record. If presenting written statements prior to hearing, you must provide a copy of your written statements for each party no later than 5 business days before the date set for the hearing, unless you show that your circumstances meet the conditions described in § 404.935(b). [81 FR 90993, Dec. 16, 2016 § 404.950 Presenting evidence at a hearing before an administrative law judge. (a) The right to appear and present evidence. (b) Waiver of the right to appear. (c) Admissible evidence. (d) Subpoenas. (2) Parties to a hearing who wish to subpoena documents or witnesses must file a written request for the issuance of a subpoena with the administrative law judge or at one of our offices at least 10 business days before the hearing date, unless you show that your circumstances meet the conditions described in § 404.935(b). The written request must give the names of the witnesses or documents to be produced; describe the address or location of the witnesses or documents with sufficient detail to find them; state the important facts that the witness or document is expected to prove; and indicate why these facts could not be proven without issuing a subpoena. (3) We will pay the cost of issuing the subpoena. (4) We will pay subpoenaed witnesses the same fees and mileage they would receive if they had been subpoenaed by a Federal district court. (e) Witnesses at a hearing. (f) Collateral estoppel—issues previously decided. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986; 68 FR 5219, Feb. 3, 2003; 75 FR 39160, July 8, 2010; 78 FR 29627, May 21, 2013; 81 FR 90993, Dec. 16, 2016; 84 FR 69306, Dec. 18, 2019; 89 FR 68362, Aug. 26, 2024] § 404.951 Official record. (a) Hearing recording. (1) The case is sent to the Appeals Council without a decision or with a recommended decision by the administrative law judge; (2) You seek judicial review of your case by filing an action in a Federal district court within the stated time period, unless we request the court to remand the case; or (3) An administrative law judge or the Appeals Council asks for a written record of the proceedings. (b) Contents of the official record. [81 FR 90994, Dec. 16, 2016 § 404.952 Consolidated hearing before an administrative law judge. (a) General. (i) You have requested a hearing to decide your benefit rights under title II of the Act and you have also requested a hearing to decide your rights under another law we administer; and (ii) One or more of the issues to be considered at the hearing you requested are the same issues that are involved in another claim you have pending before us. (2) If the administrative law judge decides to hold the hearing on both claims, he or she decides both claims, even if we have not yet made an initial or reconsidered determination on the other claim. (b) Record, evidence, and decision. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986] § 404.953 The decision of an administrative law judge. (a) General. (b) Fully favorable oral decision entered into the record at the hearing. (c) Recommended decision. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986; 54 FR 37792, Sept. 13, 1989; 69 FR 61597, Oct. 20, 2004; 73 FR 76944, Dec. 18, 2008; 75 FR 33168, June 11, 2010] § 404.955 The effect of a hearing decision. The decision of the administrative law judge is binding on all parties to the hearing unless— (a) You or another party request a review of the decision by the Appeals Council within the stated time period, and the Appeals Council reviews your case; (b) You or another party requests a review of the decision by the Appeals Council within the stated time period, the Appeals Council denies your request for review, and you seek judicial review of your case by filing an action in a Federal district court; (c) The Appeals Council decides on its own motion to review the decision under the procedures in § 404.969; (d) The decision is revised by an administrative law judge or the Appeals Council under the procedures explained in § 404.987; (e) The expedited appeals process is used; (f) The decision is a recommended decision directed to the Appeals Council; or (g) In a case remanded by a Federal court, the Appeals Council assumes jurisdiction under the procedures in § 404.984. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986; 54 FR 37792, Sept. 13, 1989; 85 FR 73157, Nov. 16, 2020] § 404.956 Removal of a hearing request(s) to the Appeals Council. (a) Removal. (b) Notice. (c) Procedures applied. (d) Appeals Council review. (e) Ancillary provisions. [85 FR 73157, Nov. 16, 2020] § 404.957 Dismissal of a request for a hearing before an administrative law judge. An administrative law judge may dismiss a request for a hearing under any of the following conditions: (a) At any time before notice of the hearing decision is mailed, you or the party or parties that requested the hearing ask to withdraw the request. This request may be submitted in writing to the administrative law judge or made orally at the hearing. (b)(1)(i) Neither you nor the person you designate to act as your representative appears at the time and place set for the hearing and you have been notified before the time set for the hearing that your request for hearing may be dismissed without further notice if you did not appear at the time and place of hearing, and good cause has not been found by the administrative law judge for your failure to appear; or (ii) Neither you nor the person you designate to act as your representative appears at the time and place set for the hearing and within 10 days after the administrative law judge mails you a notice asking why you did not appear, you do not give a good reason for the failure to appear. (2) In determining good cause or good reason under this paragraph, we will consider any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have. (c) The administrative law judge decides that there is cause to dismiss a hearing request entirely or to refuse to consider any one or more of the issues because— (1) The doctrine of res judicata (2) The person requesting a hearing has no right to it under § 404.930; (3) You did not request a hearing within the stated time period and we have not extended the time for requesting a hearing under § 404.933(c); or (4) You die, there are no other parties, and we have no information to show that another person may be adversely affected by the determination that was to be reviewed at the hearing. However, dismissal of the hearing request will be vacated if, within 60 days after the date of the dismissal, another person submits a written request for a hearing on the claim and shows that he or she may be adversely affected by the determination that was to be reviewed at the hearing. [45 FR 52081, Aug. 5, 1980, as amended at 50 FR 21438, May 24, 1985; 51 FR 303, Jan. 3, 1986; 59 FR 1634, Jan. 12, 1994] § 404.958 Notice of dismissal of a request for a hearing before an administrative law judge. We shall mail a written notice of the dismissal of the hearing request to all parties at their last known address. The notice will state that there is a right to request that the Appeals Council vacate the dismissal action. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986] § 404.959 Effect of dismissal of a request for a hearing before an administrative law judge. The dismissal of a request for a hearing is binding, unless it is vacated by an administrative law judge or the Appeals Council. [45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986] § 404.960 Vacating a dismissal of a request for a hearing before an administrative law judge. (a) Except as provided in paragraph (b) of this section, an administrative law judge or the Appeals Council may vacate a dismissal of a request for a hearing if you request that we vacate the dismissal. If you or another party wish to make this request, you must do so within 60 days of the date you receive notice of the dismissal, and you must state why our dismissal of your request for a hearing was erroneous. The administrative law judge or Appeals Council will inform you in writing of the action taken on your request. The Appeals Council may also vacate a dismissal of a request for a hearing on its own motion. If the Appeals Council decides to vacate a dismissal on its own motion, it will do so within 60 days of the date we mail the notice of dismissal and will inform you in writing that it vacated the dismissal. (b) If you wish to proceed with a hearing after you received a fully favorable revised determination under the prehearing case review process in § 404.941, you must follow the procedures in § 404.941(d) to request that an administrative law judge vacate his or her order dismissing your request for a hearing. [76 FR 65370, Oct. 21, 2011] § 404.961 Prehearing and posthearing conferences. The administrative law judge may decide on his or her own, or at the request of any party to the hearing, to hold a prehearing or posthearing conference to facilitate the hearing or the hearing decision. The administrative law judge shall tell the parties of the time, place and purpose of the conference at least seven days before the conference date, unless the parties have indicated in writing that they do not wish to receive a written notice of the conference. At the conference, the administrative law judge may consider matters in addition to those stated in the notice, if the parties consent in writing. A record of the conference will be made. The administrative law judge shall issue an order stating all agreements and actions resulting from the conference. If the parties do not object, the agreements and actions become part of the hearing record and are binding on all parties. § 404.965 [Reserved] Appeals Council Review § 404.966 [Reserved] § 404.967 Appeals Council review—general. If you or any other party is dissatisfied with the hearing decision or with the dismissal of a hearing request, you may request that the Appeals Council review that action. The Appeals Council may deny or dismiss the request for review, or it may grant the request and either issue a decision or remand the case to an administrative law judge. The Appeals Council shall notify the parties at their last known address of the action it takes. § 404.968 How to request Appeals Council review. (a) Time and place to request Appeals Council review. (1) Within 60 days after the date you receive notice of the hearing decision or dismissal (or within the extended time period if we extend the time as provided in paragraph (b) of this section); (2) At one of our offices, the Veterans Administration Regional Office in the Philippines, or an office of the Railroad Retirement Board if you have 10 or more years of service in the railroad industry. (b) Extension of time to request review. [45 FR 52081, Aug. 5, 1980, as amended at 81 FR 90993, Dec. 16, 2016] § 404.969 Appeals Council initiates review. (a) General. (b) Identification of cases. (1) Random and selective sampling and case examinations. i.e. i.e. (2) Identification as a result of the effectuation process. (c) Referral of cases. (d) Appeals Council's action. [63 FR 36570, July 7, 1998, as amended at 75 FR 33168, June 11, 2010] § 404.970 Cases the Appeals Council will review. (a) The Appeals Council will review a case at a party's request or on its own motion if— (1) There appears to be an abuse of discretion by the administrative law judge or administrative appeals judge who heard the case; (2) There is an error of law; (3) The action, findings or conclusions in the hearing decision or dismissal order are not supported by substantial evidence; (4) There is a broad policy or procedural issue that may affect the general public interest; or (5) Subject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision. (b) The Appeals Council will only consider additional evidence under paragraph (a)(5) of this section if you show good cause for not informing us about or submitting the evidence as described in § 404.935 because: (1) Our action misled you; (2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to: (i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person; (ii) There was a death or serious illness in your immediate family; (iii) Important records were destroyed or damaged by fire or other accidental cause; (iv) You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing; or (v) You received a hearing level decision on the record and the Appeals Council reviewed your decision. (c) If you submit additional evidence that does not relate to the period on or before the date of the administrative law judge hearing decision as required in paragraph (a)(5) of this section, or the Appeals Council does not find you had good cause for missing the deadline to submit the evidence in § 404.935, the Appeals Council will send you a notice that explains why it did not accept the additional evidence and advises you of your right to file a new application. The notice will also advise you that if you file a new application within 6 months after the date of the Appeals Council's notice, your request for review will constitute a written statement indicating an intent to claim benefits under § 404.630. If you file a new application within 6 months of the Appeals Council's notice, we will use the date you requested Appeals Council review as the filing date for your new application. [81 FR 90994, Dec. 16, 2016, as amended at 85 FR 73157, Nov. 16, 2020] § 404.971 Dismissal by Appeals Council. The Appeals Council will dismiss your request for review if you did not file your request within the stated period of time and the time for filing has not been extended. The Appeals Council may also dismiss any proceedings before it if— (a) You and any other party to the proceedings files a written request for dismissal; or (b) You or any other party to the proceedings dies and the record clearly shows that dismissal will not adversely affect any other person who wishes to continue the action. § 404.972 Effect of dismissal of request for Appeals Council review. The dismissal of a request for Appeals Council review is binding and not subject to further review. § 404.973 Notice of Appeals Council review. When the Appeals Council decides to review a case, it shall mail a prior notice to all parties at their last known address stating the reasons for the review and the issues to be considered. However, when the Appeals Council plans to issue a decision that is fully favorable to all parties, plans to remand the case for further proceedings, or plans to issue a decision that is favorable in part and remand the remaining issues for further proceedings, it may send the notice of Appeals Council review to all parties with the decision or remand order. [85 FR 73157, Nov. 16, 2020] § 404.974 Obtaining evidence from Appeals Council. You may request and receive copies or a statement of the documents or other written evidence upon which the hearing decision or dismissal was based and a copy or summary of the transcript of oral evidence. However, you will be asked to pay the costs of providing these copies unless there is a good reason why you should not pay. § 404.975 Filing briefs with the Appeals Council. Upon request, the Appeals Council shall give you and all other parties a reasonable opportunity to file briefs or other written statements about the facts and law relevant to the case. A copy of each brief or statement should be filed for each party. § 404.976 Procedures before the Appeals Council. (a) Limitation of issues. (b) Evidence the Appeals Council will exhibit. (c) Oral argument. [81 FR 90994, Dec. 16, 2016, as amended at 84 FR 69306, Dec. 18, 2019; 85 FR 73157, Nov. 16, 2020; 89 FR 68362, Aug. 26, 2024] § 404.977 Case remanded by Appeals Council. (a) When the Appeals Council may remand a case. (b) Action by administrative law judge on remand. (c) Notice when case is returned with a recommended decision. (d) Filing briefs with and obtaining evidence from the Appeals Council. (2) All other rules for filing briefs with and obtaining evidence from the Appeals Council follow the procedures explained in this subpart. (e) Procedures before the Appeals Council. (2) If the Appeals Council believes that more evidence is required, it may again remand the case to an administrative law judge for further inquiry into the issues, rehearing, receipt of evidence, and another decision or recommended decision. However, if the Appeals Council decides that it can get the additional evidence more quickly, it will take appropriate action. § 404.979 Decision of Appeals Council. After it has reviewed all the evidence in the administrative law judge hearing record and any additional evidence received, subject to the limitations on Appeals Council consideration of additional evidence in § 404.970, the Appeals Council will make a decision or remand the case to an administrative law judge. The Appeals Council may affirm, modify or reverse the administrative law judge hearing decision or it may adopt, modify or reject a recommended decision. If the Appeals Council issues its own decision, it will base its decision on the preponderance of the evidence. A copy of the Appeals Council's decision will be mailed to the parties at their last known address. [52 FR 4004, Feb. 9, 1987, as amended at 73 FR 76944, Dec. 18, 2008; 81 FR 90994, Dec. 16, 2016] § 404.981 Effect of Appeals Council's decision or denial of review. The Appeals Council may deny a party's request for review or it may decide to review a case and make a decision. The Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless you or another party file an action in Federal district court, or the decision is revised. You may file an action in a Federal district court within 60 days after the date you receive notice of the Appeals Council's action. § 404.982 Extension of time to file action in Federal district court. Any party to the Appeals Council's decision or denial of review, or to an expedited appeals process agreement, may request that the time for filing an action in a Federal district court be extended. The request must be in writing and it must give the reasons why the action was not filed within the stated time period. The request must be filed with the Appeals Council, or if it concerns an expedited appeals process agreement, with one of our offices. If you show that you had good cause for missing the deadline, the time period will be extended. To determine whether good cause exists, we use the standards explained in § 404.911. Court Remand Cases § 404.983 Case remanded by a Federal court. (a) General rule. (b) Appeals Council decision without a hearing. (c) Administrative appeals judge decision after holding a hearing. (d) Appeals Council dismissal. (e) Appeals Council remand. [85 FR 73157, Nov. 16, 2020] § 404.984 Appeals Council review of hearing decision in a case remanded by a Federal court. (a) General. (b) You file exceptions disagreeing with the hearing decision. (2) If written exceptions are timely filed, the Appeals Council will consider your reasons for disagreeing with the hearing decision and all the issues presented by your case. If the Appeals Council concludes that there is no reason to change the hearing decision, it will issue a notice to you addressing your exceptions and explaining why no change in the hearing decision is warranted. In this instance, the hearing decision is the final decision of the Commissioner after remand. (3) When you file written exceptions to the hearing decision, the Appeals Council may assume jurisdiction at any time, even after the 60-day time period which applies when you do not file exceptions. If the Appeals Council assumes jurisdiction of your case, any issues relating to your claim may be considered by the Appeals Council whether or not they were raised in the administrative proceedings leading to the final decision in your case or subsequently considered by the administrative law judge or administrative appeals judge in the administrative proceedings following the court's remand order. The Appeals Council will either make a new, independent decision pursuant to § 404.983(b) or § 404.983(c), based on a preponderance of the evidence in the record that will be the final decision of the Commissioner after remand, dismiss the request for a hearing, or remand the case to an administrative law judge for further proceedings, including a new decision. (c) Appeals Council assumes jurisdiction without exceptions being filed. (d) Exceptions are not filed and the Appeals Council does not otherwise assume jurisdiction. [85 FR 73185, Nov. 16, 2020] § 404.985 Application of circuit court law. The procedures which follow apply to administrative determinations or decisions on claims involving the application of circuit court law. (a) General. (b) Issuance of an Acquiescence Ruling. Federal Register (1) We will release an Acquiescence Ruling for publication in the Federal Register (2) If we make a determination or decision on your claim between the date of a circuit court decision and the date we publish an Acquiescence Ruling, you may request application of the published Acquiescence Ruling to the prior determination or decision. You must demonstrate that application of the Acquiescence Ruling could change the prior determination or decision in your case. You may demonstrate this by submitting a statement that cites the Acquiescence Ruling or the holding or portion of a circuit court decision which could change the prior determination or decision in your case. If you can so demonstrate, we will readjudicate the claim in accordance with the Acquiescence Ruling at the level at which it was last adjudicated. Any readjudication will be limited to consideration of the issue(s) covered by the Acquiescence Ruling and any new determination or decision on readjudication will be subject to administrative and judicial review in accordance with this subpart. Our denial of a request for readjudication will not be subject to further administrative or judicial review. If you file a request for readjudication within the 60-day appeal period and we deny that request, we shall extend the time to file an appeal on the merits of the claim to 60 days after the date that we deny the request for readjudication. (3) After we receive a precedential circuit court decision and determine that an Acquiescence Ruling may be required, we will begin to identify those claims that are pending before us within the circuit and that might be subject to readjudication if an Acquiescence Ruling is subsequently issued. When an Acquiescence Ruling is published, we will send a notice to those individuals whose cases we have identified which may be affected by the Acquiescence Ruling. The notice will provide information about the Acquiescence Ruling and the right to request readjudication under that Acquiescence Ruling, as described in paragraph (b)(2) of this section. It is not necessary for an individual to receive a notice in order to request application of an Acquiescence Ruling to his or her claim, as described in paragraph (b)(2) of this section. (c) Relitigation of court's holding after publication of an Acquiescence Ruling. (1) Activating events: (i) An action by both Houses of Congress indicates that a circuit court decision on which an Acquiescence Ruling was based was decided inconsistently with congressional intent, such as may be expressed in a joint resolution, an appropriations restriction, or enactment of legislation which affects a closely analogous body of law; (ii) A statement in a majority opinion of the same circuit indicates that the court might no longer follow its previous decision if a particular issue were presented again; (iii) Subsequent circuit court precedent in other circuits supports our interpretation of the Social Security Act or regulations on the issue(s) in question; or (iv) A subsequent Supreme Court decision presents a reasonable legal basis for questioning a circuit court holding upon which we base an Acquiescence Ruling. (2) The General Counsel of the Social Security Administration, after consulting with the Department of Justice, concurs that relitigation of an issue and application of our interpretation of the Social Security Act or regulations to selected claims in the administrative review process within the circuit would be appropriate. (3) We publish a notice in the Federal Register (d) Notice of relitigation. (e) Rescission of an Acquiescence Ruling. Federal Register (1) The Supreme Court overrules or limits a circuit court holding that was the basis of an Acquiescence Ruling; (2) A circuit court overrules or limits itself on an issue that was the basis of an Acquiescence Ruling; (3) A Federal law is enacted that removes the basis for the holding in a decision of a circuit court that was the subject of an Acquiescence Ruling; or (4) We subsequently clarify, modify or revoke the regulation or ruling that was the subject of a circuit court holding that we determined conflicts with our interpretation of the Social Security Act or regulations, or we subsequently publish a new regulation(s) addressing an issue(s) not previously included in our regulations when that issue(s) was the subject of a circuit court holding that conflicted with our interpretation of the Social Security Act or regulations and that holding was not compelled by the statute or Constitution. [63 FR 24932, May 6, 1998] Reopening and Revising Determinations and Decisions § 404.987 Reopening and revising determinations and decisions. (a) General. (b) Procedure for reopening and revision. [59 FR 8535, Feb. 23, 1994] § 404.988 Conditions for reopening. A determination, revised determination, decision, or revised decision may be reopened— (a) Within 12 months of the date of the notice of the initial determination, for any reason; (b) Within four years of the date of the notice of the initial determination if we find good cause, as defined in § 404.989, to reopen the case; or (c) At any time if— (1) It was obtained by fraud or similar fault (see § 416.1488(c) of this chapter for factors which we take into account in determining fraud or similar fault); (2) Another person files a claim on the same earnings record and allowance of the claim adversely affects your claim; (3) A person previously determined to be dead, and on whose earnings record your entitlement is based, is later found to be alive; (4) Your claim was denied because you did not prove that a person died, and the death is later established— (i) By a presumption of death under § 404.721(b); or (ii) By location or identification of his or her body; (5) The Railroad Retirement Board has awarded duplicate benefits on the same earnings record; (6) It either— (i) Denies the person on whose earnings record your claim is based gratuitous wage credits for military or naval service because another Federal agency (other than the Veterans Administration) has erroneously certified that it has awarded benefits based on the service; or (ii) Credits the earnings record of the person on which your claim is based with gratuitous wage credits and another Federal agency (other than the Veterans Administration) certifies that it has awarded a benefit based on the period of service for which the wage credits were granted; (7) It finds that the claimant did not have insured status, but earnings were later credited to his or her earnings record to correct errors apparent on the face of the earnings record (section 205(c)(5)(C) of the Act), to enter items transferred by the Railroad Retirement Board, which were credited under the Railroad Retirement Act when they should have been credited to the claimant's Social Security earnings record (section 205(c)(5)(D) of the Act), or to correct errors made in the allocation of wages or self-employment income to individuals or periods (section 205(c)(5)(G) of the Act), which would have given him or her insured status at the time of the determination or decision if the earnings had been credited to his or her earnings record at that time, and the evidence of these earnings was in our possession or the possession of the Railroad Retirement Board at the time of the determination or decision; (8) It is fully or partially unfavorable to a party, but only to correct clerical error or an error that appears on the face of the evidence that was considered when the determination or decision was made; (9) It finds that you are entitled to monthly benefits or to a lump sum death payment based on the earnings of a deceased person, and it is later established that: (i) You were convicted of a felony or an act in the nature of a felony for intentionally causing that person's death; or (ii) If you were subject to the juvenile justice system, you were found by a court of competent jurisdiction to have intentionally caused that person's death by committing an act which, if committed by an adult, would have been considered a felony or an act in the nature of a felony; (10) It either— (i) Denies the person on whose earnings record your claim is based deemed wages for internment during World War II because of an erroneous finding that a benefit based upon the internment has been determined by an agency of the United States to be payable under another Federal law or under a system established by that agency; or (ii) Awards the person on whose earnings record your claim is based deemed wages for internment during World War II and a benefit based upon the internment is determined by an agency of the United States to be payable under another Federal law or under a system established by that agency; or (11) It is incorrect because— (i) You were convicted of a crime that affected your right to receive benefits or your entitlement to a period of disability; or (ii) Your conviction of a crime that affected your right to receive benefits or your entitlement to a period of disability is overturned. [45 FR 52081, Aug. 5, 1980, as amended at 49 FR 46369, Nov. 26, 1984; 51 FR 18313, May 19, 1986; 59 FR 1635, Jan. 12, 1994; 60 FR 19165, Apr. 17, 1995; 75 FR 33168, June 11, 2010] § 404.989 Good cause for reopening. (a) We will find that there is good cause to reopen a determination or decision if— (1) New and material evidence is furnished; (2) A clerical error in the computation or recomputation of benefits was made; or (3) The evidence that was considered in making the determination or decision clearly shows on its face that an error was made. (b) We will not find good cause to reopen your case if the only reason for reopening is a change of legal interpretation or administrative ruling upon which the determination or decision was made. § 404.990 Finality of determinations and decisions on revision of an earnings record. A determination or a decision on a revision of an earnings record may be reopened only within the time period and under the conditions provided in section 205(c) (4) or (5) of the Act, or within 60 days after the date you receive notice of the determination or decision, whichever is later. § 404.991 Finality of determinations and decisions to suspend benefit payments for entire taxable year because of earnings. A determination or decision to suspend benefit payments for an entire taxable year because of earnings may be reopened only within the time period and under the conditions provided in section 203(h)(1)(B) of the Act. § 404.991a Late completion of timely investigation. We may revise a determination or decision after the applicable time period in § 404.988(a) or § 404.988(b) expires if we begin an investigation into whether to revise the determination or decision before the applicable time period expires. We may begin the investigation either based on a request by you or by an action on our part. The investigation is a process of gathering facts after a determination or decision has been reopened to determine if a revision of the determination or decision is applicable. (a) If we have diligently pursued the investigation to its conclusion, we may revise the determination or decision. The revision may be favorable or unfavorable to you. “Diligently pursued” means that in light of the facts and circumstances of a particular case, the necessary action was undertaken and carried out as promptly as the circumstances permitted. Diligent pursuit will be presumed to have been met if we conclude the investigation and if necessary, revise the determination or decision within 6 months from the date we began the investigation. (b) If we have not diligently pursued the investigation to its conclusion, we will revise the determination or decision if a revision is applicable and if it will be favorable to you. We will not revise the determination or decision if it will be unfavorable to you. [49 FR 46369, Nov. 26, 1984; 49 FR 48036, Dec. 10, 1984] § 404.992 Notice of revised determination or decision. (a) When a determination or decision is revised, notice of the revision will be mailed to the parties at their last known address. The notice will state the basis for the revised determination or decision and the effect of the revision. The notice will also inform the parties of the right to further review. (b) If a reconsidered determination that you are disabled, based on medical factors, is reopened for the purpose of being revised, you will be notified, in writing, of the proposed revision and of your right to request that a disability hearing be held before a revised reconsidered determination is issued. If a revised reconsidered determination is issued, you may request a hearing before an administrative law judge. (c) If an administrative law judge or the Appeals Council proposes to revise a decision, and the revision would be based on evidence not included in the record on which the prior decision was based, you and any other parties to the decision will be notified, in writing, of the proposed action and of your right to request that a hearing be held before any further action is taken. If a revised decision is issued by an administrative law judge, you and any other party may request that it be reviewed by the Appeals Council, or the Appeals Council may review the decision on its own initiative. (d) If an administrative law judge or the Appeals Council proposes to revise a decision, and the revision would be based only on evidence included in the record on which the prior decision was based, you and any other parties to the decision will be notified, in writing, of the proposed action. If a revised decision is issued by an administrative law judge, you and any other party may request that it be reviewed by the Appeals Council, or the Appeals Council may review the decision on its own initiative. [51 FR 303, Jan. 3, 1986] § 404.993 Effect of revised determination or decision. A revised determination or decision is binding unless— (a) You or another party to the revised determination file a written request for reconsideration or a hearing before an administrative law judge, as appropriate; (b) You or another party to the revised decision file, as appropriate, a request for review by the Appeals Council or a hearing before an administrative law judge; (c) The Appeals Council reviews the revised decision; or (d) The revised determination or decision is further revised. [51 FR 303, Jan. 3, 1986] § 404.994 Time and place to request a hearing on revised determination or decision. You or another party to a revised determination or decision may request, as appropriate, further review or a hearing on the revision by filing a request in writing at one of our offices within 60 days after the date you receive notice of the revision. Further review or a hearing will be held on the revision according to the rules of this subpart. § 404.995 Finality of findings when later claim is filed on same earnings record. If two claims for benefits are filed on the same earnings records, findings of fact made in a determination on the first claim may be revised in determining or deciding the second claim, even though the time limit for revising the findings made in the first claim has passed. However, a finding in connection with a claim that a person was fully or currently insured at the time of filing an application, at the time of death, or any other pertinent time, may be revised only under the conditions stated in § 404.988. § 404.996 Increase in future benefits where time period for reopening expires. If, after the time period for reopening under § 404.988(b) has ended, new evidence is furnished showing a different date of birth or additional earnings for you (or for the person on whose earnings record your claim was based) which would otherwise increase the amount of your benefits, we will make the increase (subject to the limitations provided in section 205(c) (4) and (5) of the Act) but only for benefits payable after the time we received the new evidence. (If the new evidence we receive would lead to a decrease in your benefits, we will take no action if we cannot reopen under § 404.988.) [49 FR 46369, Nov. 26, 1984] Payment of Certain Travel Expenses § 404.999a Payment of certain travel expenses—general. When you file a claim for Social Security benefits, you may incur certain travel expenses in pursuing your claim. Sections 404.999b-404.999d explain who may be reimbursed for travel expenses, the types of travel expenses that are reimbursable, and when and how to claim reimbursement. Generally, the agency that requests you to travel will be the agency that reimburses you. No later than when it notifies you of the examination or hearing described in § 404.999b(a), that agency will give you information about the right to travel reimbursement, the right to advance payment and how to request it, the rules on means of travel and unusual travel costs, and the need to submit receipts. [51 FR 8808, Mar. 14, 1986] § 404.999b Who may be reimbursed. (a) The following individuals may be reimbursed for certain travel expenses— (1) You, when you attend medical examinations upon request in connection with disability determinations; these are medical examinations requested by the State agency or by us when additional medical evidence is necessary to make a disability determination (also referred to as consultative examinations, see § 404.1517); (2) You, your representative (see § 404.1705 (a) and (b)), and all unsubpoenaed witnesses we or the State agency determines to be reasonably necessary who attend disability hearings; and (3) You, your representative, and all unsubpoenaed witnesses we determine to be reasonably necessary who attend hearings on any claim for benefits before an administrative law judge. (b) Sections 404.999a through 404.999d do not apply to subpoenaed witnesses. They are reimbursed under §§ 404.950(d) and 404.916(b)(1). [51 FR 8808, Mar. 14, 1986] § 404.999c What travel expenses are reimbursable. Reimbursable travel expenses include the ordinary expenses of public or private transportation as well as unusual costs due to special circumstances. (a) Reimbursement for ordinary travel expenses is limited— (1) To the cost of travel by the most economical and expeditious means of transportation available and appropriate to the individual's condition of health as determined by the State agency or by us, considering the available means in the following order— (i) Common carrier (air, rail, or bus); (ii) Privately owned vehicles; (iii) Commercially rented vehicles and other special conveyances; (2) If air travel is necessary, to the coach fare for air travel between the specified travel points involved unless first-class air travel is authorized in advance by the State agency or by the Secretary in instances when— (i) Space is not available in less-than-first-class accommodations on any scheduled flights in time to accomplish the purpose of the travel; (ii) First-class accommodations are necessary because you, your representative, or reasonably necessary witness is so handicapped or otherwise impaired that other accommodations are not practical and the impairment is substantiated by competent medical authority; (iii) Less-than-first-class accommodations on foreign carriers do not provide adequate sanitation or health standards; or (iv) The use of first-class accommodations would result in an overall savings to the government based on economic considerations, such as the avoidance of additional subsistence costs that would be incurred while awaiting availability of less-than-first-class accommodations. (b) Unusual travel costs may be reimbursed but must be authorized in advance and in writing by us or the appropriate State official, as applicable, unless they are unexpected or unavoidable; we or the State agency must determine their reasonableness and necessity and must approve them before payment can be made. Unusual expenses that may be covered in connection with travel include, but are not limited to— (1) Ambulance services; (2) Attendant services; (3) Meals; (4) Lodging; and (5) Taxicabs. (c) If we reimburse you for travel, we apply the rules in §§ 404.999b through 404.999d and the same rates and conditions of payment that govern travel expenses for Federal employees as authorized under 41 CFR chapter 301. If a State agency reimburses you, the reimbursement rates shall be determined by the rules in §§ 404.999b through 404.999d and that agency's rules and regulations and may differ from one agency to another and also may differ from the Federal reimbursement rates. (1) When public transportation is used, reimbursement will be made for the actual costs incurred, subject to the restrictions in paragraph (a)(2) of this section on reimbursement for first-class air travel. (2) When travel is by a privately owned vehicle, reimbursement will be made at the current Federal or State mileage rate specified for that geographic location plus the actual costs of tolls and parking, if travel by a privately owned vehicle is determined appropriate under paragraph (a)(1) of this section. Otherwise, the amount of reimbursement for travel by privately owned vehicle cannot exceed the total cost of the most economical public transportation available for travel between the same two points. Total cost (3) Sometimes your health condition dictates a mode of transportation different from the most economical and expeditious. In order for your health to require a mode of transportation other than common carrier or passenger car, you must be so handicapped or otherwise impaired as to require special transportation arrangements and the conditions must be substantiated by competent medical authority. (d) For travel to a hearing— (1) Reimbursement is limited to travel within the U.S. For this purpose, the U.S. includes the U.S. as defined in § 404.2(c)(6) and the Northern Mariana Islands. (2) We or the State agency will reimburse you, your representative, or an unsubpoenaed witness only if the distance from the person's residence or office (whichever he or she travels from) to the hearing site exceeds 75 miles. (3) For travel expenses incurred on or after April 1, 1991, the amount of reimbursement under this section for travel by your representative to attend a disability hearing or a hearing before an administrative law judge shall not exceed the maximum amount allowable under this section for travel to the hearing site from any point within the geographic area of the office having jurisdiction over the hearing. (i) The geographic area of the office having jurisdiction over the hearing means, as appropriate— (A) The designated geographic service area of the State agency adjudicatory unit having responsibility for providing the disability hearing; (B) If a Federal disability hearing officer holds the disability hearing, the geographic area of the State (which includes a State as defined in § 404.2(c)(5) and also includes the Northern Mariana Islands) in which the claimant resides or, if the claimant is not a resident of a State, in which the hearing officer holds the disability hearing; or (C) The designated geographic service area of the Office of Hearings Operations hearing office having responsibility for providing the hearing. (ii) We or the State agency determine the maximum amount allowable for travel by a representative based on the distance to the hearing site from the farthest point within the appropriate geographic area. In determining the maximum amount allowable for travel between these two points, we or the State agency apply the rules in paragraphs (a) through (c) of this section and the limitations in paragraph (d) (1) and (4) of this section. If the distance between these two points does not exceed 75 miles, we or the State agency will not reimburse any of your representative's travel expenses. (4) If a change in the location of the hearing is made at your request from the location we or the State agency selected to one farther from your residence or office, neither your additional travel expenses nor the additional travel expenses of your representative and witnesses will be reimbursed. [51 FR 8808, Mar. 14, 1986, as amended at 59 FR 8532, Feb. 23, 1994; 85 FR 73158, Nov. 16, 2020] § 404.999d When and how to claim reimbursement. (a)(1) Generally, you will be reimbursed for your expenses after your trip. However, travel advances may be authorized if you request prepayment and show that the requested advance is reasonable and necessary. (2) You must submit to us or the State agency, as appropriate, an itemized list of what you spent and supporting receipts to be reimbursed. (3) Arrangements for special means of transportation and related unusual costs may be made only if we or the State agency authorizes the costs in writing in advance of travel, unless the costs are unexpected or unavoidable. If they are unexpected or unavoidable we or the State agency must determine their reasonableness and necessity and must approve them before payment may be made. (4) If you receive prepayment, you must, within 20 days after your trip, provide to us or the State agency, as appropriate, an itemized list of your actual travel costs and submit supporting receipts. We or the State agency will require you to pay back any balance of the advanced amount that exceeds any approved travel expenses within 20 days after you are notified of the amount of that balance. (State agencies may have their own time limits in place of the 20-day periods in the preceding two sentences.) (b) You may claim reimbursable travel expenses incurred by your representative for which you have been billed by your representative, except that if your representative makes a claim for them to us or the State, he or she will be reimbursed directly. (Approved by the Office of Management and Budget under control number 0960-0434) [51 FR 8809, Mar. 14, 1986, as amended at 51 FR 44983, Dec. 16, 1986] Subpart K—Employment, Wages, Self-Employment, and Self-Employment Income Authority: Secs. 202(v), 205(a), 209, 210, 211, 229(a), 230, 231, and 702(a)(5) of the Social Security Act (42 U.S.C. 402(v), 405(a), 409, 410, 411, 429(a), 430, 431, and 902(a)(5)) and 48 U.S.C.1801. Source: 45 FR 20075, Mar. 27, 1980, unless otherwise noted. § 404.1001 Introduction. (a)(1) In general, your social security benefits are based on your earnings that are on our records. (Subpart I of this part explains how we keep earnings records.) Basically, you receive credit only for earnings that are covered for social security purposes. The earnings are covered only if your work is covered. If you are an employee, your employer files a report of your covered earnings. If you are self-employed, you file a report of your covered earnings. Some work is covered by social security and some work is not. Also, some earnings are covered by social security and some are not. It is important that you are aware of what kinds of work and earnings are covered so that you will know whether your earnings should be on our records. (2) If you are an employee, your covered work is called employment. employment (3) If your work is employment, wages. wages (4) If you work for yourself, you are self-employed. The subpart explains our rules on the kinds of self-employment that are covered and the kinds that are not. (5) If you are self-employed, your covered earnings are called self-employment income net earnings from self-employment net earnings from self-employment net earnings from self-employment self-employment income (b) We include basically only the rules that apply to current work or that the law requires us to publish as regulations. We generally do not include rules that are seldom used or do not apply to current work because of changes in the law. (c) The Social Security Act and the Internal Revenue Code (Code) have similar provisions on coverage of your earnings because the one law specifies the earnings for which you will receive credit for benefit purposes and the other the earnings on which you must pay social security taxes. Because the Code (title 26 U.S.C.) has some provisions that are not in the Act but which may affect you, you may need to refer to the Code or the Internal Revenue Service regulations (title 26 of the Code of Federal Regulations) to get complete information about your social security coverage. (d) The rules are organized in the following manner: (1) Sections 404.1003 through 404.1010 include the rules on employment. We discuss what we mean by employment, what work is covered as employment for social security purposes, and describe the kinds of workers who are considered employees. (2) In §§ 404.1012 through 404.1038 we discuss various types of work that are not covered as employment for social security purposes. (3) The rules on wages are found in §§ 404.1041 through 404.1059. We describe what is meant by the term wages, wages (4) Our rules on self-employment and self-employment income are found in §§ 404.1065 through 404.1096. We discuss what we mean by self-employment, what we mean by a trade or business, what types of activities are considered self-employment, how to determine self-employment income, and how net earnings from self-employment are figured. [45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990; 61 FR 38365, July 24, 1996] § 404.1002 Definitions. (a) General definitions. The Act The Code We, our, us You your (b) Other definitions. Employment § 404.1003 Employment. Employment means, generally, any service covered by social security performed by an employee for his or her employer. The rules on who is an employee and who is an employer are contained in §§ 404.1005 through 404.1010. Section 404.1004 states the general rule on the kinds of work covered as employment. Exceptions to the general rule are contained in §§ 404.1012 through 404.1038 which explain the kinds of work excluded from employment. All of these rules apply to current work unless otherwise indicated. [45 FR 20075, Mar. 27, 1980, as amended at 61 FR 38365, July 24, 1996] § 404.1004 What work is covered as employment? (a) General requirements of employment. (1) You perform the work within the United States (whether or not you or your employer are a citizen or resident of the United States). (2) You perform the work outside the United States and you are a citizen or resident of the United States working for— (i) An American employer; or (ii) A foreign affiliate of an American employer that has in effect an agreement covering your work under section 3121(l) of the Code. (3) You perform the work on or in connection with an American vessel or American aircraft and the conditions in paragraphs (a)(3) (i) and (ii) are met. Your citizenship or residence does not matter. The citizenship or residence of your employer matters only if it affects whether the vessel is an American vessel. (i) You enter into the contract of employment within the United States or the vessel or aircraft touches at a port or airport within the United States during the performance of your contract of employment on the vessel or aircraft. (ii) You are employed on and in connection with the vessel or aircraft when outside the United States. (4) Your work is designated as employment or recognized as equivalent to employment under a totalization agreement. (See § 404.1913. An agreement may exempt work from coverage as well as extend coverage to work.) (5) Your work performed after December 31, 1994, is in the employ of an international organization pursuant to a transfer from a Federal agency under section 3582 of title 5 of the United States Code and both the following are met: (i) Immediately before the transfer, your work for the Federal agency was covered employment; and (ii) You would be entitled, upon separation from the international organization and proper application, to reemployment with the Federal agency under section 3582. (b) Explanation of terms used in this section American employer (i) The United States or any of its instrumentalities; (ii) A State, a political subdivision of a State, or an instrumentality of any one or more States or political subdivisions of a State; (iii) An individual who is a resident of the United States; (iv) A partnership, if at least two-thirds of the partners are residents of the United States; (v) A trust, if all of the trustees are residents of the United States; or (vi) A corporation organized under the laws of the United States or of any State. (2) American aircraft (3) American vessel (4) Citizen of the United States (5) Foreign affiliate (6) On and in connection with (7) On or in connection with (8) State (9) United States [45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36573, Sept. 9, 1985; 55 FR 51687, Dec. 17, 1990; 61 FR 38365, July 24, 1996; 69 FR 51555, Aug. 20, 2004] § 404.1005 Who is an employee. You must be an employee for your work to be covered as employment for social security purposes. You are an employee if you are— (a) A corporation officer as described in § 404.1006; (b) A common-law employee as described in § 404.1007 (unless you are, after December 31, 1982, a qualified real estate agent or direct seller as described in § 404.1069); or (c) An agent-driver or commission-driver, a full-time life insurance salesman, a home worker, or a traveling or city salesman as described in § 404.1008. [45 FR 20075, Mar. 27, 1980, as amended at 48 FR 40515, Sept. 8, 1983] § 404.1006 Corporation officer. If you are an officer of a corporation, you are an employee of the corporation if you are paid or you are entitled to be paid for holding office or performing services. However, if you are a director of a corporation, we consider you to be self-employed when you work as a director. § 404.1007 Common-law employee. (a) General. (b) Factors that show employee status. (1) The person you work for may fire you. (2) The person you work for furnishes you with tools or equipment and a place to work. (3) You receive training from the person you work for or are required to follow that person's instructions. (4) You must do the work yourself. (5) You do not hire, supervise, or pay assistants (unless you are employed as a foreman, manager, or supervisor). (6) The person you work for sets your hours of work, requires you to work full-time, or restricts you from doing work for others. (7) The person you work for pays your business or traveling expenses. (8) You are paid by the hour, week or month. (c) Factors that show self-employed status. (1) You make a profit or suffer a loss. (2) You are hired to complete a certain job and if you quit before the job is completed you may be liable for damages. (3) You work for a number of persons or firms at the same time. (4) You advertise to the general public that you are available to perform services. (5) You pay your own expenses and have your own equipment and work place. (d) Questions about your status. § 404.1008 Agent-driver or commission-driver, full-time life insurance salesman, home worker, or traveling or city salesman. (a) General. (1) Under the work arrangement the worker is expected to do substantially all of the work personally. (2) The worker must not have a substantial investment in the facilities used to do the work. Facilities include such things as a place to work, storage space, equipment, machinery and office furniture. However, facilities do not include tools, equipment or clothing of the kind usually provided by employees nor transportation such as a car or truck. (3) The work must be performed as part of a continuing work relationship between the worker and the person for whom the work is done. The work performed must not be a single transaction. Part-time and regular seasonal work may be performed as part of a continuing work relationship. (b) Agent-driver or commission-driver. (c) Full-time life insurance salesman. (d) Home worker. (e) Traveling or city salesman. multiple line § 404.1009 Who is an employer. A person is an employer if he or she employs at least one employee. Sometimes it is not clear who a worker's employer is, since the employer does not always pay the worker's wages. When there is a question about who the employer is, we use the common-law rules to identify the employer (see § 404.1007). § 404.1010 Farm crew leader as employer. A farm crew leader furnishes workers to do agricultural labor for another person, usually a farm operator. If the crew leader pays the workers (the money can be the crew leader's or the farm operator's), the crew leader is deemed to be the employer of the workers and is self-employed. However, the crew leader is not deemed the employer of the workers if there is a written agreement between the crew leader and the farm operator naming the crew leader as an employee. If the crew leader does not have this agreement and does not pay the workers, we use the common-law rules to determine the crew leader's status. Work Excluded From Employment § 404.1012 Work excluded from employment. Certain kinds of work performed by an employee are excluded from employment. They are described in §§ 404.1014 through 404.1038 and are exceptions to the general rule in § 404.1004 on the kinds of work that are covered as employment. In general, if the work performed by an employee is excluded from employment, the work is not covered under social security. However, certain kinds of work performed by an employee, even though excluded from employment, are covered as self-employment for social security purposes. In addition, if part of the work performed by an employee for the same employer is included as employment and part is excluded from employment, all the work may be included or all may be excluded as described in § 404.1013. [45 FR 20075, Mar. 27, 1980, as amended at 61 FR 38365, July 24, 1996] § 404.1013 Included-excluded rule. (a) If part of your work for an employer during a pay period is covered as employment and part excluded, all of your work during that period is considered covered if at least one-half of your time in the pay period is in covered work. If you spend most of your time in a pay period doing work that is excluded, all of your work in that period is excluded. (b) A pay period (c) The included-excluded rule does not apply and your covered work will be counted if— (1) Part of your work is covered by the Railroad Retirement Tax Act and part by the Social Security Act; or (2) You have no usual pay period § 404.1014 Domestic service by a student for a local college club, fraternity or sorority. (a) General. (b) Explanation of terms Work of a household nature (2) A local college club or local chapter of a college fraternity or sorority § 404.1015 Family services. (a) General. (1) You work while under age 18 in the employ of your parent; (2) You do nonbusiness work (see § 404.1058(a)(3) for an explanation of nonbusiness work) or perform domestic service (as described in § 404.1057(b)) as an employee of your parent while under age 21; (3) You do nonbusiness work as an employee of your son, daughter, or spouse; or (4) You perform domestic service in the private home of your son, daughter or spouse as an employee of that son, daughter or spouse unless— (i) The son or daughter has a child (either natural, adopted or stepchild) living in the home who is under age 18 or, if older, has a mental or physical condition that requires the personal care and supervision of an adult for at least four continuous weeks in the calendar quarter in which the work is done; and (ii) The son or daughter is a widower or widow, or is divorced and has not remarried, or has a spouse living in the home who, because of a physical or mental condition, is incapable of taking care of the child and the condition is present for at least four continuous weeks in the calendar quarter in which the work is done. (b) Family work for other than sole proprietor. [45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59913, Dec. 17, 1992] § 404.1016 Foreign agricultural workers. Farm work done by foreign workers lawfully admitted to the United States on a temporary basis to do farm work is not covered as employment. The excluded work includes any services connected with farm operations. § 404.1017 Sharefarmers. (a) If you are a sharefarmer, your services are not covered as employment, but as self-employment. (b) You are a sharefarmer if you have an arrangement with the owner or tenant of the land and the arrangement provides for all of the following: (1) You will produce agricultural or horticultural commodities on the land. (2) The commodities you produce or the income from their sale will be divided between you and the person with whom you have the agreement. (3) The amount of your share depends on the amount of commodities you produce. (c) If under your agreement you are to receive a specific rate of pay, a fixed sum of money or a specific amount of the commodities not based on your production, you are not a sharefarmer for social security purposes. § 404.1018 Work by civilians for the United States Government or its instrumentalities—wages paid after 1983. (a) General. (1) The service would have been excluded if the rules in effect in January 1983 had remained in effect; and (i) You have been continuously performing such service since December 31, 1983; or (ii) You are receiving an annuity from the Civil Service Retirement and Disability Fund or benefits for service as an employee under another retirement system established by a law of the United States and in effect on December 31, 1983, for employees of the Federal Government other than a system for members of the uniformed services. (2) The service is under the provisions of 28 U.S.C. 294, relating to the assignment of retired Federal justices and judges to active duty. (b) Covered services Federal officials. (i) As the President or the Vice President of the United States; (ii) In a position placed in the Executive Schedule under 5 U.S.C. 5312 through 5317; (iii) As a noncareer appointee in the Senior Executive Service or a noncareer member of the Senior Foreign Service; (iv) In a position to which you are appointed by the President, or his designee, or the Vice President under 3 U.S.C. 105(a)(1), 106(a)(1), or 107(a)(1) or (b)(1) if the maximum rate of basic pay for such position is at or above the rate for level V of the Executive Schedule; (v) As the Chief Justice of the United States, an Associate Justice of the Supreme Court, a judge of a United States court of appeals, a judge of a United States district court, including the district court of a territory, a judge of the United States Claims Court, a judge of the United States Court of International Trade, a judge of the United States Tax Court, a United States magistrate, or a referee in bankruptcy or United States bankruptcy judge; or (vi) As a Member, Delegate, or Resident Commissioner of or to the Congress. (2) Legislative Branch Employees. (3) Election to become subject to the Federal Employees' Retirement System or the Foreign Service Pension System. (i) You timely elect after June 30, 1987, under either the Federal Employees' Retirement System Act or the Central Intelligence Agency Retirement Act, to become subject to the Federal Employees Retirement System provided in 5 U.S.C. 8401 through 8479; or (ii) You timely elect after June 30, 1987, to become subject to the Foreign Service Pension System provided in 22 U.S.C. 4071 through 4071(k). (4) Subsequent Federal civilian service. (c) Excluded Service. (1) In a penal institution of the United States as an inmate thereof; (2) As an employee included under 5 U.S.C. 5351(2) relating to certain interns, student nurses, and other student employees of hospitals of the Federal Government, other than as a medical or dental intern or a medical or dental resident in training; (3) As an employee serving on a temporary basis in case of fire, storm, earthquake, flood, or other similar emergency; or (4) Under any other statutory provisions that would require exclusion for reasons other than being in the employ of the Federal Government or an instrumentality of such. (d) Work as a Peace Corps Volunteer. (e) Work as Job Corps Enrollee. (f) Work by Volunteer in Service to America. (g) Work for international organizations. (h) Meaning of “continuously performing” Absence of less than 366 days. (2) Other absences. (i) Return to the performance of such service after being detailed or transferred from such service to an international organization as described under 5 U.S.C. 3343 or under 5 U.S.C. 3581; (ii) Are reemployed or reinstated after being separated from such service for the purpose of accepting employment with the American Institute of Taiwan as provided under 22 U.S.C. 3310; (iii) Return to the performance of such service after performing service as a member of a uniformed service including service in the National Guard and temporary service in the Coast Guard Reserve and after exercising restoration or reemployment rights as provided under 38 U.S.C. chapter 43; or (iv) Return to the performance of such service after employment by a tribal organization to which section 105(e)(2) of the Indian Self-Determination Act applies. [53 FR 38944, Oct. 4, 1988; 53 FR 44551, Nov. 3, 1988, as amended at 55 FR 24891, June 19, 1990; 61 FR 38365, July 24, 1996; 79 FR 33684, June 12, 2014] § 404.1018a Work by civilians for the United States Government or its instrumentalities—remuneration paid prior to 1984. (a) General—remuneration paid prior to 1984. (b) Work covered by a retirement system—remuneration paid prior to 1984. (c) Work that was specifically excluded—remuneration paid prior to 1984. (1) As the President or Vice President of the United States; (2) As a Member of the United States Congress, a Delegate to Congress, or a Resident Commissioner; (3) In the legislative branch of the United States Government; (4) By a student nurse, student dietitian, student physical therapist or student occupational therapist who was assigned or attached to a Federal hospital, clinic, or medical or dental laboratory; (5) By a person designated as a student employee with the approval of the Office of Personnel Management who was assigned or attached primarily for training purposes to a Federal hospital, clinic, or medical or dental laboratory, other than a medical or dental intern or resident in training; (6) By an employee who served on a temporary basis in case of fire, storm, earthquake, flood, or other similar emergency; (7) By a person to whom the Civil Service Retirement Act did not apply because the person's services were subject to another retirement system established by a law of the United States or by the instrumentality of the United States for which the work was done, other than the retirement system established by the Tennessee Valley Authority under the plan approved by the Secretary of Health, Education, and Welfare on December 28, 1956; or (8) By an inmate of a penal institution of the United States, if the work was done in the penal institution. (d) Work for instrumentalities of the United States exempt from employer tax—remuneration paid prior to 1984. (i) The instrumentality was exempt from the employer tax imposed by section 3111 of the Code or by section 1410 of the Internal Revenue Code of 1939; and (ii) The exemption was authorized by another law specifically referring to these sections. (2) Work performed by an employee of an instrumentality of the United States was excluded if the instrumentality was not on December 31, 1950, subject to the employer tax imposed by section 1410 of the Internal Revenue Code of 1939 and the work was covered by a retirement system established by the instrumentality, unless— (i) The work was for a corporation wholly owned by the United States; (ii) The work was for a Federal land bank association, a production credit association, a Federal Reserve Bank, a Federal Credit Union, a Federal land bank, a Federal intermediate credit bank, a bank for cooperatives, or a Federal Home Loan Bank; (iii) The work was for a State, county, or community committee under the Agriculture Marketing Service and the Commodity Stabilization Service, formerly the Production and Marketing Administration; or (iv) The work was by a civilian, who was not paid from funds appropriated by the Congress, in activities conducted by an instrumentality of the United States subject to the jurisdiction of the Secretary of Defense or Secretary of Transportation at installations intended for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the Defense Department or the Coast Guard, such as— (A) Army and Air Force Exchange Service; (B) Army and Air Force Motion Picture Service; (C) Coast Guard Exchanges; (D) Navy Ship's Service Stores; and (E) Marine Corps Post Exchanges. (3) For purposes of paragraph (d)(2) of this section, if an employee has a choice as to whether his or her work was covered by a retirement system, the work was not covered by that system until he or she chose that coverage. The work done, rather than the position held, must have been covered by the retirement system. (e) Work as a Peace Corps Volunteer—remuneration paid prior to 1984. (f) Work as Job Corps Enrollee—remuneration paid prior to 1984. (g) Work by Volunteer in Service to America—remuneration paid prior to 1984. [53 FR 38945, Oct. 4, 1988] § 404.1018b Medicare qualified government employment. (a) General. (b) Federal employment. (c) State and local government employment. (1) An individual's service shall not be treated as employment if performed— (i) By an individual employed by a State or political subdivision for the purpose of relieving that individual from unemployment; (ii) In a hospital, home, or other institution by a patient or inmate thereof as an employee of a State, political subdivision, or of the District of Columbia; (iii) By an individual, as an employee of a State, political subdivision or the District of Columbia serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or other similar emergency; (iv) By an individual as an employee included under 5 U.S.C. 5351(2) (relating to certain interns, student nurses, and other student employees of hospitals of the District of Columbia government), other than as a medical or dental intern or a medical or dental resident in training; or (v) By an election official or election worker paid less than $100 in a calendar year for such service prior to 1995, or less than $1,000 for service performed in any calendar year after 1994 and before 2000, or, for service performed in any calendar year after 1999, less than the $1,000 base amount, as adjusted pursuant to section 218(c)(8)(B) of the Social Security Act to reflect changes in wages in the economy. We will publish this adjustment of the $1,000 base amount in the Federal Register (2) An individual's service performed for an employer shall not be treated as employment if— (i) The service would be excluded from coverage under section 210(a)(7) of the Social Security Act which pertains to employees of State and local governments; (ii) The service is performed by an individual who— (A) Was performing substantial and regular service for remuneration for that employer before April 1, 1986; (B) Was a bona fide employee of that employer on March 31, 1986; and (C) Did not enter into the employment relationship with that employer for purposes of meeting the requirements of paragraphs (c)(2)(ii) (A) and (B) of this section; and (iii) After March 31, 1986, but prior to the service being performed, the employment relationship with that employer had not been terminated. [57 FR 59913, Dec. 17, 1992, as amended at 61 FR 38366, July 24, 1996] § 404.1019 Work as a member of a uniformed service of the United States. (a) Your work as a member of a uniformed service of the United States is covered under Social Security (unless creditable under the Railroad Retirement Act), if— (1) On or after January 1, 1957, the work is service on active duty or active duty for training but not including service performed while on leave without pay; or (2) On or after January 1, 1988, the work is service on inactive duty training. (b) You are a member of a uniformed service (1) You are appointed, enlisted, or inducted into (or a retired member of)— (i) One of the armed services (Army, Navy, Air Force, Marine Corps, or Coast Guard); or (ii) A component of one of the armed services, including any reserve component as defined in Veterans' Benefits, 38 U.S.C. 101 (except the Coast Guard Reserve as a temporary member); (2) You are a commissioned officer (including a retired commissioned officer) of the National Oceanic and Atmospheric Administration or the Regular or Reserve Corps of the Public Health Service; (3) You are a member of the Fleet Reserve or Fleet Marine Corps Reserve; (4) You are a cadet at the United States Military, Coast Guard, or Air Force Academy, or a midshipman at the United States Naval Academy; (5) You are a member of the Reserve Officers Training Corps, the Naval Reserve Officers Training Corps, or the Air Force Reserve Officers Training Corps, when ordered to annual training duty for 14 days or more including periods of authorized travel to and from that duty; or (6) You are selected for active military or naval training under the Military Selective Service Act or are provisionally accepted for active duty in the military or naval service and you are ordered or directed to a place for final acceptance or entry upon active duty and are on the way to or from, or at, that place. [45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59913, Dec. 17, 1992] § 404.1020 Work for States and their political subdivisions and instrumentalities. (a) General. (1) The work is covered under an agreement under section 218 of the Act (see subpart M of this part); or (2) The work is covered transportation service (3) You perform services after July 1, 1991, as an employee of a State (other than the District of Columbia, Guam, the Commonwealth of the Northern Mariana Islands, or American Samoa), a political subdivision of a State, or any wholly owned instrumentality of one or more of the foregoing and you are not a member of a retirement system of such State, political subdivision, or instrumentality. Retirement system has the meaning given that term in section 218(b)(4) of the Act, except as provided in regulations prescribed by the Secretary of the Treasury. This paragraph does not apply to services performed— (i) As an employee employed to relieve you from unemployment; (ii) In a hospital, home, or other institution where you are a patient or inmate thereof; (iii) As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or other similar emergency; (iv) As an election official or election worker if the remuneration paid in a calendar year for such service prior to 1995 is less than $100, or less than $1000 for service performed in any calendar year after 1994 and before 2000, or, for service performed in any calendar year after 1999, less than the $1000 base amount, as adjusted pursuant to section 218(c)(8)(B) of the Social Security Act to reflect changes in wages in the economy. We will publish this adjustment of the $1000 base amount in the Federal Register (v) As an employee in a position compensated solely on a fee basis which is treated, pursuant to section 211(c)(2)(E) of the Act, as a trade or business for purposes of inclusion of the fees in net earnings from self-employment; or (4) The work is covered under § 404.1021 or § 404.1022. (b) Medicare qualified government employment. (c) Covered transportation service Work for a public transportation system. (2) Transportation system acquired in whole or in part after 1936 and before 1951. (i) Any part of the transportation system was acquired from private ownership after 1936 and before 1951; and (ii) No general retirement system covering substantially all work in connection with the operation of the transportation system and guaranteed by the State constitution was in effect on December 31, 1950. (3) Transportation system operated on December 31, 1950, no part of which was acquired after 1936 and before 1951. (4) Addition after 1950 to existing transportation system. (i) The work is performed by an employee who— (A) Worked in employment in connection with the operation of the addition before the addition was acquired by the State or political subdivision; and (B) Became an employee of the State or political subdivision in connection with and at the time of its acquisition of the addition; (ii) On that first day, work performed by that employee is— (A) Not covered by a general retirement system; or (B) Covered by a general retirement system which contains special provisions that apply only to employees described in paragraph (c)(4)(i)(B) of this section; (iii) The existing transportation system was operated by the State or political subdivision on December 31, 1950; and (iv) Work for the existing transportation system was not covered transportation service because— (A) No part of the system was acquired from private ownership after 1936 and before 1951; or (B) The general retirement system described in paragraph (c)(2)(ii) of this section was in effect on December 31, 1950. (5) Transportation system acquired after 1950. (i) The transportation system was not operated by the State or political subdivision before 1951; (ii) All or part of the transportation system was first acquired from private ownership after 1950; and (iii) At the time the State or political subdivision first acquired any part of its transportation system from private ownership, it did not have a general retirement system covering substantially all work performed in connection with the operation of the transportation system. (6) Definitions. general retirement system (ii) A transportation system (or part of a system) is considered to have been acquired from private ownership by a State or political subdivision if— (A) Before the acquisition, work performed by employees in connection with the operation of the system (or an acquired part) constituted employment under the Act; and (B) Some of these employees became employees of the State or political subdivision in connection with and at the time of the acquisition. (iii) The term political subdivision [45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59910, 59914, Dec. 17, 1992; 61 FR 38366, July 24, 1996; 69 FR 51556, Aug. 20, 2004] § 404.1021 Work for the District of Columbia. If you work as an employee of the District of Columbia or a wholly owned instrumentality of the District of Columbia, your work is covered as employment unless— (a) Your work is covered by a retirement system established by a law of the United States; or (b) You are— (1) A patient or inmate of a hospital or penal institution and your work is for that hospital or institution; (2) A student employee (a student nurse, dietitian, or physical or occupational therapist, but not a medical or dental intern or resident in training) of a District of Columbia hospital, clinic, or medical or dental laboratory; (3) An employee serving temporarily in case of fire, storm, snow, earthquake, flood, or other similar emergency; or (4) A member of a board, committee, or council of the District of Columbia paid on a per diem, meeting, or other fee basis. (c) Medicare qualified government employment. [45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59914, Dec. 17, 1992] § 404.1022 American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands. (a) Work in American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands. (b) Work for American Samoa or a political subdivision or wholly owned instrumentality of American Samoa. (c) Work for Guam, the Commonwealth of the Northern Mariana Islands (CNMI), or a political subdivision or wholly owned instrumentality of Guam or the CNMI. (1) Covered by a retirement system established by a law of Guam or the CNMI; (2) Done by an elected official; (3) Done by a member of the legislature; or (4) Done in a hospital or penal institution by a patient or inmate of the hospital or penal institution. (d) Medicare qualified government employment. [45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59914, Dec. 17, 1992; 69 FR 51556, Aug. 20, 2004; 79 FR 33684, June 12, 2014] § 404.1023 Ministers of churches and members of religious orders. (a) General. (b) What is an ordained, commissioned, or licensed minister. ordained, commissioned, or licensed (c) When is work by a minister in the exercise of the ministry. (i) Ministering sacerdotal functions or conducting religious worship (other than as described in paragraph (d)(2) of this section); or (ii) Working in the control, conduct, and maintenance of a religious organization (including an integral agency of a religious organization) under the authority of a religious body constituting a church or church denomination. (2) The following rules are used to decide whether a minister's work is in the exercise of the ministry: (i) Whether the work is the conduct of religious worship or the ministration of sacerdotal functions depends on the tenets and practices of the religious body which is his or her church or church denomination. (ii) Work in the control, conduct, and maintenance relates to directing, managing, or promoting the activities of the religious organization. Any religious organization is considered to be under the authority of a religious body constituting a church or church denomination if it is organized and dedicated to carrying out the tenets and principles of a faith according to either the requirements or sanctions governing the creation of institutions of the faith. The term religious organization (iii) If a minister is working in the conduct of religious worship or the ministration of sacerdotal functions, the work is in the exercise of the ministry whether or not it is performed for a religious organization. (See paragraph (d)(2) of this section for an exception to this rule.) Example: M, a duly ordained minister, is engaged to work as chaplain at a privately owned university. M spends his entire time working as chaplain. This includes the conduct of religious worship, offering spiritual counsel to the university students, and teaching a class in religion. M is working in the exercise of the ministry. (iv) If a minister is working for an organization which is operated as an integral agency of a religious organization under the authority of a religious body constituting a church or church denomination, all work by the minister in the conduct of religious worship, in the ministration of sacerdotal functions, or in the control, conduct, and maintenance of the organization is in the exercise of the ministry. Example: M, a duly ordained minister, is engaged by the N Religious Board as director of one of its departments. M performs no other service. The N Religious Board is an integral agency of O, a religious organization operating under the authority of a religious body constituting a church denomination. M is working in the exercise of the ministry. (v) If a minister, under an assignment or designation by a religious body constituting a church, works for an organization which is neither a religious organization nor operated as an integral agency of a religious organization, all service performed by him or her, even though the service may not involve the conduct of religious worship or the ministration of sacerdotal functions, is in the exercise of the ministry. Example: M, a duly ordained minister, is assigned by X, the religious body constituting M's church, to perform advisory service to Y company in connection with the publication of a book dealing with the history of M's church denomination. Y is neither a religious organization nor operated as an integral agency of a religious organization. M performs no other service for X or Y. M is working in the exercise of the ministry. (vi) If a minister is working for an organization which is neither a religious organization nor operated as an integral agency of a religious organization and the work is not performed under an assignment or designation by ecclesiastical superiors, then only the work done by the minister in the conduct of religious worship or the ministration of sacerdotal functions is in the exercise of the ministry. (See paragraph (d)(2) of this section for an exception to this rule.) Example: M, a duly ordained minister, is engaged by N University to teach history and mathematics. M does no other work for N although from time to time M performs marriages and conducts funerals for relatives and friends. N University is neither a religious organization nor operated as an integral agency of a religious organization. M is not working for N under an assignment by his ecclesiastical superiors. The work performed by M for N University is not in the exercise of the ministry. However, service performed by M in performing marriages and conducting funerals is in the exercise of the ministry. (d) When is work by a minister not in the exercise of the ministry. (2) Work performed by a duly ordained, commissioned, or licensed minister of a church as an employee of the United States, or a State, territory, or possession of the United States, or the District of Columbia, or a foreign government, or a political subdivision of any of these, is not in the exercise of the ministry, even though the work may involve the ministration of sacerdotal functions or the conduct of religious worship. For example, we consider service performed as a chaplain in the Armed Forces of the United States to be work performed by a commissioned officer and not by a minister in the exercise of the ministry. Also, service performed by an employee of a State as a chaplain in a State prison is considered to be performed by a civil servant of the State and not by a minister in the exercise of the ministry. (e) Work in the exercise of duties required by a religious order. § 404.1024 Election of coverage by religious orders. A religious order whose members are required to take a vow of poverty, or any autonomous subdivision of that religious order, may elect to have social security coverage extended to the work performed by its members in the exercise of duties required by that order or subdivision. The rules on the election of coverage by these religious orders are described in 26 CFR 31.3121(r). The rules on determining the wages of members of religious orders for which an election of coverage has been made are described in § 404.1046. § 404.1025 Work for religious, charitable, educational, or certain other organizations exempt from income tax. (a) After 1983. (b) Before 1984. [50 FR 36573, Sept. 9, 1985] § 404.1026 Work for a church or qualified church-controlled organization. (a) General. (b) What is a church. church (c) What is a qualified church-controlled organization. qualified church-controlled organization not (1) Offers goods, services, or facilities for sale to the general public, other than on an incidental basis, or for other than a nominal charge which is substantially less than the cost of providing such goods, services, or facilities; and (2) Normally receives more than 25 percent of its support from either governmental sources or receipts from admissions, sales of merchandise, performance of services or furnishing of facilities other than in an unrelated trade or business, or both. [50 FR 36573, Sept. 9, 1985, as amended at 55 FR 7309, Mar. 1, 1990] § 404.1027 Railroad work. We exclude from employment any work you do as an employee or employee representative as described in the Railroad Retirement Tax Act. However, railroad compensation can be counted for social security purposes under the conditions described in subpart O of this part. § 404.1028 Student working for a school, college, or university. (a) For purposes of this section, a school, college, or university (b) If you are a student, any work you do as an employee of a school, college or university is excluded from employment, if you are enrolled in and regularly attending classes at that school, college, or university. The exclusion also applies to work you do for a private nonprofit auxiliary organization of the school, college, or university if it is organized and operated exclusively for the benefit of, to perform functions of, or to carry out the purposes of the school, college, or university. The organization must be operated, supervised, or controlled by, or in connection with, the school, college, or university. (c) Whether you are a student for purposes of this section depends on your relationship with your employer. If your main purpose is pursuing a course of study rather than earning a livelihood, we consider you to be a student and your work is not considered employment. § 404.1029 Student nurses. If you are a student nurse, your work for a hospital or nurses training school is excluded from employment if you are enrolled and regularly attending classes in a nurses training school which is chartered or approved under State law. § 404.1030 Delivery and distribution or sale of newspapers, shopping news, and magazines. (a) If you are under age 18. (b) If you are any age. (1) You are to sell the newspapers or magazines at a fixed price; and (2) Your pay is the difference between the fixed selling price and the amount you are charged for the newspapers or magazines (whether or not you are guaranteed a minimum amount of compensation or receive credit for unsold newspapers or magazines). (c) If you are age 18 or older. § 404.1031 Fishing. (a) If you work on a boat engaged in catching fish or other forms of aquatic animal life, your work is not employment if you have an arrangement with the owner or operator of the boat which provides for all of the following: (1) You do not receive any cash pay (other than as provided in paragraph (a)(2) of this section). (2) You receive a share of the catch or a share of the proceeds from the sale of the catch. (3) The amount of your share depends on the size of the catch. (4) The operating crew of the boat (or each boat from which you receive a share if the fishing operation involves more than one boat) is normally made up of fewer than 10 individuals. (b) Work excluded from employment under this section is considered to be self-employment (§ 404.1068(e)). § 404.1032 Work for a foreign government. If you work as an employee of a foreign government in any capacity, your work is excluded from employment. If you are a citizen of the United States and work in the United States as an employee of a foreign government, you are considered to be self-employed (§ 404.1068(d)). § 404.1033 Work for a wholly owned instrumentality of a foreign government. (a) If you work as an employee of an instrumentality of a foreign government, your work is excluded from employment if— (1) The instrumentality is wholly owned by the foreign government; (2) Your work is similar to work performed in foreign countries by employees of the United States Government or its instrumentalities; and (3) The Secretary of State certifies to the Secretary of the Treasury that the foreign government grants an equivalent exemption for services performed in the foreign country by employees of the United States Government or its instrumentalities. (b) Your work will not be excluded under this section if any of the conditions in paragraph (a) of this section are not met. (c) If you are a citizen of the United States and work in the United States as an employee of an instrumentality of a foreign government and the conditions in paragraph (a) of this section are met, you are considered to be self-employed (§ 404.1068(d)). § 404.1034 Work for an international organization. (a) If you work as an employee of an international organization entitled to enjoy privileges, exemptions, and immunities as an international organization under the International Organizations Immunities Act (59 Stat. 669), your work is excluded from employment except as described in paragraphs (b) and (c) of this section. The organization must meet the following conditions: (1) It must be a public international organization in which the United States participates under a treaty or authority of an act of Congress authorizing, or making an appropriation for, participation. (2) It must be designated by executive order to be entitled to enjoy the privileges, exemptions, and immunities provided in the International Organizations Immunities Act. (3) The designation must be in effect, and all conditions and limitations in the designation must be met. (b) Your work will not be excluded under this section if any of the conditions in paragraph (a) of this section are not met. (c) Your work performed after December 31, 1994 will not be excluded under this section if you perform service in the employ of an international organization pursuant to a transfer from a Federal agency under section 3582 of title 5 of the United States Code and (1) Immediately before such transfer you performed service with a Federal agency which was covered as employment; and (2) You would be entitled, upon separation from the international organization and proper application, to reemployment with the Federal agency under section 3582. (d) If you are a citizen of the United States and work in the United States as an employee of an international organization that meets the conditions in paragraph (a) of this section and you are not subject to coverage based on paragraph (c) of this section, you are considered to be self-employed (§ 404.1068(d)). [45 FR 20075, Mar. 27, 1980, as amended at 61 FR 38366, July 24, 1996] § 404.1035 Work for a communist organization. If you work as an employee of an organization which is registered, or which is required by a final order of the Subversive Activities Control Board to register under the Internal Security Act of 1950 as a communist action, communist-front, or communist-infiltrated organization, your work is excluded from employment. The exclusion is effective with the calendar year in which the organization is registered or the final order is in effect. § 404.1036 Certain nonresident aliens. (a) Foreign students. (2) Foreign students (nonimmigrant aliens) may be temporarily in the United States under subparagraph (M) of section 101(a)(15) of the Immigration and Nationality Act to pursue a vocational or nonacademic technical education approved by the Attorney General. Work done by these students to carry out the purpose for which they were admitted is excluded from employment. Other work done by these foreign students is not excluded from employment under this section. (b) Exchange visitors. (2) Exchange visitors (nonimmigrant aliens) may be temporarily in the United States under subparagraph (Q) of section 101(a)(15) of the Immigration and Nationality Act to participate in an international cultural exchange program approved by the Attorney General. Effective October 1, 1994, work done by these exchange visitors to carry out the purpose for which they were admitted is excluded from employment. Other work done by these exchange visitors is not excluded from employment under this section. (c) Spouse and children. [61 FR 38366, July 24, 1996] § 404.1037 Work on or in connection with a non-American vessel or aircraft. If you work as an employee within the United States on or in connection with (as explained in § 404.1004(b)(8)) a vessel or aircraft that is not an American vessel (as defined in § 404.1004(b)(3)) or American aircraft (as defined in § 404.1004(b)(2)), your work is excluded from employment if— (a) You are not a citizen of the United States or your employer is not an American employer (as defined in § 404.1004(b)(1)); and (b) You are employed on and in connection with (as explained in § 404.1004(b)(7)) the vessel or aircraft when outside the United States. § 404.1038 Domestic employees under age 18. Domestic services you perform in a private home of your employer are excluded from employment, regardless of the amount earned, in any year in which you are under age 18 if domestic service is not your principal occupation. The exclusion applies to the entire year if you are under age 18 in any part of the year. See § 404.1057. [61 FR 38366, July 24, 1996] Exemption From Social Security by Reason of Religious Belief § 404.1039 Employers (including partnerships) and employees who are both members of certain religious groups opposed to insurance. (a) You and your employer (or, if the employer is a partnership, each of its partners) may file applications with the Internal Revenue Service for exemption from your respective shares of the Federal Insurance Contributions Act taxes on your wages paid by that employer if you and your employer (or, if the employer is a partnership, each of its partners)— (1) Are members of a recognized religious sect or division of the sect; and (2) Adhere to the tenets or teachings of the sect or division of the sect and for that reason are conscientiously opposed to receiving benefits from any private or public insurance that— (i) Makes payment in the event of death, disability, old-age, or retirement; or (ii) Makes payment for the cost of, or provides services for, medical care including the benefits of any insurance system established by the Act. (b) Both your application and your employer's application (or, if your employer is a partnership, each partner's application) must be filed with and approved by the Internal Revenue Service pursuant to section 3127 of the Internal Revenue Code. An application must contain or be accompanied by the applicant's waiver of all benefits and payments under title II and part A of title XVIII of the Act. See § 404.305 for the effect of the filing of the waiver and the granting of the exemption. (c) Regardless of whether the applicant meets all these conditions, the application will not be approved unless we find that— (1) The sect or division of the sect has established tenets or teachings which cause the applicant to be conscientiously opposed to the types of insurance benefits described in paragraph (a)(2) of this section; and (2) For a substantial period of time it has been the practice for members of the sect or division of the sect to make provision for their dependent members that is reasonable in view of their general level of living; and (3) The sect or division of the sect has been in existence continuously since December 31, 1950. (d) An application for exemption will be approved by the Internal Revenue Service only if no benefit or payment under title II or part A of title XVIII of the Act became payable (or, but for section 203 or section 222(b) of the Act, would have become payable) to the applicant at or before the time of the filing of the application for exemption. (e) The tax exemption ceases to be effective with respect to wages paid beginning with the calendar quarter in which either the employer (or if the employer is a partnership, any of its partners) or the employee involved does not meet the requirements of paragraph (a) of this section or the religious sect or division of the sect is found by us to no longer meet the requirements of paragraph (c) of this section. If the tax exemption ceases to be effective, the waiver of the right to receive Social Security and Medicare Part A benefits will also no longer be effective. Benefits may be payable based upon the wages of the individual, whose exempt status was terminated, for and after the calendar year following the calendar year in which the event occurred upon which the cessation of the exemption is based. Benefits may be payable based upon the self-employment income of the individual whose exempt status was terminated for and after the taxable year in which the event occurred upon which the cessation of the exemption is based. [58 FR 64889, Dec. 10, 1993] Wages § 404.1041 Wages. (a) The term wages (b) If you are paid wages, it is not important what they are called. Salaries, fees, bonuses and commissions on sales or on insurance premiums are wages if they are remuneration paid for employment. (c) The way in which you are paid is unimportant. Wages may be paid on the basis of piecework or a percentage of the profits. Wages may be paid on an hourly, daily, weekly, monthly, or yearly basis. (See § 404.1056 for special rules for agricultural labor.) (d) Your wages can be in any form. You can be paid in cash or something other than cash, for example, in goods or clothing. (See paragraphs (e) and (f) of this section for kinds of employment where cash payments alone are considered wages and § 404.1043(b) concerning the value of meals and lodging as wages.) If your employer pays you cash for your meals and lodging on a regular basis as part of your employment, these payments may be considered wages. Payments other than cash may be counted as wages on the basis of the fair value of the items when paid. (e) In certain kinds of employment, cash payments alone count as wages. These types of employment are agricultural labor, domestic services, and services not in the course of the employer's trade or business. (f) To count as wages, payments for services performed by home workers who are employees as described in § 404.1008(d) must be in cash and must amount to $100 or more in a calendar year. Once this cash pay test is met, all remuneration paid, whether in cash or kind, is also wages. [45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990] § 404.1042 Wages when paid and received. (a) In general. (b) Constructive payment. (1) The wages must be credited to or set aside for the employee and must be made available without restriction so that they may be drawn upon at any time; or (2) The employer must intend to pay or to set aside or credit, and have the ability to pay wages when due to the employee, and failure of the employer to credit or set aside the wages is due to clerical error or mistake in the mechanics of payment, and because of the clerical error or mistake the wages are not actually available at that time. (c) Deemed payment. (i) Work not in the course of the employer's trade or business (non-business work); (ii) Work by certain home workers; and (iii) Work for an organization exempt from income tax under section 501 of the Code. (2) We also apply this rule to domestic work in a private home of the employer, except see § 404.1057(a)(1) for the applicable dollar amount. (3) Cash of less than $150 that an employer pays to an employee in a calendar year, either actually or constructively, for agricultural labor is considered paid at the earliest of— (i) The time in the calendar year that the employee's pay totals $150; or (ii) The 20th day of the calendar year on which the employee works for cash pay computed on a time basis. (4) If an employer pays cash to an employee for two or more of the kinds of work referred to in paragraph (c)(1) of this section, we apply the provisions of this paragraph to the pay for each kind of work. (d) Employee tax deductions. (e) Tips. wages, (2) We consider tips to be received in the course of employment whether they are received by the employee from the employer or from another person. Only tips employees receive and keep for themselves are considered to be the employees' pay. If employees split tips, each employee who receives part of the tip receives tips in the course of employment. (f) Payments under nonqualified deferred compensation plans. (1) When the services are performed; or (2) When there is no longer a substantial risk of forfeiture (as defined in section 83 of the Code) of the employee's rights to the deferred compensation. Any amounts taken into account as wages by this paragraph (and the income attributable thereto) will not thereafter be treated as wages for Social Security purposes. [45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990; 61 FR 38366, July 24, 1996] § 404.1043 Facilities or privileges—meals and lodging. (a) Excluding the value of employer provided facilities or privileges from employee gross income prior to January 1, 1985. (i) Were of relatively small value; and (ii) Were offered or furnished by the employer merely as a means of promoting the health, good will, contentment, or efficiency of the employees. (2) The term facilities or privileges courtesy (b) Meals and lodging. (1) The meals are provided at the employer's place of business; and (2) The employee, in the case of lodging, is required to accept lodging on the employer's business premises as a condition of employment. [52 FR 29662, Aug. 11, 1987] § 404.1044 Vacation pay. We consider your salary while on vacation, or a vacation allowance § 404.1045 Employee expenses. Amounts that your employer pays you specifically—either as advances or reimbursements—for traveling or for other ordinary and necessary expenses incurred, or reasonably expected to be incurred, in your employer's business are not wages. The employer must identify these travel and other expenses either by making a separate payment or by specifically stating the separate amounts if both wages and expense allowances are combined in a single payment. § 404.1046 Pay for work by certain members of religious orders. (a) If you are a member of a religious order who has taken a vow of poverty (§ 404.1023), and the order has elected Social Security coverage under section 3121(r) of the Code, your wages are figured in a special way. Your wages, for Social Security purposes, are the fair market value of any board, lodging, clothing, and other items of value furnished to you by the order, or furnished to the order on your behalf by another organization or person under an agreement with the order. See paragraph (b) of this section if you perform services for a third party. The order must report at least $100 a month for each active member. If the fair market value of items furnished to all members of a religious order does not vary significantly, the order may consider all members to have a uniform wage. (b) If you perform services for a third party, the following rules apply: (1) If you perform services for another agency of the supervising church or an associated institution, any amounts paid based on such services, whether paid directly to you or to the order, do not count on wages. Only wages figured under (a) above, are counted. (2) If you perform services in a secular setting as an employee of a third party not affiliated or associated with the supervising church or an associated institution, any amounts paid based on such services, whether paid directly to you or to the order, count as wages paid to you by the third party. These wages are in addition to any wages counted under paragraph (a) of this section. [55 FR 7309, Mar. 1, 1990; 55 FR 17530, Apr. 25, 1990] § 404.1047 Annual wage limitation. Payments made by an employer to you as an employee in a calendar year that are more than the annual wage limitation are not wages. The annual wage limitation is: Calendar year Wage limitation 1951-54 $3,600 1955-58 4,200 1959-65 4,800 1966-67 6,600 1968-71 7,800 1972 9,000 1973 10,800 1974 13,200 1975 14,100 1976 15,300 1977 16,500 1978 17,700 1979 22,900 1980 25,900 1981 29,700 1982 32,400 1983 35,700 1984 37,800 1985 39,600 1986 42,000 1987 43,800 1988 45,000 1989 48,000 1990 51,300 1991 53,400 1992 55,500 [52 FR 8249, Mar. 17, 1987, as amended at 57 FR 44098, Sept. 24, 1992] § 404.1048 Contribution and benefit base after 1992. (a) General. (b) Formula for figuring the contribution and benefit base. (1) The contribution and benefit base in effect for the determination year; or (2) The amount determined by— (i) Multiplying the contribution and benefit base in effect for the determination year by the ratio of— (A) The average of the total wages (as described in paragraph (c) of this section) reported to the Secretary of the Treasury for the calendar year before the determination year to (B) The average of the total wages reported to the Secretary of the Treasury for the calendar year before the most recent calendar year in which an increase in the contribution and benefit base was enacted or a determination under this section resulting in an increase of the base was made; and (ii) Rounding the result of the multiplication, if not a multiple of $300, to— (A) The nearest multiple of $300; or (B) The next higher multiple of $300 if the result is a multiple of $150. (c) Average of the total wages. [45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990; 57 FR 1382, Jan. 14, 1992] § 404.1049 Payments under an employer plan or system. (a) Payments to, or on behalf of, you or any of your dependents under your employer's plan or system are excluded from wages if made because of your or your dependents'— (1) Medical or hospitalization expenses connected with sickness or accident disability; or (2) Death, except that the exclusion does not apply to payments for group-term life insurance to the extent that the payments are includible in the gross income of the employee under the Internal Revenue Code of 1986, effective with respect to group-term life insurance coverage in effect after 1987 for employees whose employment, for the employer (or successor of that employer) providing the insurance coverage, does not end prior to 1989. Such payments are wages, however, if they are for coverage for an employee who was separated from employment prior to January 1, 1989, if the payments are for any period for which the employee is reemployed by the employer (or successor of that employer) after the date of separation. (b) Payments to you or your dependents under your employer's plan at or after the termination of your employment relationship because of your death or retirement for disability are excluded from wages. (c) Payments made after 1983 to you or your dependents under your employer's plan at or after the termination of your employment relationship because of retirement after reaching an age specified in the plan or in a pension plan of the employer are not excluded from wages unless— (1) The payments are to or from a trust or annuity plan of your employer as described in § 404.1052; or (2) An agreement to retire was in effect on March 24, 1983, between you and your employer and the payments made after 1983 under a nonqualified deferred compensation plan (see § 404.1042(f)) are based on services performed for your employer before 1984. (d) The plan or system established by the employer must provide for the employees generally or for a class or classes of employees. The plan or system may also provide for these employees' dependents. Payments under a plan or system established only for your dependents are not excluded from wages. The plan or system established by the employer can provide for payments on account of one or more of the items in paragraphs (a) and (b) of this section. (e) For purposes of this section, your dependents include your husband or wife, children, and any other members of your immediate family. (f) It does not make any difference that the benefit payments are considered in arriving at the amount of your pay or are required by the employment agreement. [45 FR 20075, Mar. 27, 1980, as amended at 50 FR 1832, Jan. 14, 1985; 55 FR 7310, Mar. 1, 1990; 55 FR 17530, Apr. 25, 1990] § 404.1050 Retirement payments. Payments made after 1983 to you (including any amount paid by an employer for insurance or annuities) on account of your retirement for age are not excluded from wages unless— (a) The payments are to or from a trust or annuity plan of your employer as described in § 404.1052; or (b) The payments satisfy the requirements described in § 404.1049(c)(2). [55 FR 7310, Mar. 1, 1990] § 404.1051 Payments on account of sickness or accident disability, or related medical or hospitalization expenses. (a) We do not include as wages any payment that an employer makes to you, or on your behalf, on account of your sickness or accident disability, or related medical or hospitalization expenses, if the payment is made more than 6 consecutive calendar months following the last calendar month in which you worked for that employer. Payments made during the 6 consecutive months are included as wages. (b) The exclusion in paragraph (a) of this section also applies to any such payment made by a third party (such as an insurance company). However, if you contributed to your employer's sick pay plan, that portion of the third party payments attributable to your contribution is not wages. (c) Payments of medical or hospitalization expenses connected with sickness or accident disability are excluded from wages beginning with the first payment only if made under a plan or system of your employer as explained in § 404.1049(a)(1). (d) Payments under a worker's compensation law are not wages. [55 FR 7310, Mar. 1, 1990] § 404.1052 Payments from or to certain tax-exempt trusts or payments under or into certain annuity plans. (a) We do not include as wages any payment made— (1) Into a tax-exempt trust or annuity plan by your employer on behalf of you or your beneficiary; or (2) From a tax-exempt trust or under an annuity plan to, or on behalf of, you or your beneficiary. (b) The trust must be exempt from tax under sections 401 and 501(a) of the Code, and the annuity plan must be a plan described in section 403(a) of the Code when payment is made. (c) The exclusion does not apply to payments to an employee of the trust for work done as an employee of the trust. [55 FR 7310, Mar. 1, 1990] § 404.1053 “Qualified benefits” under a cafeteria plan. We do not include as wages any qualified benefits qualified benefit qualified benefit. [55 FR 7310, Mar. 1, 1990] § 404.1054 Payments by an employer of employee's tax or employee's contribution under State law. (a) We exclude as wages any payment by an employer (described in paragraph (b) of this section) that is not deducted from the employee's salary (or for which reimbursement is not made by the employee) of either— (1) The tax imposed by section 3101 of the Code (employee's share of Social Security tax (2) Any payment required from an employee under a State unemployment compensation law. (b) The payments described in paragraph (a) of this section are not included as wages only if they are made by an employer on behalf of an employee employed in— (1) Domestic service in the private home of the employer; or (2) Agricultural labor. [55 FR 7310, Mar. 1, 1990] § 404.1055 Payments for agricultural labor. (a) When cash payments are not wages. (b) Exclusions for noncash payments and payments for seasonal agricultural labor. (2) Your cash payments in a calendar year from an employer for agricultural labor are not wages, irrespective of your employer's total annual expenditures for agricultural labor, if you are a hand harvest laborer ( i.e. (i) Your employer paid you less than $150 in that year; (ii) You are paid on a piece rate basis in an operation which has been, and is customarily and generally recognized in the region of employment as paying on a piece rate basis; (iii) You commute daily from your permanent residence to the farm on which you are so employed; and, (iv) You were employed in agriculture less than 13 weeks during the previous calendar year. Example: In 1988, A (not a hand harvest laborer) performs agricultural labor for X for cash pay of $144 in the year. X's total agricultural labor expenditures for 1988 are $2,450. Neither the $150 cash-pay test nor the $2,500 expenditures test is met. Therefore, X's payments to A are not wages. (c) When cash-pay is creditable as wages. Example: Employer X operates a store and also operates a farm. Employee A, who regularly works in the store, works on X's farm when additional help is required for the farm activities. In calendar year 1988, X pays A $140 cash for agricultural labor performed in that year, and $2,260 for work in connection with the operation of the store. Additionally, X's total expenditures for agricultural labor in 1988 were $2,010. Since the cash payments by X to A in the calendar year 1988 for agricultural labor are less than $150, and total agricultural labor expenditures were under $2,500, the $140 paid by X to A for agricultural labor is not wages. The $2,260 paid for work in the store is wages. (2) The amount of cash pay for agricultural labor that is creditable to an individual is based on cash paid in a calendar year rather than on amounts earned during a calendar year. (3) If you receive cash pay for agricultural labor in any one calendar year from more than one employer, we apply the $150 cash-pay test and $2,500 total expenditures test to each employer. (d) Application of the $150 cash-pay and 20-day tests prior to 1988. (2) [Reserved] [57 FR 59914, Dec. 17, 1992, as amended at 61 FR 38367, July 24, 1996; 70 FR 41955, July 21, 2005] § 404.1056 Explanation of agricultural labor. (a) What is agricultural labor. (i) Cultivating the soil; (ii) Raising, shearing, feeding, caring for, training or managing livestock, bees, poultry, fur-bearing animals or wildlife; or (iii) Raising or harvesting any other agricultural or horticultural commodity. (2) If you work on a farm as an employee of any person in connection with the production or harvesting of maple sap, the raising or harvesting of mushrooms, or the hatching of poultry, you are doing agricultural labor. If you work in the processing of maple sap into maple syrup or maple sugar you are not doing agricultural labor even though you work on a farm. Work in a mushroom cave or poultry hatchery is agricultural labor only if the cave or hatchery is operated as part of a farm. (3) If you work as an employee of the owner, tenant, or other operator of a farm, you are doing agricultural labor if most of your work is done on a farm and is involved with— (i) The operation, management, conservation, improvement, or maintenance of the farm or its tools or equipment (this may include work by carpenters, painters, mechanics, farm supervisors, irrigation engineers, bookkeepers, and other skilled or semiskilled workers); or (ii) Salvaging timber or clearing the land of brush and other debris left by a hurricane. (4) You are doing agricultural labor no matter for whom or where you work, if your work involves— (i) Cotton ginning; (ii) Operating or maintaining ditches, canals, reservoirs, or waterways, if they are used only for supplying and storing water for farm purposes and are not owned or operated for profit; or (iii) Producing or harvesting crude gum (oleoresin) from living trees or processing the crude gum into gum spirits of turpentine and gum resin (if the processing is done by the original producer). (5) Your work as an employee in the handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage, to a market or to a carrier for transportation to market, of any agricultural or horticultural commodity is agricultural labor if— (i) You work for a farm operator or a group of farm operators (other than a cooperative organization); (ii) Your work involves the commodity in its raw or unmanufactured state; and (iii) The operator produced most of the commodity you work with during the period for which you are paid, or if you work for a group of operators, all of the commodity you work with during the pay period is produced by that group. (6) If you do nonbusiness work, it is agricultural labor if you do the work on a farm operated for a profit. A farm is not operated for profit if the employer primarily uses it as a residence or for personal or family recreation or pleasure. (See § 404.1058(a) for an explanation of nonbusiness work.) (7) The term farm operator (8) Work is not agricultural labor (9) Processing work which changes the commodity from its raw or natural state is not agricultural labor. An example of this is the extraction of juices from fruits or vegetables. However, work in the cutting and drying of fruits or vegetables does not change the commodity from its raw or natural state and can be agricultural labor. (10) The term commodity (11) Work connected with the commercial canning or freezing of a commodity is not agricultural labor nor is work done after the delivery of the commodity to a terminal market for distribution for consumption. (b) What is a farm. farm [45 FR 20075, Mar. 27, 1980. Redesignated at 55 FR 7310, Mar. 1, 1990, as amended at 61 FR 38367, July 24, 1996; 70 FR 41955, July 21, 2005] § 404.1057 Domestic service in the employer's home. (a) Payments for domestic service The applicable dollar threshold. (2) How evaluation is made. (3) More than one domestic employer. (4) Rounding dollar amounts for reporting. (b) What is domestic service. [45 FR 20075, Mar. 27, 1980; 45 FR 25060, Apr. 14, 1980. Redesignated at 55 FR 7310, Mar. 1, 1990, as amended at 61 FR 38367, July 24, 1996] § 404.1058 Special situations. (a) Payments for service not in course of employer's trade or business (nonbusiness work) and payments to certain home workers The $100 standard. (2) How evaluation is made. (ii) If the employer has two or more employees, the standard applies to each employee. In applying the $100 standard, we disregard cash payments for any other type of services you perform for the employer. (iii) The noncash payments an employer pays you for services not in the course of the employer's trade or business are not wages even if the employer has paid you cash wages of $100 or more in the calendar year for services of that type. (iv) Amounts paid to you as a home worker as described in § 404.1008(d) are not wages unless you are paid $100 or more in cash in a calendar year. If you meet this test, any noncash payments you receive for your services also count as wages. (v) Amounts paid to you as a home worker in a common-law employment relationship (see § 404.1007) count as wages regardless of amount or whether paid in cash or kind. (3) Definitions. services not in the course of the employer's trade or business (b) Nonprofit, income-tax exempt organizations The $100 standard. (2) How evaluation is made. (c) Payments to members of the uniformed services The standard. (i) Basic pay, as explained in paragraph (c)(3) of this section, for performing the services described in paragraph (a)(1) of § 404.1019 of this subpart; or (ii) Compensation, as explained in paragraph (c)(4) of this section, for performing the services described in paragraph (a)(2) of § 404.1019 of this subpart. (2) Wages deemed paid. (i) After 1977, a member of the uniformed services is considered to have been paid additional wages of $100 for each $300 of basic pay paid to the individual in a calendar year. The amount of additional wages deemed paid cannot be more than $1,200 for any calendar year. No wages may be deemed paid for units of basic pay which are less than $300. (ii) Before 1978, a member of the uniformed services is considered to have been paid additional wages of $300 for each calendar quarter after 1956 in which the individual is paid any amount of basic pay. (3) Basic pay. Basic pay (4) Compensation. (d) Payments to volunteers and volunteer leaders in the Peace Corps. volunteer volunteer leader c 1 e (e) Moving expenses. (f) Payments by employer to survivor or estate of former employee. (g) Payments to an employee who is entitled to disability insurance benefits. (1) The employee is entitled to disability insurance benefits under the Act; (2) The employee's entitlement to such benefits began before the calendar year in which the employer's payment is made; and (3) The employee performed no work for the employer in the period in which the payments were paid by such employer (regardless of whether the employee worked in the period the payments were earned). (h) Tips. (i) The tips are paid in cash; and (ii) The tips amount to $20 or more and are received in the course of employment by an employee in a calendar month. (2) Cash tips include checks and other forms of money. Tips received in a form other than cash, such as passes, tickets, or other goods are not wages. If an employee works for more than one employer in a calendar month, we apply the $20 tip test to work done for each employer. (i) Payments by employer under group legal services plan. [45 FR 20075, Mar. 27, 1980, as amended at 52 FR 29662, Aug. 11, 1987. Redesignated and amended at 55 FR 7310, Mar. 1, 1990; 57 FR 59914, Dec. 17, 1992] § 404.1059 Deemed wages for certain individuals interned during World War II. (a) In general. (b) Information needed to process deemed wages. (1) The place where the individual worked before internment; (2) The highest hourly wage before internment; (3) The place and date of internment; (4) Date of birth (if not previously furnished); (5) Whether or not another Federal benefit is being received based wholly or in part upon the period of internment; and (6) In the case of a woman, her maiden name. (c) Amount of deemed wages. (1) Employed prior to internment. (i) The highest actual hourly rate of pay received for any employment before internment, multiplied by 40 for each full week during the period of internment; or (ii) The Federal minimum hourly rate in effect for the period of internment, multiplied by 40 for each full week during that period. (2) Self-employed or not employed prior to internment. (d) When wages are not deemed. (1) For any period before the quarter in which the individual attained age 18; or (2) If a larger benefit is payable without the deemed wages; or (3) If a benefit based in whole or in part upon internment is determined by any agency of the United States to be payable under any other law of the United States or under a system set up by that agency. However, this exception does not apply in cases where the failure to receive deemed wages reduces the primary insurance amount by 50 cents or less. (e) Certification of internment. [45 FR 20075, Mar. 27, 1980, as amended at 52 FR 29662, Aug. 11, 1987. Redesignated at 55 FR 7310, Mar. 1, 1990] § 404.1060 [Reserved] Self-Employment § 404.1065 Self-employment coverage. For an individual to have self-employment coverage under social security, the individual must be engaged in a trade or business and have net earnings from self-employment that can be counted as self-employment income for social security purposes. The rules explaining whether you are engaged in a trade or business are in §§ 404.1066 through 404.1077. What are net earnings from self-employment is discussed in §§ 404.1080 through 404.1095. Section 404.1096 describes the net earnings from self-employment that are counted as self-employment income for social security purposes. See § 404.1913 for the effect of a totalization agreement on self-employment coverage. An agreement may exempt an activity from coverage as well as extend coverage to an activity. [50 FR 36574, Sept. 9, 1985] § 404.1066 Trade or business in general. For you to be covered as a self-employed person for social security purposes, you must be engaged in a trade or business. You can carry on a trade or business as an individual or as a member of a partnership. With some exceptions, the term trade or business § 404.1068 Employees who are considered self-employed. (a) General. (b) Newspaper vendors. (c) Sharefarmers. (d) Employees of a foreign government, an instrumentality wholly owned by a foreign government, or an international organization. (e) Certain fishermen. (f) Employees of a church or church-controlled organization that has elected to exclude employees from coverage as employment. [45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9, 1985; 58 FR 64889, Dec. 10, 1993; 61 FR 38367, July 24, 1996] § 404.1069 Real estate agents and direct sellers. (a) Trade or business. (b) Who is a qualified real estate agent. (1) You are a licensed real estate agent; (2) Substantially all of the earnings (whether or not paid in cash) for the services you perform as a real estate agent are directly related to sales or other output (including the performance of services) rather than to the number of hours worked; and (3) Your services are performed under a written contract between yourself and the person for whom the services are performed which provides you will not be treated as an employee with respect to these services for Federal tax purposes. (c) Who is a direct seller. (1) You are engaged in the trade or business of selling (or soliciting the sale of) consumer products— (i) To any buyer on a buy-sell basis, a deposit-commission basis, or any similar basis which the Secretary of the Treasury prescribes by regulations, for resale (by the buyer or any other person) in the home or in other than a permanent retail establishment; or (ii) In the home or in other than a permanent retail establishment; and (2) Substantially all of your earnings (whether or not paid in cash) for the performance of these services are directly related to sales or other output (including the performance of services) rather than to the number of hours worked; and (3) Your services are performed under a written contract between yourself and the person for whom the services are performed which provides you will not be treated as an employee with respect to these services for Federal tax purposes. [48 FR 40515, Sept. 8, 1983] § 404.1070 Christian Science practitioners. If you are a Christian Science practitioner, the services you perform in the exercise of your profession are a trade or business unless you were granted an exemption from coverage under section 1402(e) of the Code, and you did not revoke such exemption in accordance with section 1704(b) of the Tax Reform Act of 1986. An exemption cannot be granted if you filed a valid waiver certificate under the provisions that apply to taxable years ending before 1968. [55 FR 7311, Mar. 1, 1990] § 404.1071 Ministers and members of religious orders. (a) If you are a duly ordained, commissioned, or licensed minister of a church, or a member of a religious order who has not taken a vow of poverty, the services you perform in the exercise of your ministry or in the exercise of duties required by the order (§ 404.1023(c) and (e)) are a trade or business unless you filed for and were granted an exemption from coverage under section 1402(e) of the Code, and you did not revoke such exemption in accordance with the Social Security Amendments of 1977, section 1704(b) of the Tax Reform Act of 1986, or section 403 of the Ticket to Work and Work Incentives Improvement Act of 1999. An exemption cannot be granted if you filed a valid waiver certificate under the provisions of section 1402(e) that apply to taxable years ending before 1968. (b) If you are a member of a religious order and have taken a vow of poverty, the services you perform in the exercise of your duties required by the order may be covered as employment. (See § 404.1023 (a) and (e)). [45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7311, Mar. 1, 1990; 69 FR 51556, Aug. 20, 2004] § 404.1073 Public office. (a) General. (b) State and local governmental employees paid by fees Voluntary coverage under section 218 of the Act. (2) Mandatory old-age, survivors, disability, and hospital insurance coverage. (3) If you are a notary public, you are not a public officer even though you perform a public function. Your services as a notary public are not covered for social security purposes. [45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59910, Dec. 17, 1992] § 404.1074 Farm crew leader who is self-employed. If you are a farm crew leader and are deemed the employer of the workers as described in § 404.1010, we consider you to be engaged in a trade or business. This includes services performed in furnishing workers to perform agricultural labor for others, as well as services performed as a member of the crew. § 404.1075 Members of certain religious groups opposed to insurance. (a) You may file an application with the Internal Revenue Service for exemption from social security self-employment tax if— (1) You are a member of a recognized religious sect or division of the sect; and (2) You adhere to the tenets or teachings of the sect or division of the sect and for this reason are conscientiously opposed to receiving benefits from any private or public insurance that— (i) Makes payments in the event of death, disability, old age, or retirement; or (ii) Makes payments toward the cost of, or provides services for, medical care (including the benefits of any insurance system established by the Act). (b) Your application must be filed under the rules described in 26 CFR 1.1402(h). An application must contain or be accompanied by the applicant's waiver of all benefits and payments under title II and part A of title XVIII of the Act. See § 404.305 for the effect of the filing of the waiver and the granting of the exemption. (c) Regardless of whether you meet all these conditions, your application for exemption will not be approved unless we find that— (1) The sect or division of the sect has established tenets or teachings which cause you to be conscientiously opposed to the types of insurance benefits described in paragraph (a)(2) of this section; (2) For a substantial period of time it has been the practice for members of the sect or division of the sect to make provision for their dependent members which is reasonable in view of their general level of living; and (3) The sect or division of the sect has been in existence continuously since December 31, 1950. (d) Your application for exemption will be approved by the Internal Revenue Service only if no benefit or other payment under title II or part A of title XVIII of the Act became payable or, but for section 203 or section 222(b) of the Act, would have become payable, to you or on your behalf at or before the time of the filing of your application for exemption. (e) The tax exemption ceases to be effective for any taxable year ending after the time you do not meet the requirements of paragraph (a) of this section or after the time we find the religious sect or division of the sect of which you are a member no longer meets the requirements of paragraph (c) of this section. If your tax exemption ceases to be effective, your waiver of the right to receive Social Security and Medicare part A benefits will also no longer be effective. Benefits may be payable based upon your wages for and after the calendar year following the calendar year in which the event occurred upon which the cessation of the exemption is based. Benefits may be payable based upon your self-employment income for and after the taxable year in which the event occurred upon which the cessation of the exemption is based. [45 FR 20075, Mar. 27, 1980, as amended at 58 FR 64890, Dec. 10, 1993] § 404.1077 Individuals under railroad retirement system. If you are an employee or employee representative as defined in section 3231 (b) and (c) of the Code, your work is not a trade or business. Your services are covered under the railroad retirement system. Self-Employment Income § 404.1080 Net earnings from self-employment. (a) Definition of net earnings from self-employment. net earnings from self-employment (1) Your gross income, as figured under subtitle A of the Code, from any trade or business you carried on, less deductions attributed to your trade or business that are allowed by that subtitle; plus (2) Your distributive share of income (or loss) from a trade or business carried on by a partnership of which you are a member, as described in paragraph (b) of this section. (b) Income or loss from a partnership. (2) If you are a limited partner, your distributive share is included in your net earnings from self-employment if— (i) The amount is payable to you for services you render to or on behalf of the partnerships; and (ii) It is a guaranteed payment described in section 707(c) of the Code. (3) You are a limited partner (c) Reporting methods. (d) What is a taxable year. taxable year (i) Your annual accounting period on which you regularly figure your income in keeping your books; or (ii) A short period resulting from your death before the end of your annual accounting period or from a change of your annual accounting period. (2) The term annual accounting period (i) A calendar year, consisting of 12 months ending on December 31; or (ii) A fiscal year, consisting of— (A) 12 months ending on the last day of any month other than December; or (B) A period, if elected under section 441 of the Code, that varies from 52 to 53 weeks and always ends on the same day of the week that occurs last in a calendar month or nearest to the last day of the calendar month. (3) Your taxable year for figuring self-employment income is the same as your taxable year for the purposes of subtitle A of the Code. Your taxable year is a calendar year if— (i) You keep no books; (ii) You have no annual accounting period; or (iii) You have an annual accounting period that differs from the definition of fiscal year as described in paragraph (d)(2)(ii) of this section. [45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9, 1985] § 404.1081 General rules for figuring net earnings from self-employment. (a) Determining net earnings. (2) If you use the accrual method of accounting to figure your taxable income from a trade or business, you must use the same method in determining your net earnings from self-employment. (3) If you are engaged in a trade or business of selling property on the installment plan and elect, under the provisions of section 453 of the Code, to use the installment method of accounting in figuring your income, you must use the installment method in determining your net earnings from self-employment. (4) Any income which can be excluded from gross income under any provision of subtitle A of the Code cannot be counted in determining your net earnings from self-employment, unless— (i) You are a resident of Puerto Rico (see § 404.1089); (ii) You are a minister or member of a religious order (see § 404.1091); (iii) You are a United States citizen or resident engaged in a trade or business outside the United States (see § 404.1092); or (iv) You are a citizen of, or have income from sources within, certain possessions of the United States (see § 404.1093). (b) Trade or business carried on. (c) Aggregate net earnings. (d) Partnerships. (e) Different taxable years. (f) Meaning of partnerships. partnership (g) Proprietorship taxed as domestic corporation. [45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9, 1985] § 404.1082 Rentals from real estate; material participation. (a) In general. (1) The other person will produce agricultural or horticultural commodities on the land. (2) The commodities produced, or the income from their sale, will be divided between you and the other person. (3) The amount of your share depends on the amount of the commodities produced. (b) Real estate dealers. (2) If you merely hold real estate for investment or speculation and receive rental income from it, you are not considered a real estate dealer. (3) If you are a real estate dealer, but also hold real estate for investment or speculation in addition to real estate you hold for sale to customers, only the rental income from the real estate held for sale to customers and the deductions attributable to it are included in determining your net earnings from self-employment. The rental income from real estate you hold for investment or speculation and the deductions attributable to it are not counted in figuring your net earnings from self-employment. (c) Special rule for farm rental income In general. (i) The income results from an arrangement between you and another person which provides for the other person to produce agricultural or horticultural commodities on the land that you own or lease and for you to materially participate in the production or the management of the production of the agricultural or horticultural commodities; and (ii) You actually do materially participate. (2) Nature of arrangement. (ii) The term production, (iii) The term management of the production, (3) Material participation. (ii) If you also show that you furnish a large portion of the machinery, tools, and livestock used in the production of the commodities, or that you furnish or advance monies, or assume financial responsibility, for a substantial part of the expense involved in the production of the commodities, you will have established that you are materially participating. (4) Employees or agents. (5) Examples. Example 1. After the death of her husband, Ms. A rents her farm, together with its machinery and equipment, to B for one-half of the proceeds from the commodities produced on the farm by B. It is agreed that B will live in the tenant house on the farm and be responsible for the overall operation of the farm, such as planting, cultivating, and harvesting the field crops, caring for the orchard and harvesting the fruit and caring for the livestock and poultry. It also is agreed that Ms. A will continue to live in the farm residence and help B operate the farm. Under the agreement it is expected that Ms. A will regularly operate and clean the cream separator and feed the poultry flock and collect the eggs. When possible she will assist B in such work as spraying the fruit trees, penning livestock, culling the poultry, and controlling weeds. She will also assist in preparing the meals when B engages seasonal workers. The agreement between Ms. A and B clearly provides that she will materially participate in the overall production operations to be conducted on her farm by B. In actual practice, Ms. A regularly performs those services. The regularly performed services are material to the production of an agricultural commodity, and the services performed are material to the production operations to which they relate. The furnishing of a substantial portion of the farm machinery and equipment also supports the conclusion that Ms. A has materially participated. Accordingly, the rental income Ms. A receives from her farm should be included in her net earnings from self-employment. Example 2. G owns a fully-equipped farm which he rents to H under an arrangement which provides that G will materially participate in the management of the production of crops raised on the farm under the arrangement. G lives in town about 5 miles from the farm. About twice a month he visits the farm and looks over the buildings and equipment. G may occasionally, in an emergency, discuss with H some phase of a crop production activity. In effect, H has complete charge of the management of farming operations regardless of the understanding between him and G. Although G pays one-half of the cost of the seed and fertilizer and is charged for the cost of materials purchased by H to make all necessary repairs, G's activities are not material in the crop production activities. Accordingly, G's income from the crops is not included in net earnings from self-employment. (d) Rental income from living quarters No services provided for occupants. (2) Services provided for occupants. (ii) Generally, we consider services to be provided to the occupant if they are primarily for the occupant's convenience and are other than those usually provided in connection with the rental of rooms or other space for occupancy only. We consider the supplying of maid service to be a service provided to the occupant. However, we do not consider the furnishing of heat and light, the cleaning of public entrances, exits, stairways, and lobbies and the collection of trash, as services provided to the occupant. Example: A owns a building containing four apartments. During the taxable year, A received $1,400 from apartments numbered 1 and 2, which are rented without services provided to the occupants, and $3,600 from apartments numbered 3 and 4, which are rented with services provided. A's fixed expenses for the four apartments are $1,200 during the taxable year. In addition, A has $500 of expenses attributable to the services provided to the occupants of apartments 3 and 4. In determining his net earnings from self-employment, A includes the $3,600 received from apartments 3 and 4, and the expenses of $1,100 ($500 plus one-half of $1,200) attributable to them. The rentals and expenses attributable to apartments 1 and 2 are excluded. Therefore, A has $2,500 of net earnings from self-employment from the building for the taxable year. (e) Treatment of business income which includes rentals from real estate. § 404.1083 Dividends and interest. (a) The dividends you receive on shares of stock are excluded in determining your net earnings from self-employment, unless you are a dealer in stocks and securities and receive the dividends in the course of your trade or business. (b) The interest you receive on a bond, debenture, note, certificate, or other evidence of indebtedness issued with interest coupons or in registered form by any corporation (including one issued by a government or political subdivision) is excluded in determining your net earnings from self-employment, unless you are a dealer in stocks and securities and receive the interest in the course of your trade or business. (c) If you hold stocks or securities for investment or speculation purposes, any dividends and interest you receive that are excludable under paragraphs (a) and (b) of this section are excluded in determining your net earnings from self-employment, whether or not you are a dealer in stocks and securities. (d) A dealer in stocks or securities is a merchant with an established place of business who is regularly engaged in the business of purchasing stocks or securities and reselling them to customers. The dealer, as a merchant, buys stocks or securities and sells them to customers with a view to making a profit. Persons who buy and sell or hold stocks or securities for investment or speculation, regardless of whether the buying or selling constitutes a trade or business, are not dealers in stocks or securities. [45 FR 20075, Mar. 25, 1980; 45 FR 25060, Apr. 14, 1980] § 404.1084 Gain or loss from disposition of property; capital assets; timber, coal, and iron ore; involuntary conversion. (a) If you are engaged in a trade or business, you must, in determining your net earnings from self-employment, exclude any gain or loss— (1) That is considered a gain or loss from the sale or exchange of a capital asset; (2) From the cutting of timber or from the disposal of timber or coal, even if held primarily for sale to customers, if section 631 of the Code applies to the gain or loss; (3) From the disposal of iron ore mined in the United States, even if held primarily for sale to customers, if section 631 of the Code applies to the gain or loss; and (4) From the sale, exchange, involuntary conversion, or other disposition of property that is not— (i) Stock in trade or other property of a kind which would properly be included in inventory if on hand at the close of the taxable year; or (ii) Property held primarily for sale to customers in the ordinary course of a trade or business; (b) For purposes of paragraph (a)(4) of this section, it is immaterial whether a gain or loss is treated as a capital gain or as an ordinary gain or loss for purposes other than determining earnings from self-employment. (c) For purposes of paragraph (a)(4) of this section— (1) The term involuntary conversion (2) The term other disposition Example: During the taxable year 1976, A, who owns a grocery store, had a net profit of $1,500 from the sale of groceries and a gain of $350 from the sale of a refrigerator case. During the same year, he had a loss of $2,000 as a result of damage by fire to the store building. In figuring taxable income for income tax purposes, all of these items are considered. In determining net earnings from self-employment, however, only the $1,500 of profit derived from the sale of groceries is included. The $350 gain and the $2,000 loss are excluded. § 404.1085 Net operating loss deduction. When determining your net earnings from self-employment, you disregard the deduction provided by section 172 of the Code that relates to net operating losses sustained in years other than the taxable year. § 404.1086 Community income. If community property laws apply to income that an individual derives from a trade or business (other than a trade or business carried on by a partnership), the gross income and deductions attributable to such trade or business shall be treated as the gross income and deductions of the spouse carrying on such trade or business or, if such trade or business is jointly operated, treated as the gross income and deductions of each spouse on the basis of his or her respective distributive share of the gross income and deductions. [70 FR 41955, July 21, 2005] § 404.1087 Figuring partner's net earnings from self-employment for taxable year which ends as a result of death. (a) General. (b) Computation. (2) The portion of the distributive share to be included in the deceased partner's net earnings from self-employment for his or her last taxable year is determined by treating the ordinary income or loss constituting the distributive share as having been realized or sustained ratably over the partnership taxable year during which the deceased partner had an interest in the partnership and during which the deceased partner's estate, or any other person succeeding by reason of the death to rights to his partnership interest, held an interest in the partnership. (c) Deceased partner's distributive share. (d) Options available to farmers. § 404.1088 Retirement payment to retired partners. (a) In general. (b) Other conditions. Example: D, a partner in the DEF partnership, retired from the partnership as of December 31, 1976. The taxable year of both D and the partnership is the calendar year. During the partnership's taxable year ending December 31, 1977, D rendered no service to any trade or business carried on by the partnership. On or before December 31, 1977, all obligations (other than retirement payments under the plan) from the other partners to D were liquidated, and D's share of the capital of the partnership was paid to him. Retirement payments received by D under the partnership's plan in his taxable year ending December 31, 1977, are excluded in determining net earnings from self-employment (if any) for that taxable year. § 404.1089 Figuring net earnings for residents and nonresidents of Puerto Rico. (a) Residents. (b) Nonresidents. § 404.1090 Personal exemption deduction. The deduction provided by section 151 of the Code, relating to personal exemptions, is excluded in determining net earnings from self-employment. § 404.1091 Figuring net earnings for ministers and members of religious orders. (a) General. (b) Housing and meals. (c) Housing allowance when included in retirement pay. (d) Services outside the United States. [45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9, 1985; 70 FR 41955, July 21, 2005] § 404.1092 Figuring net earnings for U.S. citizens or residents living outside the United States. (a) Taxable years beginning after December 31, 1983. (b) Taxable years beginning after December 31, 1981, and before January 1, 1984. [50 FR 36574, Sept. 9, 1985] § 404.1093 Possession of the United States. In using the exclusions from gross income provided under section 931 of the Code (relating to income from sources within possessions of the United States) and section 932 of the Code (relating to citizens of possessions of the United States) for purposes of figuring your net earnings from self-employment, the term possession of the United States [45 FR 20075, Mar. 27, 1980, as amended at 69 FR 51556, Aug. 20, 2004] § 404.1094 Options available for figuring net earnings from self-employment. (a) General. (b) Agricultural trade or business. (1) Gross income of $2,400 or less. 2/3 (2) Gross income of more than $2,400. (3) Two or more agricultural trades or businesses. (c) Non-agricultural trade or business. (2) Computation. 2/3 2/3 Example: A operates a grocery store and files income tax returns on a calendar year basis. A meets the self-employed on a regular basis 1978 1979 1980 Gross income $2,800 $1,200 $1,000 Net profit 300 400 800 For the year 1978, A may report as annual net earnings from self-employment either— (i) None. (Actual net earnings from self-employment are less than $400); or (ii) $1,600. (Non-agricultural option, 66 2/3 For the year 1979, A may report as annual net earnings from self-employment either— (i) $400. (Actual net earnings from self-employment); or (ii) $800. (Non-agricultural option, 66 2/3 For the year 1980, A must report $800, the actual net earnings from self-employment. The non-agricultural option is not available because A's actual net earnings are not less than 66 2/3 (3) Figuring net earnings from both non-agricultural and agricultural self-employment. 2/3 Example: C was regularly self-employed. She derived actual net earnings from self-employment of $400 or more in 1975 and in 1976. Her gross income and net profit from operating both a grocery store and a farm in 1978 are: Grocery Store Gross income $1,000 Net profit 800 Farm Gross income $2,600 Net profit 400 For the year 1978, C may report $1,200 (actual net earnings from self-employment from both businesses), or $2,400 ($1,600 agricultural option (66 2/3 2/3 (4) Self-employed on a regular basis. (d) Members of partnerships. (e) Computing gross income. (1) Under the cash method of computing, the gross receipts from the trade or business reduced by the cost or other basis of property that was purchased and sold, minus any income that is excluded in computing net earnings from self-employment; or (2) Under the accrual method of computing, the gross income minus any income that is excluded in figuring net earnings from self-employment. (f) Exercise of option. § 404.1095 Agricultural trade or business. (a) An agricultural trade or business is one in which, if the trade or business were carried on entirely by employees, the major portion of the services would be agricultural labor (§ 404.1057). (b)(1) If the services are partly agricultural and partly non-agricultural, the time devoted to the performance of each type of service is the test used to determine whether the major portion of the services is agricultural labor. (2) If more than half of the time spent in performing all the services is spent in performing services that are agricultural labor, the trade or business is agricultural. (3) If half or less of the time spent in performing all the services is spent in performing services that are agricultural labor, the trade or business is not agricultural. The time spent in performing the services is figured by adding the time spent in the trade or business during the taxable year by every individual (including the individual carrying on the trade or business and the members of that individual's family). (c) We do not apply the rules in this section if the non-agricultural services are performed in connection with a trade or business separate and distinct from the agricultural trade or business. A roadside automobile service station on a farm is a trade or business separate and distinct from the agricultural trade or business, and the gross income from the service station, less the deductions attributable to it, is to be considered in determining net earnings from self-employment. (d) We consider a sharefarmer (see § 404.1068(c)) or a materially participating owner or tenant (see § 404.1082(c)) to be engaged in an agricultural trade or business. We use the rules in this section to determine whether a farm crew leader who is self-employed (see § 404.1074) is engaged in an agricultural trade or business. § 404.1096 Self-employment income. (a) General. self-employment income (b) Maximum self-employment income. self-employment income Taxable year Amount Ending before 1955 $3,600 Ending in 1955 through 1958 4,200 Ending in 1959 through 1965 4,800 Ending in 1966 and 1967 6,600 Ending after 1967 and beginning before 1972 7,800 Beginning in 1972 9,000 Beginning in 1973 10,800 Beginning in 1974 13,200 Beginning in 1975 14,100 Beginning in 1976 15,300 Beginning in 1977 16,500 Beginning in 1978 17,700 Beginning in 1979 22,900 Beginning in 1980 25,900 Beginning in 1981 29,700 Beginning in 1982 32,400 Beginning in 1983 35,700 Beginning in 1984 37,800 Beginning in 1985 39,600 Beginning in 1986 42,000 Beginning in 1987 43,800 Beginning in 1988 45,000 Beginning in 1989 48,000 Beginning in 1990 51,300 Beginning in 1991 53,400 Beginning in 1992 55,500 (2) For the purpose of this paragraph the term wages (c) Minimum net earnings from self employment. (2) If you have net earnings from self-employment of $400 or more for the taxable year you may have less than $400 of creditable self-employment income. This occurs where your net earnings from self-employment is $400 or more for a taxable year and the amount of your net earnings from self-employment plus the amount of the wages paid to you during that taxable year exceed the maximum creditable earnings for a year. For example, if you had net earnings from self-employment of $1,000 for 1978, and were also paid wages of $17,500 during 1978, your creditable self-employment income for 1978 would be $200. (d) Nonresident aliens. [45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36575, Sept. 9, 1985; 52 FR 8250, Mar. 17, 1987; 57 FR 44098, Sept. 24, 1992; 69 FR 51556, Aug. 20, 2004] Subpart L [Reserved] Subpart M—Coverage of Employees of State and Local Governments Authority: Secs. 205, 210, 218, and 702(a)(5) of the Social Security Act (42 U.S.C. 405, 410, 418, and 902(a)(5)); sec. 12110, Pub. L. 99-272, 100 Stat. 287 (42 U.S.C. 418 note); sec. 9002, Pub. L. 99-509, 100 Stat. 1970. Source: 53 FR 32976, Aug. 29, 1988, unless otherwise noted. General § 404.1200 General. (a) Coverage under section 218 of the Act. (b) Mandatory old-age, survivors, disability, and hospital insurance coverage. [53 FR 32976, Aug. 29, 1988, as amended at 57 FR 59911, Dec. 17, 1992; 62 FR 38450, July 18, 1997; 69 FR 51556, Aug. 20, 2004] § 404.1201 Scope of this subpart regarding coverage and wage reports and adjustments. This subpart contains the rules of SSA about: (a) Coverage under section 218 of the Act— (1) How a State enters into and modifies an agreement; and (2) What groups of employees a State can cover by agreement. (b) Contributions, wage reports, and adjustments—for wages paid prior to 1987— (1) How a State must identify covered employees and what records it must keep on those employees; (2) Periodic reviews of the source records kept on covered employees; (3) How and when a State must report wages and pay contributions; (4) What the State's liability for contributions is and how SSA figures the amount of those contributions; (5) What happens if a State fails to pay its contributions timely; (6) How errors in reports and contribution payments are corrected; (7) How overpayments of contributions are credited or refunded; (8) How assessments are made if contributions are underpaid; and (9) How a State can obtain administrative or judicial review of a decision on a credit, refund, or assessment. [53 FR 32976, Aug. 29, 1988, as amended at 57 FR 59911, Dec. 17, 1992; 65 FR 16813, Mar. 30, 2000] § 404.1202 Definitions. (a) Terms which have special meaning in this subpart are described in this section. Where necessary, further explanation is included in the section where the term is used. (b) Coverage terms: Agreement— Coverage— Coverage group— Employee— Governmental function— Interstate instrumentality— Modification— Political subdivision— Proprietary function— Retirement system— SSA— State— We— (c) Contributions, wage reporting, and adjustment terms—for wages paid prior to 1987: Allowance of a credit or refund— Assessment— Contributions— Contribution return— Disallowance of a State's claim for credit or refund— Overpayment— Underpayment— Wage reports— [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38450, July 18, 1997; 69 FR 51556, Aug. 20, 2004] § 404.1203 Evidence—for wages paid prior to 1987. (a) State's responsibility for submitting evidence. (b) Failure to submit requested evidence. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] § 404.1204 Designating officials to act on behalf of the State. (a) Each State which enters into an agreement shall designate the official or officials authorized to act on the State's behalf in administering the agreement. Each State shall inform SSA of the name, title, and address of the designated official(s) and the extent of each official's authority. For example, a State may indicate that the State official is authorized: (1) To enter into an agreement and execute modifications to the agreement; and (2) To carry out the ministerial duties necessary to administer the agreement. For wages paid prior to 1987: (3) To enter into agreements to extend or re-extend the time limit for assessment or credit; (4) To make arrangements in connection with onsite reviews; and (5) To request administrative review of an assessment, an allowance of a credit or refund, or a disallowance of a credit or refund. (b) Each State shall inform SSA timely of changes in designated officials or changes in their authority. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] What Groups of Employees May Be Covered § 404.1205 Absolute coverage groups. (a) General. (b) What an absolute coverage group consists of. (1) State employees performing services in connection with the State's governmental functions; (2) State employees performing services in connection with a single proprietary function of the State; (3) Employees of a State's political subdivision performing services in connection with that subdivision's governmental functions; (4) Employees of a State's political subdivision performing services in connection with a single proprietary function of the subdivision; (5) Civilian employees of a State's National Guard units; and (6) Individuals employed under an agreement between a State and the U.S. Department of Agriculture as agricultural products inspectors. (c) Designated coverage groups. i.e. § 404.1206 Retirement system coverage groups. (a) General. (1) The entire system; (2) The employees of the State under the system; (3) The employees of each political subdivision in the State under the system; (4) The employees of the State and the employees of any one or more of the State's political subdivisions; (5) The employees of any combination of the State's political subdivisions; (6) The employees of each institution of higher learning, including junior colleges and teachers colleges; (7) The employees of a hospital which is an integral part of a political subdivision; or (8) The employees in police officers' positions or firefighters' positions, or both. If State law requires a State or political subdivision to have a retirement system, it is considered established even though no action has been taken to establish the system. (b) Retirement system coverage groups. (c) What a retirement system coverage group consists of. (1) Current employees—all employees whose services are not already covered by the agreement, who are in positions covered by the same retirement system on the date an agreement or modification of the agreement is made applicable to the system; (2) Future employees—all employees in positions brought under the system after an agreement or modification of the agreement is signed; and (3) Other employees—all employees in positions which had been under the retirement system but which were not under the retirement system when the group was covered (including ineligibles who had been optionally excluded from coverage under section 218(c)(3)(B) of the Act). (d) Referendum procedures. (1) All eligible employees were given at least 90 days' notice of the referendum; (2) All eligible employees were given an opportunity to vote in the referendum; (3) Only eligible employees were permitted to vote in the referendum; (4) Voting was by secret written ballot on the question of whether service in positions covered by the retirement system should be included under an agreement; (5) The referendum was conducted under the supervision of the governor or agency or individual named by him; and (6) A majority of the retirement system's eligible employees voted for coverage under an agreement. The State has two years from the date of a favorable referendum to enter into an agreement or modification extending coverage to the retirement system coverage group. If the referendum is unfavorable, another referendum cannot be held until at least one year after that unfavorable referendum. (e) Who is covered. (f) Coverage of employees in positions under more than one retirement system. (2) If an employee is in a single position which is under more than one retirement system (because the employee's occupancy of that position permits her or him to become a member of more than one retirement system), the employee is covered when the retirement system coverage group including her or his position is covered under an agreement unless (A) he or she is not a member of the retirement system being covered and (B) he or she is a member of a retirement system which has not been covered. This rule also applies to the coverage of services in police officers' and firefighters' positions in States and interstate instrumentalities as discussed in § 404.1212(c). [53 FR 32976, Aug. 29, 1988, as amended at 61 FR 38367, July 24, 1996; 62 FR 38451, July 18, 1997] § 404.1207 Divided retirement system coverage groups. (a) General. (b) Divided retirement system coverage group. (c) Referendum procedures. (1) The referendum was held by written ballot on the question of whether members of a retirement system wish coverage under an agreement; (2) All members of the retirement system at the time the vote was held had the opportunity to vote; (3) All members of the system on the date the notice of the referendum was issued were given at least 90 days' notice regarding the referendum; (4) The referendum was conducted under the supervision of the governor or agency or person designated by him; and (5) The retirement system was divided into two parts, one composed of positions of members of the system who voted for coverage and the other composed of the remaining positions under the retirement system. After the referendum the State may include those members who chose coverage under its agreement as a retirement system coverage group. The State has two years from the date of the referendum to enter into an agreement or modification extending coverage to that group. [53 FR 32976, Aug. 29, 1988, as amended at 70 FR 41956, July 21, 2005] § 404.1208 Ineligible employees. (a) Definition. (b) Coverage of ineligible employees. (1) As part of or as an addition to an absolute coverage group; (2) As part of a retirement system coverage group covering all positions under the retirement system; or (3) As part of or as an addition to a retirement system coverage group composed of those members in positions in a retirement system who chose coverage. § 404.1209 Mandatorily excluded services. Some services are mandatorily excluded from coverage under a State's agreement. They are: (a) Services of employees who are hired to relieve them from unemployment; (b) Services performed in an institution by a patient or inmate of the institution; (c) Transportation service subject to the Federal Insurance Contributions Act; (d) Certain emergency services in case of fire, storm, snow, volcano, earthquake, flood or other similar emergency; and (e) Services other than agricultural labor or student services which would be excluded from coverage if performed for a private employer. (f) Services covered under section 210(a)(7)(F) of the Act. (See § 404.1200(b).) [53 FR 32976, Aug. 29, 1988, as amended at 57 FR 59911, Dec. 17, 1992] § 404.1210 Optionally excluded services. Certain services and positions may, if the State requests it, be excluded from coverage. These exclusions may be applied on a statewide basis or selectively by coverage groups. They are: (a) Services in any class or classes of elective positions; (b) Services in any class or classes of part-time positions; (c) Services in any class or classes of positions where the pay is on a fee basis; (d) Any agricultural labor or student services which would also be excluded if performed for a private employer; and (e) For modifications executed after 1994, services performed by election officials or election workers if the payments for those services in a calendar year are less than $1000 for calendar years after 1994 and before 2000, or, for calendar years after 1999, are less than the $1000 base amount as adjusted pursuant to section 218(c)(8)(B) of the Act to reflect changes in wages in the economy. We will publish this adjustment of the $1000 base amount in the Federal Register [53 FR 32976, Aug. 29, 1988, as amended at 61 FR 38367, July 24, 1996] § 404.1211 Interstate instrumentalities. For Social Security coverage purposes under section 218 of the Act, interstate instrumentalities are treated, to the extent practicable, as States, that is: (a) They must be legally authorized to enter into an agreement with the Commissioner; (b) They are subject to the same rules that are applied to the States; (c) They may divide retirement systems and cover only the positions of members who want coverage; and (d) They may provide coverage for firefighters and police officers in positions under a retirement system. [53 FR 32976, Aug. 29, 1988, as amended at 61 FR 38368, July 24, 1996; 62 FR 38451, July 18, 1997] § 404.1212 Police officers and firefighters. (a) General. (b) Providing coverage. (1) Police officers' and firefighters' positions not under a retirement system as part of an absolute coverage group; or (2) Police officers' or firefighters' positions, or both, as part of a retirement system coverage group. (c) Police officers and firefighters in positions under a retirement system. [61 FR 38368, July 24, 1996] How Coverage Under Agreements Is Obtained and Continues § 404.1214 Agreement for coverage. (a) General. (b) Procedures. (c) Authority to enter into an agreement for coverage Federal law. (2) State law. (d) Provisions of the agreement. (1) A description of the specific services to be covered and excluded; (2) The State's promise to pay, to the Secretary of the Treasury, contributions equal to the sum of the taxes which would be required under the Federal Insurance Contributions Act from employers and employees if the employment were in the private sector; (3) The State's promise to comply with the regulations the Commissioner prescribes for carrying out the provisions of section 218 of the Act; and (4) Identification of the political subdivisions, coverage groups, or services being covered and the services that are excluded. The agreement must be signed by the authorized State or interstate instrumentality official and the Commissioner or his or her designee. (e) Effective date. (f) Applicability of agreement. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997; 66 FR 28836, May 25, 2001] § 404.1215 Modification of agreement. (a) General. (1) Exclude, in limited situations, employee services or positions previously covered; (2) Include additional coverage groups; or (3) Include as covered services: (i) Services of covered employees for additional retroactive periods of time; and (ii) Services previously excluded from coverage. (b) Controlling date for retroactive coverage. (c) Conditions for modification. (d) Effective date. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997; 66 FR 28836, May 25, 2001] § 404.1216 Modification of agreement to correct an error. (a) General. (b) Correction of errors involving erroneous reporting to the IRS—for wages paid prior to 1987. (1) Who were employees on that date, and (2) Whose wages were erroneously reported to IRS, and (3) For whom a refund of FICA taxes has not been obtained at the time the Commissioner. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997; 66 FR 28836, May 25, 2001] § 404.1217 Continuation of coverage. The coverage of State and local government employees continues as follows: (a) Absolute coverage group. (b) Retirement system coverage group. § 404.1218 Resumption of coverage. Before April 20, 1983, an agreement could be terminated in its entirety or with respect to one or more coverage groups designated by the State. Coverage of any coverage group which has been previously terminated may be resumed by a modification to the agreement. § 404.1219 Dissolution of political subdivision. If a political subdivision whose employees are covered under the agreement is legally dissolved, the State shall give us satisfactory evidence of its dissolution or nonexistence. The evidence must establish that the entity is not merely inactive or dormant, but that it no longer legally exists. We will notify the State whether the evidence is satisfactory. How To Identify Covered Employees § 404.1220 Identification numbers. (a) State and local governments. (b) Coverage group number for coverage groups. (c) Unit numbers for payroll record units. (1) The name of each payroll record unit for the coverage group; and (2) The title and business address of the official responsible for each payroll unit. (d) Unit numbers where contribution amounts are limited—for wages paid prior to 1987. (e) Use. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 60 FR 42433, Aug. 16, 1995; 64 FR 33016, June 21, 1999; 66 FR 28836, May 25, 2001] What Records of Coverage Must Be Kept § 404.1225 Records—for wages paid prior to 1987. (a) Who keeps the records. (1) The employee's name, address, and Social Security number; (2) The total amount of remuneration (including any amount withheld as contributions or for any other reason) and the date the remuneration was paid and the period of services covered by the payment; (3) The amount of remuneration which constitutes wages (see § 404.1041 for wages and §§ 404.1047-404.1059 for exclusions from wages); and (4) The amount of the employee's contribution, if any, withheld or collected, and if collected at a time other than the time such payment was made, the date collected. If the total remuneration (paragraph (a)(2) of this section) and the amount which is subject to contribution (paragraph (a)(3) of this section) are not equal, the reason shall be stated. The State shall keep copies of all returns, reports, schedules, and statements required by this subpart, copies of claims for refund or credit, and copies of documents about each adjustment made under § 404.1265 or § 404.1271 as part of its records. These records may be maintained by the State or, for employees of a political subdivision, by the political subdivision. Each State shall use forms and systems of accounting as will enable the Commissioner to determine whether the contributions for which the State is liable are correctly figured and paid. (b) Place and period of time for keeping records. (1) Be kept at one or more convenient and safe locations accessible to reviewing personnel (see § 404.1232(a)); (2) Be available for inspection by reviewing personnel at any time; and (3) Be maintained for at least four years from the date of the event recorded. (This four-year requirement applies regardless of whether, in the meantime, the employing entity has been legally dissolved or, before April 20, 1983, the agreement was terminated in its entirety or in part.) (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997; 66 FR 28836, May 25, 2001] Review of Compliance by State With Its Agreement § 404.1230 Onsite review program. To ensure that the services of employees covered by a State's agreement are reported and that those employees receive Social Security credit for their covered earnings, we periodically review the source records upon which a State's contribution returns and wage reports are based. These reviews are designed: (a) To measure the effectiveness of the State's systems for ensuring that all wages for those employees covered by its agreement are reported and Social Security contributions on those wages are paid; (b) To detect any misunderstanding of coverage or reporting errors and to advise the State of the corrective action it must take; and (c) To find ways to improve a State's recordkeeping and reporting operations for the mutual benefit of the State and SSA. § 404.1231 Scope of review. The onsite review focuses on four areas: (a) State's controls and recordkeeping—to assess a State's systems for assuring timely receipt, correctness, and completeness of wage reports and contribution returns; (b) Instruction, education, and guidance a State provides local reporting officials—to assess a State's systems for assuring on a continuing basis that all reporting officials and their staffs have the necessary instructions, guidelines, and training to meet the State's coverage, reporting and recordkeeping requirements; (c) Compliance by reporting officials—to assess a State's systems for assuring that the reporting officials in the State have adequate recordkeeping procedures, are properly applying the appropriate provisions of the State's agreement, and are complying with reporting requirements; and (d) Quality control with prompt corrective action—to assess a State's systems for assuring that its reports and those of its political subdivisions are correct, for identifying the causes and extent of any deficiencies, and for promptly correcting these deficiencies. § 404.1232 Conduct of review. (a) Generally, SSA staff personnel conduct the onsite review. Occasionally, members of the Office of the Inspector General may conduct or participate in the review. (b) The review is done when considered necessary by SSA or, if practicable, in response to a State's specific request for a review. (c) All pertinent source records prepared by the State or its political subdivisions are reviewed, on site, to verify the wage reports and contribution returns. We may review with the appropriate employees in a subdivision those source records and how the information is gathered, processed, and maintained. We notify the State's Social Security Administrator when we plan to make the review and request her or him to make the necessary arrangements. (d) The review is a cooperative effort between SSA and the States to improve the methods for reporting and maintaining wage data to carry out the provisions of the agreement. [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997] § 404.1234 Reports of review's findings. We provide the State Social Security Administrator with reports of the review's findings. These reports may contain coverage questions which need development and resolution and reporting errors or omissions for the State to correct promptly. These reports may also recommend actions the State can take to improve its information gathering, recordkeeping, and wage reporting systems, and those of its political subdivisions. How To Report Wages and Contributions—for Wages Paid Prior to 1987 § 404.1237 Wage reports and contribution returns—general—for wages paid prior to 1987. (a) Wage reports. (b) Wage reports of remuneration for agricultural labor. (c) Contribution returns. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] § 404.1239 Wage reports for employees performing services in more than one coverage group—for wages paid prior to 1987. (a) Employee of State in more than one coverage group. (b) Employee of political subdivision in more than one coverage group. (c) Employee of State and one or more political subdivisions. (d) Employee of more than one political subdivision. (e) Employee performing covered services for more than one political entity where section 218(e)(2) of the Act is applicable. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] § 404.1242 Back pay. (a) Back pay defined. (b) Back pay under a statute. (1) National Labor Relations Act or a State labor relations act; (2) Federal or State laws providing reemployment rights to veterans; (3) State minimum wage laws; and (4) Civil Rights Act of 1964. Payments based on legislation comparable to and having a similar effect as those listed in this paragraph may also qualify as having been made under a statute. Back pay under a statute, excluding penalties, is wages if paid for covered employment. It is allocated to the periods of time in which it should have been paid if the employer had not violated the statute. For backpay awards affecting periods prior to 1987, a State must fill a wage report and pay the contributions due for all periods involved in the back pay award under the rules applicable to those periods. (c) Back pay not under a statute. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] § 404.1243 Use of reporting forms—for wages paid prior to 1987. (a) Submitting wage reports. (b) Correction of errors. (c) Reporting on magnetic tape or other media. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] § 404.1247 When to report wages—for wages paid prior to 1987. A State shall report wages for the calendar year in which they were actually paid. If the wages were constructively paid in a prior calendar year, the wages shall be reported for the prior year (see § 404.1042(b) regarding constructive payment of wages). (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] § 404.1249 When and where to make deposits of contributions and to file contribution returns and wage reports—for wages paid prior to 1987. (a) Deposits of contributions. (1) For wages paid before July 1, 1980. (2) For wages paid beginning July 1, 1980, and before January 1984. (3) For wages paid after December 1983 and prior to 1987. (b) Contribution returns and wage reports Where to be filed. (2) When to be filed For years prior to execution of agreement or modification. (ii) For year of execution of agreement or modification. (A) The month in which the agreement or modification was signed; (B) Any prior months in that year; and (C) Any subsequent months before January 1984 (half-months after December 1983) whose contribution return and payment due date is within this 90 day period. The State shall file wage reports for that year by February 28 of the year following the date of execution or within 90 days of the date of the notice, whichever is later. (iii) For years after execution of agreement or modification. (iv) For good cause shown, and upon written request by a State, the Commissioner may allow additional time for filing the reports and paying the related contributions described in paragraphs (b)(2)(i) and (b)(2)(ii) of this section. (3) Due date is on a weekend, legal holiday or Federal nonworkday. (i) The preceding Federal workday for wages paid in July 1980 through December 1983; (ii) The next Federal workday for wages paid before July 1980 or after December 1983. (4) Submitting reports and payments. (c) Payments by third party on account of sickness or accident disability. [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997; 66 FR 28836, May 25, 2001] § 404.1251 Final reports—for wages paid prior to 1987. If a political subdivision is legally dissolved, the State shall file a final report on that entity. The report shall include each coverage group whose existence ceases with that of the entity. It shall: (a) Be marked “final report”; (b) Cover the period during which final payment of wages subject to the agreement is made; and (c) Indicate the last date wages were paid. With the final report, the State shall submit a statement showing the title and business address of the State official responsible for keeping the State's records and of each State and local official responsible for keeping the records for each coverage group whose existence is ended. The State shall also identify, as prescribed by SSA, each political subdivision by its assigned number and, where applicable, any coverage group or payroll record unit number assigned. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] What Is a State's Liability for Contributions—for Wages Paid Prior to 1987 § 404.1255 State's liability for contributions—for wages paid prior to 1987. A State's liability for contributions equals the sum of the taxes which would be imposed by sections 3101 and 3111 of the Internal Revenue Code of 1954, if the services of the employees covered by the State's agreement were employment as defined in section 3121 of the Code. The State's liability begins when those covered services are performed, for which wages are actually or constructively paid to those individuals, including wages paid in a form other than cash (see § 404.1041(d)). If an agreement is effective retroactively, the State's liability for contributions on wages paid during the retroactive period begins with the date of execution of the agreement or applicable modification. Where coverage of a coverage group has been terminated, the State is liable for contributions on wages paid for covered services even if the wages are paid after the effective date of termination of coverage. § 404.1256 Limitation on State's liability for contributions for multiple employment situations—for wages paid prior to 1987. (a) Limitation due to multiple employment. (b) Identification of employees in multiple employment. (c) Effective date. Figuring the Amount of the State's Contributions—for Wages Paid Prior to 1987 § 404.1260 Amount of contributions—for wages paid prior to 1987. The State's contributions are equal to the product of the applicable contribution rate (which is equivalent to both the tax rates imposed under sections 3101 and 3111 of the Internal Revenue Code) times the amount of wages actually or constructively paid for covered services each year (subject to the wage limitations in § 404.1047) to the employee. § 404.1262 Manner of payment of contributions by State—for wages paid prior to 1987. When paying its contributions, the State shall deposit its payment at the specific Federal Reserve bank or branch designated by SSA. § 404.1263 When fractional part of a cent may be disregarded—for wages paid prior to 1987. In paying contributions to a Federal Reserve bank or branch, a State may disregard a fractional part of a cent unless it amounts to one-half cent or more, in which case it shall be increased to one cent. Fractional parts of a cent shall be used in computing the total of contributions. If a State Fails To Make Timely Payments—for Wages Paid Prior to 1987 § 404.1265 Addition of interest to contributions—for wages paid prior to 1987. (a) Contributions not paid timely. (b) Method of making adjustment. (2) If an underpayment of contributions is due to an underreporting of or a failure to report one or more employees: (i) Where the underreporting or failure to report has been ascertained by the State, the State may cause an adjustment by filing a report within 30 days after ascertainment of the error by the State; (ii) Where the underreporting or failure to report has been ascertained by the Social Security Administration, a notification of underpayment shall be forwarded to the State, and the State may cause an adjustment of the underpayment by returning to the Social Security Administration, within 30 days from the date of the notification, a copy of the notification of underpayment and the State's corrected report. The report shall show the amount of wages, if any, erroneously reported for the reporting period and the correct amount of wages that should have been reported and the identification number of the State or the political subdivision for each employee who was omitted or erroneously reported. The filing to correct an underreporting of or a failure to report one or more employees' wages shall not constitute an adjustment under this section unless the wages were erroneously omitted or erroneously reported. (c) Payment. (d) Verifying contributions paid against reported wages. Examples (1) The records of a political subdivision for the month of June are destroyed by fire. The State makes an estimated deposit of contributions for the month of June for that political subdivision and deposits contributions for the month of June for all other political subdivisions based on actual records. At the time SSA verifies contributions paid against reported wages, we discover that the State has paid only 97 percent of its total liability for the year. Within 30 days after we notify it of the amount due, the State asks that we waive the interest on the unpaid amount and the State deposits the unpaid amount. In this situation, we would waive the interest on the unpaid contributions. (2) We would waive interest if: (i) Some of the political subdivisions made small arithmetical errors in preparing their reports of wages, (ii) After verification of the contributions paid against reported wages, SSA discovers that minimal additional contributions are due, (iii) Within 30 days of our notice to the State regarding this underpayment the State, which usually makes its deposits timely, pays the amount due, and (iv) Within that same 30 day period the State requests that we waive the interest due. (3) We would not waive interest where a State frequently has problems depositing its contributions timely. Reasons given for the delays are, e.g., the computer was down, the 5 p.m. mail pickup was missed, one of the school district reports was misplaced. If requested we would not waive interest on this State's late payment of contributions based upon its past record of late payments and because of the circumstances cited. (e) Due date is on a weekend, legal holiday or Federal nonworkday. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] § 404.1267 Failure to make timely payments—for wages paid prior to 1987. If a State does not pay its contributions when due, the Commissioner has the authority under section 218(j) of the Act as it read prior to the enactment of Pub. L. 99-509 to deduct the amounts of the unpaid contributions plus interest at the rate prescribed from any amounts certified by her or him to the Secretary of the Treasury for payments to the State under any other provision of the Social Security Act. The Commissioner notifies the Secretary of the Treasury of the amounts deducted and requests that the amount be credited to the Trust Funds. Amounts deducted are considered paid to the State under the other provision of the Social Security Act. [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997] How Errors in Reports and Contributions Are Adjusted—for Wages Paid Prior to 1987 § 404.1270 Adjustments in general—for wages paid prior to 1987. States have the opportunity to adjust errors in the payment of contributions. A State but not its political subdivisions is authorized to adjust errors in the underpayment of contributions. Similarly, the State shall file all claims for credits or refunds and SSA makes the credits and refunds only to the State. Generally, we do not refund contributions in cash to a State unless the State is not expected to have future liability for contributions under section 218 of the Act. § 404.1271 Adjustment of overpayment of contributions—for wages paid prior to 1987. (a) General. (b) Overpayment due to overreporting of wages Report to file. (i) The corrected wage data as prescribed by SSA; and (ii) The reason why the original reporting was incorrect. (2) Refund or credit of overpayment where section 218(e)(2) of the Act not applicable. (i) The State collected contributions from employees in excess of the amount of taxes that would have been required under section 3101 of the Internal Revenue Code; and (ii) The State paid to the Secretary of the Treasury those contributions plus a matching amount in excess of the taxes which would have been required from an employer under section 3111 of the Code; and (iii) The services of the employees in question would have constituted employment under section 3121(b) of the Code; and (iv) Section 218(e)(2) of the Act as it read prior to the enactment of Pub. L. 99-509 does not apply (see § 404.1256(a)), then the State shall adjust the overpaid contributions under paragraph (b)(1) of this section. With its adjustment the State, where appropriate, shall include on the prescribed form a statement that the employees from whom the excess contributions were collected have not received nor expect to receive a refund of excess contributions under section 6413(c) of the Internal Revenue Code of 1954 (see § 404.1275(b)). Generally, if the State does not include this statement with its adjustment request, we only refund or credit the State for up to one-half of the overpaid amount. (c) Refund or credit of overpayment where section 218(e)(2) of the Act applicable General. (i) The overreporting of the amount of wages paid to one or more employees during a reporting period(s) is due to a computation of contributions under § 404.1256 for a year or years prior to the year in which the agreement or modification providing for the computation is entered into, or (ii) The overreporting is due to a failure to compute § 404.1256, the State shall adjust the overpayment under paragraph (b)(1) of this section. An overpayment due to overreported wages which does not result from the computation of contributions or a failure to compute contributions under § 404.1256 shall also be adjusted by the State under paragraph (b)(1) of this section. If the adjustment of the overpayment results in an underreporting of wages for any employee by the State or any political subdivision, the State shall include with the report adjusting the overpayment a report adjusting each underreporting. If the adjustment of the overpayment does not result in an underreporting of wages for any employee by the State or any political subdivision, the State shall include with the report adjusting the overpayment a statement that the adjustment of the overpayment does not result in any underreporting. (2) Amount of refund or credit. (i) The State collected the correct amount of contributions from employees based on the amount of wages reported and the Forms W-2 issued to the employees show only the amount of contributions actually collected, but the amount of wages reported is being adjusted downward, or (ii) The State collects excess contributions from employees but Forms W-2 have not been issued for an amount of wages which is being adjusted downward, the State may claim a refund or credit for the overpaid amounts. Where the State's claim for refund or credit is for the total overpaid amount, the adjustment report shall include a statement that excess contributions have not been collected from employees, or, where excess contributions have been collected, that Forms W-2 have not been issued and that, when issued, they will show the correct amount of employee contributions. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] § 404.1272 Refund or recomputation of overpayments which are not adjustable—for wages paid prior to 1987. (a) General. (b) Form of claim. (c) Proof of representative capacity. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] § 404.1275 Adjustment of employee contributions—for wages paid prior to 1987. The amount of contributions a State deducts from an employee's remuneration for covered services, or any correction of that amount, is a matter between the employee and the State or political subdivision. The State shall show any correction of an employee's contribution on statements it furnishes the employee under § 404.1225 of this part. Where the State issues an employee a Form W-2 and then submits an overpayment adjustment but claims less than the total overpaid amount as a refund or credit, the State shall not correct the previously issued Form W-2 to reflect that adjustment. [53 FR 32976, Aug. 29, 1988, as amended at 65 FR 16813, Mar. 30, 2000] § 404.1276 Reports and payments erroneously made to Internal Revenue Service-transfer of funds—for wages paid prior to 1987. (a) General. (b) Political subdivision not included in the State agreement. (c) Political subdivision included in the agreement. (d) State and local government employees erroneously reported as employees of individual or as self-employed Covered entity. (2) Noncovered entity. (e) Filing wage reports and paying contributions. (f) Use of transfer procedure. (1) The periods are open to assessment under the State and local statute of limitations; (2) The erroneous reports to be transferred are posted to SSA's records; (3) The periods are barred to refund under the IRS statute of limitations; and (4) A refund is not obtained from IRS by the reporting entity. How Overpayments of Contributions Are Credited or Refunded—for Wages Paid Prior to 1987 § 404.1280 Allowance of credits or refunds—for wages paid prior to 1987. If a State pays more than the amount of contributions due under an agreement, SSA may allow the State, subject to the time limitations in § 404.1282 and the exceptions to the time limitations in § 404.1283, a credit or refund of the overpayment. § 404.1281 Credits or refunds for periods of time during which no liability exists—for wages paid prior to 1987. If a State pays contributions for any period of time for which contributions are not due, but the State is liable for contributions for another period, we credit the amount paid against the amount of contributions for which the State is liable. We refund any balance to the State. § 404.1282 Time limitations on credits or refunds—for wages paid prior to 1987. (a) General. (b) Time limitation. (1) 3 years, 3 months, and 15 days after the year in which the wages in question were paid or alleged to have been paid; or (2) 3 years after the due date of the payment which included the overpayment; or (3) 2 years after the overpayment was made to the Secretary of the Treasury. [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997] § 404.1283 Exceptions to the time limitations on credits or refunds—for wages paid prior to 1987. (a)(1) Extension by agreement. (2) Reextension. (i) Litigation (including intrastate litigation) or a review under §§ 404.1290 or 404.1297 involving wage reports or corrections on the same issue is pending; or (ii) The State is actively pursuing corrections of a known error which require additional time to complete; or (iii) The Social Security Administration is developing a coverage or wage issue which was being considered before the statute of limitations expired and additional time is needed to make a determination; or (iv) The Social Security Administration has not issued to the State a final audit statement on the State's wage or correction reports; or (v) There is pending Federal legislation which may substantially affect the issue in question, or the issue has national implications. (b) Deletion of wage entry on employee's earnings record. (1) The State files the claim before the Commissioner's decision regarding the deletion of the wage entry from the individual's earnings record becomes final or (2) The State files a claim regarding the deletion of the wage entry from the individual's earnings record which entry is erroneous because of fraud. [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997] § 404.1284 Offsetting underpayments against overpayments—for wages paid prior to 1987. (a) State fails to make adjustment for allowance of credit. (b) State fails to make adjustment for underpayment of contributions or interest due. How Assessments for Underpayments of Contributions Are Made—for Wages Paid Prior to 1987 § 404.1285 Assessments of amounts due—for wages paid prior to 1987. (a) A State is liable for any amount due (which includes contributions or interest) under an agreement until the Commissioner is satisfied that the amount has been paid to the Secretary of the Treasury. If the Commissioner is not satisfied that a State has paid the amount due, the Commissioner issues an assessment for the amount due subject to the time limitations in § 404.1286 and the exceptions to the time limitations in §§ 404.1287 and 404.1289. If detailed wage information is not available, the assessment is issued based on the following: (1) The largest number of individuals whose services are known to be covered under the agreement is used for computation purposes; (2) The individuals are assumed to have maximum creditable earnings each year; (3) The earnings are considered wages for covered services; and (4) The amount computed is increased by twenty percent to insure that all covered wages are included in the assessment. (b) If the State pays the amount assessed and the assessed amount is later determined to be more than the amount actually due, we issue a refund or credit to that State for the excess amount. When the assessment is issued within the applicable time limitation, there is no time limit on collecting the amount due. An assessment is issued on the date that it is mailed or otherwise delivered to the State. [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997] § 404.1286 Time limitations on assessments—for wages paid prior to 1987. (a) Subject to the exceptions to the time limitations in §§ 404.1287 and 404.1289, a State is not liable for an amount due under an agreement unless the Commissioner makes an assessment for that amount before the later of the following periods ends: (1) Three years, 3 months, and 15 days after the year in which the wages, upon which the amount is due, were paid; or (2) Three years after the date the amount became due. (b) Where the time limitation ends on a weekend, legal holiday or Federal nonworkday, an assessment is considered timely if the Commissioner makes the assessment on the next Federal workday. [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997] § 404.1287 Exceptions to the time limitations on assessments—for wages paid prior to 1987. (a)(1) Extension by agreement. (2) Reextension. (i) Litigation (including intrastate litigation) or a review under § 404.1290 or § 404.1297 involving wage reports or corrections on the same issue is pending; or (ii) The State is actively pursuing corrections of a known error which require additional time to complete; or (iii) The Social Security Administration is developing a coverage or wage issue which was being considered before the statute of limitations expired and additional time is needed to make a determination; or (iv) The Social Security Administration has not issued to the State a final audit statement on the State's wage or correction reports; or (v) There is pending Federal legislation which may substantially affect the issue in question, or the issue has national implications. (b) The 365-day period. (c) Revision of employee's earnings record. (d) Overpayment of contributions on wages of employee having other wages in a period barred to assessment. Example: The State files an adjustment report timely to correct an error in the amount reported as wages for an employee. The correction reduces the employee's wages for the year to less than the maximum amount creditable. The employee has other earnings in the same year which were not reported because of the previously reported maximum amounts. The applicable time limitation for assessing contributions on wages for the year has expired before the credit was allowed. The Commissioner may assess for the underpaid contributions but no later than the date of the notice to the State that its claim for a credit had been allowed. (e) Evasion of payment. [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997] § 404.1289 Payment after expiration of time limitation for assessment—for wages paid prior to 1987. The Commissioner accepts wage reports filed by a State even though the applicable time limitation described in § 404.1286 (or as the time limitation is extended under § 404.1287) has expired, provided: (a) The State pays to the Secretary of the Treasury the amount due on the wages paid to employees performing services in the coverage group in the calendar years for which the wage reports are being made; and (b) The State agrees in writing with the Secretary to extend the time limitation for all employees in the coverage group in the calendar years for which the wage reports are being made. In this situation, the time period for assessment is extended until the Commissioner notifies the State that the wage reports are accepted. Where the State pays the amount due within the time period as extended under this section, the amount shall not include interest as provided for in section 218(j) of the Act as it read prior to the enactment of Pub. L. 99-509. [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997] Secretary's Review of Decisions on Credits, Refunds, or Assessments—for Wages Paid Prior to 1987 § 404.1290 Review of decisions by the Secretary—for wages paid prior to 1987. What decisions will be reviewed. [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997] § 404.1291 Reconsideration—for wages paid prior to 1987. After the State requests review of the assessment or allowance or disallowance of a credit or refund, and prior to the Commissioner's review, that decision may be reconsidered, and affirmed, modified, or reversed. We notify the State of the reconsidered determination and the basis for it. The State may request the Commissioner to review this reconsidered determination under § 404.1294(b). In limited situations, SSA and the State may agree that the reconsideration process should be waived, e.g., where major policy is at issue. § 404.1292 How to request review—for wages paid prior to 1987. (a) Form of request. (1) Identify the assessment, allowance or disallowance being questioned; (2) Describe the specific issue on which the review is requested; (3) Contain any additional information or argument relevant to that issue; and (4) Be signed by an official authorized to request the review on behalf of the State. (b) Submitting additional material. (Approved by the Office of Management and Budget under control number 0960-0425) [53 FR 32976, Aug. 29, 1988, as amended at 66 FR 28836, May 25, 2001] § 404.1293 Time for filing request for review—for wages paid prior to 1987. (a) Time for filing. (b) Extension of time. § 404.1294 Notification to State after reconsideration—for wages paid prior to 1987. (a) The State will be notified in writing of the reconsidered determination on the assessment, allowance, or disallowance, and the basis for the determination. (b) If the State does not agree with the reconsidered determination, it has 90 days from the date of notice of the reconsidered determination to request the Commissioner to review that determination. The rules on what the request should contain and the time for filing the request are the same as in §§ 404.1292 and 404.1293. § 404.1295 Commissioner's review—for wages paid prior to 1987. Upon request by the State, the Commissioner will review the reconsidered determination (or the assessment, allowance or disallowance as initially issued if reconsideration is waived under § 404.1291). If necessary, the Commissioner may request the State to furnish additional evidence. Based upon the evidence considered in connection with the assessment, allowance or disallowance and any additional evidence submitted by the State or otherwise obtained by the Commissioner, the Commissioner affirms, modifies, or reverses the assessment, allowance or disallowance. § 404.1296 Commissioner's notification to the State—for wages paid prior to 1987. The Commissioner notifies the State in writing of the decision on the assessment, allowance, or disallowance, and the basis for the decision. How a State May Seek Court Review of Commissioner's Decision—for Wages Paid Prior to 1987 § 404.1297 Review by court—for wages paid prior to 1987. (a) Who can file civil action in court. (b) Where the civil action must be filed. (c) No interest on credit or refund of overpayment. [53 FR 32976, Aug. 29, 1988, as amended at 62 FR 38451, July 18, 1997] § 404.1298 Time for filing civil action—for wages paid prior to 1987. (a) Time for filing. (b) Extension of time for filing. § 404.1299 Final judgments—for wages paid prior to 1987. (a) Overpayments. (b) Underpayments. Subpart N—Wage Credits for Veterans and Members of the Uniformed Services Authority: Secs. 205 (a) and (p), 210 (l) and (m), 215(h), 217, 229, and 702(a)(5) of the Social Security Act (42 U.S.C. 405 (a) and (p), 410 (l) and (m), 415(h), 417, 429, and 902(a)(5)). Source: 45 FR 16464, Mar. 14, 1980, unless otherwise noted. General § 404.1301 Introduction. (a) The Social Security Act (Act), under section 217, provides for noncontributory wage credits to veterans who served in the active military or naval service of the United States from September 16, 1940, through December 31, 1956. These individuals are considered World War II or post-World War II veterans. The Act also provides for noncontributory wage credits to certain individuals who served in the active military or naval service of an allied country during World War II. These individuals are considered World War II veterans. In addition, certain individuals get wage credits, under section 229 of the Act, for service as members of the uniformed services on active duty or active duty for training beginning in 1957 when that service was first covered for social security purposes on a contributory basis through 2001. These individuals are considered members of the uniformed services. (b) World War II or post-World War II veterans receive wage credits based on the length of active military or naval service, type of separation from service and, in some cases, whether the veteran is receiving another Federal benefit. However, a member of a uniformed service receives wage credits regardless of length of service, type of separation, or receipt of another Federal benefit. (c) The Social Security Administration (SSA) uses these wage credits, along with any covered wages or self-employment income of the veteran or member of a uniformed service, to determine entitlement to, and the amount of, benefits and the lump-sum death payment that may be paid to them, their dependents or survivors under the old-age, survivors', and disability insurance programs. These wage credits can also be used by the veteran or member of the uniformed service to meet the insured status and quarters of coverage requirements for a period of disability. (d) This subpart tells how veterans or members of the uniformed services obtain wage credits, what evidence of service SSA requires, how SSA uses the wage credits, and how the wage credits are affected by payment of other benefits. (e) This subpart explains that certain World War II veterans who die are considered (deemed) fully insured. This gives those veterans' survivors the same benefit rights as if the veterans were actually fully insured when they died. (f) The rules are organized in the following manner: (1) Sections 404.1310 through 404.1313 contain the rules on World War II veterans. We discuss who may qualify as a World War II veteran, how we determine whether the 90-day active service requirement for a World War II veteran is met, what we consider to be World War II active military or naval service, and what we do not consider to be World War II active military or naval service. (2) Sections 404.1320 through 404.1323 contain the rules on post-World War II veterans. We discuss who may qualify as a post-World War II veteran, how we determine whether the 90-day active service requirement for a post-World War II veteran is met, what we consider to be post-World War II active military or naval service, and what we do not consider to be post-World War II active military or naval service. (3) In § 404.1325 we discuss what is a separation under conditions other than dishonorable. (4) Section 404.1330 contains the rules on members of the uniformed services. We discuss who may qualify as a member of a uniformed service. (5) In §§ 404.1340 through 404.1343, we discuss the amount of wage credits for veterans and members of the uniformed services, situations which may limit the use of wage credits for World War II and post-World War II veterans, and situations in which the limits do not apply. (6) Sections 404.1350 through 404.1352 contain the rules on deemed insured status for World War II veterans. We discuss when deemed insured status applies, the amount of wage credits used for deemed insured World War II veterans, how the wage credits affect survivors' social security benefits, and when deemed insured status does not apply. (7) Sections 404.1360 through 404.1363 contain the rules on the effect of other benefits on the payment of social security benefits and lump-sum death payments based on wage credits for veterans. We discuss what happens when we learn of a determination that a Veterans Administration pension or compensation is payable or that a Federal benefit is payable before or after we determine entitlement to a monthly benefit or lump-sum death payment based on the death of the veteran. (8) Sections 404.1370 and 404.1371 contain the rules on what we accept as evidence of a World War II and post-World War II veteran's active military or naval service, including date and type of separation, and what we accept as evidence of entitlement to wage credits for membership in a uniformed service during the years 1957 through 1967. [45 FR 16464, Mar. 14, 1980, as amended at 70 FR 11865, Mar. 10, 2005] § 404.1302 Definitions. As used in this subpart— Act Active duty Active service Allied country Domiciled in the United States Federal benefit Post-World War II period Reserve component Resided in the United States Survivor United States Veteran Wage credit We, us, our World War II period You your [45 FR 16464, Mar. 14, 1980, as amended at 70 FR 11865, Mar. 10, 2005] World War II Veterans § 404.1310 Who is a World War II veteran. You are a World War II veteran if you were in the active service of the United States during the World War II period and, if no longer in active service, you were separated from that service under conditions other than dishonorable after at least 90 days of active service. The 90-day active service requirement is discussed in § 404.1311. § 404.1311 Ninety-day active service requirement for World War II veterans. (a) The 90 days of active service required for World War II veterans do not have to be consecutive if the 90 days were in the World War II period. The 90-day requirement cannot be met by totaling the periods of active duty for training purposes which were less than 90 days. (b) If, however, all of the 90 days of active service required for World War II veterans were not in the World War II period, the 90 days must (only in those circumstances) be consecutive if the 90 days began before September 16, 1940, and ended on or after that date, or began before July 25, 1947, and ended on or after that date. (c) The 90 days of active service is not required if the World War II veteran died in service or was separated from service under conditions other than dishonorable because of a disability or injury which began or worsened while performing service duties. § 404.1312 World War II service included. Your service was in the active service of the United States during the World War II period if you were in the— (a) Army, Navy, Marine Corps, or Coast Guard, or any part of them; (b) Commissioned corps of the United States Public Health Service and were— (1) On active commissioned service during the period beginning September 16, 1940, through July 28, 1945, and the active service was done while on detail to the Army, Navy, Marine Corps, or Coast Guard; or (2) On active commissioned service during the period beginning July 29, 1945, through July 24, 1947, regardless of whether on detail to the Army, Navy, Marine Corps, or Coast Guard; (c) Commissioned corps of the United States Coast and Geodetic Survey and were— (1) During the World War II period— (i) Transferred to active service with the Army, Navy, Marine Corps, or Coast Guard; or (ii) Assigned to active service on military projects in areas determined by the Secretary of Defense to be areas of immediate military hazard; or (2) On active service in the Philippine Islands on December 7, 1941; or (3) On active service during the period beginning July 29, 1945, through July 24, 1947; (d) Philippine Scouts and performed active service during the World War II period under the direct supervision of recognized military authority; (e) Active service of an allied country during the World War II period and— (1) Had entered into that active service before December 9, 1941; (2) Were a citizen of the United States throughout that period of active service or lost your United States citizenship solely because of your entrance into that service; (3) Had resided in the United States for a total of four years during the five-year period ending on the day you entered that active service; and (4) Were domiciled in the United States on that day; or (f) Women's Army Auxiliary Corps, during the period May 14, 1942, through September 29, 1943, and performed active service with the Army, Navy, Marine Corps, or Coast Guard after September 29, 1943. § 404.1313 World War II service excluded. Your service was not in the active service of the United States during the World War II period if, for example, you were in the— (a) Women's Army Auxiliary Corps, except as described in § 404.1312(f); (b) Coast Guard Auxiliary; (c) Coast Guard Reserve (Temporary) unless you served on active full-time service with military pay and allowances; (d) Civil Air Patrol; or (e) Civilian Auxiliary to the Military Police. Post-World War II Veterans § 404.1320 Who is a post-World War II veteran. You are a post-World War II veteran if you were in the active service of the United States during the post-World War II period and, if no longer in active service, you were separated from the service under conditions other than dishonorable after at least 90 days of active service. The 90-day active service requirement is discussed in § 404.1321. § 404.1321 Ninety-day active service requirement for post-World War II veterans. (a) The 90 days of active service required for post-World War II veterans do not have to be consecutive if the 90 days were in the post-World War II period. The 90-day requirement cannot be met by totaling the periods of active duty for training purposes before 1957 which were less than 90 days. (b) If, however, all of the 90 days of active service required for post-World War II veterans were not in the post-World War II period, the 90 days must (only in those circumstances) be consecutive if the 90 days began before July 25, 1947, and ended on or after that date, or began before January 1, 1957, and ended on or after that date. (c) The 90 days of active service is not required if the post-World War II veteran died in service or was separated from service under conditions other than dishonorable because of a disability or injury which began or worsened while performing service duties. § 404.1322 Post-World War II service included. Your service was in the active service of the United States during the post-World War II period if you were in the— (a) Air Force, Army, Navy, Marine Corps, Coast Guard, or any part of them; (b) Commissioned corps of the United States Public Health Service and were on active service during that period; (c) Commissioned corps of the United States Coast and Geodetic Survey and were on active service during that period; or (d) Philippine Scouts and performed active service during the post-World War II period under the direct supervision of recognized military authority. § 404.1323 Post-World War II service excluded. Your service was not in the active service of the United States during the post-World War II period if, for example, you were in the— (a) Coast Guard Auxiliary; (b) Coast Guard Reserve (Temporary) unless you served on active full-time service with military pay and allowances; (c) Civil Air Patrol; or (d) Civilian Auxiliary to the Military Police. Separation from Active Service § 404.1325 Separation from active service under conditions other than dishonorable. Separation from active service under conditions other than dishonorable means any discharge or release from the active service except— (a) A discharge or release for desertion, absence without leave, or fraudulent entry; (b) A dishonorable or bad conduct discharge issued by a general court martial of the Army, Navy, Air Force, Marine Corps, or Coast Guard of the United States, or by the active service of an allied country during the World War II period; (c) A dishonorable discharge issued by the United States Public Health Service or the United States Coast and Geodetic Survey; (d) A resignation by an officer for the good of the service; (e) A discharge or release because the individual was a conscientious objector; or (f) A discharge or release because the individual was convicted by a civil court for treason, sabotage, espionage, murder, rape, arson, burglary, robbery, kidnapping, assault with intent to kill, assault with a deadly weapon, or because of an attempt to commit any of these crimes. [45 FR 16464, Mar. 14, 1980; 45 FR 22023, Apr. 3, 1980] Members of the Uniformed Services § 404.1330 Who is a member of a uniformed service. A member of a uniformed service is an individual who served on active duty after 1956. You are a member of a uniformed service if you— (a) Are appointed, enlisted, or inducted into— (1) The Air Force, Army, Navy, Coast Guard, or Marine Corps; or (2) A reserve component of the uniformed services in paragraph (a)(1) of this section (except the Coast Guard Reserve as a temporary member); (b) Served in the Army or Air Force under call or conscription; (c) Are a commissioned officer of the National Oceanic and Atmospheric Administration or its predecessors, the Environmental Science Services Administration and the Coast and Geodetic Survey; (d) Are a commissioned officer of the Regular or Reserve Corps of the Public Health Service; (e) Are a retired member of any of the above services; (f) Are a member of the Fleet Reserve or Fleet Marine Corps Reserve; (g) Are a cadet at the United States Military Academy, Air Force Academy, or Coast Guard Academy, or a midshipman at the United States Naval Academy; or (h) Are a member of the Reserve Officers Training Corps of the Army, Navy or Air Force, when ordered to annual training duty for at least 14 days and while performing official travel to and from that duty. Amounts of Wage Credits and Limits on Their Use § 404.1340 Wage credits for World War II and post-World War II veterans. In determining your entitlement to, and the amount of, your monthly benefit or lump-sum death payment based on your active service during the World War II period or the post-World War II period, and for establishing a period of disability as discussed in §§ 404.132 and 404.133, we add the (deemed) amount of $160 for each month during a part of which you were in the active service as described in § 404.1312 or § 404.1322. For example, if you were in active service from October 11, 1942, through August 10, 1943, we add the (deemed) amount of $160 for October 1942 and August 1943 as well as November 1942 through July 1943. The amount of wage credits that are added in a calendar year cannot cause the total amount credited to your earnings record to exceed the annual earnings limitation explained in §§ 404.1047 and 404.1096(b). § 404.1341 Wage credits for a member of a uniformed service. (a) General. (b) Amount of wage credits. (1) $100 for each $300 in wages paid to you for your service in each calendar year from 1978 through 2001; and (2) $300 for each calendar quarter in 1957 through 1977, regardless of the amount of wages actually paid you during that quarter for your service. (c) Limits on wage credits. (1) $1200 for any calendar year, or (2) An amount which when added to other earnings causes the total earnings for the year to exceed the annual earnings limitation explained in §§ 404.1047 and 404.1096(b). (d) Minimum active-duty service requirement. (i) You are discharged or released from active duty for the convenience of the government in accordance with section 1171 of title 10 U.S.C. or because of hardship as specified in section 1173 of title 10 U.S.C.; (ii) You are discharged or released from active duty for a disability incurred or aggravated in line of duty; (iii) You are entitled to compensation for service-connected disability or death under chapter 11 of title 38 U.S.C.; (iv) You die during your period of enlistment; or (v) You were discharged prior to October 14, 1982, and your discharge was— (A) Under chapter 61 of title 10 U.S.C.; or (B) Because of a disability which resulted from an injury or disease incurred in or aggravated during your enlistment which was not the result of your intentional misconduct and did not occur during a period of unauthorized absence. (2) If you entered on active duty as a member of the uniformed services as defined in § 404.1330 on or after i.e. (i) You are discharged or released from active duty for the convenience of the government in accordance with section 1171 of title 10 U.S.C. or because of hardship as specified in section 1173 of title 10 U.S.C.; (ii) You are discharged or released from active duty for a disability incurred or aggravated in line of duty; (iii) You are entitled to compensation for service-connected disability or death under chapter 11 of title 38 U.S.C.; or (iv) You die during your period of active service. [45 FR 16464, Mar. 14, 1980, as amended at 52 FR 29663, Aug. 11, 1987; 70 FR 11865, Mar. 10, 2005] § 404.1342 Limits on granting World War II and post-World War II wage credits. (a) You get wage credits for World War II or post-World War II active service only if the use of the wage credits results in entitlement to a monthly benefit, a higher monthly benefit, or a lump-sum death payment. (b) You may get wage credits for active service in July 1947 for either the World War II period or the post-World War II period but not for both. If your active service is before and on or after July 25, 1947, we add the $160 wage credit to the period which is most advantageous to you. (c) You do not get wage credits for the World War II period if another Federal benefit (other than one payable by the Veterans Administration) is determined by a Federal agency or an instrumentality owned entirely by the United States to be payable to you, even though the Federal benefit is not actually paid or is paid and then terminated, based in part on your active service during the World War II period except as explained in § 404.1343. (d) You do not get wage credits for the post-World War II period if another Federal benefit (other than one payable by the Veterans Administration) is determined by a Federal agency or an instrumentality owned entirely by the United States to be payable to you, even though the Federal benefit is not actually paid or is paid and then terminated, based in part on your active service during the post-World War II period except as explained in § 404.1343. § 404.1343 When the limits on granting World War II and post-World War II wage credits do not apply. The limits on granting wage credits described in § 404.1342 (c) and (d) do not apply— (a) If the wage credits are used solely to meet the insured status and quarters of coverage requirements for a period of disability as described in §§ 404.132 and 404.133; (b) If you are the surviving spouse or child of a veteran of the World War II period or post-World War II period and you are entitled under the Civil Service Retirement Act of 1930 to a survivor's annuity based on the veteran's active service and— (1) You give up your right to receive the survivor's annuity; (2) A benefit under the Civil Service Retirement Act of 1930 based on the veteran's active service was not payable to the veteran; and (3) Another Federal benefit is not payable to the veteran or his or her survivors except as described in paragraph (c) of this section; or (c) For the years 1951 through 1956, if another Federal benefit is payable by the Army, Navy, Air Force, Marine Corps, Coast Guard, Coast and Geodetic Survey, or the Public Health Service based on post-World War II active service but only if the veteran was also paid wages as a member of a uniformed service after 1956. [45 FR 16464, Mar. 14, 1980, as amended at 49 FR 24118, June 12, 1984] Deemed Insured Status for World II Veterans § 404.1350 Deemed insured status. (a) When deemed insured status applies. (1) The veteran was separated from active service of the United States before July 27, 1951; and (2) The veteran died within 3 years after separation from active service and before July 27, 1954. (b) Amount of credit given for deemed insured World War II veterans. (i) $200 (for increment year purposes) for each calendar year in which the veteran had at least 30 days of active service beginning September 16, 1940, through 1950; and (ii) An average monthly wage of $160. (2) If the World War II veteran was fully or currently insured without the wage credits, we add increment years (years after 1936 and prior to 1951 in which the veteran had at least $200 in creditable earnings) to the increment years based on the veteran's wages. § 404.1351 When deemed insured status does not apply. As a survivor of a World War II veteran, you cannot get a monthly benefit or lump-sum death payment based on the veteran's deemed insured status as explained in § 404.1350 if— (a) Your monthly benefit or lump-sum death payment is larger without using the wage credits; (b) The Veterans Administration has determined that a pension or compensation is payable to you based on the veteran's death; (c) The veteran died while in the active service of the United States; (d) The veteran was first separated from active service after July 26, 1951; (e) The veteran died after July 26, 1954; or (f) The veteran's only service during the World War II period was by enlistment in the Philippine Scouts as authorized by the Armed Forces Voluntary Recruitment Act of 1945 (Pub. L. 190 of the 79th Congress). § 404.1352 Benefits and payments based on deemed insured status. (a) Our determination. (b) Certification for payment. (c) Payments not considered as pension or compensation. (1) National Service Life Insurance payments; (2) United States Government Life Insurance payments; or (3) Burial allowance payments made by the Veterans Administration. Effect of Other Benefits on Payment of Social Security Benefits and Payments § 404.1360 Veterans Administration pension or compensation payable. (a) Before we determine and certify payment. (b) After we determine and certify payment. (1) Stop payment of your benefits or recompute the amount of any further benefits that can be paid to you; and (2) Determine whether you were erroneously paid and the amount of any erroneous payment. § 404.1361 Federal benefit payable other than by Veterans Administration. (a) Before we determine and certify payment. (b) After we determine and certify payment. (1) Stop payment of your benefits or recompute the amount of any further benefits that can be paid to you; and (2) Determine whether you were erroneously paid and the amount of any erroneous payment. § 404.1362 Treatment of social security benefits or payments where Veterans Administration pension or compensation payable. (a) Before we receive notice from the Veterans Administration. (b) After we receive notice from the Veterans Administration. § 404.1363 Treatment of social security benefits or payments where Federal benefit payable other than by Veterans Administration. If we certify your monthly benefit or lump-sum death payment based on World War II or post-World War II wage credits after we receive notice from another Federal agency or instrumentality of the United States (other than the Veterans Administration) that a Federal benefit is payable to you by that agency or instrumentality based on the veteran's World War II or post-World War II active service, our payments to you are erroneous to the extent the payments are based on the World War II or post-World War II wage credits. The payments are erroneous beginning with the first month you are eligible for the Federal benefit. Evidence of Active Service and Membership in a Uniformed Service § 404.1370 Evidence of active service and separation from active service. (a) General. (1) Your entitlement as required by subpart H of this part or other evidence that may be expressly required; (2) The veteran's period in active service of the United States; and (3) The veteran's type of separation from active service of the United States. (b) Evidence we accept. (1) An original certificate of discharge, or an original certificate of service, from the appropriate military service, from the United States Public Health Service, or from the United States Coast and Geodetic Survey; (2) A certified copy of the original certificate of discharge or service made by the State, county, city agency or department in which the original certificate is recorded; (3) A certification from the appropriate military service, United States Public Health Service, or United States Coast and Geodetic Survey showing the veteran's period of active service and type of separation; (4) A certification from a local selective service board showing the veteran's period of active service and type of separation; or (5) Other evidence that proves the veteran's period of active service and type of separation. § 404.1371 Evidence of membership in a uniformed service during the years 1957 through 1967. (a) General. (b) Evidence we accept. Subpart O—Interrelationship of Old-Age, Survivors and Disability Insurance Program With the Railroad Retirement Program Authority: Secs. 202(l), 205(a), (c)(5)(D), (i), and (o), 210 (a)(9) and (l)(4), 211(c)(3), and 702(a)(5) of the Social Security Act (42 U.S.C. 402(l), 405(a), (c)(5)(D), (i), and (o), 410 (a)(9) and (l)(4), 411(c)(3), and 902(a)(5)). Cross Reference: For regulations under the Railroad Retirement Act, see chapter II of this title. § 404.1401 What is the interrelationship between the Railroad Retirement Act and the Old-Age, Survivors and Disability Insurance Program of the Social Security Act? (a) Background. see see (b) Who is a vested railroad worker? (1) Ten years or more of service in the railroad industry, or (2) Effective January 1, 2002, you have at least 5 years of service in the railroad industry, all of which accrue after December 31, 1995. (c) Definition of years of service. years of service [69 FR 5692, Feb. 6, 2004] § 404.1402 When are railroad industry services by a non-vested worker covered under Social Security? If you are a non-vested worker, we (the Social Security Administration) will consider your services in the railroad industry to be “employment” as defined in section 210 of the Social Security Act for the following purposes: (a) To determine entitlement to, or the amount of, any monthly benefits or lump-sum death payment on the basis of your wages and self-employment income; (b) To determine entitlement to, or the amount of, any survivor monthly benefit or any lump-sum death payment on the basis of your wages and self-employment income provided you did not have a “current connection” with the railroad industry, as defined in section 1(o) of the Railroad Retirement Act of 1974, as amended, (45 U.S.C. 231(o)), at the time of your death; (in such cases, survivor benefits are not payable under the Railroad Retirement Act); (c) To determine entitlement to a period of disability ( see (d) To apply the provisions of section 203 of the Social Security Act concerning deductions from benefits under the annual earnings test ( see [69 FR 5693, Feb. 6, 2004] § 404.1404 Effective date of coverage of railroad services under the act. Coverage under the act of services performed after 1936 by an individual in the railroad industry is effective as follows: (a) The provisions of paragraphs (a) and (b) of § 404.1402 insofar as they relate to survivor monthly benefits are effective for months after December 1946 and insofar as they relate to lump-sum death payments are effective with respect to deaths after 1946; (b) The provisions of paragraph (a) of § 404.1402 insofar as they relate to old-age insurance benefits or monthly benefits of dependents of old-age insurance beneficiaries are effective November 1, 1951; insofar as they relate to disability insurance benefits are effective for months after June 1957; and insofar as they relate to monthly benefits for dependents of disability insurance beneficiaries are effective for months after August 1958; (c) The provisions of paragraph (c) of § 404.1402 are effective for benefits for months after June 1955; and (d) The provisions of paragraph (d) of § 404.1402 are effective November 1, 1951. [25 FR 5182, June 10, 1960] § 404.1405 If you have been considered a non-vested worker, what are the situations when your railroad industry work will not be covered under Social Security? (a) Awards by the Railroad Retirement Board prior to October 30, 1951. (b) You continue to work in the railroad industry after establishing entitlement to old-age insurance benefits under section 202(a) of the Social Security Act. see [18 FR 8694, Dec. 24, 1953, as amended at 25 FR 5182, June 10, 1960; 42 FR 18273, Apr. 6, 1977; 69 FR 5693, Feb. 6, 2004] § 404.1406 Eligibility to railroad retirement benefits as a bar to payment of social security benefits. Notwithstanding the fact that, pursuant to the preceding provisions of this subpart, services rendered by an individual in the railroad industry are in employment, no lump-sum death payment or survivor monthly benefits shall be paid (except as provided in § 404.1407) under the regulations in this part on the basis of such individual's wages and self-employment income if any person, upon filing application therefor, would be entitled to an annuity under section 2 of the Railroad Retirement Act of 1974 or a lump-sum payment under section 6(b) of such Act with respect to the death of that individual; or for periods prior to 1975, would have been entitled to an annuity under section 5 or a lump-sum payment under section 5(f)(1) of the Railroad Retirement Act of 1937 with respect to the death of that individual. [42 FR 18273, Apr. 6, 1977] § 404.1407 When railroad retirement benefits do not bar payment of social security benefits. The provisions of § 404.1406 shall not operate if: (a) The survivor is, or upon filing application would be, entitled to a monthly benefit with respect to the death of an insured individual for a month prior to January 1947, if such monthly benefit is greater in amount than the survivor annuity payable to such survivor after 1946 under the Railroad Retirement Act; or (b) The residual lump-sum payment provided by section 6(c) of the Railroad Retirement Act of 1974 (or section 5(f)(2) of the Railroad Retirement Act of 1937 prior to the 1974 Act) with respect to the death of an insured individual is paid by the Railroad Retirement Board pursuant to an irrevocable election filed with the Board by the widow, widower, or parent of such individual to waive all future annuities or benefits based on the combined record of earnings and compensation to which such widow, widower or parent might become entitled, but only to the extent that widow's, widower's or parent's benefits may be payable under the regulations of this part to such widow, widower or parent, as the case may be, solely on the basis of the wages and self-employment income of such deceased individual and without regard to any compensation which may be treated as wages pursuant to § 404.1408. [42 FR 18273, Apr. 6, 1977] § 404.1408 Compensation to be treated as wages. (a) General. (b) Military service exception. [65 FR 16813, Mar. 30, 2000] § 404.1409 Purposes of using compensation. Compensation which is treated as wages under § 404.1408 shall be used, together with wages (see subpart K of this part) and self-employment income (see subpart K of this part), for purposes of: (a) Determining an individual's insured status for monthly benefits or the lump-sum death payment (see subpart B of this part); (b) Computing such individual's primary insurance amount (see subpart C of this part); (c) Determining an individual's entitlement to the establishment of a period of disability (see subpart B of this part for disability insured status requirements); and (d) Applying the deduction provisions of section 203 of the act (see subpart E of this part). [25 FR 5183, June 10, 1960] § 404.1410 Presumption on basis of certified compensation record. (a) Years prior to 1975. (b) Years after 1974. (c) Allocation of compensation to months of service. (d) Effect of self-employment income and maximum earnings. (1) After 1950 and prior to 1955, equals $3,600 of remuneration; (2) After 1954 and prior to 1959, equals $4,200 of remuneration; (3) After 1958 and prior to 1966, equals $4,800 of remuneration; (4) After 1965 and prior to 1968, equals $6,600 of remuneration; (5) After 1967 and beginning prior to 1972, equals $7,800 of remuneration (including a fiscal year which began in 1971 and ended in 1972); (6) Beginning after 1971 and prior to 1973, equals $9,000 of remuneration; (7) Beginning after 1972 and prior to 1974, equals $10,800 of remuneration; (8) Beginning after 1973 and prior to 1975, equals $13,200 of remuneration; (9) Beginning after 1974 and prior to 1976, equals $14,100 of remuneration; (10) Beginning after 1975 and prior to 1977, equals $15,300 of remuneration; or (11) Beginning after 1976, and amount equal to the contribution and benefit base as determined under section 230 of the Social Security Act which is effective for such calendar year. This subsection is an exception to the rule in paragraph (a) of this section concerning a presumption applicable to conversion of railroad compensation into quarters of coverage for years prior to 1975. [42 FR 18273, Apr. 6, 1977, as amended at 65 FR 16814, Mar. 30, 2000] § 404.1412 Compensation quarters of coverage. As used in this subpart, a compensation quarter of coverage is any quarter of coverage computed with respect to compensation paid to an individual for railroad employment after 1936 and prior to 1975 in accordance with the provisions for determining such quarters of coverage as contained in section 5(l)(4) of the Railroad Retirement Act of 1937. (For years beginning 1975, see § 404.1410(b)). [42 FR 18274, Apr. 6, 1977] § 404.1413 When will we certify payment to the Railroad Retirement Board (RRB)? (a) When we will certify payment to RRB. (1) You are a vested worker; or (2) You are the wife or husband of a vested worker; or (3) You are the survivor of a vested worker and you are entitled, or could upon application be entitled to, an annuity under section 2 of the Railroad Retirement Act of 1974, as amended, (45 U.S.C. 231(a)); or (4) You are entitled to benefits under section 202 of the Social Security Act on the basis of the wages and self-employment income of a vested worker (unless you are the survivor of a vested worker who did not have a current connection, as defined in section 1(o) of the Railroad Retirement Act of 1974, as amended, (45 U.S.C. 231(o)) with the railroad industry at the time of his or her death). (b) What information does certification include? (c) Applicability limitations. See [69 FR 5693, Feb. 6, 2004] Subpart P—Determining Disability and Blindness Authority: 42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a) and (h)-(j), 422(c), 423, 425, 902(a)(5), and 1320e-3; sec. 211(b), Pub. L. 104-193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note). Source: 45 FR 55584, Aug. 20, 1980, unless otherwise noted. General § 404.1501 Scope of subpart. In order for you to become entitled to any benefits based upon disability or blindness or to have a period of disability established, you must be disabled or blind as defined in title II of the Social Security Act. This subpart explains how we determine whether you are disabled or blind. We discuss a period of disability (a) We define general terms, then discuss who makes our disability determinations and state that disability determinations made under other programs are not binding on our determinations. (b) We explain the term disability (c) Sections 404.1512 through 404.1518 contain our rules on evidence. We explain your responsibilities for submitting evidence of your impairment, state what we consider to be acceptable sources of medical evidence, and describe what information should be included in medical reports. (d) Our general rules on evaluating disability if you are filing a new application are stated in §§ 404.1520 through 404.1523. We describe the steps that we go through and the order in which they are considered. (e) Our rules on medical considerations are found in §§ 404.1525 through 404.1530. We explain in these rules— (1) The purpose of the Listing of Impairments found in appendix 1 of this subpart and how to use it; (2) What we mean by the term medical equivalence (3) The effect of a conclusion by your physician that you are disabled; (4) What we mean by symptoms, signs, and laboratory findings; (5) How we evaluate pain and other symptoms; and (6) The effect on your benefits if you fail to follow treatment that is expected to restore your ability to work, and how we apply the rule. (f) In §§ 404.1545 through 404.1546 we explain what we mean by the term residual functional capacity, (g) Our rules on vocational considerations are in §§ 404.1560 through 404.1569a. We explain in these rules— (1) When we must consider vocational factors along with the medical evidence; (2) How we use our residual functional capacity assessment to determine if you can still do your past relevant work or other work; (3) How we consider the vocational factors of age, education, and work experience; (4) What we mean by “work which exists in the national economy”; (5) How we consider the exertional, nonexertional, and skill requirements of work, and when we will consider the limitations or restrictions that result from your impairment(s) and related symptoms to be exertional, nonexertional, or a combination of both; and (6) How we use the Medical-Vocational Guidelines in appendix 2 of this subpart. (h) Our rules on substantial gainful activity are found in §§ 404.1571 through 404.1574. These explain what we mean by substantial gainful activity and how we evaluate your work activity. (i) In §§ 404.1577, 404.1578, and 404.1579, we explain the special rules covering disability for widows, widowers, and surviving divorced spouses for monthly benefits payable for months prior to January 1991, and in §§ 404.1581 through 404.1587 we discuss disability due to blindness. (j) Our rules on when disability continues and stops are contained in § 404.1579 and §§ 404.1588 through 404.1598. We explain what your responsibilities are in telling us of any events that may cause a change in your disability status, when you may have a trial work period, and when we will review to see if you are still disabled. We also explain how we consider the issue of medical improvement (and the exceptions to medical improvement) in deciding whether you are still disabled. [45 FR 55584, Aug. 20, 1980, as amended at 50 FR 50126, Dec. 6, 1985; 56 FR 57941, Nov. 14, 1991; 57 FR 30120, July 8, 1992; 68 FR 51161, Aug. 26, 2003] § 404.1502 Definitions for this subpart. As used in the subpart— (a) Acceptable medical source (1) Licensed physician (medical or osteopathic doctor); (2) Licensed psychologist, which includes: (i) A licensed or certified psychologist at the independent practice level; or (ii) A licensed or certified school psychologist, or other licensed or certified individual with another title who performs the same function as a school psychologist in a school setting, for impairments of intellectual disability, learning disabilities, and borderline intellectual functioning only; (3) Licensed optometrist for impairments of visual disorders, or measurement of visual acuity and visual fields only, depending on the scope of practice in the State in which the optometrist practices; (4) Licensed podiatrist for impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle; (5) Qualified speech-language pathologist for speech or language impairments only. For this source, qualified (6) Licensed audiologist for impairments of hearing loss, auditory processing disorders, and balance disorders within the licensed scope of practice only (with respect to claims filed (see § 404.614) on or after March 27, 2017); (7) Licensed Advanced Practice Registered Nurse, or other licensed advanced practice nurse with another title, for impairments within his or her licensed scope of practice (only with respect to claims filed (see § 404.614) on or after March 27, 2017); or (8) Licensed Physician Assistant for impairments within his or her licensed scope of practice (only with respect to claims filed (see § 404.614) on or after March 27, 2017). (b) Commissioner (c) Laboratory findings (d) Medical source (e) Nonmedical source (1) You; (2) Educational personnel (for example, school teachers, counselors, early intervention team members, developmental center workers, and daycare center workers); (3) Public and private social welfare agency personnel; and (4) Family members, caregivers, friends, neighbors, employers, and clergy. (f) Objective medical evidence (g) Signs (h) State agency (i) Symptoms (j) We us (k) You your [82 FR 5864, Jan. 18, 2017; 82 FR 15132, Mar. 27, 2017] Determinations § 404.1503 Who makes disability and blindness determinations. (a) State agencies. (b) Social Security Administration. (1) Any person living in a State which is not making for the Commissioner any disability and blindness determinations or which is not making those determinations for the class of claimants to which that person belongs; and (2) Any person living outside the United States. (c) What determinations are authorized. (1) Whether you are disabled or blind; (2) The date your disability or blindness began; and (3) The date your disability or blindness stopped. (d) Review of State Agency determinations. (1) You are, or are not, disabled or blind, regardless of what the State agency found; (2) Your disability or blindness began earlier or later than the date found by the State agency; and (3) Your disability or blindness stopped earlier or later than the date found by the State agency. [46 FR 29204, May 29, 1981, as amended at 52 FR 33926, Sept. 9, 1987; 62 FR 38451, July 18, 1997; 65 FR 34957, June 1, 2000; 71 FR 16443, Mar. 31, 2006; 72 FR 51177, Sept. 6, 2007; 82 FR 5864, Jan. 18, 2017] § 404.1503a Program integrity. We will not use in our program any individual or entity, except to provide existing medical evidence, who is currently excluded, suspended, or otherwise barred from participation in the Medicare or Medicaid programs, or any other Federal or Federally-assisted program; whose license to provide health care services is currently revoked or suspended by any State licensing authority pursuant to adequate due process procedures for reasons bearing on professional competence, professional conduct, or financial integrity; or who, until a final determination is made, has surrendered such a license while formal disciplinary proceedings involving professional conduct are pending. By individual or entity we mean a medical or psychological consultant, consultative examination provider, or diagnostic test facility. Also see §§ 404.1519 and 404.1519g(b). [56 FR 36954, Aug. 1, 1991] § 404.1503b Evidence from excluded medical sources of evidence. (a) General. (1) Any medical source that has been convicted of a felony under section 208 or under section 1632 of the Act; (2) Any medical source that has been excluded from participation in any Federal health care program under section 1128 of the Act; or (3) Any medical source that has received a final decision imposing a civil monetary penalty or assessment, or both, for submitting false evidence under section 1129 of the Act. (b) Good cause. (1) The evidence from the medical source consists of evidence of treatment that occurred before the date the source was convicted of a felony under section 208 or under section 1632 of the Act; (2) The evidence from the medical source consists of evidence of treatment that occurred during a period in which the source was not excluded from participation in any Federal health care program under section 1128 of the Act; (3) The evidence from the medical source consists of evidence of treatment that occurred before the date the source received a final decision imposing a civil monetary penalty or assessment, or both, for submitting false evidence under section 1129 of the Act; (4) The sole basis for the medical source's exclusion under section 223(d)(5)(C)(i) of the Act, as amended, is that the source cannot participate in any Federal health care program under section 1128 of the Act, but the Office of Inspector General of the Department of Health and Human Services granted a waiver of the section 1128 exclusion; or (5) The evidence is a laboratory finding about a physical impairment and there is no indication that the finding is unreliable. (c) Reporting requirements for excluded medical sources of evidence. (1) Excluded medical sources of evidence must provide a written statement, which contains the following information: (i) A heading stating: “WRITTEN STATEMENT REGARDING SECTION 223(d)(5)(C) OF THE SOCIAL SECURITY ACT—DO NOT REMOVE” (ii) The name and title of the medical source; (iii) The applicable excluding event(s) stated in paragraph (a)(1)-(a)(3) of this section; (iv) The date of the medical source's felony conviction under sections 208 or 1632 of the Act, if applicable; (v) The date of the imposition of a civil monetary penalty or assessment, or both, for the submission of false evidence, under section 1129 of the Act, if applicable; and (vi) The basis, effective date, anticipated length of the exclusion, and whether the Office of the Inspector General of the Department of Health and Human Services waived the exclusion, if the excluding event was the medical source's exclusion from participation in any Federal health care program under section 1128 of the Act. (2) The written statement provided by an excluded medical source of evidence may not be removed by any individual or entity prior to submitting evidence to us. (3) We may request that the excluded medical source of evidence provide us with additional information or clarify any information submitted that bears on the medical source's exclusion(s) under section 223(d)(5)(C)(i) of the Act, as amended. [81 FR 65540, Sept. 22, 2016] § 404.1504 Decisions by other governmental agencies and nongovernmental entities. Other governmental agencies and nongovernmental entities—such as the Department of Veterans Affairs, the Department of Defense, the Department of Labor, the Office of Personnel Management, State agencies, and private insurers— make disability, blindness, employability, Medicaid, workers' compensation, and other benefits decisions for their own programs using their own rules. Because a decision by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits is based on its rules, it is not binding on us and is not our decision about whether you are disabled or blind under our rules. Therefore, in claims filed (see § 404.614) on or after March 27, 2017, we will not provide any analysis in our determination or decision about a decision made by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits. However, we will consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity's decision that we receive as evidence in your claim in accordance with § 404.1513(a)(1) through (4). [82 FR 5864, Jan. 18, 2017] Definition of Disability § 404.1505 Basic definition of disability. (a) The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. To meet this definition, you must have a severe impairment(s) that makes you unable to do your past relevant work ( see See See (b) There are different rules for determining disability for individuals who are statutorily blind. We discuss these in §§ 404.1581 through 404.1587. There are also different rules for determining disability for widows, widowers, and surviving divorced spouses for monthly benefits for months prior to January 1991. We discuss these rules in §§ 404.1577, 404.1578, and 404.1579. [45 FR 55584, Aug. 20, 1980, as amended at 51 FR 10616, Mar. 28, 1986; 57 FR 30120, July 8, 1992; 68 FR 51161, Aug. 26, 2003; 77 FR 43494, July 25, 2012] § 404.1506 When we will not consider your impairment. (a) Permanent exclusion of felony-related impairment. (b) Limited use of impairment arising in prison. (c) Felonious offenses. (1) It is a felony under applicable law; or (2) In a jurisdiction which does not classify any crime as a felony, it is an offense punishable by death or imprisonment for a term exceeding one year. (d) Confinement. [48 FR 5714, Feb. 8, 1983] § 404.1508 [Reserved] § 404.1509 How long the impairment must last. Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months. We call this the duration requirement. § 404.1510 Meaning of substantial gainful activity. Substantial gainful activity means work that— (a) Involves doing significant and productive physical or mental duties; and (b) Is done (or intended) for pay or profit. (See § 404.1572 for further details about what we mean by substantial gainful activity.) § 404.1511 Definition of a disabling impairment. (a) Disabled workers, persons disabled since childhood and, for months after December 1990, disabled widows, widowers, and surviving divorced spouses. (b) Disabled widows, widowers, and surviving divorced spouses, for monthly benefits for months prior to January 1991. [57 FR 30120, July 8, 1992] Evidence § 404.1512 Responsibility for evidence. (a) Your responsibility General. see (i) Your medical source(s); (ii) Your age; (iii) Your education and training; (iv) Your work experience; (v) Your daily activities both before and after the date you say that you became disabled; (vi) Your efforts to work; and (vii) Any other factors showing how your impairment(s) affects your ability to work. In §§ 404.1560 through 404.1569, we discuss in more detail the evidence we need when we consider vocational factors. (2) Completeness. (i) The nature and severity of your impairment(s) for any period in question; (ii) Whether the duration requirement described in § 404.1509 is met; and (iii) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in § 404.1520(e) or (f)(1) apply. (b) Our responsibility Development. (i) Every reasonable effort (ii) Complete medical history (2) Obtaining a consultative examination. (3) Other work. [82 FR 5864, Jan. 18, 2017] § 404.1513 Categories of evidence. (a) What we mean by evidence. (1) Objective medical evidence. (2) Medical opinion. (i) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching); (ii) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting; (iii) Your ability to perform other demands of work, such as seeing, hearing, or using other senses; and (iv) Your ability to adapt to environmental conditions, such as temperature extremes or fumes. (3) Other medical evidence. other medical evidence (4) Evidence from nonmedical sources. (5) Prior administrative medical finding. (i) The existence and severity of your impairment(s); (ii) The existence and severity of your symptoms; (iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1; (iv) Your residual functional capacity; (v) Whether your impairment(s) meets the duration requirement; and (vi) How failure to follow prescribed treatment (see § 404.1530) and drug addiction and alcoholism (see § 404.1535) relate to your claim. (b) Exceptions for privileged communications. (1) The privileged communications listed in paragraphs (b)(1)(i) and (b)(1)(ii) of this section are not evidence, and we will neither consider nor provide any analysis about them in your determination or decision. This exception for privileged communications applies equally whether your representative is an attorney or a non-attorney. (i) Oral or written communications between you and your representative that are subject to the attorney-client privilege, unless you voluntarily disclose the communication to us. (ii) Your representative's analysis of your claim, unless he or she voluntarily discloses it to us. This analysis means information that is subject to the attorney work product doctrine, but it does not include medical evidence, medical opinions, or any other factual matter that we may consider in determining whether or not you are entitled to benefits (see paragraph (b)(2) of this section). (2) The attorney-client privilege generally protects confidential communications between an attorney and his or her client that are related to providing or obtaining legal advice. The attorney work product doctrine generally protects an attorney's analyses, theories, mental impressions, and notes. In the context of your disability claim, neither the attorney-client privilege nor the attorney work product doctrine allow you to withhold factual information, medical opinions, or other medical evidence that we may consider in determining whether or not you are entitled to benefits. For example, if you tell your representative about the medical sources you have seen, your representative cannot refuse to disclose the identity of those medical sources to us based on the attorney-client privilege. As another example, if your representative asks a medical source to complete an opinion form related to your impairment(s), symptoms, or limitations, your representative cannot withhold the completed opinion form from us based on the attorney work product doctrine. The attorney work product doctrine would not protect the source's opinions on the completed form, regardless of whether or not your representative used the form in his or her analysis of your claim or made handwritten notes on the face of the report. [82 FR 5865, Jan. 18, 2017; 82 FR 15132, Mar. 27, 2017] § 404.1513a Evidence from our Federal or State agency medical or psychological consultants. The following rules apply to our Federal or State agency medical or psychological consultants that we consult in connection with administrative law judge hearings and Appeals Council reviews: (a) In claims adjudicated by the State agency, a State agency medical or psychological consultant may make the determination of disability together with a State agency disability examiner or provide medical evidence to a State agency disability examiner when the disability examiner makes the initial or reconsideration determination alone (see § 404.1615(c)). The following rules apply: (1) When a State agency medical or psychological consultant makes the determination together with a State agency disability examiner at the initial or reconsideration level of the administrative review process as provided in § 404.1615(c)(1), he or she will consider the evidence in your case record and make administrative findings about the medical issues, including, but not limited to, the existence and severity of your impairment(s), the existence and severity of your symptoms, whether your impairment(s) meets or medically equals the requirements for any impairment listed in appendix 1 to this subpart, and your residual functional capacity. These administrative medical findings are based on the evidence in your case but are not in themselves evidence at the level of the administrative review process at which they are made. See § 404.1513(a)(5). (2) When a State agency disability examiner makes the initial determination alone as provided in § 404.1615(c)(3), he or she may obtain medical evidence from a State agency medical or psychological consultant about one or more of the medical issues listed in paragraph (a)(1) of this section. In these cases, the State agency disability examiner will consider the medical evidence of the State agency medical or psychological consultant under §§ 404.1520b, 404.1520c, and 404.1527. (3) When a State agency disability examiner makes a reconsideration determination alone as provided in § 404.1615(c)(3), he or she will consider prior administrative medical findings made by a State agency medical or psychological consultant at the initial level of the administrative review process, and any medical evidence provided by such consultants at the initial and reconsideration levels, about one or more of the medical issues listed in paragraph (a)(1)(i) of this section under §§ 404.1520b, 404.1520c, and 404.1527. (b) Administrative law judges are responsible for reviewing the evidence and making administrative findings of fact and conclusions of law. They will consider prior administrative medical findings and medical evidence from our Federal or State agency medical or psychological consultants as follows: (1) Administrative law judges are not required to adopt any prior administrative medical findings, but they must consider this evidence according to §§ 404.1520b, 404.1520c, and 404.1527, as appropriate, because our Federal or State agency medical or psychological consultants are highly qualified and experts in Social Security disability evaluation. (2) Administrative law judges may also ask for medical evidence from expert medical sources. Administrative law judges will consider this evidence under §§ 404.1520b, 404.1520c, and 404.1527, as appropriate. (c) When the Appeals Council makes a decision, it will consider prior administrative medical findings according to the same rules for considering prior administrative medical findings as administrative law judges follow under paragraph (b) of this section. [82 FR 5866, Jan 18, 2017] § 404.1514 When we will purchase existing evidence. We need specific medical evidence to determine whether you are disabled or blind. You are responsible for providing that evidence. However, we will pay physicians not employed by the Federal government and other non-Federal providers of medical services for the reasonable cost of providing us with existing medical evidence that we need and ask for after November 30, 1980. [46 FR 45757, Sept. 15, 1981] § 404.1515 Where and how to submit evidence. You may give us evidence about your impairment at any of our offices or at the office of any State agency authorized to make disability determinations. You may also give evidence to one of our employees authorized to accept evidence at another place. For more information about this, see subpart H of this part. § 404.1516 If you fail to submit medical and other evidence. If you do not give us the medical and other evidence that we need and request, we will have to make a decision based on information available in your case. We will not excuse you from giving us evidence because you have religious or personal reasons against medical examinations, tests, or treatment. § 404.1517 Consultative examination at our expense. If your medical sources cannot or will not give us sufficient medical evidence about your impairment for us to determine whether you are disabled or blind, we may ask you to have one or more physical or mental examinations or tests. We will pay for these examinations. However, we will not pay for any medical examination arranged by you or your representative without our advance approval. If we arrange for the examination or test, we will give you reasonable notice of the date, time, and place the examination or test will be given, and the name of the person or facility who will do it. We will also give the examiner any necessary background information about your condition. [56 FR 36956, Aug. 1, 1991] § 404.1518 If you do not appear at a consultative examination. (a) General. (b) Examples of good reasons for failure to appear. (1) Illness on the date of the scheduled examination or test; (2) Not receiving timely notice of the scheduled examination or test, or receiving no notice at all; (3) Being furnished incorrect or incomplete information, or being given incorrect information about the physician involved or the time or place of the examination or test, or; (4) Having had death or serious illness occur in your immediate family. (c) Objections by your medical source(s). [45 FR 55584, Aug. 20, 1980, as amended at 59 FR 1635, Jan. 12, 1994; 82 FR 5866, Jan. 18, 2017] Standards To Be Used in Determining When a Consultative Examination Will Be Obtained in Connection With Disability Determinations § 404.1519 The consultative examination. A consultative examination is a physical or mental examination or test purchased for you at our request and expense from a treating source or another medical source, including a pediatrician when appropriate. The decision to purchase a consultative examination will be made on an individual case basis in accordance with the provisions of §§ 404.1519a through 404.1519f. Selection of the source for the examination will be consistent with the provisions of § 404.1503a and §§ 404.1519g through 404.1519j. The rules and procedures for requesting consultative examinations set forth in §§ 404.1519a and 404.1519b are applicable at the reconsideration and hearing levels of review, as well as the initial level of determination. [56 FR 36956, Aug. 1, 1991, as amended at 65 FR 11875, Mar. 7, 2000] § 404.1519a When we will purchase a consultative examination and how we will use it. (a) General. (b) Situations that may require a consultative examination. (1) The additional evidence needed is not contained in the records of your medical sources; (2) The evidence that may have been available from your treating or other medical sources cannot be obtained for reasons beyond your control, such as death or noncooperation of a medical source; (3) Highly technical or specialized medical evidence that we need is not available from your treating or other medical sources; or (4) There is an indication of a change in your condition that is likely to affect your ability to work, but the current severity of your impairment is not established. [56 FR 36956, Aug. 1, 1991, as amended at 77 FR 10655, Feb. 23, 2012] § 404.1519b When we will not purchase a consultative examination. We will not purchase a consultative examination in situations including, but not limited to, the following situations: (a) In period of disability and disability insurance benefit claims, when you do not meet the insured status requirement in the calendar quarter you allege you became disabled or later and there is no possibility of establishing an earlier onset; (b) In claims for widow's or widower's benefits based on disability, when your alleged month of disability is after the end of the 7-year period specified in § 404.335(c)(1) and there is no possibility of establishing an earlier onset date, or when the 7-year period expired in the past and there is no possibility of establishing an onset date prior to the date the 7-year period expired; (c) In disability insurance benefit claims, when your insured status expired in the past and there is no possibility of establishing an onset date prior to the date your insured status expired; (d) When any issues about your actual performance of substantial gainful activity or gainful activity have not been resolved; (e) In claims for child's benefits based on disability, when it is determined that your alleged disability did not begin before the month you attained age 22, and there is no possibility of establishing an onset date earlier than the month in which you attained age 22; (f) In claims for child's benefits based on disability that are filed concurrently with the insured individual's claim and entitlement cannot be established for the insured individual; (g) In claims for child's benefits based on disability where entitlement is precluded based on other nondisability factors. [56 FR 36956, Aug. 1, 1991] Standards for the Type of Referral and for Report Content § 404.1519f Type of purchased examinations. We will purchase only the specific examinations and tests we need to make a determination in your claim. For example, we will not authorize a comprehensive medical examination when the only evidence we need is a special test, such as an X-ray, blood studies, or an electrocardiogram. [56 FR 36956, Aug. 1, 1991] § 404.1519g Who we will select to perform a consultative examination. (a) We will purchase a consultative examination only from a qualified medical source. The medical source may be your own medical source or another medical source. If you are a child, the medical source we choose may be a pediatrician. (b) By “qualified,” we mean that the medical source must be currently licensed in the State and have the training and experience to perform the type of examination or test we will request; the medical source must not be barred from participation in our programs under the provisions of § 404.1503a. The medical source must also have the equipment required to provide an adequate assessment and record of the existence and level of severity of your alleged impairments. (c) The medical source we choose may use support staff to help perform the consultative examination. Any such support staff (e.g., X-ray technician, nurse) must meet appropriate licensing or certification requirements of the State. See § 404.1503a. [56 FR 36957, Aug. 1, 1991, as amended at 65 FR 11876, Mar. 7, 2000; 82 FR 5866, Jan. 18, 2017] § 404.1519h Your medical source. When, in our judgment, your medical source is qualified, equipped, and willing to perform the additional examination or test(s) for the fee schedule payment, and generally furnishes complete and timely reports, your medical source will be the preferred source for the purchased examination or test(s). [82 FR 5866, Jan. 18, 2017] § 404.1519i Other sources for consultative examinations. We will use a different medical source than your medical source for a purchased examination or test in situations including, but not limited to, the following: (a) Your medical source prefers not to perform such an examination or does not have the equipment to provide the specific data needed; (b) There are conflicts or inconsistencies in your file that cannot be resolved by going back to your medical source; (c) You prefer a source other than your medical source and have a good reason for your preference; (d) We know from prior experience that your medical source may not be a productive source, such as when he or she has consistently failed to provide complete or timely reports; or (e) Your medical source is not a qualified medical source as defined in § 404.1519g. [82 FR 5866, Jan. 18, 2017] § 404.1519j Objections to the medical source designated to perform the consultative examination. You or your representative may object to your being examined by a medical source we have designated to perform a consultative examination. If there is a good reason for the objection, we will schedule the examination with another medical source. A good reason may be that the medical source we designated had previously represented an interest adverse to you. For example, the medical source may have represented your employer in a workers' compensation case or may have been involved in an insurance claim or legal action adverse to you. Other things we will consider include: The presence of a language barrier, the medical source's office location (e.g., 2nd floor, no elevator), travel restrictions, and whether the medical source had examined you in connection with a previous disability determination or decision that was unfavorable to you. If your objection is that a medical source allegedly “lacks objectivity” in general, but not in relation to you personally, we will review the allegations. See § 404.1519s. To avoid a delay in processing your claim, the consultative examination in your case will be changed to another medical source while a review is being conducted. We will handle any objection to use of the substitute medical source in the same manner. However, if we had previously conducted such a review and found that the reports of the medical source in question conformed to our guidelines, we will not change your examination. [65 FR 11876, Mar. 7, 2000] § 404.1519k Purchase of medical examinations, laboratory tests, and other services. We may purchase medical examinations, including psychiatric and psychological examinations, X-rays and laboratory tests (including specialized tests, such as pulmonary function studies, electrocardiograms, and stress tests) from a medical source. (a) The rate of payment for purchasing medical or other services necessary to make determinations of disability may not exceed the highest rate paid by Federal or public agencies in the State for the same or similar types of service. See (b) If a physician's bill or a request for payment for a physician's services includes a charge for a laboratory test for which payment may be made under this part, the amount payable with respect to the test shall be determined as follows: (1) If the bill or request for payment indicates that the test was personally performed or supervised by the physician who submitted the bill (or for whose services the request for payment was made) or by another physician with whom that physician shares his or her practice, the payment will be based on the physician's usual and customary charge for the test or the rates of payment which the State uses for purchasing such services, whichever is the lesser amount. (2) If the bill or request for payment indicates that the test was performed by an independent laboratory, the amount of reimbursement will not exceed the billed cost of the independent laboratory or the rate of payment which the State uses for purchasing such services, whichever is the lesser amount. A nominal payment may be made to the physician for collecting, handling and shipping a specimen to the laboratory if the physician bills for such a service. The total reimbursement may not exceed the rate of payment which the State uses for purchasing such services. (c) The State will assure that it can support the rate of payment it uses. The State shall also be responsible for monitoring and overseeing the rate of payment it uses to ensure compliance with paragraphs (a) and (b) of this section. [56 FR 36957, Aug. 1, 1991, as amended at 65 FR 11876, Mar. 7, 2000; 71 FR 16444, Mar. 31, 2006; 76 FR 24806, May 3, 2011] § 404.1519m Diagnostic tests or procedures. We will request the results of any diagnostic tests or procedures that have been performed as part of a workup by your treating source or other medical source and will use the results to help us evaluate impairment severity or prognosis. However, we will not order diagnostic tests or procedures that involve significant risk to you, such as myelograms, arteriograms, or cardiac catheterizations for the evaluation of disability under the Social Security program. A State agency medical consultant must approve the ordering of any diagnostic test or procedure when there is a chance it may involve significant risk. The responsibility for deciding whether to perform the examination rests with the medical source designated to perform the consultative examination. [56 FR 36957, Aug. 1, 1991, as amended at 65 FR 11876, Mar. 7, 2000; 71 FR 16444, Mar. 31, 2006; 76 FR 24806, May 3, 2011] § 404.1519n Informing the medical source of examination scheduling, report content, and signature requirements. The medical sources who perform consultative examinations will have a good understanding of our disability programs and their evidentiary requirements. They will be made fully aware of their responsibilities and obligations regarding confidentiality as described in § 401.105(e). We will fully inform medical sources who perform consultative examinations at the time we first contact them, and at subsequent appropriate intervals, of the following obligations: (a) Scheduling. i.e. (1) Comprehensive general medical examination—at least 30 minutes; (2) Comprehensive musculoskeletal or neurological examination—at least 20 minutes; (3) Comprehensive psychiatric examination—at least 40 minutes; (4) Psychological examination—at least 60 minutes (Additional time may be required depending on types of psychological tests administered); and (5) All others—at least 30 minutes, or in accordance with accepted medical practices. We recognize that actual practice will dictate that some examinations may require longer scheduling intervals depending on the circumstances in a particular situation. We also recognize that these minimum intervals may have to be adjusted to allow for those claimants who do not attend their scheduled examination. The purpose of these minimum scheduling timeframes is to ensure that such examinations are complete and that sufficient time is made available to obtain the information needed to make an accurate determination in your case. State agencies will monitor the scheduling of examinations (through their normal consultative examination oversight activities) to ensure that any overscheduling is avoided, as overscheduling may lead to examinations that are not thorough. (b) Report content. (c) Elements of a complete consultative examination. (1) Your major or chief complaint(s); (2) A detailed description, within the area of specialty of the examination, of the history of your major complaint(s); (3) A description, and disposition, of pertinent “positive” and “negative” detailed findings based on the history, examination and laboratory tests related to the major complaint(s), and any other abnormalities or lack thereof reported or found during examination or laboratory testing; (4) The results of laboratory and other tests (e.g., X-rays) performed according to the requirements stated in the Listing of Impairments (see appendix 1 of this subpart P); (5) The diagnosis and prognosis for your impairment(s); (6) A medical opinion. (7) In addition, the medical source will consider, and provide some explanation or comment on, your major complaint(s) and any other abnormalities found during the history and examination or reported from the laboratory tests. The history, examination, evaluation of laboratory test results, and the conclusions will represent the information provided by the medical source who signs the report. (d) When a complete consultative examination is not required. (e) Signature requirements. [56 FR 36958, Aug. 1, 1991, as amended at 65 FR 11876, Mar. 7, 2000; 82 FR 5866, Jan. 18, 2017] § 404.1519o When a properly signed consultative examination report has not been received. If a consultative examination report is received unsigned or improperly signed we will take the following action. (a) When we will make determinations and decisions without a properly signed report. (1) Continuous period of disability allowance with an onset date as alleged or earlier than alleged; or (2) Continuance of disability. (b) When we will not make determinations and decisions without a properly signed report. (1) Denial; or (2) Cessation; or (3) Allowance of a period of disability which has ended; or (4) Allowance with an onset date later than alleged. [56 FR 36958, Aug. 1, 1991, as amended at 65 FR 11877, Mar. 7, 2000] § 404.1519p Reviewing reports of consultative examinations. (a) We will review the report of the consultative examination to determine whether the specific information requested has been furnished. We will consider the following factors in reviewing the report: (1) Whether the report provides evidence which serves as an adequate basis for decisionmaking in terms of the impairment it assesses; (2) Whether the report is internally consistent; Whether all the diseases, impairments and complaints described in the history are adequately assessed and reported in the clinical findings; Whether the conclusions correlate the findings from your medical history, clinical examination and laboratory tests and explain all abnormalities; (3) Whether the report is consistent with the other information available to us within the specialty of the examination requested; Whether the report fails to mention an important or relevant complaint within that specialty that is noted in other evidence in the file (e.g., your blindness in one eye, amputations, pain, alcoholism, depression); (4) Whether this is an adequate report of examination as compared to standards set out in the course of a medical education; and (5) Whether the report is properly signed. (b) If the report is inadequate or incomplete, we will contact the medical source who performed the consultative examination, give an explanation of our evidentiary needs, and ask that the medical source furnish the missing information or prepare a revised report. (c) With your permission, or when the examination discloses new diagnostic information or test results that reveal a potentially life-threatening situation, we will refer the consultative examination report to your treating source. When we refer the consultative examination report to your treating source without your permission, we will notify you that we have done so. (d) We will perform ongoing special management studies on the quality of consultative examinations purchased from major medical sources and the appropriateness of the examinations authorized. (e) We will take steps to ensure that consultative examinations are scheduled only with medical sources who have access to the equipment required to provide an adequate assessment and record of the existence and level of severity of your alleged impairments. [56 FR 36959, Aug. 1, 1991, as amended at 65 FR 11877, Mar. 7, 2000] § 404.1519q Conflict of interest. All implications of possible conflict of interest between medical or psychological consultants and their medical or psychological practices will be avoided. Such consultants are not only those physicians and psychologists who work for us directly but are also those who do review and adjudication work in the State agencies. Physicians and psychologists who work for us directly as employees or under contract will not work concurrently for a State agency. Physicians and psychologists who do review work for us will not perform consultative examinations for us without our prior approval. In such situations, the physician or psychologist will disassociate himself or herself from further involvement in the case and will not participate in the evaluation, decision, or appeal actions. In addition, neither they, nor any member of their families, will acquire or maintain, either directly or indirectly, any financial interest in a medical partnership, corporation, or similar relationship in which consultative examinations are provided. Sometimes physicians and psychologists who do review work for us will have prior knowledge of a case; for example, when the claimant was a patient. Where this is so, the physician or psychologist will not participate in the review or determination of the case. This does not preclude the physician or psychologist from submitting medical evidence based on treatment or examination of the claimant. [56 FR 36959, Aug. 1, 1991] Authorizing and Monitoring the Referral Process § 404.1519s Authorizing and monitoring the consultative examination. (a) Day-to-day responsibility for the consultative examination process rests with the State agencies that make disability determinations for us. (b) The State agency will maintain a good working relationship with the medical community in order to recruit sufficient numbers of physicians and other providers of medical services to ensure ready availability of consultative examination providers. (c) Consistent with Federal and State laws, the State agency administrator will work to achieve appropriate rates of payment for purchased medical services. (d) Each State agency will be responsible for comprehensive oversight management of its consultative examination program, with special emphasis on key providers. (e) A key consultative examination provider is a provider that meets at least one of the following conditions: (1) Any consultative examination provider with an estimated annual billing to the disability programs we administer of at least $150,000; or (2) Any consultative examination provider with a practice directed primarily towards evaluation examinations rather than the treatment of patients; or (3) Any consultative examination provider that does not meet the above criteria, but is one of the top five consultative examination providers in the State by dollar volume, as evidenced by prior year data. (f) State agencies have flexibility in managing their consultative examination programs, but at a minimum will provide: (1) An ongoing active recruitment program for consultative examination providers; (2) A process for orientation, training, and review of new consultative examination providers, with respect to SSA's program requirements involving consultative examination report content and not with respect to medical techniques; (3) Procedures for control of scheduling consultative examinations; (4) Procedures to ensure that close attention is given to specific evaluation issues involved in each case; (5) Procedures to ensure that only required examinations and tests are authorized in accordance with the standards set forth in this subpart; (6) Procedures for providing medical or supervisory approval for the authorization or purchase of consultative examinations and for additional tests or studies requested by consulting medical sources. This includes physician approval for the ordering of any diagnostic test or procedure where the question of significant risk to the claimant/beneficiary might be raised. See § 404.1519m. (7) Procedures for the ongoing review of consultative examination results to ensure compliance with written guidelines; (8) Procedures to encourage active participation by physicians in the consultative examination oversight program; (9) Procedures for handling complaints; (10) Procedures for evaluating claimant reactions to key providers; and (11) A program of systematic, onsite reviews of key providers that will include annual onsite reviews of such providers when claimants are present for examinations. This provision does not contemplate that such reviews will involve participation in the actual examinations but, rather, offer an opportunity to talk with claimants at the provider's site before and after the examination and to review the provider's overall operation. (g) The State agencies will cooperate with us when we conduct monitoring activities in connection with their oversight management of their consultative examination programs. [56 FR 36959, Aug. 1, 1991, as amended at 65 FR 11877, Mar. 7, 2000; 71 FR 16444, Mar. 31, 2006; 75 FR 32846, June 10, 2010; 76 FR 24806, May 3, 2011] Procedures To Monitor the Consultative Examination § 404.1519t Consultative examination oversight. (a) We will ensure that referrals for consultative examinations and purchases of consultative examinations are made in accordance with our policies. We will also monitor both the referral processes and the product of the consultative examinations obtained. This monitoring may include reviews by independent medical specialists under direct contract with SSA. (b) Through our regional offices, we will undertake periodic comprehensive reviews of each State agency to evaluate each State's management of the consultative examination process. The review will involve visits to key providers, with State staff participating, including a program physician when the visit will deal with medical techniques or judgment, or factors that go to the core of medical professionalism. (c) We will also perform ongoing special management studies of the quality of consultative examinations purchased from key providers and other sources and the appropriateness of the examinations authorized. [56 FR 36960, Aug. 1, 1991] Evaluation of Disability § 404.1520 Evaluation of disability in general. (a) General Purpose of this section. (2) Applicability of these rules. See (3) Evidence considered. (4) The five-step sequential evaluation process. See (i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled. ( See (ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 404.1509, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled. ( See (iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 of this subpart and meets the duration requirement, we will find that you are disabled. ( See (iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled. See paragraphs (f) and (h) of this section and § 404.1560(b). (v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled. See paragraphs (g) and (h) of this section and § 404.1560(c). (5) When you are already receiving disability benefits. (b) If you are working. (c) You must have a severe impairment. (d) When your impairment(s) meets or equals a listed impairment in appendix 1. (e) When your impairment(s) does not meet or equal a listed impairment. (f) Your impairment(s) must prevent you from doing your past relevant work. (g) Your impairment(s) must prevent you from making an adjustment to any other work. (2) We use different rules if you meet one of the two special medical-vocational profiles described in § 404.1562. If you meet one of those profiles, we will find that you cannot make an adjustment to other work, and that you are disabled. (h) Expedited process. [50 FR 8727, Mar. 5, 1985; 50 FR 19164, May 7, 1985, as amended at 56 FR 36960, Aug. 1, 1991; 65 FR 80308, Dec. 21, 2000; 68 FR 51161, Aug. 26, 2003; 77 FR 10655, Feb. 23, 2012; 77 FR 43494, July 25, 2012] § 404.1520a Evaluation of mental impairments. (a) General. (1) Identify the need for additional evidence to determine impairment severity; (2) Consider and evaluate functional consequences of the mental disorder(s) relevant to your ability to work; and (3) Organize and present our findings in a clear, concise, and consistent manner. (b) Use of the technique. (2) We must then rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c) of this section and record our findings as set out in paragraph (e) of this section. (c) Rating the degree of functional limitation. (2) We will rate the degree of your functional limitation based on the extent to which your impairment(s) interferes with your ability to function independently, appropriately, effectively, and on a sustained basis. Thus, we will consider such factors as the quality and level of your overall functional performance, any episodic limitations, the amount of supervision or assistance you require, and the settings in which you are able to function. See 12.00C through 12.00H of the Listing of Impairments in appendix 1 to this subpart for more information about the factors we consider when we rate the degree of your functional limitation. (3) We have identified four broad functional areas in which we will rate the degree of your functional limitation: Understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. See 12.00E of the Listing of Impairments in appendix 1 to this subpart. (4) When we rate your degree of limitation in these areas (understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself), we will use the following five-point scale: None, mild, moderate, marked, and extreme. The last point on the scale represents a degree of limitation that is incompatible with the ability to do any gainful activity. (d) Use of the technique to evaluate mental impairments. (1) If we rate the degrees of your limitation as “none” or “mild,” we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities (see § 404.1522). (2) If your mental impairment(s) is severe, we will then determine if it meets or is equivalent in severity to a listed mental disorder. We do this by comparing the medical findings about your impairment(s) and the rating of the degree of functional limitation to the criteria of the appropriate listed mental disorder. We will record the presence or absence of the criteria and the rating of the degree of functional limitation on a standard document at the initial and reconsideration levels of the administrative review process, or in the decision at the administrative law judge hearing and Appeals Council levels (in cases in which the Appeals Council issues a decision). See paragraph (e) of this section. (3) If we find that you have a severe mental impairment(s) that neither meets nor is equivalent in severity to any listing, we will then assess your residual functional capacity. (e) Documenting application of the technique. (1) When a State agency medical or psychological consultant makes the determination together with a State agency disability examiner at the initial or reconsideration level of the administrative review process as provided in § 404.1615(c)(1) of this part, the State agency medical or psychological consultant has overall responsibility for assessing medical severity. A State agency disability examiner may assist in preparing the standard document. However, our medical or psychological consultant must review and sign the document to attest that it is complete and that he or she is responsible for its content, including the findings of fact and any discussion of supporting evidence. (2) When a State agency disability examiner makes the determination alone as provided in § 404.1615(c)(3), the State agency disability examiner has overall responsibility for assessing medical severity and for completing and signing the standard document. (3) When a disability hearing officer makes a reconsideration determination as provided in § 404.1615(c)(4), the determination must document application of the technique, incorporating the disability hearing officer's pertinent findings and conclusions based on this technique. (4) At the administrative law judge hearing and Appeals Council levels, the written decision must incorporate the pertinent findings and conclusions based on the technique. The decision must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph (c) of this section. (5) If the administrative law judge requires the services of a medical expert to assist in applying the technique but such services are unavailable, the administrative law judge may return the case to the State agency or the appropriate Federal component, using the rules in § 404.941 of this part, for completion of the standard document. If, after reviewing the case file and completing the standard document, the State agency or Federal component concludes that a determination favorable to you is warranted, it will process the case using the rules found in § 404.941(d) or (e) of this part. If, after reviewing the case file and completing the standard document, the State agency or Federal component concludes that a determination favorable to you is not warranted, it will send the completed standard document and the case to the administrative law judge for further proceedings and a decision. [65 FR 50774, Aug. 21, 2000; 65 FR 60584, Oct. 12, 2000, as amended at 71 FR 16444, Mar. 31, 2006; 75 FR 62680, Oct. 13, 2010; 76 FR 24806, May 3, 2011; 81 FR 66160, Sept. 26, 2016; 82 FR 5867. Jan. 18, 2017] § 404.1520b How we consider evidence. After we review all of the evidence relevant to your claim, we make findings about what the evidence shows. (a) Complete and consistent evidence. (b) Incomplete or inconsistent evidence. (1) If any of the evidence in your case record, including any medical opinion(s) and prior administrative medical findings, is inconsistent, we will consider the relevant evidence and see if we can determine whether you are disabled based on the evidence we have. (2) If the evidence is consistent but we have insufficient evidence to determine whether you are disabled, or if after considering the evidence we determine we cannot reach a conclusion about whether you are disabled, we will determine the best way to resolve the inconsistency or insufficiency. The action(s) we take will depend on the nature of the inconsistency or insufficiency. We will try to resolve the inconsistency or insufficiency by taking any one or more of the actions listed in paragraphs (b)(2)(i) through (b)(2)(iv) of this section. We might not take all of the actions listed below. We will consider any additional evidence we receive together with the evidence we already have. (i) We may recontact your medical source. We may choose not to seek additional evidence or clarification from a medical source if we know from experience that the source either cannot or will not provide the necessary evidence. If we obtain medical evidence over the telephone, we will send the telephone report to the source for review, signature, and return; (ii) We may request additional existing evidence; (iii) We may ask you to undergo a consultative examination at our expense (see §§ 404.1517 through 404.1519t); or (iv) We may ask you or others for more information. (3) When there are inconsistencies in the evidence that we cannot resolve or when, despite efforts to obtain additional evidence, the evidence is insufficient to determine whether you are disabled, we will make a determination or decision based on the evidence we have. (c) Evidence that is inherently neither valuable nor persuasive. (1) Decisions by other governmental agencies and nongovernmental entities. (2) Disability examiner findings. (3) Statements on issues reserved to the Commissioner. (i) Statements that you are or are not disabled, blind, able to work, or able to perform regular or continuing work; (ii) Statements about whether or not you have a severe impairment(s); (iii) Statements about whether or not your impairment(s) meets the duration requirement (see § 404.1509); (iv) Statements about whether or not your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1; (v) Statements about what your residual functional capacity is using our programmatic terms about the functional exertional levels in Part 404, Subpart P, Appendix 2, Rule 200.00 instead of descriptions about your functional abilities and limitations (see § 404.1545); (vi) Statements about whether or not your residual functional capacity prevents you from doing past relevant work (see § 404.1560); (vii) Statements that you do or do not meet the requirements of a medical-vocational rule in Part 404, Subpart P, Appendix 2; and (viii) Statements about whether or not your disability continues or ends when we conduct a continuing disability review (see § 404.1594). [82 FR 5867, Jan. 18, 2017] § 404.1520c How we consider and articulate medical opinions and prior administrative medical findings for claims filed on or after March 27, 2017. For claims filed (see § 404.614) on or after March 27, 2017, the rules in this section apply. For claims filed before March 27, 2017, the rules in § 404.1527 apply. (a) How we consider medical opinions and prior administrative medical findings. (b) How we articulate our consideration of medical opinions and prior administrative medical findings. (1) Source-level articulation. (2) Most important factors. (3) Equally persuasive medical opinions or prior administrative medical findings about the same issue. (c) Factors. (1) Supportability. (2) Consistency. (3) Relationship with the claimant. (i) Length of the treatment relationship. (ii) Frequency of examinations. (iii) Purpose of the treatment relationship. (iv) Extent of the treatment relationship. (v) Examining relationship. (4) Specialization. (5) Other factors. (d) Evidence from nonmedical sources. [82 FR 5867, Jan. 18, 2017] § 404.1521 Establishing that you have a medically determinable impairment(s). If you are not doing substantial gainful activity, we will then determine whether you have a medically determinable physical or mental impairment(s) (see § 404.1520(a)(4)(ii)). Your impairment(s) must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Therefore, a physical or mental impairment must be established by objective medical evidence from an acceptable medical source. We will not use your statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s). After we establish that you have a medically determinable impairment(s), then we determine whether your impairment(s) is severe. [82 FR 5868, Jan. 18, 2017] § 404.1522 What we mean by an impairment(s) that is not severe. (a) Non-severe impairment(s). (b) Basic work activities. (1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and speaking; (3) Understanding, carrying out, and remembering simple instructions; (4) Use of judgment; (5) Responding appropriately to supervision, co-workers and usual work situations; and (6) Dealing with changes in a routine work setting. [82 FR 5869, Jan. 18, 2017] § 404.1523 Multiple impairments. (a) Unrelated severe impairments. (b) Concurrent impairments. (c) Combined effect. [82 FR 5869, Jan. 18, 2017] Medical Considerations § 404.1525 Listing of Impairments in appendix 1. (a) What is the purpose of the Listing of Impairments? (b) How is appendix 1 organized? (1) Part A (2) Part B (c) How do we use the listings? (2) The introduction to each body system contains information relevant to the use of the listings in that body system; for example, examples of common impairments in the body system and definitions used in the listings for that body system. We may also include specific criteria for establishing a diagnosis, confirming the existence of an impairment, or establishing that your impairment(s) satisfies the criteria of a particular listing in the body system. Even if we do not include specific criteria for establishing a diagnosis or confirming the existence of your impairment, you must still show that you have a severe medically determinable impairment(s), as defined in § 404.1521. (3) In most cases, the specific listings follow the introduction in each body system, after the heading, Category of Impairments. (4) Most of the listed impairments are permanent or expected to result in death. For some listings, we state a specific period of time for which your impairment(s) will meet the listing. For all others, the evidence must show that your impairment(s) has lasted or can be expected to last for a continuous period of at least 12 months. (5) If your impairment(s) does not meet the criteria of a listing, it can medically equal the criteria of a listing. We explain our rules for medical equivalence in § 404.1526. We use the listings only to find that you are disabled or still disabled. If your impairment(s) does not meet or medically equal the criteria of a listing, we may find that you are disabled or still disabled at a later step in the sequential evaluation process. (d) Can your impairment(s) meet a listing based only on a diagnosis? (e) How do we consider your symptoms when we determine whether your impairment(s) meets a listing? [71 FR 10428, Mar. 1, 2006, as amended at 76 FR 19696, Apr. 8, 2011; 82 FR 5868, Jan. 18, 2017] § 404.1526 Medical equivalence. (a) What is medical equivalence? (b) How do we determine medical equivalence? (1)(i) If you have an impairment that is described in appendix 1, but — (A) You do not exhibit one or more of the findings specified in the particular listing, or (B) You exhibit all of the findings, but one or more of the findings is not as severe as specified in the particular listing, (ii) We will find that your impairment is medically equivalent to that listing if you have other findings related to your impairment that are at least of equal medical significance to the required criteria. (2) If you have an impairment(s) that is not described in appendix 1, we will compare your findings with those for closely analogous listed impairments. If the findings related to your impairment(s) are at least of equal medical significance to those of a listed impairment, we will find that your impairment(s) is medically equivalent to the analogous listing. (3) If you have a combination of impairments, no one of which meets a listing (see § 404.1525(c)(3)), we will compare your findings with those for closely analogous listed impairments. If the findings related to your impairments are at least of equal medical significance to those of a listed impairment, we will find that your combination of impairments is medically equivalent to that listing. (4) Section 404.1529(d)(3) explains how we consider your symptoms, such as pain, when we make findings about medical equivalence. (c) What evidence do we consider when we determine if your impairment(s) medically equals a listing? (d) Who is a designated medical or psychological consultant? (e) Who is responsible for determining medical equivalence? (1) In cases where the State agency or other designee of the Commissioner makes the initial or reconsideration disability determination, a State agency medical or psychological consultant or other designee of the Commissioner (see § 404.1616 of this part) has the overall responsibility for determining medical equivalence. (2) For cases in the disability hearing process or otherwise decided by a disability hearing officer, the responsibility for determining medical equivalence rests with either the disability hearing officer or, if the disability hearing officer's reconsideration determination is changed under § 404.918 of this part, with the Associate Commissioner for Disability Policy or his or her delegate. (3) For cases at the administrative law judge or Appeals Council level, the responsibility for deciding medical equivalence rests with the administrative law judge or Appeals Council. [45 FR 55584, Aug. 20, 1980, as amended at 52 FR 33926, Sept. 9, 1987; 62 FR 38451, July 18, 1997; 65 FR 34957, June 1, 2000; 71 FR 10429, Mar. 1, 2006; 71 FR 16445, Mar. 31, 2006; 71 FR 57415, Sept. 29, 2006; 76 FR 24807, May 3, 2011; 82 FR 5869, Jan. 18, 2017; 82 FR 15132, Mar. 27, 2017] § 404.1527 Evaluating opinion evidence for claims filed before March 27, 2017. For claims filed (see § 404.614) before March 27, 2017, the rules in this section apply. For claims filed on or after March 27, 2017, the rules in § 404.1520c apply. (a) Definitions. (1) Medical opinions. (2) Treating source. (b) How we consider medical opinions. (c) How we weigh medical opinions. (1) Examining relationship. (2) Treatment relationship. (i) Length of the treatment relationship and the frequency of examination. (ii) Nature and extent of the treatment relationship. (3) Supportability. (4) Consistency. (5) Specialization. (6) Other factors. (d) Medical source opinions on issues reserved to the Commissioner. i.e., (1) Opinions that you are disabled. (2) Other opinions on issues reserved to the Commissioner. (3) We will not give any special significance to the source of an opinion on issues reserved to the Commissioner described in paragraphs (d)(1) and (d)(2) of this section. (e) Evidence from our Federal or State agency medical or psychological consultants. (f) Opinions from medical sources who are not acceptable medical sources and from nonmedical sources. (1) Consideration. (2) Articulation. [82 FR 5869, Jan. 18, 2017; 82 FR 15132, Mar. 27, 2017] § 404.1528 [Reserved] § 404.1529 How we evaluate symptoms, including pain. (a) General. (b) Need for medically determinable impairment that could reasonably be expected to produce your symptoms, such as pain. (c) Evaluating the intensity and persistence of your symptoms, such as pain, and determining the extent to which your symptoms limit your capacity for work General. (2) Consideration of objective medical evidence. (3) Consideration of other evidence. (i) Your daily activities; (ii) The location, duration, frequency, and intensity of your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms; (v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms; (vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms. (4) How we determine the extent to which symptoms, such as pain, affect your capacity to perform basic work activities. (d) Consideration of symptoms in the disability determination process. (1) Need to establish a severe medically determinable impairment(s). (2) Decision whether the Listing of Impairments is met. (3) Decision whether the Listing of Impairments is medically equaled. (4) Impact of symptoms (including pain) on residual functional capacity. [56 FR 57941, Nov. 14, 1991, as amended at 62 FR 38451, July 18, 1997; 71 FR 10429, Mar. 1, 2006; 71 FR 16445, Mar. 31, 2006; 75 FR 62681, Oct. 13, 2010; 76 FR 24807, May 3, 2011; 82 FR 5871, Jan. 18, 2017] § 404.1530 Need to follow prescribed treatment. (a) What treatment you must follow. (b) When you do not follow prescribed treatment. (c) Acceptable reasons for failure to follow prescribed treatment. (1) The specific medical treatment is contrary to the established teaching and tenets of your religion. (2) The prescribed treatment would be cataract surgery for one eye, when there is an impairment of the other eye resulting in a severe loss of vision and is not subject to improvement through treatment. (3) Surgery was previously performed with unsuccessful results and the same surgery is again being recommended for the same impairment. (4) The treatment because of its magnitude (e.g., open heart surgery), unusual nature (e.g., organ transplant), or other reason is very risky for you; or (5) The treatment involves amputation of an extremity, or a major part of an extremity. [45 FR 55584, Aug. 20, 1980, as amended at 59 FR 1635, Jan. 12, 1994; 82 FR 5871, Jan. 18, 2017] § 404.1535 How we will determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability. (a) General. (b) Process we will follow when we have medical evidence of your drug addiction or alcoholism. (2) In making this determination, we will evaluate which of your current physical and mental limitations, upon which we based our current disability determination, would remain if you stopped using drugs or alcohol and then determine whether any or all of your remaining limitations would be disabling. (i) If we determine that your remaining limitations would not be disabling, we will find that your drug addiction or alcoholism is a contributing factor material to the determination of disability. (ii) If we determine that your remaining limitations are disabling, you are disabled independent of your drug addiction or alcoholism and we will find that your drug addiction or alcoholism is not a contributing factor material to the determination of disability. [60 FR 8147, Feb. 10, 1995] Residual Functional Capacity § 404.1545 Your residual functional capacity. (a) General Residual functional capacity assessment. See (2) If you have more than one impairment. (3) Evidence we use to assess your residual functional capacity. See See See See (4) What we will consider in assessing residual functional capacity. (5) How we will use our residual functional capacity assessment. See (ii) If we find that you cannot do your past relevant work, you do not have any past relevant work, or if we use the procedures in § 404.1520(h) and § 404.1562 does not apply, we will use the same assessment of your residual functional capacity at step five of the sequential evaluation process to decide if you can adjust to any other work that exists in the national economy. ( See see (b) Physical abilities. (c) Mental abilities. (d) Other abilities affected by impairment(s). (e) Total limiting effects. [56 FR 57943, Nov. 14, 1991, as amended at 68 FR 51162, Aug. 26, 2003; 77 FR 10656, Feb. 23, 2012; 77 FR 43494, July 25, 2012] § 404.1546 Responsibility for assessing your residual functional capacity. (a) Responsibility for assessing residual functional capacity at the State agency. (b) Responsibility for assessing residual functional capacity in the disability hearings process. (c) Responsibility for assessing residual functional capacity at the administrative law judge hearing or Appeals Council level. [68 FR 51162, Aug. 26, 2003, as amended at 71 FR 16445, Mar. 31, 2006; 75 FR 62681, Oct. 13, 2010; 76 FR 24807, May 3, 2011] Vocational Considerations § 404.1560 When we will consider your vocational background. (a) General. see (b) Past relevant work. (1) Definition of past relevant work What is past relevant work. (ii) 30 calendar days. (2) Determining whether you can do your past relevant work. See (3) If you can do your past relevant work. (c) Other work. See (2) In order to support a finding that you are not disabled at this fifth step of the sequential evaluation process, we are responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that you can do, given your residual functional capacity and vocational factors. We are not responsible for providing additional evidence about your residual functional capacity because we will use the same residual functional capacity assessment that we used to determine if you can do your past relevant work. [68 FR 51163, Aug. 26, 2003, as amended at 77 FR 43494, July 25, 2012; 89 FR 27667, Apr. 18, 2024] § 404.1562 Medical-vocational profiles showing an inability to make an adjustment to other work. (a) If you have done only arduous unskilled physical labor. see see Example to paragraph (a): B is a 58-year-old miner's helper with a fourth grade education who has a lifelong history of unskilled arduous physical labor. B says that he is disabled because of arthritis of the spine, hips, and knees, and other impairments. Medical evidence shows a “severe” combination of impairments that prevents B from performing his past relevant work. Under these circumstances, we will find that B is disabled. (b) If you are at least 55 years old, have no more than a limited education, and have no past relevant work experience. see see see see [68 FR 51163, Aug. 26, 2003] § 404.1563 Your age as a vocational factor. (a) General. (b) How we apply the age categories. (c) Younger person. (d) Person closely approaching advanced age. (e) Person of advanced age. (f) Information about your age. [45 FR 55584, Aug. 20, 1980, as amended at 65 FR 18000, Apr. 6, 2000; 68 FR 51163, Aug. 26, 2003; 73 FR 64196, Oct. 29, 2008] § 404.1564 Your education as a vocational factor. (a) General. Education (b) How we evaluate your education. (1) Illiteracy. (2) Marginal education. (3) Limited education. (4) High school education and above. (c) Information about your education. [45 FR 55584, Aug. 20, 1980, as amended at 85 FR 10602, Feb. 25, 2020] § 404.1565 Your work experience as a vocational factor. (a) General. Work experience (b) Information about your work. [89 FR 27667, Apr. 18, 2024] § 404.1566 Work which exists in the national economy. (a) General. (1) Work exists in the immediate area in which you live; (2) A specific job vacancy exists for you; or (3) You would be hired if you applied for work. (b) How we determine the existence of work. (c) Inability to obtain work. (1) Your inability to get work; (2) Lack of work in your local area; (3) The hiring practices of employers; (4) Technological changes in the industry in which you have worked; (5) Cyclical economic conditions; (6) No job openings for you; (7) You would not actually be hired to do work you could otherwise do; or (8) You do not wish to do a particular type of work. (d) Administrative notice of job data. (1) Dictionary of Occupational Titles, (2) County Business Patterns, (3) Census Reports, (4) Occupational Analyses, (5) Occupational Outlook Handbook, (e) Use of vocational experts and other specialists. § 404.1567 Physical exertion requirements. To determine the physical exertion requirements of work in the national economy, we classify jobs as sedentary, light, medium, heavy, very heavy. Dictionary of Occupational Titles, (a) Sedentary work. (b) Light work. (c) Medium work. (d) Heavy work. (e) Very heavy work. § 404.1568 Skill requirements. In order to evaluate your skills and to help determine the existence in the national economy of work you are able to do, occupations are classified as unskilled, semi-skilled, and skilled. In classifying these occupations, we use materials published by the Department of Labor. When we make disability determinations under this subpart, we use the following definitions: (a) Unskilled work. (b) Semi-skilled work. (c) Skilled work. (d) Skills that can be used in other work (transferability) What we mean by transferable skills. (2) How we determine skills that can be transferred to other jobs. (i) The same or a lesser degree of skill is required; (ii) The same or similar tools and machines are used; and (iii) The same or similar raw materials, products, processes, or services are involved. (3) Degrees of transferability. (4) Transferability of skills for persons of advanced age. sedentary light work, sedentary light closely approaching retirement age light [45 FR 55584, Aug. 20, 1980, as amended at 65 FR 18000, Apr. 6, 2000; 73 FR 64197, Oct. 29, 2008] § 404.1569 Listing of Medical-Vocational Guidelines in appendix 2. The Dictionary of Occupational Titles includes information about jobs (classified by their exertional and skill requirements) that exist in the national economy. Appendix 2 provides rules using this data reflecting major functional and vocational patterns. We apply these rules in cases where a person is not doing substantial gainful activity and is prevented by a severe medically determinable impairment from doing vocationally relevant past work. ( See [45 FR 55584, Aug. 20, 1980, as amended at 77 FR 43494, July 25, 2012] § 404.1569a Exertional and nonexertional limitations. (a) General. see See (b) Exertional limitations. (c) Nonexertional limitations. (i) You have difficulty functioning because you are nervous, anxious, or depressed; (ii) You have difficulty maintaining attention or concentrating; (iii) You have difficulty understanding or remembering detailed instructions; (iv) You have difficulty in seeing or hearing; (v) You have difficulty tolerating some physical feature(s) of certain work settings, e.g., you cannot tolerate dust or fumes; or (vi) You have difficulty performing the manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching. (2) If your impairment(s) and related symptoms, such as pain, only affect your ability to perform the nonexertional aspects of work-related activities, the rules in appendix 2 do not direct factual conclusions of disabled or not disabled. The determination as to whether disability exists will be based on the principles in the appropriate sections of the regulations, giving consideration to the rules for specific case situations in appendix 2. (d) Combined exertional and nonexertional limitations. [56 FR 57943, Nov. 14, 1991, as amended at 68 FR 51163, Aug. 26, 2003] Substantial Gainful Activity § 404.1571 General. The work, without regard to legality, that you have done during any period in which you believe you are disabled may show that you are able to work at the substantial gainful activity level. If you are able to engage in substantial gainful activity, we will find that you are not disabled. (We explain the rules for persons who are statutorily blind in § 404.1584.) Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did. We will consider all of the medical and vocational evidence in your file to decide whether or not you have the ability to engage in substantial gainful activity. [45 FR 55584, Aug. 20, 1980, as amended at 65 FR 42783, July 11, 2000] § 404.1572 What we mean by substantial gainful activity. Substantial gainful activity is work activity that is both substantial and gainful: (a) Substantial work activity. (b) Gainful work activity. (c) Some other activities. § 404.1573 General information about work activity. (a) The nature of your work. (b) How well you perform. (c) If your work is done under special conditions. (1) You required and received special assistance from other employees in performing your work; (2) You were allowed to work irregular hours or take frequent rest periods; (3) You were provided with special equipment or were assigned work especially suited to your impairment; (4) You were able to work only because of specially arranged circumstances, for example, other persons helped you prepare for or get to and from your work; (5) You were permitted to work at a lower standard of productivity or efficiency than other employees; or (6) You were given the opportunity to work despite your impairment because of family relationship, past association with your employer, or your employer's concern for your welfare. (d) If you are self-employed. (e) Time spent in work. [45 FR 55584, Aug. 20, 1980, as amended at 65 FR 42783, July 11, 2000] § 404.1574 Evaluation guides if you are an employee. (a) We use several guides to decide whether the work you have done shows that you are able to do substantial gainful activity. If you are working or have worked as an employee, we will use the provisions in paragraphs (a) through (d) of this section that are relevant to your work activity. We will use these provisions whenever they are appropriate, whether in connection with your application for disability benefits (when we make an initial determination on your application and throughout any appeals you may request), after you have become entitled to a period of disability or to disability benefits, or both. (1) Your earnings may show you have done substantial gainful activity. (2) We consider only the amounts you earn. (3) If you are working in a sheltered or special environment. (b) Earnings guidelines General. (2) Earnings that will ordinarily show that you have engaged in substantial gainful activity. (i) Before January 1, 2001, (ii) Beginning January 1, (A) The amount for the previous year, or (B) An amount adjusted for national wage growth, calculated by multiplying $700 by the ratio of the national average wage index for the year 2 calendar years before the year for which the amount is being calculated to the national average wage index for the year 1998. We will then round the resulting amount to the next higher multiple of $10 where such amount is a multiple of $5 but not of $10 and to the nearest multiple of $10 in any other case. Table 1 For months: Your monthly earnings In calendar years before 1976 $200 In calendar year 1976 230 In calendar year 1977 240 In calendar year 1978 260 In calendar year 1979 280 In calendar years 1980-1989 300 January 1990-June 1999 500 July 1999-December 2000 700 (3) Earnings that will ordinarily show that you have not engaged in substantial gainful activity General. (ii) When we will consider other information in addition to your earnings. (A) Your work is comparable to that of unimpaired people in your community who are doing the same or similar occupations as their means of livelihood, taking into account the time, energy, skill, and responsibility involved in the work; and (B) Your work, although significantly less than that done by unimpaired people, is clearly worth the amounts shown in paragraph (b)(2) of this section, according to pay scales in your community. (iii) Special rule for considering earnings alone when evaluating the work you do after you have received social security disability benefits for at least 24 months. (A) At the time you do the work, you are entitled to social security disability benefits and you have received such benefits for at least 24 months (see paragraph (b)(3)(iv) of this section); and (B) We are evaluating that work to consider whether you have engaged in substantial gainful activity or demonstrated the ability to engage in substantial gainful activity for the purpose of determining whether your disability has ceased because of your work activity (see §§ 404.1592a(a)(1) and (3)(ii) and 404.1594(d)(5) and (f)(1)). (iv) When we consider you to have received social security disability benefits for at least 24 months. (c) The unsuccessful work attempt General. (2) Event that must precede an unsuccessful work attempt. (3) If you worked 6 months or less. (4) If you worked more than 6 months. (d) Work activity in certain volunteer programs. (e) Work activity as a member or consultant of an advisory committee established under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2. [46 FR 4869, Jan. 19, 1981, as amended at 48 FR 21936, May 16, 1983; 49 FR 22272, May 29, 1984; 54 FR 53605, Dec. 29, 1989; 64 FR 18570, Apr. 15, 1999; 64 FR 22903, Apr. 28, 1999; 65 FR 42783, July 11, 2000; 65 FR 82910, Dec. 29, 2000; 71 FR 3219, Jan. 20, 2006; 71 FR 66853, Nov. 17, 2006; 81 FR 71369, Oct. 17, 2016] § 404.1574a When and how we will average your earnings. (a) If your work as an employee or as a self-employed person was continuous without significant change in work patterns or earnings, and there has been no change in the substantial gainful activity earnings levels, we will average your earnings over the entire period of work requiring evaluation to determine if you have done substantial gainful activity. See § 404.1592a for information on the reentitlement period. (b) If you work over a period of time during which the substantial gainful activity earnings levels change, we will average your earnings separately for each period in which a different substantial gainful activity earnings level applies. (c) If there is a significant change in your work pattern or earnings during the period of work requiring evaluation, we will average your earnings over each separate period of work to determine if any of your work efforts were substantial gainful activity. (d) We will not average your earnings in determining whether benefits should be paid for any month(s) during or after the reentitlement period that occurs after the month disability has been determined to have ceased because of the performance of substantial gainful activity. See § 404.1592a for information on the reentitlement period. The following examples illustrate what we mean by a significant change in the work pattern of an employee and when we will average and will not average earnings. Example 1: Mrs. H. began receiving disability insurance benefits in March 1993. In January 1995 she began selling magazines by telephone solicitation, expending a minimum of time, for which she received $225 monthly. As a result, Mrs. H. used up her trial work period during the months of January 1995 through September 1995. After the trial work period ended, we determined that Mrs. H. had not engaged in substantial gainful activity during her trial work period. Her reentitlement period began October 1995. In December 1995, Mrs. H. discontinued her telephone solicitation work to take a course in secretarial skills. In January 1997, she began work as a part-time temporary secretary in a banking firm. Mrs. H. worked 20 hours a week, without any subsidy or impairment-related work expenses, at beginner rates. She earned $285 per month in January 1997 and February 1997. In March 1997 she had increased her secretarial skills to journeyman level and was assigned as a part-time private secretary to one of the vice presidents of the banking firm. Mrs. H.'s earnings increased to $525 per month effective March 1997. We determined that Mrs. H. was engaging in substantial gainful activity beginning March 1997 and that her disability ceased that month, the first month of substantial gainful activity after the end of the trial work period. Mrs. H. is due payment for March 1997, the month of cessation, and the following 2 months (April 1997 and May 1997) because disability benefits terminate the third month following the earliest month in which she performed substantial gainful activity. We did not average earnings for the period January 1997 and February 1997 with the period beginning March 1997 because there was a significant change in earnings and work activity beginning March 1997. Thus, the earnings of January 1997 and February 1997 could not be averaged with those of March 1997 to reduce March 1997 earnings below the substantial gainful activity level. After we determine that Mrs. H.'s disability had ceased because of her performance of substantial gainful activity, we cannot average her earnings to determine whether she is due payment for any month during or after the reentitlement period. Beginning June 1997, the third month following the cessation month, we would evaluate all of Mrs. H.'s work activity on a month-by-month basis (see § 404.1592a(a)). Example 2: Ms. M. began receiving disability insurance benefits in March 1992. In January 1995, she began selling cable television subscriptions by telephone solicitation, expending a minimum of time, for which she received $275 monthly. Ms. M. did not work in June 1995, and she resumed selling cable television subscriptions beginning July 1995. In this way, Ms. M. used up her 9-month trial work period during the months of January 1995 through May 1995 and July 1995 through October 1995. After Ms. M.'s trial work period ended, we determined that she had not engaged in substantial gainful activity during her trial work period. Ms. M.'s reentitlement period began November 1995. In December 1995, Ms. M. discontinued her telephone solicitation work to take a course in secretarial skills. In January 1997, she began work as a part-time temporary secretary in an accounting firm. Ms. M. worked, without any subsidy or impairment-related work expenses, at beginner rates. She earned $460 in January 1997, $420 in February 1997, and $510 in March 1997. In April 1997, she had increased her secretarial skills to journeyman level, and she was assigned as a part-time private secretary to one of the vice presidents of the firm. Ms. M.'s earnings increased to $860 per month effective April 1997. We determined that Ms. M. was engaging in substantial gainful activity beginning April 1997 and that her disability ceased that month, the first month of substantial gainful activity after the end of the trial work period. She is due payment for April 1997, May 1997 and June 1997, because disability benefits terminate the third month following the earliest month in which she performs substantial gainful activity (the month of cessation). We averaged her earnings for the period January 1997 through March 1997 and determined them to be about $467 per month for that period. We did not average earnings for the period January 1997 through March 1997 with earnings for the period beginning April 1997 because there was a significant change in work activity and earnings beginning April 1997. Therefore, we found that the earnings for January 1997 through March 1997 were under the substantial gainful activity level. After we determine that Ms. M.'s disability has ceased because she performed substantial gainful activity, we cannot average her earnings in determining whether she is due payment for any month during or after the reentitlement period. In this example, beginning July 1997, the third month following the month of cessation, we would evaluate all of Ms. M.'s work activity on a month-by-month basis (see § 404.1592a(a)). [65 FR 42784, July 11, 2000] § 404.1575 Evaluation guides if you are self-employed. (a) If you are a self-employed person. (1) How we evaluate the work you do after you have become entitled to disability benefits. (i) We will use the guides in paragraph (a)(2) of this section to evaluate any work activity you do before you have received social security disability benefits for at least 24 months to determine whether you have engaged in substantial gainful activity, regardless of the purpose of the evaluation. (ii) We will use the guides in paragraph (e) of this section to evaluate any work activity you do after you have received social security disability benefits for at least 24 months to determine whether you have engaged in substantial gainful activity for the purpose of determining whether your disability has ceased because of your work activity. (iii) If we have determined under § 404.1592a(a)(1) that your disability ceased in a month during the reentitlement period because you performed substantial gainful activity, and we need to decide under § 404.1592a(a)(2)(i) or (a)(3)(i) whether you are doing substantial gainful activity in a subsequent month in or after your reentitlement period, we will use the guides in paragraph (a)(2) of this section (subject to the limitations described in § 404.1592a(a)(2)(i) and (a)(3)(i)) to determine whether your work activity in that month is substantial gainful activity. We will use the guides in paragraph (a)(2) of this section for these purposes, regardless of whether your work activity in that month occurs before or after you have received social security disability benefits for at least 24 months. (2) General rules for evaluating your work activity if you are self-employed. (i) Test one: (ii) Test Two: (iii) Test Three: (b) What we mean by significant services. (2) If you are a farm landlord, that is, you rent farm land to another, we will consider you to be rendering significant services if you materially participate in the production or the management of the production of the things raised on the rented farm. (See § 404.1082 of this chapter for an explanation of material participation. (c) What we mean by substantial income Determining countable income. (2) When countable income is considered substantial. (i) It averages more than the amounts described in § 404.1574(b)(2); or (ii) It averages less than the amounts described in § 404.1574(b)(2) but it is either comparable to what it was before you became seriously impaired if we had not considered your earnings or is comparable to that of unimpaired self-employed persons in your community who are in the same or a similar business as their means of livelihood. (d) The unsuccessful work attempt General. (2) Event that must precede an unsuccessful work attempt. (3) If you worked 6 months or less. (4) If you worked more than 6 months. (e) Special rules for evaluating the work you do after you have received social security disability benefits for at least 24 months General. (2) The 24-month requirement. (3) Countable income test. [46 FR 4870, Jan. 19, 1981, as amended at 48 FR 21936, May 16, 1983; 49 FR 22272, May 29, 1984; 65 FR 42785, July 11, 2000; 71 FR 66854, Nov. 17, 2006; 81 FR 71369, Oct. 17, 2016] § 404.1576 Impairment-related work expenses. (a) General. (b) Conditions for deducting impairment-related work expenses. (1) You are otherwise disabled as defined in §§ 404.1505, 404.1577 and 404.1581-404.1583; (2) The severity of your impairment(s) requires you to purchase (or rent) certain items and services in order to work; (3) You pay the cost of the item or service. No deduction will be allowed to the extent that payment has been or will be made by another source. No deduction will be allowed to the extent that you have been, could be, or will be reimbursed for such cost by any other source (such as through a private insurance plan, Medicare or Medicaid, or other plan or agency). For example, if you purchase crutches for $80 but you were, could be, or will be reimbursed $64 by some agency, plan, or program, we will deduct only $16; (4) You pay for the item or service in a month you are working (in accordance with paragraph (d) of this section); and (5) Your payment is in cash (including checks or other forms of money). Payment in kind is not deductible. (c) What expenses may be deducted Payments for attendant care services. (ii) If because of your impairment(s) you need assistance with personal functions (e.g., dressing, administering medications) at home in preparation for going to and assistance in returning from work, the payments you make for those services may be deducted. (iii)(A) We will deduct payments you make to a family member for attendant care services only if such person, in order to perform the services, suffers an economic loss by terminating his or her employment or by reducing the number of hours he or she worked. (B) We consider a family member to be anyone who is related to you by blood, marriage or adoption, whether or not that person lives with you. (iv) If only part of your payment to a person is for services that come under the provisions of paragraph (c)(1) of this section, we will only deduct that part of the payment which is attributable to those services. For example, an attendant gets you ready for work and helps you in returning from work, which takes about 2 hours a day. The rest of his or her 8 hour day is spent cleaning your house and doing your laundry, etc. We would only deduct one-fourth of the attendant's daily wages as an impairment-related work expense. (2) Payments for medical devices. (3) Payments for prosthetic devices. (4) Payments for equipment. Work-related equipment. (ii) Residential modifications. (iii) Nonmedical appliances and equipment. (5) Payments for drugs and medical services. (ii) Examples of deductible drugs and medical services are anticonvulsant drugs to control epilepsy or anticonvulsant blood level monitoring; antidepressant medication for mental disorders; medication used to allay the side effects of certain treatments; radiation treatment or chemotherapy for cancer patients; corrective surgery for spinal disorders; electroencephalograms and brain scans related to a disabling epileptic condition; tests to determine the efficacy of medication on a diabetic condition; and immunosuppressive medications that kidney transplant patients regularly take to protect against graft rejection. (iii) We will only deduct the costs of drugs or services that are directly related to your impairment(s). Examples of non-deductible items are routine annual physical examinations, optician services (unrelated to a disabling visual impairment) and dental examinations. (6) Payments for similar items and services General. (ii) Medical supplies and services not described above. (iii) Payments for transportation costs. (A) Your impairment(s) requires that in order to get to work you need a vehicle that has structural or operational modifications. The modifications must be critical to your operation or use of the vehicle and directly related to your impairment(s). We will deduct the costs of the modifications, but not the cost of the vehicle. We will also deduct a mileage allowance for the trip to and from work. The allowance will be based on data compiled by the Federal Highway Administration relating to vehicle operating costs. (B) Your impairment(s) requires you to use driver assistance, taxicabs or other hired vehicles in order to work. We will deduct amounts paid to the driver and, if your own vehicle is used, we will also deduct a mileage allowance, as provided in paragraph (c)(6)(iii)(A) of this section, for the trip to and from work. (C) Your impairment(s) prevents your taking available public transportation to and from work and you must drive your (unmodified) vehicle to work. If we can verify through your physician or other sources that the need to drive is caused by your impairment(s) (and not due to the unavailability of public transportation), we will deduct a mileage allowance, as provided in paragraph (c)(6)(iii)(A) of this section, for the trip to and from work. (7) Payments for installing, maintaining, and repairing deductible items. (d) When expenses may be deducted Effective date. (2) Payments for services. (3) Payments for items. (e) How expenses are allocated Recurring expenses. Example: B starts work in October 1981 at which time she purchases a medical device at a cost of $4,800 plus interest charges of $720. Her monthly payments begin in October. She earns and receives $400 a month. The term of the installment contract is 48 months. No downpayment is made. The monthly allowable deduction for the item would be $115 ($5520 divided by 48) for each month of work during the 48 months. (2) Nonrecurring expenses. Example: A begins working in October 1981 and earns $525 a month. In the same month he purchases and pays for a deductible item at a cost of $250. In this situation we could allow a $250 deduction for October 1981, reducing A's earnings below the SGA level for that month. If A's earnings had been $15 above the SGA earnings amount, A probably would select the option of projecting the $250 payment over the 12-month period, October 1981-September 1982, giving A an allowable deduction of $20.83 a month for each month of work during that period. This deduction would reduce A's earnings below the SGA level for 12 months. (3) Allocating downpayments. Example 1. C starts working in October 1981, at which time he purchases special equipment at a cost of $4,800, paying $1,200 down. The balance of $3,600, plus interest of $540, is to be repaid in 36 installments of $115 a month beginning November 1981. C earns $500 a month. He chooses to have the downpayment allocated. In this situation we would allow a deduction of $205.42 a month for each month of work during the period October 1981 through September 1982. After September 1982, the deduction amount would be the regular monthly payment of $115 for each month of work during the remaining installment period. Explanation: Downpayment in 10/81 $1,200 Monthly payments 11/81 through 09/82 1,265 12) 2,465 = $205.42 Example 2. D, while working, buys a deductible item in July 1981, paying $1,450 down. However, his first monthly payment of $125 is not due until September 1981. D chooses to have the downpayment allocated. In this situation we would allow a deduction of $225 a month for each month of work during the period July 1981 through June 1982. After June 1982, the deduction amount would be the regular monthly payment of $125 for each month of work. Explanation: Downpayment in 07/81 $1,450 Monthly payments 09/81 through 06/82 1,250 12) 2,700 = $225 (4) Payments made in anticipation of work. (f) Limits on deductions. (2) Impairment-related work expenses are not deducted in computing your earnings for purposes of determining whether your work was “services” as described in § 404.1592(b). (3) The decision as to whether you performed substantial gainful activity in a case involving impairment-related work expenses for items or services necessary for you to work generally will be based upon your “earnings” and not on the value of “services” you rendered. (See §§ 404.1574(b)(6) (i) and (ii), and 404.1575(a)). This is not necessarily so, however, if you are in a position to control or manipulate your earnings. (4) The amount of the expenses to be deducted must be determined in a uniform manner in both the disability insurance and SSI programs. (5) No deduction will be allowed to the extent that any other source has paid or will pay for an item or service. No deduction will be allowed to the extent that you have been, could be, or will be, reimbursed for payments you made. (See paragraph (b)(3) of this section.) (6) The provisions described in the foregoing paragraphs of this section are effective with respect to expenses incurred on and after December 1, 1980, although expenses incurred after November 1980 as a result of contractual or other arrangements entered into before December 1980, are deductible. For months before December 1980 we will deduct impairment-related work expenses from your earnings only to the extent they exceeded the normal work-related expenses you would have had if you did not have your impairment(s). We will not deduct expenses, however, for those things which you needed even when you were not working. (g) Verification. [48 FR 21936, May 16, 1983] Widows, Widowers, and Surviving Divorced Spouses § 404.1577 Disability defined for widows, widowers, and surviving divorced spouses for monthly benefits payable for months prior to January 1991. For monthly benefits payable for months prior to January 1991, the law provides that to be entitled to a widow's or widower's benefit as a disabled widow, widower, or surviving divorced spouse, you must have a medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months. The impairment(s) must have been of a level of severity to prevent a person from doing any gainful activity. To determine whether you were disabled, we consider only your physical or mental impairment(s). We do not consider your age, education, and work experience. We also do not consider certain felony-related and prison-related impairments, as explained in § 404.1506. (For monthly benefits payable for months after December 1990, see § 404.1505(a).) [57 FR 30120, July 8, 1992] § 404.1578 How we determine disability for widows, widowers, and surviving divorced spouses for monthly benefits payable for months prior to January 1991. (a) For monthly benefits payable for months prior to January 1991, we will find that you were disabled and pay you widow's or widower's benefits as a widow, widower, or surviving divorced spouse if— (1) Your impairment(s) had specific clinical findings that were the same as those for any impairment in the Listing of Impairments in appendix 1 of this subpart or were medically equivalent to those for any impairment shown there; (2) Your impairment(s) met the duration requirement. (b) However, even if you met the requirements in paragraphs (a) (1) and (2) of this section, we will not find you disabled if you were doing substantial gainful activity. [57 FR 30121, July 8, 1992] § 404.1579 How we will determine whether your disability continues or ends. (a) General. (2) If you are entitled to disability benefits as a disabled widow, widower, or surviving divorced spouse, and we must decide whether your disability continued or ended for monthly benefits for months prior to January 1991, there are a number of factors we consider in deciding whether your disability continued. We must determine if there has been any medical improvement in your impairment(s) and, if so, whether this medical improvement is related to your ability to work. If your impairment(s) has not so medically improved, we must address whether one or more exceptions applies. If medical improvement related to your ability to work has not occurred and no exception applies, your benefits will continue. Even where medical improvement related to your ability to work has occurred or an exception applies, in most cases (see paragraph (e) of this section for exceptions) before we can find that you are no longer disabled, we must also show that your impairment(s), as shown by current medical evidence, is no longer deemed, under appendix 1 of this subpart, sufficient to preclude you from engaging in gainful activity. (b) Terms and definitions. (1) Medical improvement. Example 1: You were awarded disability benefits due to a herniated nucleus pulposus which was determined to equal the level of severity contemplated by Listing 1.05.C. At the time of our prior favorable decision, you had had a laminectomy. Postoperatively, a myelogram still showed evidence of a persistent deficit in your lumbar spine. You had pain in your back, and pain and a burning sensation in your right foot and leg. There were no muscle weakness or neurological changes and a modest decrease in motion in your back and leg. When we reviewed your claim your treating physician reported that he had seen you regularly every 2 to 3 months for the past 2 years. No further myelograms had been done, complaints of pain in the back and right leg continued especially on sitting or standing for more than a short period of time. Your doctor further reported a moderately decreased range of motion in your back and right leg, but again no muscle atrophy or neurological changes were reported. Medical improvement has not Example 2: You were awarded disability benefits due to rheumatoid arthritis of a severity as described in Listing 1.02 of appendix 1 of this subpart. At the time, laboratory findings were positive for this condition. Your doctor reported persistent swelling and tenderness of your fingers and wrists and that you complained of joint pain. Current medical evidence shows that while laboratory tests are still positive for rheumatoid arthritis, your impairment has responded favorably to therapy so that for the last year your fingers and wrists have not been significantly swollen or painful. Medical improvement has occurred because there has been a decrease in the severity of your impairment as documented by the current symptoms and signs reported by your physician. Although your impairment is subject to temporary remissions and exacerbations the improvement that has occurred has been sustained long enough to permit a finding of medical improvement. We would then determine if this medical improvement is related to your ability to work. (2) Determining whether medical improvement is related to your ability to work. (3) Determining whether your impairment(s) is deemed, under appendix 1 of this subpart, sufficient to preclude you from engaging in gainful activity. (4) Evidence and basis for our decision. (5) Point of comparison. (c) Determining medical improvement and its relationship to your ability to do work. (1) Medical improvement. (2) Determining whether medical improvement is related to ability to work. (3) Prior file cannot be located. (4) Impairment(s) subject to temporary remission. (5) Applicable listing has been revised since the most recent favorable medical decision. (d) First group of exceptions to medical improvement. (1) Substantial evidence shows that you are the beneficiary of advances in medical therapy or technology (related to your ability to work). (2) Substantial evidence shows that based on new or improved diagnostic or evaluative techniques your impairment(s) is not as disabling as it was considered to be at the time of the most recent favorable decision. (i) How we will determine which methods are new or improved techniques and when they become generally available. (ii) How you will know which methods are new or improved techniques and when they become generally available. (A) Some of the future changes in the Listing of Impairments in appendix 1 of this subpart will be based on new or improved diagnostic or evaluative techniques. Such listing changes will clearly state this fact as they are published as Notices of Proposed Rulemaking and the new or improved technique will be considered generally available as of the date of the final publication of that particular listing in the Federal Register. (B) A cumulative list since 1970 of new or improved diagnostic techniques or evaluations, how they changed the evaluation of the applicable impairment and the month and year they became generally available, will be published in the Notices Federal Register. Example: The electrocardiographic exercise test has replaced the Master's 2-step test as a measurement of heart function since the time of your last favorable medical decision. Current evidence could show that your condition, which was previously evaluated based on the Master's 2-step test, is not now as disabling as was previously thought. If, taking all your current impairments into account, you are now able to engage in gainful activity, this exception would be used to find that you are no longer disabled even if medical improvement has not occurred. (3) Substantial evidence demonstrates that any prior disability decision was in error. (i) Substantial evidence shows on its face that the decision in question should not have been made (e.g., the evidence in your file such as pulmonary function study values was misread or an adjudicative standard such as a listing in appendix 1 of this subpart was misapplied). Example: You were granted benefits when it was determined that your epilepsy met Listing 11.02. This listing calls for a finding of major motor seizures more frequently than once a month as documented by EEG evidence and by a detailed description of a typical seizure pattern. A history of either diurnal episodes or nocturnal episodes with residuals interfering with daily activities is also required. On review, it is found that a history of the frequency of your seizures showed that they occurred only once or twice a year. The prior decision would be found to be in error, and whether you were still considered to be disabled would be based on whether your current impairment(s) meets or equals the requirements of appendix 1 of this subpart. (ii) At the time of the prior evaluation, required and material evidence of the severity of your impairment(s) was missing. That evidence becomes available upon review, and substantial evidence demonstrates that had such evidence been present at the time of the prior determination, disability would not have been found. (iii) Substantial evidence which is new evidence which relates to the prior determination (of allowance or continuance) refutes the conclusions that were based upon the prior evidence (e.g., a tumor thought to be malignant was later shown to have actually been benign). Substantial evidence must show that had the new evidence (which relates to the prior determination) been considered at the time of the prior decision, the claim would not have been allowed or continued. A substitution of current judgment for that used in the prior favorable decision will not be the basis for applying this exception. Example: You were previously granted disability benefits on the basis of diabetes mellitus which the prior adjudicator believed was equivalent to the level of severity contemplated in the Listing of Impairments. The prior record shows that you had “brittle” diabetes for which you were taking insulin. Your urine was 3 + for sugar, and you alleged occasional hypoglycemic attacks caused by exertion. On review, symptoms, signs and laboratory findings are unchanged. The current adjudicator believes, however, that your impairment does not equal the severity contemplated by the listings. Error cannot (iv) The exception for error will not be applied retroactively under the conditions set out above unless the conditions for reopening the prior decision (see § 404.988) are met. (4) You are currently engaging in substantial gainful activity. (e) Second group of exceptions to medical improvement. (1) A prior determination or decision was fraudulently obtained. (2) You do not cooperate with us. (3) We are unable to find you. (4) You fail to follow prescribed treatment which would be expected to restore your ability to engage in gainful activity. (f) Evaluation steps. continued (1) Are you engaging in substantial gainful activity? If you are (and any applicable trial work period has been completed), we will find disability to have ended. (2) If you are not, has there been medical improvement as defined in paragraph (b)(1) of this section? If there has been medical improvement as shown by a decrease in medical severity, see step (3). If there has been no decrease in medical severity, there has been no medical improvement. (see step (4).) (3) If there has been medical improvement, we must determine (in accordance with paragraph (b)(2) of this section) whether it is related to your ability to work. If medical improvement is not (4) If we found at step (2) that there has been no medical improvement or if we found at step (3) that the medical improvement is not related to your ability to work, we consider whether any of the exceptions in paragraphs (d) and (e) of this section apply. If none of them apply, your disability will be found to continue. If one of the first group of exceptions to medical improvement (see paragraph (d) of this section) applies, we will proceed to step (5). If an exception from the second group of exceptions to medical improvement applies, your disability will be found to have ended. The second group of exceptions to medical improvement may be considered at any point in this process. (5) If medical improvement is related to your ability to work or if one of the first group of exceptions to medical improvement applies, we will determine (considering all your impairments) whether the requirements of appendix 1 of this subpart are met or equaled. If your impairment(s) meets or equals the requirements of appendix 1 of this subpart, your disability will be found to continue. If not, your disability will be found to have ended. (g) The month in which we will find you are no longer disabled. (1) The month the evidence shows you are no longer disabled under the rules set out in this section, and you were disabled only for a specified period of time in the past; (2) The month the evidence shows you are no longer disabled under the rules set out in this section, but not earlier than the month in which we mail you a notice saying that the information we have shows that you are not disabled; (3) The month in which you demonstrated your ability to engage in substantial gainful activity (following completion of a trial work period); however, we may pay you benefits for certain months in and after the reentitlement period which follows the trial work period. (See § 404.1592 for a discussion of the trial work period, § 404.1592a for a discussion of the reentitlement period, and § 404.337 for when your benefits will end.); (4) The month in which you return to full-time work, with no significant medical restrictions and acknowledge that medical improvement has occurred, as long as we expected your impairment(s) to improve (see § 404.1591); (5) The first month in which you failed to do what we asked, without good cause when the rule set out in paragraph (e)(2) of this section applies; (6) The first month in which the question of continuing disability arose and we could not find you, when the rule set out in paragraph (e)(3) of this section applies; (7) The first month in which you failed to follow prescribed treatment without good cause, when the rule set out in paragraph (e)(4) of this section applies; or (8) The first month you were told by your physician that you could return to work provided there is no substantial conflict between your physician's and your statements regarding your awareness of your capacity for work and the earlier date is supported by medical evidence. (h) Before we stop your benefits. [50 FR 50126, Dec. 6, 1985; 51 FR 7063, Feb. 28, 1986; 51 FR 16015, Apr. 30, 1986, as amended at 57 FR 30121, July 8, 1992; 59 FR 1635, Jan. 12, 1994; 82 FR 5871, Jan. 18, 2017] Blindness § 404.1581 Meaning of blindness as defined in the law. We will consider you blind under the law for a period of disability and for payment of disability insurance benefits if we determine that you are statutorily blind. Statutory blindness is defined in the law as central visual acuity of 20/200 or less in the better eye with the use of correcting lens. An eye which has a limitation in the field of vision so that the widest diameter of the visual field subtends an angle no greater than 20 degrees is considered to have a central visual acuity of 20/200 or less. Your blindness must meet the duration requirement in § 404.1509. We do not consider certain felony-related and prison-related impairments, as explained in § 404.1506. [45 FR 55584, Aug. 20, 1980, as amended at 48 FR 5715, Feb. 8, 1983] § 404.1582 A period of disability based on blindness. If we find that you are blind and you meet the insured status requirement, we may establish a period of disability for you regardless of whether you can do substantial gainful activity. A period of disability protects your earnings record under Social Security so that the time you are disabled will not count against you in determining whether you will have worked long enough to qualify for benefits and the amount of your benefits. However, you will not necessarily be entitled to receive disability insurance cash benefits even though you are blind. If you are a blind person under age 55, you must be unable to do any substantial gainful activity in order to be paid disability insurance cash benefits. § 404.1583 How we determine disability for blind persons who are age 55 or older. We will find that you are eligible for disability insurance benefits even though you are still engaging in substantial gainful activity, if— (a) You are blind; (b) You are age 55 or older; and (c) You are unable to use the skills or abilities like the ones you used in any substantial gainful activity which you did regularly and for a substantial period of time. (However, you will not be paid any cash benefits for any month in which you are doing substantial gainful activity.) § 404.1584 Evaluation of work activity of blind people. (a) General. (b) Under Age 55. (c) Age 55 or older. (d) Evaluation of earnings Earnings that will ordinarily show that you have engaged in substantial gainful activity. (2) Substantial gainful activity guidelines for taxable years before 1978. (3) Substantial gainful activity guidelines for taxable years beginning 1978. Table I Over In year(s) $334 1978 $375 1979 $417 1980 $459 1981 $500 1982 $550 1983 $580 1984 $610 1985 $650 1986 $680 1987 $700 1988 $740 1989 $780 1990 $810 1991 $850 1992 $880 1993 $930 1994 $940 1995 $960 1996 $1,000 1997 $1,050 1998 $1,110 1999 $1,170 2000 [45 FR 55584, Aug. 20, 1980, as amended at 48 FR 21939, May 16, 1983; 65 FR 42786, July 11, 2000] § 404.1585 Trial work period for persons age 55 or older who are blind. If you become eligible for disability benefits even though you were doing substantial gainful activity because you are blind and age 55 or older, you are entitled to a trial work period if— (a) You later return to substantial gainful activity that requires skills or abilities comparable to those required in the work you regularly did before you became blind or became 55 years old, whichever is later; or (b) Your last previous work ended because of an impairment and the current work requires a significant vocational adjustment. § 404.1586 Why and when we will stop your cash benefits. (a) When you are not entitled to benefits. (1) The month your vision, based on current medical evidence, does not meet the definition of blindness and your disability does not continue under the rules in § 404.1594 and you were disabled only for a specified period of time in the past; (2) The month your vision, based on current medical evidence, does not meet the definition of blindness and your disability does not continue under the rules in § 404.1594, but not earlier than the month in which we mail you a notice saying that the information we have shows that you are not disabled; (3) If you are under age 55, the month in which you demonstrated your ability to engage in substantial gainful activity (following completion of a trial work period); however, we may pay you benefits for certain months in and after the reentitlement period which follows the trial work period. (See § 404.1592a for a discussion of the reentitlement period, and § 404.316 on when your benefits will end.); or (4) If you are age 55 or older, the month (following completion of a trial work period) when your work activity shows you are able to use, in substantial gainful activity, skills and abilities comparable to those of some gainful activity which you did with some regularity and over a substantial period of time. The skills and abilities are compared to the activity you did prior to age 55 or prior to becoming blind, whichever is later. (b) If we find that you are not entitled to disability cash benefits. (c) If you do not follow prescribed treatment. (d) If you do not cooperate with us. (e) If we are unable to find you. (f) Before we stop your benefits. (g) If you are in an appropriate program of vocational rehabilitation services, employment services, or other support services. (i) You are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services, as described in § 404.327(a) and (b); (ii) You began participating in the program before the date your disability ended; and (iii) We have determined under § 404.328 that your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls. (2) We generally will stop your benefits with the earliest of these months— (i) The month in which you complete the program; or (ii) The month in which you stop participating in the program for any reason (see § 404.327(b) for what we mean by “participating” in the program); or (iii) The month in which we determine under § 404.328 that your continuing participation in the program will no longer increase the likelihood that you will not have to return to the disability benefit rolls. Exception to paragraph (d): [45 FR 55584, Aug. 20, 1980, as amended at 47 FR 31543, July 21, 1982; 47 FR 52693, Nov. 23, 1982; 49 FR 22272, May 29, 1984; 50 FR 50130, Dec. 6, 1985; 51 FR 17617, May 14, 1986; 59 FR 1635, Jan. 12, 1994; 70 FR 36507, June 24, 2005] § 404.1587 Circumstances under which we may suspend and terminate your benefits before we make a determination. (a) We will suspend your benefits if you are not disabled. (b) We will suspend your benefits if you fail to comply with our request for necessary information. (c) We will terminate your benefits. [71 FR 60822, Oct. 17, 2006] Continuing or Stopping Disability § 404.1588 Your responsibility to tell us of events that may change your disability status. (a) Your responsibility to report changes to us. (1) Your condition improves; (2) You return to work; (3) You have a new employer; (4) You increase the amount of your work; or (5) Your earnings increase. (b) Effect of authorizing us to obtain your information from payroll data providers. (2) We will notify you in writing whenever there is a change in your reporting responsibilities relating to the authorization described in § 404.703. You are always required to submit any changes described in paragraphs (a)(1) through (3) of this section. (3) When your reporting requirements will change— (i) If we have your authorization to obtain wage and employment information from a payroll data provider (see § 404.703), and we receive your wage and employment information from your employer through a participating payroll data provider, you will not have to report an increase in the amount of work for that employer or an increase in earnings from that employer. (ii) If we have your authorization to obtain wage and employment information from a payroll data provider (see § 404.703), but we do not receive your wage and employment information from your employer through a participating payroll data provider, we will not reduce your reporting responsibilities. (iii) If we have your authorization to obtain wage and employment information from a payroll data provider (see § 404.703) and you have more than one employer: (A) You do not need to report an increase in the amount of work or an increase in earnings for an employer if we receive your wage and employment information for that employer through a participating payroll data provider; and (B) You must still report an increase in the amount of work or an increase in earnings for an employer if we do not receive your wage and employment information for that employer through a participating payroll data provider. (4) You may revoke your authorization at any time, but you must do so in writing. We will apply the revocation to all pending or approved disability claims under this title, as well as all pending or approved claims under title XVI, from the time we process your revocation. If you revoke your authorization, all your reporting responsibilities will resume, and you will again be subject to all related penalties. We will notify you in writing of these changes. (c) Our responsibility when you report your work to us. [89 FR 107259, Dec. 31, 2024] § 404.1589 We may conduct a review to find out whether you continue to be disabled. After we find that you are disabled, we must evaluate your impairment(s) from time to time to determine if you are still eligible for disability cash benefits. We call this evaluation a continuing disability review. We may begin a continuing disability review for any number of reasons including your failure to follow the provisions of the Social Security Act or these regulations. When we begin such a review, we will notify you that we are reviewing your eligibility for disability benefits, why we are reviewing your eligibility, that in medical reviews the medical improvement review standard will apply, that our review could result in the termination of your benefits, and that you have the right to submit medical and other evidence for our consideration during the continuing disability review. In doing a medical review, we will develop a complete medical history of at least the preceding 12 months in any case in which a determination is made that you are no longer under a disability. If this review shows that we should stop payment of your benefits, we will notify you in writing and give you an opportunity to appeal. In § 404.1590 we describe those events that may prompt us to review whether you continue to be disabled. [51 FR 16825, May 7, 1986] § 404.1590 When and how often we will conduct a continuing disability review. (a) General. (b) When we will conduct a continuing disability review. (1) You have been scheduled for a medical improvement expected diary review; (2) You have been scheduled for a periodic review (medical improvement possible or medical improvement not expected) in accordance with the provisions of paragraph (d) of this section; (3) We need a current medical or other report to see if your disability continues. (This could happen when, for example, an advance in medical technology, such as improved treatment for Alzheimer's disease or a change in vocational therapy or technology raises a disability issue.); (4) You return to work and successfully complete a period of trial work; (5) Substantial earnings are reported to your wage record; (6) You tell us that— (i) You have recovered from your disability; or (ii) You have returned to work; (7) Your State Vocational Rehabilitation Agency tells us that— (i) The services have been completed; or (ii) You are now working; or (iii) You are able to work; (8) Someone in a position to know of your physical or mental condition tells us any of the following, and it appears that the report could be substantially correct: (i) You are not disabled; or (ii) You are not following prescribed treatment; or (iii) You have returned to work; or (iv) You are failing to follow the provisions of the Social Security Act or these regulations; (9) Evidence we receive raises a question as to whether your disability continues; or (10) You have been scheduled for a vocational reexamination diary review. (c) Definitions. Medical improvement expected diary Permanent impairment (1) Parkinsonian Syndrome which has reached the level of severity necessary to meet the Listing in appendix 1. (2) Amyotrophic Lateral Sclerosis which has reached the level of severity necessary to meet the Listing in appendix 1. (3) Diffuse pulmonary fibrosis in an individual age 55 or over which has reached the level of severity necessary to meet the Listing in appendix 1. (4) Amputation of leg at hip. Nonpermanent impairment Vocational reexamination diary (d) Frequency of review. (e) Change in classification of impairment. (f) Review after administrative appeal. (g) Waiver of timeframes. waiver (h) If you are participating in the Ticket to Work program. (i) If you are working and have received social security disability benefits for at least 24 months General. (i) You are currently entitled to disability insurance benefits as a disabled worker, child's insurance benefits based on disability, or widow's or widower's insurance benefits based on disability; and (ii) You have received such benefits for at least 24 months (see paragraph (i)(2) of this section). (2) The 24-month requirement. (ii) In determining whether paragraph (i)(1) of this section applies, we consider whether you have received disability insurance benefits as a disabled worker, child's insurance benefits based on disability, or widow's or widower's insurance benefits based on disability for at least 24 months as of the date on which we start a continuing disability review. For purposes of this provision, the date on which we start a continuing disability review is the date on the notice we send you that tells you that we are beginning to review your disability case. (3) When we may start a continuing disability review even if you have received social security disability benefits for at least 24 months. (4) Reviews to determine whether the work you have done shows that you are able to do substantial gainful activity. (5) Erroneous start of the continuing disability review. (i) You provide us evidence that establishes that you met the requirements of paragraph (i)(1) of this section as of the date of the start of your continuing disability review and that the start of the review was erroneous; and (ii) We receive the evidence within 12 months of the date of the notice of the initial determination of medical cessation. [51 FR 16825, May 7, 1986, as amended at 71 FR 66856, Nov. 17, 2006] § 404.1591 If your medical recovery was expected and you returned to work. If your impairment was expected to improve and you returned to full-time work with no significant medical limitations and acknowledge that medical improvement has occurred, we may find that your disability ended in the month you returned to work. Unless there is evidence showing that your disability has not ended, we will use the medical and other evidence already in your file and the fact that you returned to full-time work without significant limitations to determine that you are no longer disabled. (If your impairment is not expected to improve, we will not ordinarily review your claim until the end of the trial work period, as described in § 404.1592.) Example: Evidence obtained during the processing of your claim showed that you had an impairment that was expected to improve about 18 months after your disability began. We, therefore, told you that your claim would be reviewed again at that time. However, before the time arrived for your scheduled medical re-examination, you told us that you had returned to work and your impairment had improved. We investigated immediately and found that, in the 16th month after your disability began, you returned to full-time work without any significant medical restrictions. Therefore, we would find that your disability ended in the first month you returned to full-time work. [50 FR 50130, Dec. 6, 1985] § 404.1592 The trial work period. (a) Definition of the trial work period. services (b) What we mean by services. services services (1) If you are an employee. services (i) Before January 1, 2002, (ii) Beginning January 1, 2002, (A) Such amount for the previous year, or (B) An amount adjusted for national wage growth, calculated by multiplying $530 by the ratio of the national average wage index for the year 2 calendar years before the year for which the amount is being calculated to the national average wage index for 1999. We will then round the resulting amount to the next higher multiple of $10 where such amount is a multiple of $5 but not of $10 and to the nearest multiple of $10 in any other case. (2) If you are self-employed. services (i) Before January 1, 2002, (ii) Beginning January 1, 2002, (A) Such amount for the previous year, or (B) An amount adjusted for national wage growth, calculated by multiplying $530 by the ratio of the national average wage index for the year 2 calendar years before the year for which the amount is being calculated to the national average wage index for 1999. We will then round the resulting amount to the next higher multiple of $10 where such amount is a multiple of $5 but not of $10 and to the nearest multiple of $10 in any other case. Table 1—For Employees For months You earn more than In calendar years before 1979 $50 In calendar years 1979-1989 75 In calendar years 1990-2000 200 In calendar year 2001 530 Table 2—For the Self-Employed For months Your net earnings are more than Or you work in the business more than In calendar years before 1979 $50 15 hours. In calendar years 1979-1989 75 15 hours. In calendar years 1990-2000 200 40 hours. In calendar year 2001 530 80 hours. (c) Limitations on the number of trial work periods. (d) Who is and is not entitled to a trial work period. (2) You are not entitled to a trial work period— (i) If you are entitled to a period of disability but not to disability insurance benefits, and you are not entitled to any other type of disability benefit under title II of the Social Security Act ( i.e. (ii) If you perform work demonstrating the ability to engage in substantial gainful activity during any required waiting period for benefits; (iii) If you perform work demonstrating the ability to engage in substantial gainful activity within 12 months of the onset of the impairment(s) that prevented you from performing substantial gainful activity and before the date of any notice of determination or decision finding that you are disabled; or (iv) For any month prior to the month of your application for disability benefits (see paragraph (e) of this section). (e) When the trial work period begins and ends. (1) The 9th month (whether or not the months have been consecutive) in which you have performed services if that 9th month is prior to January 1992; (2) The 9th month (whether or not the months have been consecutive and whether or not the previous 8 months of services were prior to January 1992) in which you have performed services within a period of 60 consecutive months if that 9th month is after December 1991; or (3) The month in which new evidence, other than evidence relating to any work you did during the trial work period, shows that you are not disabled, even though you have not worked a full 9 months. We may find that your disability has ended at any time during the trial work period if the medical or other evidence shows that you are no longer disabled. See § 404.1594 for information on how we decide whether your disability continues or ends. (f) Nonpayment of benefits for trial work period service months. [45 FR 55584, Aug. 20, 1980, as amended at 49 FR 22273, May 29, 1984; 50 FR 50130, Dec. 6, 1985; 54 FR 53605, Dec. 29, 1989; 65 FR 42787, July 11, 2000; 65 FR 82910, Dec. 29, 2000; 71 FR 66866, Nov. 17, 2006] § 404.1592a The reentitlement period. (a) General. disabling impairment, (1) The first time you work after the end of your trial work period and (2)(i) If we determine under paragraph (a)(1) of this section that your disability ceased during the reentitlement period because you perform substantial gainful activity, you will be paid benefits for the first month after the trial work period in which you do substantial gainful activity ( i.e. (ii) If anyone else is receiving monthly benefits based on your earnings record, that individual will not be paid benefits for any month for which you cannot be paid benefits during the reentitlement period. (3) The way we will consider your work activity after your reentitlement period ends (see paragraph (b)(2) of this section) will depend on whether you worked during the reentitlement period and if you did substantial gainful activity. (i) If you worked during the reentitlement period and we decided that your disability ceased during the reentitlement period because of your work under paragraph (a)(1) of this section, we will find that your entitlement to disability benefits terminates in the first month in which you engaged in substantial gainful activity after the end of the reentitlement period (see § 404.325). (See § 404.321 for when entitlement to a period of disability ends.) When we make this determination, we will consider only your work in, or earnings for, that month; we will not apply the provisions of §§ 404.1574(c) and 404.1575(d) regarding unsuccessful work attempts, the provisions of § 404.1574a regarding averaging of earnings, or the special rules in §§ 404.1574(b)(3)(iii) and 404.1575(e) for evaluating the work you do after you have received disability benefits for at least 24 months. (ii) If we did not find that your disability ceased because of work activity during the reentitlement period, we will apply all of the relevant provisions of §§ 404.1571-404.1576 including, but not limited to, the provisions for averaging earnings, unsuccessful work attempts, and deducting impairment-related work expenses, as well as the special rules for evaluating the work you do after you have received disability benefits for at least 24 months, to determine whether your disability ceased because you performed substantial gainful activity after the reentitlement period. If we find that your disability ceased because you performed substantial gainful activity in a month after your reentitlement period ended, you will be paid benefits for the month in which your disability ceased and the two succeeding months. After those three months, your entitlement to a period of disability or to disability benefits terminates (see §§ 404.321 and 404.325). (b) When the reentitlement period begins and ends. (1) The month before the first month in which your impairment no longer exists or is not medically disabling; or (2)(i) The last day of the 15th month following the end of your trial work period if you were not entitled to benefits after December 1987; or (ii) The last day of the 36th month following the end of your trial work period if you were entitled to benefits after December 1987 or if the 15-month period described in paragraph (b)(2)(i) of this section had not ended as of January 1988. (See §§ 404.316, 404.337, and 404.352 for when your benefits end.) (c) When you are not entitled to a reentitlement period. (1) You are entitled to a period of disability, but not to disability insurance cash benefits; (2) You are not entitled to a trial work period; (3) Your entitlement to disability insurance benefits ended before you completed 9 months of trial work in that period of disability. [49 FR 22273, May 29, 1984, as amended at 58 FR 64883, Dec. 10, 1993; 65 FR 42787, July 11, 2000; 71 FR 66856, Nov. 17, 2006] § 404.1592b What is expedited reinstatement? The expedited reinstatement provision provides you another option for regaining entitlement to benefits when we previously terminated your entitlement to disability benefits due to your work activity. The expedited reinstatement provision provides you the option of requesting that your prior entitlement to disability benefits be reinstated, rather than filing a new application for a new period of entitlement. Since January 1, 2001, you can request to be reinstated to benefits if you stop doing substantial gainful activity within 60 months of your prior termination. You must not be able to do substantial gainful activity because of your medical condition. Your current impairment must be the same as or related to your prior impairment and you must be disabled. To determine if you are disabled, we will use our medical improvement review standard that we use in our continuing disability review process. The advantage of using the medical improvement review standard is that we will generally find that you are disabled unless your impairment has improved so that you are able to work or unless an exception under the medical improvement review standard process applies. We explain the rules for expedited reinstatement in §§ 404.1592c through 404.1592f. [70 FR 57142, Sept. 30, 2005] § 404.1592c Who is entitled to expedited reinstatement? (a) You can have your entitlement to benefits reinstated under expedited reinstatement if— (1) You were previously entitled to a disability benefit on your own record of earnings as indicated in § 404.315, or as a disabled widow or widower as indicated in § 404.335, or as a disabled child as indicated in § 404.350, or to Medicare entitlement based on disability and Medicare qualified government employment as indicated in 42 CFR 406.15; (2) Your disability entitlement referred to in paragraph (a)(1) of this section was terminated because you did substantial gainful activity; (3) You file your request for reinstatement timely under § 404.1592d; and (4) In the month you file your request for reinstatement— (i) You are not able or become unable to do substantial gainful activity because of your medical condition as determined under paragraph (c) of this section; (ii) Your current impairment is the same as or related to the impairment that we used as the basis for your previous entitlement referred to in paragraph (a)(2) of this section; and (iii) You are disabled, as determined under the medical improvement review standard in §§ 404.1594(a) through (e). (b) You are entitled to reinstatement on the record of an insured person who is or has been reinstated if— (1) You were previously entitled to one of the following benefits on the record of the insured person— (i) A spouse or divorced spouse benefit under §§ 404.330 and 404.331; (ii) A child's benefit under § 404.350; or (iii) A parent's benefit under § 404.370; (2) You were entitled to benefits on the record when we terminated the insured person's entitlement; (3) You meet the requirements for entitlement to the benefit described in the applicable paragraph (b)(1)(i) through (b)(1)(iii) of this section; and (4) You request to be reinstated. (c) We will determine that you are not able to do substantial gainful activity because of your medical condition, under paragraph (a)(4)(i) of this section, when: (1) You certify under § 404.1592d(d)(2) that you are unable to do substantial gainful activity because of your medical condition; (2) You are not able or become unable to do substantial gainful activity in the month you file your request for reinstatement; and (3) We determine that you are disabled under paragraph (a)(4)(iii) of this section. [70 FR 57142, Sept. 30, 2005, as amended at 81 FR 71369, Oct. 17, 2016] § 404.1592d How do I request reinstatement? (a) You must make your request for reinstatement in writing. (b) You must have filed your request on or after January 1, 2001. (c) You must provide the information we request so that we can determine whether you meet the requirements for reinstatement as indicated in § 404.1592c. (d) If you request reinstatement under § 404.1592c(a)— (1) We must receive your request within the consecutive 60-month period that begins with the month in which your entitlement terminated due to doing substantial gainful activity. If we receive your request after the 60-month period we can grant you an extension if we determine you had good cause under the standards explained in § 404.911 for not filing the request timely; and (2) You must certify that you are disabled, that your current impairment(s) is the same as or related to the impairment(s) that we used as the basis for the benefit you are requesting to be reinstated, and that you are unable to do substantial gainful activity because of your medical condition. [70 FR 57142, Sept. 30, 2005] § 404.1592e How do we determine provisional benefits? (a) You may receive up to 6 consecutive months of provisional cash benefits and Medicare during the provisional benefit period, while we determine whether we can reinstate your disability benefit entitlement under § 404.1592c— (1) We will pay you provisional benefits, and reinstate your Medicare if you are not already entitled to Medicare, beginning with the month you file your request for reinstatement under § 404.1592c(a) if you do not perform substantial gainful activity in that month. We will pay you provisional benefits, and reinstate your Medicare if you are not already entitled to Medicare, beginning with the month after you file your request for reinstatement under § 404.1592c(a) if you perform substantial gainful activity in the month in which you file your request for reinstatement. (2) We will pay you a monthly provisional benefit amount equal to the last monthly benefit payable to you during your prior entitlement, increased by any cost of living increases that would have been applicable to the prior benefit amount under § 404.270. The last monthly benefit payable is the amount of the monthly insurance benefit we determined that was actually paid to you for the month before the month in which your entitlement was terminated, after we applied the reduction, deduction and nonpayment provisions in § 404.401 through § 404.480. (3) If you are entitled to another monthly benefit payable under the provisions of title II of the Act for the same month you can be paid a provisional benefit, we will pay you an amount equal to the higher of the benefits payable. (4) If you request reinstatement for more than one benefit entitlement, we will pay you an amount equal to the higher of the provisional benefits payable. (5) If you are eligible for Supplemental Security Income payments, including provisional payments, we will reduce your provisional benefits under § 404.408b if applicable. (6) We will not reduce your provisional benefit, or the payable benefit to other individuals entitled on an earnings record, under § 404.403, when your provisional benefit causes the total benefits payable on the earnings record to exceed the family maximum. (b) You cannot receive provisional cash benefits or Medicare a second time under this section when— (1) You request reinstatement under § 404.1592c(a); (2) You previously received provisional cash benefits or Medicare under this section based upon a prior request for reinstatement filed under § 404.1592c(a); and (3) Your requests under paragraphs (b)(1) and (b)(2) are for the same previous disability entitlement referred to in § 404.1592c(a)(2). (4) Examples: Example 1: Mr. K files a request for reinstatement in April 2004. His disability benefit had previously terminated in January 2003. Since Mr. K meets other factors for possible reinstatement ( i.e. Example 2: Assume the same facts as shown in Example 1 of this section, with the addition of these facts. We approve Mr. K's January 2005 request for reinstatement and start his reinstated benefits beginning January 2005. Mr. K subsequently returns to work and his benefits are again terminated due to engaging in substantial gainful activity in January 2012. Mr. K must again stop work and requests reinstatement in January 2015. Since Mr. K meets other factors for possible reinstatement ( i.e. (c) We will not pay you a provisional benefit for a month when an applicable nonpayment rule applies. Examples of when we will not pay a benefit include, but are not limited to— (1) If you are a prisoner under § 404.468; (2) If you have been removed/deported under § 404.464; or (3) If you are an alien outside the United States under § 404.460. (d) We will not pay you a provisional benefit for any month that is after the earliest of the following months— (1) The month we send you a notice of our determination on your request for reinstatement; (2) The month you do substantial gainful activity; (3) The month before the month you attain full retirement age; or (4) The fifth month following the month you requested expedited reinstatement. (e) You are not entitled to provisional benefits if— (1) Prior to starting your provisional benefits, we determine that you do not meet the requirements for reinstatement under §§ 404.1592c(a); or (2) We determine that your statements on your request for reinstatement, made under § 404.1592d(d)(2), are false. (f) Determinations we make regarding your provisional benefits under paragraphs (a) through (e) of this section are final and are not subject to administrative and judicial review under subpart J of part 404. (g) If you were previously overpaid benefits under title II or title XVI of the Act, we will not recover the overpayment from your provisional benefits unless you give us permission. We can recover Medicare premiums you owe from your provisional benefits. (h) If we determine you are not entitled to reinstated benefits, provisional benefits we have already paid you under this section that were made prior to the termination month under paragraph (d) of this section will not be subject to recovery as an overpayment unless we determine that you knew, or should have known, you did not meet the requirements for reinstatement in § 404.1592c. If we inadvertently pay you provisional benefits when you are not entitled to them because we have already made a determination described in paragraph (e) of this section, they will be subject to recover as an overpayment under subpart F of part 404. [70 FR 57142, Sept. 30, 2005, as amended at 81 FR 71369, Oct. 17, 2016] § 404.1592f How do we determine reinstated benefits? (a) If you meet the requirements for reinstatement under § 404.1592c(a), we will then consider in which month to reinstate your entitlement. We will reinstate your entitlement with the earliest month, in the 12-month period that ends with the month before you filed your request for reinstatement, that you would have met all of the requirements under § 404.1592c(a) if you had filed your request for reinstatement in that month. Otherwise, you will be entitled to reinstated benefits beginning with the month in which you filed your request for such benefits if you did not perform substantial gainful activity in that month. If you performed substantial gainful activity in the month of filing, but are no longer able to perform substantial gainful activity, we will reinstate your benefits with the month after the month you filed your request for reinstatement. We cannot reinstate your entitlement for any month prior to January 2001. (b) When your entitlement is reinstated, you are also entitled to Medicare benefits under the provisions of 42 CFR part 406. (c) We will compute your reinstated benefit amount and determine benefits payable under the applicable paragraphs of §§ 404.201 through 404.480 with certain exceptions— (1) We will reduce your reinstated benefit due in a month by the amount of the provisional benefit we already paid you for that month. If your provisional benefit paid for a month exceeds the reinstated benefit, we will treat the difference as an overpayment under §§ 404.501 through 404.527. (2) If you are reinstated on your own earnings record, we will compute your primary insurance amount with the same date of onset we used in your most recent period of disability on your earnings record. (d) We will not pay you reinstated benefits for any months of substantial gainful activity during your initial reinstatement period. During the initial reinstatement period, the trial work period provisions of § 404.1592 and the reentitlement period provisions of § 404.1592a do not apply. The initial reinstatement period begins with the month your reinstated benefits begin under paragraph (a) of this section and ends when you have had 24 payable months of reinstated benefits. We consider you to have a payable month for the purposes of this paragraph when you do not do substantial gainful activity in that month and when the non-payment provisions in subpart E of part 404 also do not apply. If the amount of the provisional benefit already paid you for a month equals or exceeds the amount of the reinstated benefit payable for that month so that no additional payment is due, we will consider that month a payable month. When we determine if you have done substantial gainful activity in a month during the initial reinstatement period, we will consider only your work in, or earnings for, that month. We will not apply the unsuccessful work attempt provisions of §§ 404.1574(c) and 404.1575(d) or the averaging of earnings provisions in § 404.1574a. (e) After you complete the 24-month initial reinstatement period as indicated in paragraph (d) of this section, your subsequent work will be evaluated under the trial work provisions in § 404.1592 and then the reentitlement period in § 404.1592a. (f) Your entitlement to reinstated benefits ends with the month before the earliest of the following months— (1) The month an applicable terminating event in § 404.301 through 404.389 occurs; (2) The month in which you reach retirement age; (3) The third month following the month in which your disability ceases; or (4) The month in which you die. (g) Determinations we make under §§ 404.1592f are initial determinations under § 404.902 and subject to review under subpart J of part 404. (h) If we determine you are not entitled to reinstated benefits we will consider your request filed under § 404.1592c(a) your intent to claim benefits under § 404.630. [70 FR 57142, Sept. 30, 2005, as amended at 82 FR 7648, Jan. 21, 2017] § 404.1593 Medical evidence in continuing disability review cases. (a) General. (b) Obtaining evidence from your medical sources. (c) When we will purchase a consultative examination. [56 FR 36962, Aug. 1, 1991] § 404.1594 How we will determine whether your disability continues or ends. (a) General. (b) Terms and definitions. (1) Medical improvement. Example 1: You were awarded disability benefits due to a herniated nucleus pulposus. At the time of our prior decision granting you benefits you had had a laminectomy. Postoperatively, a myelogram still shows evidence of a persistent deficit in your lumbar spine. You had pain in your back, and pain and a burning sensation in your right foot and leg. There were no muscle weakness or neurological changes and a modest decrease in motion in your back and leg. When we reviewed your claim, your medical source, who has treated you, reported that he or she had seen you regularly every 2 to 3 months for the past 2 years. No further myelograms had been done, complaints of pain in the back and right leg continued especially on sitting or standing for more than a short period of time. Your doctor further reported a moderately decreased range of motion in your back and right leg, but again no muscle atrophy or neurological changes were reported. Medical improvement has not Example 2: You were awarded disability benefits due to rheumatoid arthritis. At the time, laboratory findings were positive for this condition. Your doctor reported persistent swelling and tenderness of your fingers and wrists and that you complained of joint pain. Current medical evidence shows that while laboratory tests are still positive for rheumatoid arthritis, your impairment has responded favorably to therapy so that for the last year your fingers and wrists have not been significantly swollen or painful. Medical improvement has occurred because there has been a decrease in the severity of your impairment as documented by the current symptoms and signs reported by your physician. Although your impairment is subject to temporary remission and exacerbations, the improvement that has occurred has been sustained long enough to permit a finding of medical improvement. We would then determine if this medical improvement is related to your ability to work. (2) Medical improvement not related to ability to do work. no Example: You are 65 inches tall and weighed 246 pounds at the time your disability was established. You had venous insufficiency and persistent edema in your legs. At the time, your ability to do basic work activities was affected because you were able to sit for 6 hours, but were able to stand or walk only occasionally. At the time of our continuing disability review, you had undergone a vein stripping operation. You now weigh 220 pounds and have intermittent edema. You are still able to sit for 6 hours at a time and to stand or walk only occasionally although you report less discomfort on walking. Medical improvement has occurred because there has been a decrease in the severity of the existing impairment as shown by your weight loss and the improvement in your edema. This medical improvement is not related to your ability to work, however, because your functional capacity to do basic work activities ( i.e. (3) Medical improvement that is related to ability to do work. and Example 1: You have a back impairment and had a laminectomy to relieve the nerve root impingement and weakness in your left leg. At the time of our prior decision, basic work activities were affected because you were able to stand less than 6 hours, and sit no more than 1/2 Example 2: You were injured in an automobile accident receiving a compound fracture to your right femur and a fractured pelvis. When you applied for disability benefits 10 months after the accident your doctor reported that neither fracture had yet achieved solid union based on his clinical examination. X-rays supported this finding. Your doctor estimated that solid union and a subsequent return to full weight bearing would not occur for at least 3 more months. At the time of our review 6 months later, solid union had occurred and you had been returned to full weight-bearing for over a month. Your doctor reported this and the fact that your prior fractures no longer placed any limitation on your ability to walk, stand, lift, etc., and, that in fact, you could return to fulltime work if you so desired. Medical improvement has occurred because there has been a decrease in the severity of your impairments as shown by X-ray and clinical evidence of solid union and your return to full weight-bearing. This medical improvement is related to your ability to work because you no longer meet the same listed impairment in appendix 1 of this subpart (see paragraph (c)(3)(i) of this section). In fact, you no longer have an impairment which is severe (see § 404.1521) and your disability will be found to have ended. (4) Functional capacity to do basic work activities. (i) A decrease in the severity of an impairment as measured by changes (improvement) in symptoms, signs or laboratory findings can, if great enough, result in an increase in the functional capacity to do work activities. Vascular surgery (e.g., femoropopliteal bypass) may sometimes reduce the severity of the circulatory complications of diabetes so that better circulation results and the person can stand or walk for longer periods. When new evidence showing a change in signs, symptoms and laboratory findings establishes that both medical improvement has occurred and your functional capacity to perform basic work activities, or residual functional capacity, has increased, we say that medical improvement which is related to your ability to do work has occurred. A residual functional capacity assessment is also used to determine whether you can engage in substantial gainful activity and, thus, whether you continue to be disabled (see paragraph (b)(5) of this section). (ii) Many impairment-related factors must be considered in assessing your functional capacity for basic work activities. Age is one key factor. Medical literature shows that there is a gradual decrease in organ function with age; that major losses and deficits become irreversible over time and that maximum exercise performance diminishes with age. Other changes related to sustained periods of inactivity and the aging process include muscle atrophy, degenerative joint changes, decrease in range of motion, and changes in the cardiac and respiratory systems which limit the exertional range. (iii) Studies have also shown that the longer an individual is away from the workplace and is inactive, the more difficult it becomes to return to ongoing gainful employment. In addition, a gradual change occurs in most jobs so that after about 15 years, it is no longer realistic to expect that skills and abilities acquired in these jobs will continue to apply to the current workplace. Thus, if you are age 50 or over and have been receiving disability benefits for a considerable period of time, we will consider this factor along with your age in assessing your residual functional capacity. This will ensure that the disadvantages resulting from inactivity and the aging process during a long period of disability will be considered. In some instances where available evidence does not resolve what you can or cannot do on a sustained basis, we will provide special work evaluations or other appropriate testing. (5) Ability to engage in substantial gainful activity. (6) Evidence and basis for our decision. evidence (7) Point of comparison. i.e. (c) Determining medical improvement and its relationship to your abilities to do work. (1) Medical improvement. (2) Determining if medical improvement is related to ability to work. (3) Following are some additional factors and considerations which we will apply in making these determinations. (i) Previous impairment met or equaled listings. (ii) Prior residual functional capacity assessment made. (iii) Prior residual functional capacity assessment should have been made, but was not. i.e. Example: You were previously found to be disabled on the basis that “while your impairment did not meet or equal a listing, it did prevent you from doing your past or any other work.” The prior adjudicator did not, however, include a residual functional capacity assessment in the rationale of this decision and a review of the prior evidence does not show that such an assessment was ever made. If a decrease in medical severity, i.e. (iv) Impairment subject to temporary remission. (v) Prior file cannot be located. (d) First group of exceptions to medical improvement. (1) Substantial evidence shows that you are the beneficiary of advances in medical or vocational therapy or technology (related to your ability to work). (2) Substantial evidence shows that you have undergone vocational therapy (related to your ability to work). Example 1: You were found to be disabled because the limitations imposed on you by your impairment allowed you to only do work that was at a sedentary level of exertion. Your prior work experience was work that required a medium level of exertion. Your age and education at the time would not have qualified you for work that was below this medium level of exertion. You enrolled in and completed a specialized training course which qualifies you for a job in data processing as a computer programmer in the period since you were awarded benefits. On review of your claim, current evidence shows that there is no medical improvement and that you can still do only sedentary work. As the work of a computer programmer is sedentary in nature, you are now able to engage in substantial gainful activity when your new skills are considered. Example 2: You were previously entitled to benefits because the medical evidence and assessment of your residual functional capacity showed you could only do light work. Your prior work was considered to be heavy in nature and your age, education and the nature of your prior work qualified you for work which was no less than medium in exertion. The current evidence and residual functional capacity show there has been no medical improvement and that you can still do only light work. Since you were originally entitled to benefits, your vocational rehabilitation agency enrolled you in and you successfully completed a trade school course so that you are now qualified to do small appliance repair. This work is light in nature, so when your new skills are considered, you are now able to engage in substantial gainful activity even though there has been no change in your residual functional capacity. (3) Substantial evidence shows that based on new or improved diagnostic or evaluative techniques your impairment(s) is not as disabling as it was considered to be at the time of the most recent favorable decision. (i) How we will determine which methods are new or improved techniques and when they become generally available. (ii) How you will know which methods are new or improved techniques and when they become generally available. (A) Some of the future changes in the Listing of Impairments in appendix 1 of this subpart will be based on new or improved diagnostic or evaluative techniques. Such listings changes will clearly state this fact as they are published as Notices of Proposed Rulemaking and the new or improved technique will be considered generally available as of the date of the final publication of that particular listing in the Federal Register. (B) A cumulative list since 1970 of new or improved diagnostic techniques or evaluations, how they changed the evaluation of the applicable impairment and the month and year they became generally available, will be published in the Notices Federal Register. Example: The electrocardiographic exercise test has replaced the Master's 2-step test as a measurement of heart function since the time of your last favorable medical decision. Current evidence could show that your condition, which was previously evaluated based on the Master's 2-step test, is not now as disabling as was previously thought. If, taking all your current impairments into account, you are now able to engage in substantial gainful activity, this exception would be used to find that you are no longer disabled even if medical improvement has not occurred. (4) Substantial evidence demonstrates that any prior disability decision was in error. (i) Substantial evidence shows on its face that the decision in question should not have been made (e.g., the evidence in your file such as pulmonary function study values was misread or an adjudicative standard such as a listing in appendix 1 or a medical/vocational rule in appendix 2 of this subpart was misapplied). Example 1: You were granted benefits when it was determined that your epilepsy met Listing 11.02. This listing calls for a finding of major motor seizures more frequently than once a month as documented by EEG evidence and by a detailed description of a typical seizure pattern. A history of either diurnal episodes or nocturnal episodes with residuals interfering with daily activities is also required. On review, it is found that a history of the frequency of your seizures showed that they occurred only once or twice a year. The prior decision would be found to be in error, and whether you were still considered to be disabled would be based on whether you could currently engage in substantial gainful activity. Example 2: Your prior award of benefits was based on vocational rule 201.12 in appendix 2 of this subpart. This rule applies to a person age 50-54 who has at least a high school education, whose previous work was entirely at a semiskilled level, and who can do only sedentary work. On review, it is found that at the time of the prior determination you were actually only age 46 and vocational rule 201.21 should have been used. This rule would have called for a denial of your claim and the prior decision is found to have been in error. Continuation of your disability would depend on a finding of your current ability to engage in substantial gainful activity. (ii) At the time of the prior evaluation, required and material evidence of the severity of your impairment(s) was missing. That evidence becomes available upon review, and substantial evidence demonstrates that had such evidence been present at the time of the prior determination, disability would not have been found. Example: You were found disabled on the basis of chronic obstructive pulmonary disease. The severity of your impairment was documented primarily by pulmonary function testing results. The evidence showed that you could do only light work. Spirometric tracings of this testing, although required, were not obtained, however. On review, the original report is resubmitted by the consultative examining physician along with the corresponding spirometric tracings. A review of the tracings shows that the test was invalid. Current pulmonary function testing supported by spirometric tracings reveals that your impairment does not limit your ability to perform basic work activities in any way. Error is found based on the fact that required, material evidence which was originally missing now becomes available and shows that if it had been available at the time of the prior determination, disability would not have been found. (iii) Substantial evidence which is new evidence which relates to the prior determination (of allowance or continuance) refutes the conclusions that were based upon the prior evidence (e.g., a tumor thought to be malignant was later shown to have actually been benign). Substantial evidence must show that had the new evidence (which relates to the prior determination) been considered at the time of the prior decision, the claim would not have been allowed or continued. A substitution of current judgment for that used in the prior favorable decision will not be the basis for applying this exception. Example: You were previously found entitled to benefits on the basis of diabetes mellitus which the prior adjudicator believed was equivalent to the level of severity contemplated in the Listing of Impairments. The prior record shows that you had “brittle” diabetes for which you were taking insulin. Your urine was 3 + for sugar, and you alleged occasional hypoglycemic attacks caused by exertion. On review, symptoms, signs and laboratory findings are unchanged. The current adjudicator feels, however, that your impairment clearly does not equal the severity contemplated by the listings. Error cannot (iv) The exception for error will not be applied retroactively under the conditions set out above unless the conditions for reopening the prior decision (see § 404.988) are met. (5) You are currently engaging in substantial gainful activity. (e) Second group of exceptions to medical improvement. (1) A prior determination or decision was fraudulently obtained. (2) You do not cooperate with us. (3) We are unable to find you. (4) You fail to follow prescribed treatment which would be expected to restore your ability to engage in substantial gainful activity. (f) Evaluation steps. continued (1) Are you engaging in substantial gainful activity? If you are (and any applicable trial work period has been completed), we will find disability to have ended (see paragraph (d)(5) of this section). (2) If you are not, do you have an impairment or combination of impairments which meets or equals the severity of an impairment listed in appendix 1 of this subpart? If you do, your disability will be found to continue. (3) If you do not, has there been medical improvement as defined in paragraph (b)(1) of this section? If there has been medical improvement as shown by a decrease in medical severity, see step (4). If there has been no decrease in medical severity, there has been no medical improvement. (See step (5).) (4) If there has been medical improvement, we must determine whether it is related to your ability to do work in accordance with paragraphs (b) (1) through (4) of this section; i.e. not is (5) If we found at step (3) that there has been no medical improvement or if we found at step (4) that the medical improvement is not related to your ability to work, we consider whether any of the exceptions in paragraphs (d) and (e) of this section apply. If none of them apply, your disability will be found to continue. If one of the first group of exceptions to medical improvement applies, see step (6). If an exception from the second group of exceptions to medical improvement applies, your disability will be found to have ended. The second group of exceptions to medical improvement may be considered at any point in this process. (6) If medical improvement is shown to be related to your ability to do work or if one of the first group of exceptions to medical improvement applies, we will determine whether all your current impairments in combination are severe (see § 404.1521). This determination will consider all your current impairments and the impact of the combination of those impairments on your ability to function. If the residual functional capacity assessment in step (4) above shows significant limitation of your ability to do basic work activities, see step (7). When the evidence shows that all your current impairments in combination do not significantly limit your physical or mental abilities to do basic work activities, these impairments will not be considered severe in nature. If so, you will no longer be considered to be disabled. (7) If your impairment(s) is severe, we will assess your current ability to do substantial gainful activity in accordance with § 404.1560. That is, we will assess your residual functional capacity based on all your current impairments and consider whether you can still do work you have done in the past. If you can do such work, disability will be found to have ended. (8) If you are not able to do work you have done in the past, we will consider whether you can do other work given the residual functional capacity assessment made under paragraph (f)(7) of this section and your age, education, and past work experience ( see (9) We may proceed to the final step, described in paragraph (f)(8) of this section, if the evidence in your file about your past relevant work is not sufficient for us to make a finding under paragraph (f)(7) of this section about whether you can perform your past relevant work. If we find that you can adjust to other work based solely on your age, education, and residual functional capacity, we will find that you are no longer disabled, and we will not make a finding about whether you can do your past relevant work under paragraph (f)(7) of this section. If we find that you may be unable to adjust to other work or if § 404.1562 may apply, we will assess your claim under paragraph (f)(7) of this section and make a finding about whether you can perform your past relevant work. (g) The month in which we will find you are no longer disabled. (1) The month the evidence shows you are no longer disabled under the rules set out in this section, and you were disabled only for a specified period of time in the past; (2) The month the evidence shows you are no longer disabled under the rules set out in this section, but not earlier than the month in which we mail you a notice saying that the information we have shows that you are not disabled; (3) The month in which you demonstrated your ability to engage in substantial gainful activity (following completion of a trial work period); however, we may pay you benefits for certain months in and after the reentitlement period which follows the trial work period. (See § 404.1592a for a discussion of the reentitlement period. If you are receiving benefits on your own earnings record, see § 404.316 for when your benefits will end. See § 404.352 if you are receiving benefits on a parent's earnings as a disabled adult child.); (4) The month in which you actually do substantial gainful activity (where you are not entitled to a trial work period); (5) The month in which you return to full-time work, with no significant medical restrictions and acknowledge that medical improvement has occurred, and we expected your impairment(s) to improve (see § 404.1591); (6) The first month in which you failed without good cause to do what we asked, when the rule set out in paragraph (e)(2) of this section applies; (7) The first month in which the question of continuing disability arose and we could not find you, when the rule set out in paragraph (e)(3) of this section applies; (8) The first month in which you failed without good cause to follow prescribed treatment, when the rule set out in paragraph (e)(4) of this section applies; or (9) The first month you were told by your physician that you could return to work, provided there is no substantial conflict between your physician's and your statements regarding your awareness of your capacity for work and the earlier date is supported by substantial evidence. (h) Before we stop your benefits. (i) If you work during your current period of entitlement based on disability or during certain other periods. (2) If you are currently entitled to disability insurance benefits as a disabled worker, child's insurance benefits based on disability, or widow's or widower's insurance benefits based on disability under title II of the Social Security Act, and at the time we are making a determination on your case you have received such benefits for at least 24 months, we will not consider the activities you perform in the work you are doing or have done during your current period of entitlement based on disability if they support a finding that your disability has ended. (We will use the rules in § 404.1590(i)(2) to determine whether the 24-month requirement is met.) However, we will consider the activities you do in that work if they support a finding that your disability continues or they do not conflict with a finding that your disability continues. We will not presume that you are still disabled if you stop working. (3) If you are not a person described in paragraph (i)(2) of this section, we will consider the activities you perform in your work at any of the evaluation steps in paragraph (f) of this section at which we need to assess your ability to function. [50 FR 50130, Dec. 6, 1985; 51 FR 7063, Feb. 28, 1986; 51 FR 16015, Apr. 30, 1986, as amended at 52 FR 44971, Nov. 24, 1987; 57 FR 30121, July 8, 1992; 59 FR 1635, Jan. 12, 1994; 65 FR 42788, July 11, 2000; 68 FR 51163, Aug. 26, 2003; 71 FR 66857, Nov. 17, 2006; 77 FR 43495, July 25, 2012; 82 FR 5871, Jan. 18, 2017] § 404.1595 When we determine that you are not now disabled. (a) When we will give you advance notice. (b) What the advance notice will tell you. (1) Medical reasons. (2) Your work activity. (3) Your failure to give us information we need or do what we ask. (c) What you should do if you receive an advance notice. (d) When we will not give you advance notice. (1) We recently told you that the information we have shows that you are not now disabled, that we were gathering more information, and that your benefits will stop; or (2) We are stopping your benefits because you told us you are not now disabled; or (3) We recently told you that continuing your benefits would probably cause us to overpay you and you asked us to stop your benefits. § 404.1596 Circumstances under which we may suspend and terminate your benefits before we make a determination. (a) General. (b) When we will suspend your benefits You are not now disabled. (i) New medical or other information clearly shows that you are able to do substantial gainful activity and your benefits should have stopped more than 2 months ago; (ii) You completed a 9-month period of trial work more than 2 months ago and you are still working; (iii) At the time you filed for benefits your condition was expected to improve and you were expected to be able to return to work. You subsequently did return to work more than 2 months ago with no significant medical restrictions; or (iv) You are not entitled to a trial work period and you are working. (2) Other reasons. (i) You have failed to respond to our request for additional medical or other evidence and we are satisfied that you received our request and our records show that you should be able to respond; or (ii) We are unable to locate you and your checks have been returned by the Post Office as undeliverable. (c) When we will not suspend your cash benefits. (1) You have become disabled by another impairment; or (2) Even though your impairment is no longer disabling, (i) You are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services, as described in § 404.327(a) and (b); (ii) You began participating in the program before the date your disability ended; and (iii) We have determined under § 404.328 that your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls. (d) When the suspension is effective. (e) When we will terminate your benefits. [45 FR 55584, Aug. 20, 1980, as amended at 47 FR 31543, July 21, 1982; 47 FR 52693, Nov. 23, 1982; 51 FR 17617, May 14, 1986; 68 FR 40123, July 7, 2003; 70 FR 36507, June 24, 2005; 71 FR 60822, Oct. 17, 2006] § 404.1597 After we make a determination that you are not now disabled. (a) General. (b) If we make a determination that your physical or mental impairment(s) has ceased, did not exist, or is no longer disabling (Medical Cessation Determination). benefits [47 FR 31544, July 21, 1982, as amended at 51 FR 17618, May 14, 1986; 53 FR 29020, Aug. 2, 1988; 53 FR 39015, Oct. 4, 1988; 70 FR 36507, June 24, 2005] § 404.1597a Continued benefits pending appeal of a medical cessation determination. (a) General. continued benefits (b) When the provisions of this section are available. (2) Benefits may be continued under this section only for months beginning with January 1983, or the first month for which benefits are no longer otherwise payable following our determination that your physical or mental impairment(s) has ceased, has never existed, or is no longer disabling, whichever is later. (3) Continued payment of benefits under this section will stop effective with the earlier of: (i) The month before the month in which an administrative law judge's hearing decision finds that your physical or mental impairment(s) has ceased, has never existed, or is no longer disabling or the month before the month of a new administrative law judge decision (or final action by the Appeals Council on the administrative law judge's recommended decision) if your case was sent back to an administrative law judge for further action; or (ii) The month before the month no timely request for a reconsideration or a hearing before an administrative law judge is pending. These continued benefits may be stopped or adjusted because of certain events (such as work and earnings or receipt of worker's compensation) which occur while you are receiving these continued benefits and affect your right to receive continued benefits. (c) Continuation of benefits for anyone else pending your appeal. (2) If anyone else is receiving benefits based on your wages and self-employment income, we will notify him or her of the right to choose to have his or her benefits continue pending the outcome of your appeal. Such benefits can be continued for the time period in paragraph (b) of this section only if he or she chooses to have benefits continued and you also choose to have his or her benefits continued. (d) Statement of choice. (e) Your spouse's or children's statement of choice. (f) What you must do to receive continued benefits pending notice of our reconsideration determination. (2) If you fail to request reconsideration and continued benefits within the 10-day period required by paragraph (f)(1) of this section, but later ask that we continue your benefits pending a reconsidered determination, we will use the rules in § 404.911 to determine whether good cause exists for your failing to request benefit continuation within 10 days after receipt of the notice of the initial cessation determination. If you request continued benefits after the 10-day period, we will consider the request to be timely and will pay continued benefits only if good cause for delay is established. (g) What you must do to receive continued benefits pending an administrative law judge's decision. (2) If you request continued benefits pending an administrative law judge's decision but did not request continued benefits while we were reconsidering the initial cessation determination, your benefits will begin effective the month of the reconsideration determination. (3) If you fail to request continued payment of benefits within the 10-day period required by paragraph (g)(1) of this section, but you later ask that we continue your benefits pending an administrative law judge's decision on our reconsidered determination, we will use the rules as provided in § 404.911 to determine whether good cause exists for your failing to request benefit continuation within 10 days after receipt of the reconsideration determination. If you request continued benefits after the 10-day period, we will consider the request to be timely and will pay continued benefits only if good cause for delay is established. (h) What anyone else must do to receive continued benefits pending our reconsideration determination or an administrative law judge's decision. (2) He or she must request continuation of benefits no later than 10 days after the date he or she receives notice of termination of benefits. He or she will then receive continued benefits beginning with the later of January 1983, or the first month for which benefits are no longer otherwise payable following our initial or reconsideration determination that your physical or mental impairment(s) has ceased, has never existed, or is no longer disabling. Continued benefits will continue until the earlier of: (i) The month before the month in which an administrative law judge's hearing decision finds that your physical or mental impairment(s) has ceased, has never existed, or is no longer disabling or the month before the month of the new administrative law judge decision (or final action is taken by the Appeals Council on the administrative law judge's recommended decision) if your case was sent back to an administrative law judge for further action; or (ii) The month before the month no timely request for a reconsideration or a hearing before an administrative law judge is pending. These continued benefits may be stopped or adjusted because of certain events (such as work and earnings or payment of worker's compensation) which occur while an eligible individual is receiving continued benefits and affect his or her right to receive continued benefits. (3) If he or she fails to request continuation of benefits within the 10-day period required by this paragraph, but requests continuation of benefits at a later date, we will use the rules as provided in § 404.911 to determine whether good cause exists for his or her failure to request continuation of benefits within 10 days after receipt of the notice of termination of his or her benefits. His or her late request will be considered to be timely and we will pay him or her continued benefits only if good cause for delay is established. (4) If you choose not to have benefits continued for anyone else who is receiving benefits based on your wages and self-employment income, pending the appeal on our determination, we will not continue benefits to him or her. (i) What you must do when your case is remanded to an administrative law judge. (1) If you (and anyone else receiving benefits based on your wages and self-employment income or because of your disability) previously elected to receive continued benefits pending the administrative law judge's decision, we will automatically start these same continued benefits again. We will send you a notice telling you this, and that you do not have to do anything to have these same benefits continued until the month before the month the new decision of order of dismissal is issued by the administrative law judge or until the month before the month the Appeals Council takes final action on the administrative law judge's recommended decision. These benefits will begin again with the first month of nonpayment based on the prior administrative law judge hearing decision or dismissal order. Our notice explaining reinstatement of continued benefits will also tell you to report to us any changes or events that affect your receipt of benefits. (2) After we automatically reinstate your continued benefits as described in paragraph (h)(1) of this section, we will contact you to determine if any adjustment is required to the amount of continued benefits payable due to events that affect the right to receive benefits involving you, your spouse and/or children. If you have returned to work, we will request additional information about this work activity. If you are working, your continued benefits will not be stopped while your appeal of the medical cessation of disability is still pending unless you have completed a trial work period and are engaging in substantial gainful activity. In this event, we will suspend your continued benefits. If any other changes have occurred which would require a reduction in benefit amounts, or nonpayment of benefits, we will send an advance notice to advise of any adverse change before the adjustment action is taken. The notice will also advise you of the right to explain why these benefits should not be adjusted or stopped. You will also receive a written notice of our determination. The notice will also explain your right to reconsideration if you disagree with this determination. (3) If the final decision on your appeal of your medical cessation is a favorable one, we will send you a written notice in which we will advise you of your right to benefits, if any, before you engaged in substantial gainful activity and to reentitlement should you stop performing substantial gainful activity. If you disagree with our determination, you will have the right to appeal this decision. (4) If the final decision on your appeal of your medical cessation is an unfavorable one (the cessation is affirmed), you will also be sent a written notice advising you of our determination, and your right to appeal if you think we are wrong. (5) If you (or the others receiving benefits based on your wages and self-employment income or because of your disability) did not previously elect to have benefits continued pending an administrative law judge decision, and you now want to elect continued benefits, you must request to do so no later than 10 days after you receive our notice telling you about continued benefits. If you fail to request continued benefits within the 10-day period required by paragraph (f)(1) of this section, but later ask that we continue your benefits pending an administrative law judge remand decision, we will use the rules in § 404.911 to determine whether good cause exists for your failing to request benefit continuation within 10 days after receipt of the notice telling you about benefit continuation. We will consider the request to be timely and will pay continued benefits only if good cause for delay is established. If you make this new election, benefits may begin with the month of the order sending (remanding) your case back to the administrative law judge. Before we begin to pay you continued benefits as described in paragraph (h)(1) of this section we will contact you to determine if any adjustment is required to the amount of continued benefits payable due to events which may affect your right to benefits. If you have returned to work, we will request additional information about this work activity. If you are working, continued benefits may be started and will not be stopped because of your work while your appeal of the medical cessation of your disability is still pending unless you have completed a trial work period and are engaging in substantial gainful activity. If any changes have occurred which establish a basis for not paying continued benefits or a reduction in benefit amount, we will send you a notice explaining the adjustment or the reason why we cannot pay continued benefits. The notice will also explain your right to reconsideration if you disagree with this determination. If the final decision on your appeal of your medical cessation is a favorable one, we will send you a written notice in which we will advise you of your right to benefits, if any, before you engaged in substantial gainful activity and to reentitlement should you stop performing substantial gainful activity. If you disagree with our determination, you will have the right to appeal this decision. If the final decision on your appeal of your medical cessation is an unfavorable one (the cessation is affirmed), you will also be sent a written notice advising you of our determination, and your right to appeal if you think we are wrong. (6) If a court orders that your case be sent back to us (remanded) and your case is sent to an administrative law judge for further action under the rules provided in § 404.983, the administrative law judge's decision or dismissal order on your medical cessation appeal is vacated and is no longer in effect. Continued benefits are payable to you and anyone else receiving benefits based on your wages and self-employment income or because of your disability pending a new decision by the administrative law judge or final action is taken by the Appeals Council on the administrative law judge's recommended decision. In these court-remanded cases reaching the administrative law judge, we will follow the same rules provided in paragraphs (i) (1), (2), (3), (4) and (5) of this section. (j) Responsibility to pay back continued benefits. (2) Anyone else receiving benefits based on your wages and self-employment income (or because of your disability) will be asked to pay back any continued benefits he or she received if the determination that your physical or mental impairment(s) has ceased, has never existed, or is no longer disabling, is not changed by the final decision of the Commissioner. However, he or she will have the right to ask that he or she not be required to pay them back, as described in the overpayment recovery and waiver provisions of subpart F of this part. He or she will not be asked to pay back any Medicare benefits he or she received during the appeal. (3) Waiver of recovery of an overpayment resulting from the continued benefits paid to you or anyone else receiving benefits based on your wages and self-employment income (or because of your disability) may be considered as long as the determination was appealed in good faith. It will be assumed that such appeal is made in good faith and, therefore, any overpaid individual has the right to waiver consideration unless [53 FR 29020, Aug. 2, 1988; 53 FR 39015, Oct. 4, 1988, as amended at 57 FR 1383, Jan. 14, 1992; 59 FR 1635, Jan. 12, 1994; 62 FR 38451, July 18, 1997; 65 FR 16814, Mar. 30, 2000] § 404.1598 If you become disabled by another impairment(s). If a new severe impairment(s) begins in or before the month in which your last impairment(s) ends, we will find that your disability is continuing. The new impairment(s) need not be expected to last 12 months or to result in death, but it must be severe enough to keep you from doing substantial gainful activity, or severe enough so that you are still disabled under § 404.1594. [50 FR 50136, Dec. 6, 1985] § 404.1599 Work incentive experiments and rehabilitation demonstration projects in the disability program. (a) Authority and purpose. (b) Altering benefit requirements, limitations or conditions. (c) Applicability and scope Participants and nonparticipants. (2) Alternative provisions or methods of administration. (i) Reducing your benefits (instead of not paying) on the basis of the amount of your earnings in excess of the SGA amount; (ii) Extending your benefit eligibility period that follows 9 months of trial work, perhaps coupled with benefit reductions related to your earnings; (iii) Extending your Medicare benefits if you are severely impaired and return to work even though you may not be entitled to monthly cash benefits; (iv) Altering the 24-month waiting period for Medicare entitlement; and (v) Stimulating new forms of rehabilitation. (d) Selection of participants. (e) Duration of experiments and demonstration projects. Federal Register [48 FR 7575, Feb. 23, 1983, as amended at 52 FR 37605, Oct. 8, 1987; 55 FR 51687, Dec. 17, 1990; 62 FR 38451, July 18, 1997] Appendix 1 to Subpart P of Part 404—Listing of Impairments Link to an amendment published at 91 FR 40836, July 2, 2026. The body system listings in parts A and B of the Listing of Impairments will no longer be effective on the following dates unless extended by the Commissioner or revised and promulgated again. 1. Low Birth Weight and Failure to Thrive (100.00): August 15, 2031. 2. Musculoskeletal Disorders (1.00 and 101.00): April 4, 2031. 3. Special Senses and Speech (2.00 and 102.00): June 6, 2031. 4. Respiratory Disorders (3.00 and 103.00): December 13, 2030. 5. Cardiovascular System (4.00 and 104.00): February 7, 2031. 6. Digestive Disorders (5.00 and 105.00): October 6, 2028. 7. Genitourinary Disorders (6.00 and 106.00): December 13, 2030. 8. Hematological Disorders (7.00 and 107.00): June 6, 2031. 9. Skin Disorders (8.00 and 108.00): October 6, 2028. 10. Endocrine Disorders (9.00 and 109.00): August 15, 2031. 11. Congenital Disorders That Affect Multiple Body Systems (10.00 and 110.00): June 6, 2031. 12. Neurological Disorders (11.00 and 111.00): September 27, 2030. 13. Mental Disorders (12.00 and 112.00): December 13, 2030. 14. Cancer (Malignant Neoplastic Diseases) (13.00 and 113.00): August 15, 2031. 15. Immune System Disorders (14.00 and 114.00): February 7, 2031. Part A Criteria applicable to individuals age 18 and over and to children under age 18 where criteria are appropriate. Sec. 1.00 Musculoskeletal Disorders 2.00 Special Senses and Speech. 3.00 Respiratory Disorders. 4.00 Cardiovascular System. 5.00 Digestive Disorders 6.00 Genitourinary Disorders. 7.00 Hematological Disorders. 8.00 Skin Disorders. 9.00 Endocrine Disorders. 10.00 Congenital Disorders That Affect Multiple Body Systems 11.00 Neurological Disorders. 12.00 Mental Disorders. 13.00 Cancer (Malignant Neoplastic Diseases). 14.00 Immune System Disorders. 1.00 Musculoskeletal Disorders A. Which musculoskeletal disorders do we evaluate under these listings? 1. We evaluate disorders of the skeletal spine (vertebral column) or of the upper or lower extremities that affect musculoskeletal functioning under these listings. We use the term “skeletal” when we are referring to the structure of the bony skeleton. The skeletal spine neurological spin 2. We evaluate soft tissue injuries (including burns) or abnormalities that are under continuing surgical management (see 1.00O1). The injuries or abnormalities may affect any part of the body, including the face and skull. 3. We evaluate curvatures of the skeletal spine that affect musculoskeletal functioning under 1.15. If a curvature of the skeletal spine is under continuing surgical management (see 1.00O1), we will evaluate it under 1.21 using our rules for determining medical equivalence. See §§ 404.1526 and 416.926 of this chapter. B. Which related disorders do we evaluate under other listings? 1. We evaluate a disorder or injury of the skeletal spine that results in damage to, and neurological dysfunction of, the spinal cord and its associated nerves (for example, paraplegia or quadriplegia) under the listings in 11.00. 2. We evaluate inflammatory arthritis (for example, rheumatoid arthritis) under the listings in 14.00. 3. We evaluate curvatures of the skeletal spine that interfere with your ability to breathe under the listings in 3.00, impair myocardial function under the listings in 4.00, or result in social withdrawal or depression under the listings in 12.00. 4. We evaluate non-healing or pathological fractures due to cancer, whether it is a primary site or metastases, under the listings in 13.00. 5. We evaluate the leg pain associated with peripheral vascular claudication and foot ulceration associated with peripheral arterial disease under the listings in 4.00. 6. We evaluate burns that do not require continuing surgical management under the listings in 8.00. C. What evidence do we need to evaluate your musculoskeletal disorder? 1. General. 2. Physical examination report(s). a. When the medical source reports that a clinical test sign(s) is positive, unless we have evidence to the contrary, we will assume that he or she performed the test properly and accept the medical source's interpretation of the test. For example, we will assume a straight-leg raising test was conducted properly (that is, in sitting and supine positions), even if the medical source does not specify the positions in which the test was performed. b. If you use an assistive device (see 1.00C6), the report must support the medical need for the device. c. If your musculoskeletal disorder causes a reduction in muscle strength, the report must document measurement of the strength of the muscle(s) in question. The measurement should be based on a muscle strength grading system that is considered medically acceptable based on your age and impairments. For example, a grading system of 0 to 5, with 0 indicating complete loss of strength and 5 indicating maximum strength or equivalent medically acceptable scale (see Table 1). Reduction in muscle strength is demonstrated by evidence that your muscle strength is less than active range of motion (ROM) against gravity with maximum resistance. If the reduction in muscle strength involves one or both of your hands, the report must also document measurements of grip and pinch strength. Table 1—Grading System of Muscle Function Grade Function of the muscle 0—None No visible or palpable contraction. 1—Trace Visible or palpable contraction with no motion. 2—Poor Active ROM with gravity eliminated. 3—Fair Active ROM against gravity only, without resistance. 4—Good Active ROM against gravity, moderate resistance. 5—Normal Active ROM against gravity, maximum resistance. 3. Imaging and other diagnostic tests. a. Imaging b. Findings on imaging must have lasted, or be expected to last, for a continuous period of at least 12 months. c. Imaging and other diagnostic tests can provide evidence of physical abnormalities; however, these abnormalities may correlate poorly with your symptoms, including pain, or with your musculoskeletal functioning. Accordingly, we will not use findings on imaging or other diagnostic tests as a substitute for findings on physical examination about your ability to function, nor can we infer severity or functional limitations based solely on such tests. d. For our rules on purchasing imaging and other diagnostic tests, see §§ 404.1519k, 404.1519m, 416.919k, and 416.919m of this chapter. 4. Operative reports. 5. Effects of treatment. a. General. b. Response to treatment. 6. Assistive devices. a. General. b. Prosthesis(es). c. Orthosis(es). d. Hand-held assistive devices. e. Wheeled and seated mobility devices. (i) Wheeled and seated mobility devices involving the use of both hands. (ii) Wheeled and seated devices involving the use of one hand. 7. Longitudinal evidence. a. The term pandemic period post-pandemic evaluation period b. We generally need a longitudinal medical record to assess the severity and duration of your musculoskeletal disorder because the severity of symptoms, signs, and laboratory findings related to most musculoskeletal disorders may improve over time or respond to treatment. Evidence over an extended period will show whether your musculoskeletal functioning is improving, worsening, or unchanging. c. For 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, 1.22, and 1.23, all of the required criteria must be present simultaneously, or within a close proximity of time, to satisfy the level of severity needed to meet the listing. The phrase “within a close proximity of time” means that all of the relevant criteria must appear in the medical record within a consecutive 4-month period, except for claims determined or decided during the pandemic period or post-pandemic evaluation period. For claims determined or decided during the pandemic period or post-pandemic evaluation period, all of the relevant criteria must appear in the medical record within a consecutive 12-month period. When the criterion is imaging, we mean that we could reasonably expect the findings on imaging to have been present at the date of impairment or date of onset. For listings that use the word “and” to link the elements of the required criteria, the medical record must establish the simultaneous presence, or presence within a close proximity of time, of all the required medical criteria. Once this level of severity is established, the medical record must also show that this level of severity has continued, or is expected to continue, for a continuous period of at least 12 months. 8. Surgical treatment and physical therapy. D. How do we consider symptoms, including pain, under these listings? 1. Musculoskeletal disorders may cause pain or other symptoms; however, your statements about your pain or other symptoms will not alone establish that you are disabled. We will not substitute an alleged or a reported increase in the intensity of a symptom, such as pain, no matter how severe, for a medical sign or diagnostic finding present in the listing criteria. Pain is included as just one consideration in 1.15A, 1.16A, and 1.18A, but it is not required to satisfy the criteria in 1.15, 1.16, and 1.18. 2. To consider your symptom(s), we require objective medical evidence from an acceptable medical source showing the existence of a medically determinable musculoskeletal impairment that we could reasonably expect to produce the symptom(s). See §§ 404.1529 and 416.929 of this chapter for how we evaluate symptoms, including pain, related to your musculoskeletal disorder. E. How do we use the functional criteria to evaluate your musculoskeletal disorder under these listings? 1. General. 2. Work environment. 3. Functional criteria. a. A documented medical need (see 1.00C6a) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); b. An inability to use one upper extremity to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 1.00E4), and a documented medical need (see 1.00C6a) for a one-handed, hand-held assistive device (see 1.00C6d) that requires the use of your other upper extremity or a wheeled and seated mobility device involving the use of one hand (see 1.00C6e(ii)); c. An inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 1.00E4). 4. Fine and gross movements. Fine Gross F. What do we consider when we evaluate disorders of the skeletal spine resulting in compromise of a nerve root(s) (1.15)? 1. General. 2. Compromise of a nerve root(s). a. Compromise of unilateral nerve root of the cervical spine. b. Compromise of bilateral nerve roots of the cervical spine. c. Compromise of a nerve root(s) of the lumbar spine. G. What do we consider when we evaluate lumbar spinal stenosis resulting in compromise of the cauda equina (1.16)? 1. General. 2. Compromise of the cauda equina H. What do we consider when we evaluate reconstructive surgery or surgical arthrodesis of a major weight-bearing joint (1.17)? 1. General. 2. Major weight-bearing joints 3. Surgical arthrodesis I. What do we consider when we evaluate abnormality of a major joint(s) in any extremity (1.18)? 1. General. a. An anatomical b. A functional 2. Major joint of an upper extremity 3. Major joint of a lower extremity J. What do we consider when we evaluate pathologic fractures due to any cause (1.19)? K. What do we consider when we evaluate amputation due to any cause (1.20)? 1. General. 2. Amputation of both upper extremities (1.20A). 3. Hemipelvectomy or hip disarticulation (1.20B). 4. Amputation of one upper extremity and one lower extremity (1.20C). 5. Amputation of one lower extremity or both lower extremities with complications of the residual limb(s) (1.20D). L. What do we consider when we evaluate soft tissue injuries or abnormalities under continuing surgical management (1.21)? 1. General. a. We consider any soft tissue injury or abnormality involving the soft tissues of the body, whether congenital or acquired, when an acceptable medical source(s) documents the need for ongoing surgical procedures and associated medical treatments to restore function of the affected body part(s) (see 1.00O1). Surgical management includes the surgery(ies) itself, as well as various post-surgical procedures, surgical complications, infections or other medical complications, related illnesses, or related treatments that delay your attainment of maximum benefit from therapy (see 1.00O2). b. Surgical procedures and associated treatments typically take place over extended periods, which may render you unable to perform work-related activity on a sustained basis. To document such inability, we must have evidence from an acceptable medical source(s) confirming that the surgical management has continued, or is expected to continue, for at least 12 months from the date of the first surgical intervention. These procedures and treatments must be directed toward saving, reconstructing, or replacing the affected part of the body to re-establish or improve its function, and not for cosmetic appearances alone. c. Examples include malformations, third- and fourth-degree burns, crush injuries, craniofacial injuries, avulsive injuries, and amputations with complications of the residual limb(s). d. We evaluate skeletal spine abnormalities or injuries under 1.15 or 1.16, as appropriate. We evaluate abnormalities or injuries of bones in the lower extremities under 1.17, 1.18, or 1.22. We evaluate abnormalities or injuries of bones in the upper extremities under 1.18 or 1.23. 2. Documentation. a. Operative reports and related laboratory findings; b. Records of post-surgical procedures; c. Records of any surgical or medical complications (for example, related infections or systemic illnesses); d. Records of any prolonged post-operative recovery periods and related treatments (for example, surgeries and treatments for burns); e. An acceptable medical source's plans for additional surgeries; and f. Records detailing any other factors that have delayed, or that an acceptable medical source expects to delay, the saving, restoring, or replacing of the involved part for a continuous period of at least 12 months following the initiation of the surgical management. 3. Burns. under continuing surgical management 4. Craniofacial injuries. M. What do we consider when we evaluate non-healing or complex fractures of the femur, tibia, pelvis, or one or more of the talocrural bones (1.22)? 1. Non-healing fracture. 2. Complex fracture. a. Comminuted (broken into many pieces) bone fragments; b. Multiple fractures in a single bone; c. Bone loss due to severe trauma; d. Damage to the surrounding soft tissue; e. Severe cartilage damage to the associated joint; or f. Dislocation of the associated joint. 3. When a complex fracture involves soft tissue damage, the treatment may involve continuing surgical management to restore or improve functioning. In such cases, we may evaluate the fracture(s) under 1.21. N. What do we consider when we evaluate non-healing or complex fracture of an upper extremity (1.23)? 1. Non-healing fracture. 2. Complex fracture. a. Comminuted (broken into many pieces) bone fragments; b. Multiple fractures in a single bone; c. Bone loss due to severe trauma; d. Damage to the surrounding soft tissue; e. Severe cartilage damage to the associated joint; or f. Dislocation of the associated joint. 3. When a complex fracture involves soft tissue damage, the treatment may involve continuing surgical management to restore or improve functioning. In such cases, we may evaluate the fracture(s) under 1.21. O. How will we determine whether your soft tissue injury or abnormality or your upper extremity fracture is no longer under continuing surgical management or you have received maximum benefit from therapy? 1. We will determine that your soft tissue injury or abnormality, or your upper extremity fracture, is no longer under continuing surgical management, 2. We will determine that you have received maximum benefit from therapy, 3. When you have received maximum benefit from therapy, we will evaluate any impairment-related residual symptoms, signs, and laboratory findings (including those on imaging), any complications associated with your surgical procedures or medical treatments, and any residual limitations in your functioning (see 1.00S). P. How do we evaluate your musculoskeletal disorder if there is no record of ongoing treatment? 1. Despite having a musculoskeletal disorder, you may not have received ongoing treatment, may have just begun treatment, may not have access to prescribed medical treatment, or may not have an ongoing relationship with the medical community. In any of these situations, you will not have a longitudinal medical record for us to review when we evaluate your disorder and we may ask you to attend a consultative examination to determine the severity and potential duration of your disorder. See §§ 404.1519a(b) and 416.919a(b) of this chapter. 2. In some instances, we may be able to assess the severity and duration of your musculoskeletal disorder based on your medical record and current evidence alone. If the information in your case record is not sufficient to show that you have a musculoskeletal disorder that meets the criteria of one of the musculoskeletal disorders listings, we will follow the rules described in 1.00S. Q. How do we consider the effects of obesity when we evaluate your musculoskeletal disorder? R. How do we evaluate your musculoskeletal disorder if there is evidence establishing a substance use disorder? S. How do we evaluate musculoskeletal disorders that do not meet one of these listings? 1. These listings are only examples of musculoskeletal disorders that we consider severe enough to prevent you from doing any gainful activity. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that meets the criteria of a listing in another body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. See §§ 404.1526 and 416.926 of this chapter. If your impairment(s) does not meet or medically equal a listing, you may or may not have the residual functional capacity to engage in substantial gainful activity. We proceed to the fourth step and, if necessary, the fifth step of the sequential evaluation process in §§ 404.1520 and 416.920 of this chapter. 3. We use the rules in §§ 404.1594 and 416.994 of this chapter, as appropriate, when we decide whether you continue to be disabled. 1.01 Category of Impairments, Musculoskeletal Disorders 1.15 Disorders of the skeletal spine resulting in compromise of a nerve root(s) and A. Neuro-anatomic (radicular) distribution of one or more of the following symptoms 1. Pain; or 2. Paresthesia; or 3. Muscle fatigue. AND B. Radicular distribution of neurological signs 1. Muscle weakness; and 2. Sign(s) of nerve root irritation, tension, or compression, consistent with compromise of the affected nerve root (see 1.00F2); and 3. Sensory changes evidenced by: a. Decreased sensation; or b. Sensory nerve deficit (abnormal sensory nerve latency) on electrodiagnostic testing; or 4. Decreased deep tendon reflexes. AND C. Findings on imaging (see 1.00C3) consistent with compromise of a nerve root(s) in the cervical or lumbosacral spine. AND D. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months, and medical documentation of at least one 1. A documented medical need (see 1.00C6a) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); or 2. An inability to use one and 3. An inability to use both 1.16 Lumbar spinal stenosis resulting in compromise of the cauda equina and A. Symptom(s) of neurological compromise manifested as: 1. Nonradicular distribution of pain in one or both lower extremities; or 2. Nonradicular distribution of sensory loss in one or both lower extremities; or 3. Neurogenic claudication. AND B. Nonradicular neurological signs present during physical examination (see 1.00C2) or on a diagnostic test (see 1.00C3) and evidenced by 1 and either 2 or 3: 1. Muscle weakness. 2. Sensory changes evidenced by: a. Decreased sensation; or b. Sensory nerve deficit (abnormal sensory nerve latency) on electrodiagnostic testing; or c. Areflexia, trophic ulceration, or bladder or bowel incontinence. 3. Decreased deep tendon reflexes in one or both lower extremities. AND C. Findings on imaging (see 1.00C3) or in an operative report (see 1.00C4) consistent with compromise of the cauda equina with lumbar spinal stenosis. AND D. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months, and medical documentation of at least one 1. A documented medical need (see 1.00C6a) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); or 2. An inability to use one and 1.17 Reconstructive surgery or surgical arthrodesis of a major weight-bearing joint and A. History of reconstructive surgery or surgical arthrodesis of a major weight-bearing joint. AND B. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months. AND C. A documented medical need (see 1.00C6a) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)). 1.18 Abnormality of a major joint(s) in any extremity and A. Chronic joint pain or stiffness. AND B. Abnormal motion, instability, or immobility of the affected joint(s). AND C. Anatomical abnormality of the affected joint(s) noted on: 1. Physical examination (for example, subluxation, contracture, or bony or fibrous ankylosis); or 2. Imaging (for example, joint space narrowing, bony destruction, or ankylosis or arthrodesis of the affected joint). AND D. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months, and medical documentation of at least one 1. A documented medical need (see 1.00C6a) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); or 2. An inability to use one and 3. An inability to use both 1.19 Pathologic fractures due to any cause and A. Pathologic fractures occurring on three separate occasions within a 12-month period. AND B. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months, and medical documentation of at least one 1. A documented medical need (see 1.00C6a) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); or 2. An inability to use one and 3. An inability to use both 1.20 Amputation due to any cause or A. Amputation of both upper extremities, occurring at any level at or above the wrists (carpal joints), up to and including the shoulder (glenohumeral) joint. OR B. Hemipelvectomy or hip disarticulation. OR C. Amputation of one upper extremity, occurring at any level at or above the wrist (carpal joints), and amputation of one lower extremity, occurring at or above the ankle (talocrural joint), and one 1. A documented medical need (see 1.00C6a) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); or 2. A documented medical need (see 1.00C6a) for a one-handed, hand-held assistive device (see 1.00C6d) requiring the use of the other upper extremity or a wheeled and seated mobility device involving the use of one hand (see 1.00C6e(ii)); or 3. The inability to use the remaining upper extremity to independently initiate, sustain, and complete work-related activities involving fine and gross movements (1.00E4). OR D. Amputation of one or both lower extremities, occurring at or above the ankle (talocrural joint), with complications of the residual limb(s) that have lasted, or are expected to last, for a continuous period of at least 12 months, and 1. The inability to use a prosthesis(es); and 2. A documented medical need (see 1.00C6a) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)). 1.21 Soft tissue injury or abnormality under continuing surgical management and A. Evidence confirms continuing surgical management (see 1.00O1) directed toward saving, reconstructing, or replacing the affected part of the body. AND B. The surgical management has been, or is expected to be, ongoing for a continuous period of at least 12 months. AND C. Maximum benefit from therapy (see 1.00O2) has not yet been achieved. 1.22 Non-healing or complex fracture of the femur, tibia, pelvis, or one or more of the talocrural bones and A. Solid union not evident on imaging (see 1.00C3) and not clinically solid. AND B. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months. AND C. A documented medical need (see 1.00C6a) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)). 1.23 Non-healing or complex fracture of an upper extremity and A. Nonunion or complex fracture of the shaft of the humerus, radius, or ulna, under continuing surgical management (see 1.00O1) directed toward restoration of functional use of the extremity. AND B. Medical documentation of an inability to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 1.00E4) that has lasted, or is expected to last, for a continuous period of at least 12 months. 2.00 Special Senses and Speech A. How do we evaluate visual disorders? 1. What are visual disorders? 2. How do we define statutory blindness? a. The Act defines blindness as central visual acuity of 20/200 or less in the better eye with the use of a correcting lens. We use your best-corrected central visual acuity for distance in the better eye when we determine if this definition is met. (For visual acuity testing requirements, see 2.00A5.) b. The Act also provides that an eye that has a visual field limitation such that the widest diameter of the visual field subtends an angle no greater than 20 degrees is considered as having a central visual acuity of 20/200 or less. (For visual field testing requirements, see 2.00A6.) c. You have statutory blindness only if your visual disorder meets the criteria of 2.02 or 2.03A. You do not have statutory blindness if your visual disorder medically equals the criteria of 2.02 or 2.03A or meets or medically equals the criteria of 2.03B, 2.03C, 2.04A, or 2.04B because your disability is based on criteria other than those in the statutory definition of blindness. 3. What evidence do we need to establish statutory blindness under title XVI? 4. What evidence do we need to evaluate visual disorders, including those that result in statutory blindness under title II? 5. How do we measure your best-corrected central visual acuity? a. Visual acuity testing. (i) Your best-corrected central visual acuity for distance is usually measured by determining what you can see from 20 feet. If your visual acuity is measured for a distance other than 20 feet, we will convert it to a 20-foot measurement. For example, if your visual acuity is measured at 10 feet and is reported as 10/40, we will convert this measurement to 20/80. (ii) A visual acuity recorded as CF (counts fingers), HM (hand motion only), LP or LPO (light perception or light perception only), or NLP (no light perception) indicates that no optical correction will improve your visual acuity. If your central visual acuity in an eye is recorded as CF, HM, LP or LPO, or NLP, we will determine that your best-corrected central visual acuity is 20/200 or less in that eye. (iii) We will not use the results of pinhole testing or automated refraction acuity to determine your best-corrected central visual acuity. These tests provide an estimate of potential visual acuity but not an actual measurement of your best-corrected central visual acuity. b. Other test charts. c. Testing using a specialized lens. d. Cycloplegic refraction e. Visual evoked response (VER) testing 6. How do we measure your visual fields? a. General. b. Automated static threshold perimetry requirements. (i) The test must use a white size III Goldmann stimulus and a 31.5 apostilb (asb) white background (or a 10 candela per square meter (cd/m 2 (ii) We measure the extent of your visual field loss by determining the portion of the visual field in which you can see a white III4e stimulus. The “III” refers to the standard Goldmann test stimulus size III (4 mm 2 (iii) In automated static threshold perimetry, the intensity of the stimulus varies. The intensity of the stimulus is expressed in decibels (dB). A perimeter's maximum stimulus luminance is usually assigned the value 0 dB. We need to determine the dB level that corresponds to a 4e intensity for the particular perimeter being used. We will then use the dB printout to determine which points you see at a 4e intensity level (a “seeing point”). For example: A. B. C. c. Evaluation under 2.03A. d. Evaluation under 2.03B. e. Other types of perimetry. 2 automated f. Screening tests. g. Use of corrective lenses. h. Scotoma. 7. How do we determine your visual acuity efficiency, visual field efficiency, and visual efficiency? a. General. Visual efficiency, visual acuity efficiency visual field efficiency b. Visual acuity efficiency. Table 1—Visual Acuity Efficiency Snellen best-corrected central visual acuity for distance Visual acuity efficiency (%) English Metric 20/16 6/5 100 20/20 6/6 100 20/25 6/7.5 95 20/30 6/9 90 20/40 6/12 85 20/50 6/15 75 20/60 6/18 70 20/70 6/21 65 20/80 6/24 60 20/100 6/30 50 c. Visual field efficiency. A. B. d. Visual efficiency. 8. How do we determine your visual acuity impairment value, visual field impairment value, and visual impairment value? a. General. Visual impairment value, visual acuity impairment value visual field impairment value. b. Visual acuity impairment value. Table 2—Visual Acuity Impairment Value Snellen best-corrected central visual acuity for distance Visual acuity English Metric 20/16 6/5 0.00 20/20 6/6 0.00 20/25 6/7.5 0.10 20/30 6/9 0.18 20/40 6/12 0.30 20/50 6/15 0.40 20/60 6/18 0.48 20/70 6/21 0.54 20/80 6/24 0.60 20/100 6/30 0.70 c. Visual field impairment value. d. Visual impairment value. 9. What are our requirements for an acceptable perimeter? a. Uses optical projection to generate the test stimuli. b. Has an internal normative database for automatically comparing your performance with that of the general population. c. Has a statistical analysis package that is able to calculate visual field indices, particularly MD. d. Demonstrates the ability to correctly detect visual field loss and correctly identify normal visual fields. e. Demonstrates good test-retest reliability. f. Has undergone clinical validation studies by three or more independent laboratories with results published in peer-reviewed ophthalmic journals. B. How do we evaluate hearing loss? 1. What evidence do we need? a. We need evidence showing that you have a medically determinable impairment that causes your hearing loss and audiometric measurements of the severity of your hearing loss. We generally require both an otologic examination and audiometric testing to establish that you have a medically determinable impairment that causes your hearing loss. You should have this audiometric testing within 2 months of the otologic examination. Once we have evidence that you have a medically determinable impairment, we can use the results of later audiometric testing to assess the severity of your hearing loss without another otologic examination. We will consider your test scores together with any other relevant information we have about your hearing, including information from outside of the test setting. b. The otologic examination must be performed by a licensed physician (medical or osteopathic doctor) or audiologist. It must include your medical history, your description of how your hearing loss affects you, and the physician's or audiologist's description of the appearance of the external ears (pinnae and external ear canals), evaluation of the tympanic membranes, and assessment of any middle ear abnormalities. c. Audiometric testing must be performed by, or under the direct
supervision of, a licensed audiologist or an otolaryngologist. 2. What audiometric testing do we need when you do not have a cochlear implant? a. We generally need pure tone air conduction and bone conduction testing, speech reception threshold (SRT) testing (also referred to as “spondee threshold” or “ST” testing), and word recognition testing (also referred to as “word discrimination” or “speech discrimination” testing). This testing must be conducted in a sound-treated booth or room and must be in accordance with the most recently published standards of the American National Standards Institute (ANSI). Each ear must be tested separately. b. You must not wear hearing aids during the testing. Additionally, a person described in 2.00B1c must perform an otoscopic examination immediately before the audiometric testing. (An otoscopic examination c. To determine whether your hearing loss meets the air and bone conduction criteria in 2.10A, we will average your air and bone conduction hearing thresholds at 500, 1000, and 2000 Hertz (Hz). If you do not have a response at a particular frequency, we will use a threshold of 5 decibels (dB) over the limit of the audiometer. d. The SRT is the minimum dB level required for you to recognize 50 percent of the words on a standard list of spondee words. (Spondee words are two-syllable words that have equal stress on each syllable.) The SRT is usually within 10 dB of the average pure tone air conduction hearing thresholds at 500, 1000, and 2000 Hz. If the SRT is not within 10 dB of the average pure tone air conduction threshold, the reason for the discrepancy must be documented. If we cannot determine that there is a medical basis for the discrepancy, we will not use the results of the testing to determine whether your hearing loss meets a listing. e. Word recognition testing determines your ability to recognize a standardized list of phonetically balanced monosyllabic words in the absence of any visual cues. This testing must be performed in quiet. The list may be recorded or presented live, but in either case the words should be presented at a level of amplification that will measure your maximum ability to discriminate words, usually 35 to 40 dB above your SRT. However, the amplification level used in the testing must be medically appropriate, and you must be able to tolerate it. If you cannot be tested at 35 to 40 dB above your SRT, the person who performs the test should report your word recognition testing score at your highest comfortable level of amplification. 3. What audiometric testing do we need when you have a cochlear implant? a. If you have a cochlear implant, we will consider you to be disabled until 1 year after initial implantation. b. After that period, we need word recognition testing performed with any version of the Hearing in Noise Test (HINT) to determine whether your impairment meets 2.11B. This testing must be conducted in quiet in a sound field. Your implant must be functioning properly and adjusted to your normal settings. The sentences should be presented at 60 dB HL (Hearing Level) and without any visual cues. 4. How do we evaluate your word recognition ability if you are not fluent in English? If you are not fluent in English, you should have word recognition testing using an appropriate word list for the language in which you are most fluent. The person conducting the test should be fluent in the language used for the test. If there is no appropriate word list or no person who is fluent in the language and qualified to perform the test, it may not be possible to measure your word recognition ability. If your word recognition ability cannot be measured, your hearing loss cannot meet 2.10B or 2.11B. Instead, we will consider the facts of your case to determine whether you have difficulty understanding words in the language in which you are most fluent, and if so, whether that degree of difficulty medically equals 2.10B or 2.11B. For example, we will consider how you interact with family members, interpreters, and other persons who speak the language in which you are most fluent. C. How do we evaluate vertigo associated with disturbances of labyrinthine-vestibular function, including Meniere's disease? 1. These disturbances of balance are characterized by an hallucination of motion or loss of position sense and a sensation of dizziness which may be constant or may occur in paroxysmal attacks. Nausea, vomiting, ataxia, and incapacitation are frequently observed, particularly during the acute attack. It is important to differentiate the report of rotary vertigo from that of “dizziness” which is described as lightheadedness, unsteadiness, confusion, or syncope. 2. Meniere's disease is characterized by paroxysmal attacks of vertigo, tinnitus, and fluctuating hearing loss. Remissions are unpredictable and irregular, but may be longlasting; hence, the severity of impairment is best determined after prolonged observation and serial reexaminations. 3. The diagnosis of a vestibular disorder requires a comprehensive neuro-otolaryngologic examination with a detailed description of the vertiginous episodes, including notation of frequency, severity, and duration of the attacks. Pure tone and speech audiometry with the appropriate special examinations, such as Bekesy audiometry, are necessary. Vestibular functions is assessed by positional and caloric testing, preferably by electronystagmography. When polytomograms, contrast radiography, or other special tests have been performed, copies of the reports of these tests should be obtained in addition to appropriate medically acceptable imaging reports of the skull and temporal bone. Medically acceptable imaging includes, but is not limited to, x-ray imaging, computerized axial tomography (CAT scan) or magnetic resonance imaging (MRI), with or without contrast material, myelography, and radionuclear bone scans. “Appropriate” means that the technique used is the proper one to support the evaluation and diagnosis of the impairment. D. Loss of speech. E. How do we evaluate impairments that do not meet one of the special senses and speech listings? 1. These listings are only examples of common special senses and speech disorders that we consider severe enough to prevent an individual from doing any gainful activity. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that satisfies the criteria of a listing in another body system. 2. If you have a medically determinable impairment(s) that does not meet a listing, we will determine whether the impairment(s) medically equals a listing. (See §§ 404.1526 and 416.926.) If you have an impairment(s) that does not meet or medically equal a listing, you may or may not have the residual functional capacity to engage in substantial gainful activity. Therefore, we proceed to the fourth, and if necessary, the fifth steps of the sequential evaluation process in §§ 404.1520 and 416.920. When we decide whether you continue to be disabled, we use the rules in §§ 404.1594, 416.994, or 416.994a, as appropriate. 2.01 Category of Impairments, Special Senses and Speech 2.02 Loss of central visual acuity. 2.03 Contraction of the visual field in the better eye, A. The widest diameter subtending an angle around the point of fixation no greater than 20 degrees. OR B. An MD of 22 decibels or greater, determined by automated static threshold perimetry that measures the central 30 degrees of the visual field (see 2.00A6d). OR C. A visual field efficiency of 20 percent or less, determined by kinetic perimetry (see 2.00A7c). 2.04 Loss of visual efficiency, or visual impairment, in the better eye: A. A visual efficiency percentage of 20 or less after best correction (see 2.00A7d). OR B. A visual impairment value of 1.00 or greater after best correction (see 2.00A8d). 2.07 Disturbance of labyrinthine-vestibular function (including Meniere's disease), A. Disturbed function of vestibular labyrinth demonstrated by caloric or other vestibular tests; and B. Hearing loss established by audiometry. 2.09 Loss of speech Table 1—Percentage of Visual Acuity Efficiency Corresponding to the Best-Corrected Visual Acuity Measurement for Distance in the Better Eye Snellen Percent English Metric 20/16 6/5 100 20/20 6/6 100 20/25 6/7.5 95 20/30 6/9 90 20/40 6/12 85 20/50 6/15 75 20/60 6/18 70 20/70 6/21 65 20/80 6/24 60 20/100 6/30 50 Table 2—Chart of Visual Fields 1. The diagram of the right eye illustrates the extent of a normal visual field as measured with a III4e stimulus. The sum of the eight principal meridians of this field is 500 degrees. 2. The diagram of the left eye illustrates a visual field contracted to 30 degrees in two meridians and to 20 degrees in the remaining six meridians. The percent of visual field efficiency of this field is: (2 × 30) + (6 × 20) = 180 ÷ 500 = 0.36 or 36 percent visual field efficiency. 2.10 Hearing loss not treated with cochlear implantation. A. An average air conduction hearing threshold of 90 decibels or greater in the better ear and an average bone conduction hearing threshold of 60 decibels or greater in the better ear ( see OR B. A word recognition score of 40 percent or less in the better ear determined using a standardized list of phonetically balanced monosyllabic words (see 2.00B2e). 2.11 Hearing loss treated with cochlear implantation. A. Consider under a disability for 1 year after initial implantation. OR B. If more than 1 year after initial implantation, a word recognition score of 60 percent or less determined using the HINT ( see 3.00 Respiratory Disorders A. Which disorders do we evaluate in this body system? 1. We evaluate respiratory disorders that result in obstruction (difficulty moving air out of the lungs) or restriction (difficulty moving air into the lungs), or that interfere with diffusion (gas exchange) across cell membranes in the lungs. Examples of such disorders and the listings we use to evaluate them include chronic obstructive pulmonary disease (chronic bronchitis and emphysema, 3.02), pulmonary fibrosis and pneumoconiosis (3.02), asthma (3.02 or 3.03), cystic fibrosis (3.04), and bronchiectasis (3.02 or 3.07). We also use listings in this body system to evaluate respiratory failure (3.04D or 3.14), chronic pulmonary hypertension (3.09), and lung transplantation (3.11). 2. We evaluate cancers affecting the respiratory system under the listings in 13.00. We evaluate the pulmonary effects of neuromuscular and autoimmune disorders under these listings or under the listings in 11.00 or 14.00, respectively. B. What are the symptoms and signs of respiratory disorders? C. What abbreviations do we use in this body system? 1. ABG 2. BiPAP 3. BTPS 4. CF 5. CFRD 6. CFTR 7. CO 8. COPD 9. DLCO 10. FEV 1 11. FVC 12. L 13. mL CO (STPD)/min/mmHg 14. P a O 2 15. P a CO 2 16. S p O 2 17. 6MWT 18. VI D. What documentation do we need to evaluate your respiratory disorder? 1. We need medical evidence 2. If you use supplemental oxygen, 3. Imaging 4. Pulmonary function tests spirometry DLCO ABG P a O 2 P a CO 2 pulse oximetry S p O 2 E. What is spirometry and what are our requirements for an acceptable test and report? 1. Spirometry, which measures how well you move air into and out of your lungs, involves at least three forced expiratory maneuvers during the same test session. A forced expiratory maneuver is a maximum inhalation followed by a forced maximum exhalation, and measures exhaled volumes of air over time. The volume of air you exhale in the first second of the forced expiratory maneuver is the FEV 1 1 2. We have the following requirements for spirometry under these listings: a. You must be medically stable at the time of the test. Examples of when we would not consider you to be medically stable include when you are: (i) Within 2 weeks of a change in your prescribed respiratory medication. (ii) Experiencing, or within 30 days of completion of treatment for, a lower respiratory tract infection. (iii) Experiencing, or within 30 days of completion of treatment for, an acute exacerbation (temporary worsening) of a chronic respiratory disorder. Wheezing by itself does not indicate that you are not medically stable. (iv) Hospitalized, or within 30 days of a hospital discharge, for an acute myocardial infarction (heart attack). b. During testing, if your FEV 1 1 c. Your forced expiratory maneuvers must be satisfactory. We consider a forced expiratory maneuver to be satisfactory when you exhale with maximum effort following a full inspiration, and when the test tracing has a sharp takeoff and rapid rise to peak flow, has a smooth contour, and either lasts for at least 6 seconds or maintains a plateau for at least 1 second. 3. The spirometry report must include the following information: a. The date of the test and your name, age or date of birth, sex, and height without shoes. (We will assume that your recorded height on the date of the test is without shoes, unless we have evidence to the contrary.) If your spine is abnormally curved (for example, you have kyphoscoliosis), we will substitute the longest distance between your outstretched fingertips with your arms abducted 90 degrees in place of your height when this measurement is greater than your standing height without shoes. b. Any factors, if applicable, that can affect the interpretation of the test results (for example, your cooperation or effort in doing the test). c. Legible tracings of your forced expiratory maneuvers in a volume-time format showing your name and the date of the test for each maneuver. 4. If we purchase spirometry, the medical source we designate to administer the test is solely responsible for deciding whether it is safe for you to do the test and for how to administer it. F. What is a DLCO test, and what are our requirements for an acceptable test and report? 1. A DLCO test measures the gas exchange across cell membranes in your lungs. It measures how well CO diffuses from the alveoli (air sacs) of your lungs into your blood. DLCO may be severely reduced in some disorders, such as interstitial lung disease (for example, idiopathic pulmonary fibrosis, asbestosis, and sarcoidosis) and COPD (particularly emphysema), even when the results of spirometry are not significantly reduced. We use the average of two of your unadjusted (that is, uncorrected for hemoglobin concentration) DLCO measurements reported in mL CO (STPD)/min/mmHg to evaluate your respiratory disorder under 3.02C1. 2. We have the following requirements for DLCO tests under these listings: a. You must be medically stable at the time of the test. See 3.00E2a. b. The test must use the single-breath technique. (i) The VI during the DLCO maneuver must be at least 85 percent of your current FVC, and your time of inhalation must be less than 4 seconds. (See 3.00E for our rules for programmatically acceptable spirometry.) If you do not have an FVC measurement on the same day as the DLCO test, we may use your FVC from programmatically acceptable spirometry administered within 90 days of the DLCO test. (ii) Your breath-hold time must be between 8 and 12 seconds. (iii) Your total exhalation time must be less than or equal to 4 seconds, with a sample collection time of less than 3 seconds. If your FVC is at least 2.0 L, the washout volume must be between 0.75 L and 1.0 L. If your FVC is less than 2.0 L, the washout volume must be at least 0.5 L. 3. The DLCO test report must include the following information: a. The date of the test and your name, age or date of birth, sex, and height without shoes. (We will assume that your recorded height on the date of the test is without shoes, unless we have evidence to the contrary.) If your spine is abnormally curved (for example, you have kyphoscoliosis), we will substitute the longest distance between your outstretched fingertips with your arms abducted 90 degrees in place of your height when this measurement is greater than your standing height without shoes. b. Any factors, if applicable, that can affect the interpretation of the test results (for example, your cooperation or effort in doing the test). c. Legible tracings of your VI, breath-hold maneuver, and volume of exhaled gas showing your name and the date of the test for each DLCO maneuver. d. At least two acceptable (see 3.00F2) DLCO measurements within 3 mL CO (STPD)/min/mmHg of each other or 4. We may need to purchase a DLCO test to determine whether your disorder meets 3.02C1 when we have evidence showing that you have a chronic respiratory disorder that could result in impaired gas exchange, unless we can make a fully favorable determination or decision on another basis. Since the DLCO calculation requires a current FVC measurement, we may also purchase spirometry at the same time as the DLCO test, even if we already have programmatically acceptable spirometry. 5. Before we purchase a DLCO test, a medical consultant (see §§ 404.1616 and 416.1016 of this chapter), preferably one with experience in the care of people with respiratory disorders, must review your case record to determine if we need the test. The medical source we designate to administer the test is solely responsible for deciding whether it is safe for you to do the test and for how to administer it. G. What is an ABG test, and what are our requirements for an acceptable test and report? 1. General. a 2, a 2 2. Resting ABG tests. a. We have the following requirements for resting ABG tests under these listings: (i) You must be medically stable at the time of the test. See 3.00E2a. (ii) The test must be administered while you are breathing room air; that is, without oxygen supplementation. b. The resting ABG test report must include the following information: (i) Your name, the date of the test, and either the altitude or both the city and State of the test site. (ii) The P a 2 a 2 c. We may need to purchase a resting ABG test to determine whether your disorder meets 3.02C2 when we have evidence showing that you have a chronic respiratory disorder that could result in impaired gas exchange, unless we can make a fully favorable determination or decision on another basis. d. Before we purchase a resting ABG test, a medical consultant (see §§ 404.1616 and 416.1016 of this chapter), preferably one with experience in the care of people with respiratory disorders, must review your case record to determine if we need the test. The medical source we designate to administer the test is solely responsible for deciding whether it is safe for you to do the test and for how to administer it. 3. Exercise ABG tests. a. We will not b. We have the following requirements for exercise ABG tests under these listings: (i) You must have done the exercise under steady state conditions while breathing room air. If you were tested on a treadmill, you generally must have exercised for at least 4 minutes at a grade and speed providing oxygen (O 2 (ii) We may use a test in which you have not exercised for at least 4 minutes. If you were unable to complete at least 4 minutes of steady state exercise, we need a statement by the person administering the test about whether the results are a valid indication of your respiratory status. For example, this statement may include information about your cooperation or effort in doing the test and whether you were limited in completing the test because of your respiratory disorder or another impairment. c. The exercise ABG test report must include the following information: (i) Your name, the date of the test, and either the altitude or both the city and state of the test site. (ii) The P a 2 a 2 H. What is pulse oximetry, and what are our requirements for an acceptable test and report? 1. Pulse oximetry measures S p 2 2. We have the following requirements for pulse oximetry under 3.02C3: a. You must be medically stable at the time of the test. See 3.00E2a. b. Your pulse oximetry measurement must be recorded while you are breathing room air; that is, without oxygen supplementation. c. Your pulse oximetry measurement must be stable. By “stable,” we mean that the range of S p 2 p 2 d. If you have had more than one measurement (for example, at rest and after a 6MWT), we will use the measurement with the lowest S p 2 e. The pulse oximetry report must include the following information: (i) Your name, the date of the test, and either the altitude or both the city and State of the test site. (ii) A graphical printout showing your S p 2 f. We may need to purchase pulse oximetry at rest to determine whether your disorder meets 3.02C3 when we have evidence showing that you have a chronic respiratory disorder that could result in impaired gas exchange, unless we can make a fully favorable determination or decision on another basis. We may purchase pulse oximetry during and after a 6MWT if your S p 2 g. Before we purchase pulse oximetry, a medical consultant (see §§ 404.1616 and 416.1016 of this chapter), preferably one with experience in the care of people with respiratory disorders, must review your case record to determine if we need the test. The medical source we designate to administer the test is solely responsible for deciding whether it is safe for you to do the test and for how to administer it. 3. We have the following requirements for pulse oximetry under 3.04F: a. You must be medically stable at the time of the test. See 3.00E2a. b. Your pulse oximetry measurement must be recorded while you are breathing room air; that is, without oxygen supplementation. c. If you have had more than one measurement (for example, at rest and after a 6MWT), we will use the measurement with the lowest S p 2 d. The pulse oximetry report must include your name, the date of the test, and either the altitude or both the city and State of the test site. If you have CF, we do not require a graphical printout showing your S p 2 I. What is asthma and how do we evaluate it? 1. Asthma 2. For the purposes of 3.03: a. We need evidence showing that you have listing-level (see Table VI in 3.03A) airflow obstruction at baseline while you are medically stable. b. The phrase “consider under a disability for 1 year” in 3.03B does not refer to the date on which your disability began, only to the date on which we must reevaluate whether your asthma continues to meet a listing or is otherwise disabling. c. We determine the onset of your disability based on the facts of your case, but it will be no later than the admission date of your first of three hospitalizations that satisfy the criteria of 3.03B. J. What is CF and how do we evaluate it? 1. General. CF, 2. Documentation of CF. and a. One of the following: (i) A positive newborn screen for CF; or (ii) A history of CF in a sibling; or (iii) Documentation of at least one specific CF phenotype or clinical criterion (for example, chronic sino-pulmonary disease with persistent colonization or infections with typical CF pathogens, pancreatic insufficiency, or salt-loss syndromes); and b. One of the following definitive laboratory tests: (i) An elevated sweat chloride concentration equal to or greater than 60 millimoles per L; or (ii) The identification of two CF gene mutations affecting the CFTR; or (iii) Characteristic abnormalities in ion transport across the nasal epithelium. c. When we have the report showing a and b, but it is not signed by a physician, we also need a report from a physician stating that you have CF. d. When we do not have the report showing a and b, we need a report from a physician that is persuasive that a positive diagnosis of CF was confirmed by an appropriate definitive laboratory test. To be persuasive, this report must include a statement by the physician that you had the appropriate definitive laboratory test for diagnosing CF. The report must provide the test results or explain how your diagnosis was established that is consistent with the prevailing state of medical knowledge and clinical practice. 3. CF pulmonary exacerbations. 4. For 3.04G, we require any two exacerbations or complications from the list in 3.04G1 through 3.04G4 within a 12-month period. You may have two of the same exacerbation or complication or two different ones. a. If you have two of the acute exacerbations or complications we describe in 3.04G1 and 3.04G2, there must be at least 30 days between the two. b. If you have one of the acute exacerbations or complications we describe in 3.04G1 and 3.04G2 and one of the chronic complications we describe in 3.04G3 and 3.04G4, the two can occur during the same time. For example, your CF meets 3.04G if you have the pulmonary hemorrhage we describe in 3.04G2 and the weight loss we describe in 3.04G3 even if the pulmonary hemorrhage occurs during the 90-day period in 3.04G3. c. Your CF also meets 3.04G if you have both of the chronic complications in 3.04G3 and 3.04G4. 5. CF may also affect other body systems such as digestive or endocrine. If your CF, including pulmonary exacerbations and nonpulmonary complications, does not meet or medically equal a respiratory disorders listing, we may evaluate your CF-related impairments under the listings in the affected body system. K. What is bronchiectasis and how do we evaluate it? L. What is chronic pulmonary hypertension and how do we evaluate it? 1. Chronic pulmonary hypertension is an increase in the blood pressure of the blood vessels of the lungs. If pulmonary hypertension is not adequately treated, it can eventually result in right heart failure. We evaluate chronic pulmonary hypertension due to any cause under 3.09. 2. Chronic pulmonary hypertension is usually diagnosed by catheterization of the pulmonary artery. We will not purchase cardiac catheterization. M. How do we evaluate lung transplantation? N. What is respiratory failure and how do we evaluate it? chronic O. How do we consider the effects of obesity when we evaluate your respiratory disorder? P. What are sleep-related breathing disorders and how do we evaluate them? 1. Sleep-related breathing disorders 2. We evaluate the complications of sleep-related breathing disorders under the listings in the affected body system(s). For example, we evaluate chronic pulmonary hypertension due to any cause under 3.09; chronic heart failure under 4.02; and disturbances in mood, cognition, and behavior under 12.02 or another appropriate mental disorders listing. We will not purchase polysomnography (sleep study). Q. How do we evaluate mycobacterial, mycotic, and other chronic infections of the lungs? R. How do we evaluate respiratory disorders that do not meet one of these listings? 1. These listings are only examples of common respiratory disorders that we consider severe enough to prevent you from doing any gainful activity. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that meets the criteria of a listing in another body system. For example, if your CF has resulted in chronic pancreatic or hepatobiliary disease, we evaluate your impairment under the listings in 5.00. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. See §§ 404.1526 and 416.926 of this chapter. Respiratory disorders may be associated with disorders in other body systems, and we consider the combined effects of multiple impairments when we determine whether they medically equal a listing. If your impairment(s) does not meet or medically equal a listing, you may or may not have the residual functional capacity to engage in substantial gainful activity. We proceed to the fourth step and, if necessary, the fifth step of the sequential evaluation process in §§ 404.1520 and 416.920 of this chapter. We use the rules in §§ 404.1594 and 416.994 of this chapter, as appropriate, when we decide whether you continue to be disabled. 3.01 Category of Impairments, Respiratory Disorders 3.02 Chronic respiratory disorders A. FEV 1 Table I—FEV 1 Height without shoes less than Height without shoes less than Table I-A Table I-B Age 18 to attainment of age 20 Age 20 or older Females FEV 1 Males FEV 1 Females FEV 1 Males FEV 1 <153.0 <60.25 1.20 1.45 1.05 1.20 153.0 to <159.0 60.25 to <62.50 1.30 1.55 1.15 1.35 159.0 to <164.0 62.50 to <64.50 1.40 1.65 1.25 1.40 164.0 to <169.0 64.50 to <66.50 1.45 1.75 1.35 1.50 169.0 to <174.0 66.50 to <68.50 1.55 1.85 1.45 1.60 174.0 to <180.0 68.50 to <70.75 1.65 2.00 1.55 1.75 180.0 to <185.0 70.75 to <72.75 1.75 2.10 1.65 1.85 185.0 or more 72.75 or more 1.80 2.15 1.70 1.90 OR B. FVC (see 3.00E) less than or equal to the value in Table II-A or II-B for your age, sex, and height without shoes (see 3.00E3a). Height without shoes Height without shoes Table II-A Table II-B Age 18 to attainment of age 20 Age 20 or older Females FVC less than or equal to Males FVC less than or equal to Females FVC less than or equal to Males FVC less than or equal to <153.0 <60.25 1.35 1.65 1.30 1.50 153.0 to <159.0 60.25 to <62.50 1.50 1.80 1.40 1.65 159.0 to <164.0 62.50 to <64.50 1.60 1.90 1.50 1.75 164.0 to <169.0 64.50 to <66.50 1.70 2.05 1.60 1.90 169.0 to <174.0 66.50 to <68.50 1.80 2.20 1.70 2.00 174.0 to <180.0 68.50 to <70.75 1.90 2.35 1.85 2.20 180.0 to <185.0 70.75 to <72.75 2.05 2.50 1.95 2.30 185.0 or more 72.75 or more 2.10 2.60 2.00 2.40 OR C. Chronic impairment of gas exchange demonstrated by 1, 2, or 3: 1. Average of two unadjusted, single-breath DLCO measurements (see 3.00F) less than or equal to the value in Table III for your sex and height without shoes (see 3.00F3a); or Table III—DLCO Criteria for 3.02C1 Height without shoes less than Height without shoes less than Females DLCO less than or equal to Males DLCO less than or equal to <153.0 < 60.25 8.0 9.0 153.0 to <159.0 60.25 to <62.50 8.5 9.5 159.0 to <164.0 62.50 to <64.50 9.0 10.0 164.0 to <169.0 64.50 to <66.50 9.5 10.5 169.0 to <174.0 66.50 to <68.50 10.0 11.0 174.0 to <180.0 68.50 to <70.75 10.5 11.5 180.0 to <185.0 70.75 to <72.75 11.0 12.0 185.0 or more 72.75 or more 11.5 12.5 2. Arterial P a 2 a 2 Tables IV-A, IV-B, and IV-C—ABG Criteria for 3.02C2 Table IV-A [Applicable at test sites less than 3,000 feet above sea level] Arterial P a 2 and Arterial P a 2 30 or below 65 31 64 32 63 33 62 34 61 35 60 36 59 37 58 38 57 39 56 40 or above 55 Table IV-B [Applicable at test sites from 3,000 through 6,000 feet above sea level] Arterial P a 2 and Arterial P a 2 30 or below 60 31 59 32 58 33 57 34 56 35 55 36 54 37 53 38 52 39 51 40 or above 50 Table IV-C [Applicable at test sites over 6,000 feet above sea level] Arterial P a 2 and Arterial P a 2 30 or below 55 31 54 32 53 33 52 34 51 35 50 36 49 37 48 38 47 39 46 40 or above 45 3. S p 2 Table V—S p 2 Test site altitude S p 2 Less than 3,000 87 percent. 3,000 through 6,000 85 percent. Over 6,000 83 percent. OR D. Exacerbations or complications requiring three hospitalizations within a 12-month period and at least 30 days apart (the 12-month period must occur within the period we are considering in connection with your application or continuing disability review). Each hospitalization must last at least 48 hours, including hours in a hospital emergency department immediately before the hospitalization. 3.03 Asthma A. FEV 1 Table VI—FEV 1 Height without shoes less than Height without shoes less than Table VI-A Table VI-B Age 18 to attainment of age 20 Age 20 or older Females FEV 1 Males 1 Females FEV 1 Males 1 <153.0 <60.25 1.65 1.90 1.45 1.60 153.0 to <159.0 60.25 to <62.50 1.75 2.05 1.55 1.75 159.0 to <164.0 62.50 to <64.50 1.85 2.15 1.65 1.90 164.0 to <169.0 64.50 to <66.50 1.95 2.30 1.75 2.00 169.0 to <174.0 66.50 to <68.50 2.05 2.45 1.85 2.15 174.0 to <180.0 68.50 to <70.75 2.20 2.60 2.00 2.30 180.0 to <185.0 70.75 to <72.75 2.35 2.75 2.10 2.45 185.0 or more 72.75 or more 2.40 2.85 2.20 2.55 AND B. Exacerbations or complications requiring three hospitalizations within a 12-month period and at least 30 days apart (the 12-month period must occur within the period we are considering in connection with your application or continuing disability review). Each hospitalization must last at least 48 hours, including hours in a hospital emergency department immediately before the hospitalization. Consider under a disability for 1 year from the discharge date of the last hospitalization; after that, evaluate the residual impairment(s) under 3.03 or another appropriate listing. 3.04 Cystic fibrosis A. FEV 1 Table VII—FEV 1 Height without shoes less than Height without shoes less than Table VII-A Table VII-B Age 18 to attainment of age 20 Age 20 or older Females 1 Males 1 Females 1 Males 1 <153.0 <60.25 1.65 1.90 1.45 1.60 153.0 to <159.0 60.25 to <62.50 1.75 2.05 1.55 1.75 159.0 to <164.0 62.50 to <64.50 1.85 2.15 1.65 1.90 164.0 to <169.0 64.50 to <66.50 1.95 2.30 1.75 2.00 169.0 to <174.0 66.50 to <68.50 2.05 2.45 1.85 2.15 174.0 to <180.0 68.50 to <70.75 2.20 2.60 2.00 2.30 180.0 to <185.0 70.75 to <72.75 2.35 2.75 2.10 2.45 185.0 or more 72.75 or more 2.40 2.85 2.20 2.55 OR B. Exacerbations or complications (see 3.00J3) requiring three hospitalizations of any length within a 12-month period and at least 30 days apart (the 12-month period must occur within the period we are considering in connection with your application or continuing disability review). OR C. Spontaneous pneumothorax, secondary to CF, requiring chest tube placement. OR D. Respiratory failure (see 3.00N) requiring invasive mechanical ventilation, noninvasive ventilation with BiPAP, or a combination of both treatments, for a continuous period of at least 48 hours, or for a continuous period of at least 72 hours if postoperatively. OR E. Pulmonary hemorrhage requiring vascular embolization to control bleeding. OR F. S p 2 twice Tables VIII—S p 2 Test site altitude S p 2 Less than 3,000 89 percent. 3,000 through 6,000 87 percent. Over 6,000 85 percent. OR G. Two of the following exacerbations or complications (either two of the same or two different, see 3.00J3 and 3.00J4) within a 12-month period (the 12-month period must occur within the period we are considering in connection with your application or continuing disability review): 1. Pulmonary exacerbation requiring 10 consecutive days of intravenous antibiotic treatment. 2. Pulmonary hemorrhage (hemoptysis with more than blood-streaked sputum but not requiring vascular embolization) requiring hospitalization of any length. 3. Weight loss requiring daily supplemental enteral nutrition via a gastrostomy for at least 90 consecutive days or 4. CFRD requiring daily insulin therapy for at least 90 consecutive days. 3.05 [Reserved] 3.06 [Reserved] 3.07 Bronchiectasis 3.08 [Reserved] 3.09 Chronic pulmonary hypertension due to any cause 3.10 [Reserved] 3.11 Lung transplantation 3.12 [Reserved] 3.13 [Reserved] 3.14 Respiratory failure twice 4.00 Cardiovascular System A. General 1. What do we mean by a cardiovascular impairment? a. We mean any disorder that affects the proper functioning of the heart or the circulatory system (that is, arteries, veins, capillaries, and the lymphatic drainage). The disorder can be congenital or acquired. b. Cardiovascular impairment results from one or more of four consequences of heart disease: (i) Chronic heart failure or ventricular dysfunction. (ii) Discomfort or pain due to myocardial ischemia, with or without necrosis of heart muscle. (iii) Syncope, or near syncope, due to inadequate cerebral perfusion from any cardiac cause, such as obstruction of flow or disturbance in rhythm or conduction resulting in inadequate cardiac output. (iv) Central cyanosis due to right-to-left shunt, reduced oxygen concentration in the arterial blood, or pulmonary vascular disease. c. Disorders of the veins or arteries (for example, obstruction, rupture, or aneurysm) may cause impairments of the lower extremities (peripheral vascular disease), the central nervous system, the eyes, the kidneys, and other organs. We will evaluate peripheral vascular disease under 4.11 or 4.12 and impairments of another body system(s) under the listings for that body system(s). 2. What do we consider in evaluating cardiovascular impairments? 3. What do the following terms or phrases mean in these listings? a. Medical consultant b. Persistent c. Recurrent d. Appropriate medically acceptable imaging e. A consecutive 12-month period f. Uncontrolled B. Documenting Cardiovascular Impairment 1. What basic documentation do we need? 2. Why is a longitudinal clinical record important? 3. What if you have not received ongoing medical treatment? a. You may not have received ongoing treatment or have an ongoing relationship with the medical community despite the existence of a severe impairment(s). In this situation, we will base our evaluation on the current objective medical evidence and the other evidence we have. If you do not receive treatment, you cannot show an impairment that meets the criteria of most of these listings. However, we may find you disabled because you have another impairment(s) that in combination with your cardiovascular impairment medically equals the severity of a listed impairment or based on consideration of your residual functional capacity and age, education, and work experience. b. Unless we can decide your claim favorably on the basis of the current evidence, a longitudinal record is still important. In rare instances where there is no or insufficient longitudinal evidence, we may purchase a consultative examination(s) to help us establish the severity and duration of your impairment. 4. When will we wait before we ask for more evidence? a. We will wait when we have information showing that your impairment is not yet stable and the expected change in your impairment might affect our determination or decision. In these situations, we need to wait to properly evaluate the severity and duration of your impairment during a stable period. Examples of when we might wait are: (i) If you have had a recent acute event; for example, a myocardial infarction (heart attack). (ii) If you have recently had a corrective cardiac procedure; for example, coronary artery bypass grafting. (iii) If you have started new drug therapy and your response to this treatment has not yet been established; for example, beta-blocker therapy for dilated congestive cardiomyopathy. b. In these situations, we will obtain more evidence 3 months following the event before we evaluate your impairment. However, we will not wait if we have enough information to make a determination or decision based on all of the relevant evidence in your case. 5. Will we purchase any studies? 6. What studies will we not purchase? C. Using Cardiovascular Test Results 1. What is an ECG? a. ECG electrocardiograph electrocardiogram. tracing. leads b. The ECG tracing may indicate that you have a heart abnormality. It may indicate that your heart muscle is not getting as much oxygen as it needs (ischemia), that your heart rhythm is abnormal (arrhythmia), or that there are other abnormalities of your heart, such as left ventricular enlargement. 2. How do we evaluate ECG evidence? a. An original or legible copy of the 12-lead ECG obtained at rest must be appropriately dated and labeled, with the standardization inscribed on the tracing. Alteration in standardization of specific leads (such as to accommodate large QRS amplitudes) must be identified on those leads. (i) Detailed descriptions or computer-averaged signals without original or legible copies of the ECG as described in listing 4.00C2a are not acceptable. (ii) The effects of drugs or electrolyte abnormalities must be considered as possible noncardiac causes of ECG abnormalities of ventricular repolarization; that is, those involving the ST segment and T wave. If available, the predrug (especially digitalis glycosides) ECG should be submitted. b. ECGs obtained in conjunction with treadmill, bicycle, or arm exercise tests should meet the following specifications: (i) ECG reports must include the original calibrated ECG tracings or a legible copy. (ii) A 12-lead baseline ECG must be recorded in the upright position before exercise. (iii) A 12-lead ECG should be recorded at the end of each minute of exercise. (iv) If ECG documentation of the effects of hyperventilation is obtained, the exercise test should be deferred for at least 10 minutes because metabolic changes of hyperventilation may alter the physiologic and ECG-recorded response to exercise. (v) Post-exercise ECGs should be recorded using a generally accepted protocol consistent with the prevailing state of medical knowledge and clinical practice. (vi) All resting, exercise, and recovery ECG strips must have the standardization inscribed on the tracing. The ECG strips should be labeled to indicate the date, the times recorded and the relationship to the stage of the exercise protocol. The speed and grade (treadmill test) or work rate (bicycle or arm ergometric test) should be recorded. The highest level of exercise achieved, heart rate and blood pressure levels during testing, and the reason(s) for terminating the test (including limiting signs or symptoms) must be recorded. 3. What are exercise tests and what are they used for? a. Exercise tests have you perform physical activity and record how your cardiovascular system responds. Exercise tests usually involve walking on a treadmill, but other forms of exercise, such as an exercise bicycle or an arm exercise machine, may be used. Exercise testing may be done for various reasons; such as to evaluate the severity of your coronary artery disease or peripheral vascular disease or to evaluate your progress after a cardiac procedure or an acute event, like a myocardial infarction (heart attack). Exercise testing is the most widely used testing for identifying the presence of myocardial ischemia and for estimating maximal aerobic capacity (usually expressed in METs—metabolic equivalents) if you have heart disease. b. We include exercise tolerance test (ETT) criteria in 4.02B3 (chronic heart failure) and 4.04A (ischemic heart disease). To meet the ETT criteria in these listings, the ETT must be a sign-or symptom-limited test in which you exercise while connected to an ECG until you develop a sign or symptom that indicates that you have exercised as much as is considered safe for you. c. In 4.12B, we also refer to exercise testing for peripheral vascular disease. In this test, you walk on a treadmill, usually for a specified period of time, and the individual who administers the test measures the effect of exercise on the flow of blood in your legs, usually by using ultrasound. The test is also called an exercise Doppler test. Even though this test is intended to evaluate peripheral vascular disease, it will be stopped for your safety if you develop abnormal signs or symptoms because of heart disease. d. Each type of test is done in a certain way following specific criteria, called a protocol. 4. Do ETTs have limitations? 5. How does an ETT with measurement of maximal or peak oxygen uptake VO 2 ) differ from other ETTs? 2 2 2 2 6. When will we consider whether to purchase an exercise test? a. We will consider whether to purchase an exercise test when: (i) There is a question whether your cardiovascular impairment meets or medically equals the severity of one of the listings, or there is no timely test in the evidence we have (see 4.00C9), and we cannot find you disabled on some other basis; or (ii) We need to assess your residual functional capacity and there is insufficient evidence in the record to make a determination or decision. b. We will not purchase an exercise test when we can make our determination or decision based on the evidence we already have. 7. What must we do before purchasing an exercise test? a. Before we purchase an exercise test, an MC, preferably one with experience in the care of patients with cardiovascular disease, must review the pertinent history, physical examinations, and laboratory tests that we have to determine whether the test would present a significant risk to you or if there is some other medical reason not to purchase the test (see 4.00C8). b. If you are under the care of a treating source (see §§ 404.1502 and 416.902) for a cardiovascular impairment, this source has not performed an exercise test, and there are no reported significant risks to testing, we will request a statement from that source explaining why it was not done or should not be done before we decide whether we will purchase the test. c. The MC, in accordance with the regulations and other instructions on consultative examinations, will generally give great weight to the treating source's opinion about the risk of exercise testing to you and will generally not override it. In the rare situation in which the MC does override the treating source's opinion, the MC must prepare a written rationale documenting the reasons for overriding the opinion. d. If you do not have a treating source or we cannot obtain a statement from your treating source, the MC is responsible for assessing the risk to exercise testing based on a review of the records we have before purchasing an exercise test for you. e. We must also provide your records to the medical source who performs the exercise test for review prior to conducting the test if the source does not already have them. The medical source who performs the exercise test has the ultimate responsibility for deciding whether you would be at risk. 8. When will we not purchase an exercise test or wait before we purchase an exercise test? a. We will not purchase an exercise test when an MC finds that you have one of the following significant risk factors: (i) Unstable angina not previously stabilized by medical treatment. (ii) Uncontrolled cardiac arrhythmias causing symptoms or hemodynamic compromise. (iii) An implanted cardiac defibrillator. (iv) Symptomatic severe aortic stenosis. (v) Uncontrolled symptomatic heart failure. (vi) Aortic dissection. (vii) Severe pulmonary hypertension (pulmonary artery systolic pressure greater than 60 mm Hg). (viii) Left main coronary stenosis of 50 percent or greater that has not been bypassed. (ix) Moderate stenotic valvular disease with a systolic gradient across the aortic valve of 50 mm Hg or greater. (x) Severe arterial hypertension (systolic greater than 200 mm Hg or diastolic greater than 110 mm Hg). (xi) Hypertrophic cardiomyopathy with a systolic gradient of 50 mm Hg or greater. b. We also will not purchase an exercise test when you are prevented from performing exercise testing due to another impairment affecting your ability to use your arms and legs. c. We will not purchase an ETT to document the presence of a cardiac arrhythmia. d. We will wait to purchase an exercise test until 3 months after you have had one of the following events. This will allow for maximal, attainable restoration of functional capacity. (i) Acute myocardial infarction. (ii) Surgical myocardial revascularization (bypass surgery). (iii) Other open-heart surgical procedures. (iv) Percutaneous transluminal coronary angioplasty with or without stenting. e. If you are deconditioned after an extended period of bedrest or inactivity and could improve with activity, or if you are in acute heart failure and are expected to improve with treatment, we will wait an appropriate period of time for you to recuperate before we purchase an exercise test. 9. What do we mean by a “timely” test? a. We consider exercise test results to be timely for 12 months after the date they are performed, provided there has been no change in your clinical status that may alter the severity of your cardiovascular impairment. b. However, an exercise test that is older than 12 months, especially an abnormal one, can still provide information important to our adjudication. For example, a test that is more than 12 months old can provide evidence of ischemic heart disease or peripheral vascular disease, information on decreased aerobic capacity, or information about the duration or onset of your impairment. Such tests can be an important component of the longitudinal record. c. When we evaluate a test that is more than 12 months old, we must consider the results in the context of all the relevant evidence, including why the test was performed and whether there has been an intervening event or improvement or worsening of your impairment. d. We will purchase a new exercise test only if we cannot make a determination or decision based on the evidence we have. 10. How must ETTs we purchase be performed? a. The ETT must be a sign- or symptom-limited test characterized by a progressive multistage regimen. It must be performed using a generally accepted protocol consistent with the prevailing state of medical knowledge and clinical practice. A description of the protocol that was followed must be provided, and the test must meet the requirements of 4.00C2b and this section. A radionuclide perfusion scan may be useful for detecting or confirming ischemia when resting ECG abnormalities, medications, or other factors may decrease the accuracy of ECG interpretation of ischemia. (The perfusion imaging is done at the termination of exercise, which may be at a higher MET level than that at which ischemia first occurs. If the imaging confirms the presence of reversible ischemia, the exercise ECG may be useful for detecting the MET level at which ischemia initially appeared.) Exercise tests may also be performed using echocardiography to detect stress-induced ischemia and left ventricular dysfunction (see 4.00C12 and 4.00C13). b. The exercise test must be paced to your capabilities and be performed following the generally accepted standards for adult exercise test laboratories. With a treadmill test, the speed, grade (incline), and duration of exercise must be recorded for each exercise test stage performed. Other exercise test protocols or techniques should use similar workloads. The exercise protocol may need to be modified in individual cases to allow for a lower initial workload with more slowly graded increments than the standard Bruce protocol. c. Levels of exercise must be described in terms of workload and duration of each stage; for example, treadmill speed and grade, or bicycle ergometer work rate in kpm/min or watts. d. The exercise laboratory's physical environment, staffing, and equipment must meet the generally accepted standards for adult exercise test laboratories. 11. How do we evaluate ETT results? 12. When are ETTs done with imaging? 13. Will we purchase ETTs with imaging? 14. What are drug-induced stress tests? 15. How do we evaluate cardiac catheterization evidence? a. We will not purchase cardiac catheterization; however, if you have had catheterization, we will make every reasonable effort to obtain the report and any ancillary studies. We will consider the quality and type of data provided and its relevance to the evaluation of your impairment. For adults, we generally see two types of catheterization reports: Coronary arteriography and left ventriculography. b. For coronary arteriography, the report should provide information citing the method of assessing coronary arterial lumen diameter and the nature and location of obstructive lesions. Drug treatment at baseline and during the procedure should be reported. Some individuals with significant coronary atherosclerotic obstruction have collateral vessels that supply the myocardium distal to the arterial obstruction so that there is no evidence of myocardial damage or ischemia, even with exercise. When the results of quantitative computer measurements and analyses are included in your case record, we will consider them in interpreting the severity of stenotic lesions. c. For left ventriculography, the report should describe the wall motion of the myocardium with regard to any areas of hypokinesis (abnormally decreased motion), akinesis (lack of motion), or dyskinesis (distortion of motion), and the overall contraction of the ventricle as measured by the ejection fraction. Measurement of chamber volumes and pressures may be useful. Quantitative computer analysis provides precise measurement of segmental left ventricular wall thickness and motion. There is often a poor correlation between left ventricular function at rest and functional capacity for physical activity. 16. What details should exercise Doppler test reports contain? 17. How must exercise Doppler tests we purchase be performed? D. Evaluating Chronic Heart Failure 1. What is chronic heart failure (CHF)? a. CHF (i) Predominant systolic dysfunction (ii) Predominant diastolic dysfunction b. CHF is considered in these listings as a single category whether due to atherosclerosis (narrowing of the arteries), cardiomyopathy, hypertension, or rheumatic, congenital, or other heart disease. However, if the CHF is the result of primary pulmonary hypertension secondary to disease of the lung (cor pulmonale), we will evaluate your impairment using 3.09, in the respiratory system listings. 2. What evidence of CHF do we need? a. Cardiomegaly or ventricular dysfunction must be present and demonstrated by appropriate medically acceptable imaging, such as chest x-ray, echocardiography (M-Mode, 2-dimensional, and Doppler), radionuclide studies, or cardiac catheterization. (i) Abnormal cardiac imaging showing increased left ventricular end diastolic diameter (LVEDD), decreased EF, increased left atrial chamber size, increased ventricular filling pressures measured at cardiac catheterization, or increased left ventricular wall or septum thickness, provides objective measures of both left ventricular function and structural abnormality in heart failure. (ii) An LVEDD greater than 6.0 cm or an EF of 30 percent or less measured during a period of stability (that is, not during an episode of acute heart failure) may be associated clinically with systolic failure. (iii) Left ventricular posterior wall thickness added to septal thickness totaling 2.5 cm or greater with left atrium enlarged to 4.5 cm or greater may be associated clinically with diastolic failure. (iv) However, these measurements alone do not reflect your functional capacity, which we evaluate by considering all of the relevant evidence. In some situations, we may need to purchase an ETT to help us assess your functional capacity. (v) Other findings on appropriate medically acceptable imaging may include increased pulmonary vascular markings, pleural effusion, and pulmonary edema. These findings need not be present on each report, since CHF may be controlled by prescribed treatment. b. To establish that you have chronic (i) Symptoms of congestion or of limited cardiac output include easy fatigue, weakness, shortness of breath (dyspnea), cough, or chest discomfort at rest or with activity. Individuals with CHF may also experience shortness of breath on lying flat (orthopnea) or episodes of shortness of breath that wake them from sleep (paroxysmal nocturnal dyspnea). They may also experience cardiac arrhythmias resulting in palpitations, lightheadedness, or fainting. (ii) Signs of congestion may include hepatomegaly, ascites, increased jugular venous distention or pressure, rales, peripheral edema, or rapid weight gain. However, these signs need not be found on all examinations because fluid retention may be controlled by prescribed treatment. 3. Is it safe for you to have an ETT, if you have CHF? 4. How do we evaluate CHF using 4.02? a. We must have objective evidence, as described in 4.00D2, that you have chronic heart failure. b. To meet the required level of severity for this listing, your impairment must satisfy the requirements of one of the criteria in A and one of the criteria in B. c. In 4.02B2, the phrase periods of stabilization d. Listing 4.02B3c requires a decrease in systolic blood pressure below the baseline level (taken in the standing position immediately prior to exercise) or below any systolic pressure reading recorded during exercise. This is because, normally, systolic blood pressure and heart rate increase gradually with exercise. Decreases in systolic blood pressure below the baseline level that occur during exercise are often associated with ischemia-induced left ventricular dysfunction resulting in decreased cardiac output. However, a blunted response (that is, failure of the systolic blood pressure to rise 10 mm Hg or more), particularly in the first 3 minutes of exercise, may be drug-related and is not necessarily associated with left ventricular dysfunction. Also, some individuals with increased sympathetic responses because of deconditioning or apprehension may increase their systolic blood pressure and heart rate above their baseline level just before and early into exercise. This can be associated with a drop in systolic pressure in early exercise that is not due to left ventricular dysfunction. Therefore, an early decrease in systolic blood pressure must be interpreted within the total context of the test; that is, the presence or absence of symptoms such as lightheadedness, ischemic changes, or arrhythmias on the ECG. E. Evaluating Ischemic Heart Disease 1. What is ischemic heart disease (IHD)? IHD 2. What causes chest discomfort of myocardial origin? a. Chest discomfort of myocardial ischemic origin, commonly known as angina pectoris, is usually caused by coronary artery disease (often abbreviated CAD). However, ischemic discomfort may be caused by a noncoronary artery impairment, such as aortic stenosis, hypertrophic cardiomyopathy, pulmonary hypertension, or anemia. b. Instead of typical angina pectoris, some individuals with IHD experience atypical angina, anginal equivalent, variant angina, or silent ischemia, all of which we may evaluate using 4.04. We discuss the various manifestations of ischemia in 4.00E3-4.00E7. 3. What are the characteristics of typical angina pectoris? 4. What is atypical angina? Atypical angina 5. What is anginal equivalent? anginal equivalent. 6. What is variant angina? a. Variant angina b. Variant angina may also occur in the absence of obstructive coronary disease. In this situation, an ETT will not demonstrate ischemia. The diagnosis will be established by showing the typical transitory ST segment changes during attacks of pain, and the absence of obstructive lesions shown by catheterization. Treatment in cases where there is no obstructive coronary disease is limited to medications that reduce coronary vasospasm, such as calcium channel blockers and nitrates. In such situations, we will consider the frequency of anginal episodes despite prescribed treatment when evaluating your residual functional capacity. c. Vasospasm that is catheter-induced during coronary angiography is not variant angina. 7. What is silent ischemia? a. Myocardial ischemia, and even myocardial infarction, can occur without perception of pain or any other symptoms; when this happens, we call it silent ischemia. b. Silent ischemia occurs most often in: (i) Individuals with documented past myocardial infarction or established angina without prior infarction who do not have chest pain on ETT, but have a positive test with ischemic abnormality on ECG, perfusion scan, or other appropriate medically acceptable imaging. (ii) Individuals with documented past myocardial infarction or angina who have ST segment changes on ambulatory monitoring (Holter monitoring) that are similar to those that occur during episodes of angina. ST depression shown on the ambulatory recording should not be interpreted as positive for ischemia unless similar depression is also seen during chest pain episodes annotated in the diary that the individual keeps while wearing the Holter monitor. c. ST depression can result from a variety of factors, such as postural changes and variations in cardiac sympathetic tone. In addition, there are differences in how different Holter monitors record the electrical responses. Therefore, we do not consider the Holter monitor reliable for the diagnosis of silent ischemia except in the situation described in 4.00E7b(ii). 8. What other sources of chest discomfort are there? 9. How do we evaluate IHD using 4.04? a. We must have objective evidence, as described under 4.00C, that your symptoms are due to myocardial ischemia. b. Listing-level changes on the ECG in 4.04A1 are the classically accepted changes of horizontal or downsloping ST depression occurring both during exercise and recovery. Although we recognize that ischemic changes may at times occur only during exercise or recovery, and may at times be upsloping with only junctional ST depression, such changes can be false positive; that is, occur in the absence of ischemia. Diagnosis of ischemia in this situation requires radionuclide or echocardiogram confirmation. See 4.00C12 and 4.00C13. c. Also in 4.04A1, we require that the depression of the ST segment last for at least 1 minute of recovery because ST depression that occurs during exercise but that rapidly normalizes in recovery is a common false-positive response. d. In 4.04A2, we specify that the ST elevation must be in non-infarct leads during both exercise and recovery. This is because, in the absence of ECG signs of prior infarction, ST elevation during exercise denotes ischemia, usually severe, requiring immediate termination of exercise. However, if there is baseline ST elevation in association with a prior infarction or ventricular aneurysm, further ST elevation during exercise does not necessarily denote ischemia and could be a false-positive ECG response. Diagnosis of ischemia in this situation requires radionuclide or echocardiogram confirmation. See 4.00C12 and 4.00C13. e. Listing 4.04A3 requires a decrease in systolic blood pressure below the baseline level (taken in the standing position immediately prior to exercise) or below any systolic pressure reading recorded during exercise. This is the same finding required in 4.02B3c. See 4.00D4d for full details. f. In 4.04B, each of the three ischemic episodes must require revascularization or be not amenable to treatment. Revascularization g. We will use 4.04C only when you have symptoms due to myocardial ischemia as described in 4.00E3-4.00E7 while on a regimen of prescribed treatment, you are at risk for exercise testing (see 4.00C8), and we do not have a timely ETT or a timely normal drug-induced stress test for you. See 4.00C9 for what we mean by a timely test. h. In 4.04C1 the term nonbypassed F. Evaluating Arrhythmias 1. What is an arrhythmia? arrhythmia 2. What are the different types of arrhythmias? a. There are many types of arrhythmias. Arrhythmias are identified by where they occur in the heart (atria or ventricles) and by what happens to the heart's rhythm when they occur. b. Arrhythmias arising in the cardiac atria (upper chambers of the heart) are called atrial or supraventricular arrhythmias. Ventricular arrhythmias begin in the ventricles (lower chambers). In general, ventricular arrhythmias caused by heart disease are the most serious. 3. How do we evaluate arrhythmias using 4.05? a. We will use 4.05 when you have arrhythmias that are not fully controlled by medication, an implanted pacemaker, or an implanted cardiac defibrillator and you have uncontrolled recurrent episodes of syncope or near syncope. If your arrhythmias are controlled, we will evaluate your underlying heart disease using the appropriate listing. For other considerations when we evaluate arrhythmias in the presence of an implanted cardiac defibrillator, see 4.00F4. b. We consider near syncope c. For purposes of 4.05, there must be a documented association between the syncope or near syncope and the recurrent arrhythmia. The recurrent arrhythmia, not some other cardiac or non-cardiac disorder, must be established as the cause of the associated symptom. This documentation of the association between the symptoms and the arrhythmia may come from the usual diagnostic methods, including Holter monitoring (also called ambulatory electrocardiography) and tilt-table testing with a concurrent ECG. Although an arrhythmia may be a coincidental finding on an ETT, we will not purchase an ETT to document the presence of a cardiac arrhythmia. 4. What will we consider when you have an implanted cardiac defibrillator and you do not have arrhythmias that meet the requirements of 4.05? a. Implanted cardiac defibrillators are used to prevent sudden cardiac death in individuals who have had, or are at high risk for, cardiac arrest from life-threatening ventricular arrhythmias. The largest group at risk for sudden cardiac death consists of individuals with cardiomyopathy (ischemic or non-ischemic) and reduced ventricular function. However, life-threatening ventricular arrhythmias can also occur in individuals with little or no ventricular dysfunction. The shock from the implanted cardiac defibrillator is a unique form of treatment; it rescues an individual from what may have been cardiac arrest. However, as a consequence of the shock(s), individuals may experience psychological distress, which we may evaluate under the mental disorders listings in 12.00ff. b. Most implantable cardiac defibrillators have rhythm-correcting and pacemaker capabilities. In some individuals, these functions may result in the termination of ventricular arrhythmias without an otherwise painful shock. (The shock is like being kicked in the chest.) Implanted cardiac defibrillators may deliver inappropriate shocks, often repeatedly, in response to benign arrhythmias or electrical malfunction. Also, exposure to strong electrical or magnetic fields, such as from MRI (magnetic resonance imaging), can trigger or reprogram an implanted cardiac defibrillator, resulting in inappropriate shocks. We must consider the frequency of, and the reason(s) for, the shocks when evaluating the severity and duration of your impairment. c. In general, the exercise limitations imposed on individuals with an implanted cardiac defibrillator are those dictated by the underlying heart impairment. However, the exercise limitations may be greater when the implanted cardiac defibrillator delivers an inappropriate shock in response to the increase in heart rate with exercise, or when there is exercise-induced ventricular arrhythmia. G. Evaluating Peripheral Vascular Disease 1. What is peripheral vascular disease (PVD)? PVD 2. How do we assess limitations resulting from PVD? 3. What is brawny edema? Brawny edema 4. What is lymphedema and how will we evaluate it? a. Lymphedema b. Lymphedema does not meet the requirements of 4.11, although it may medically equal the severity of that listing. We will evaluate lymphedema by considering whether the underlying cause meets or medically equals any listing or whether the lymphedema medically equals a cardiovascular listing, such as 4.11, or a musculoskeletal disorders listing, such as 1.18. If no listing is met or medically equaled, we will evaluate any functional limitations imposed by your lymphedema when we assess your residual functional capacity. 5. When will we purchase exercise Doppler studies for evaluating peripheral arterial disease (PAD)? 6. Are there any other studies that are helpful in evaluating PAD? 7. How do we evaluate PAD under 4.12? a. The ankle blood pressure referred to in 4.12A and B is the higher of the pressures recorded from the posterior tibial and dorsalis pedis arteries in the affected leg. The higher pressure recorded from the two sites is the more significant measurement in assessing the extent of arterial insufficiency. Techniques for obtaining ankle systolic blood pressures include Doppler (See 4.00C16 and 4.00C17), plethysmographic studies, or other techniques. We will request any available tracings generated by these studies so that we can review them. b. In 4.12A, the ankle/brachial systolic blood pressure ratio is the ratio of the systolic blood pressure at the ankle to the systolic blood pressure at the brachial artery; both taken at the same time while you are lying on your back. We do not require that the ankle and brachial pressures be taken on the same side of your body. This is because, as with the ankle pressure, we will use the higher brachial systolic pressure measured. Listing 4.12A is met when your resting ankle/brachial systolic blood pressure ratio is less than 0.50. If your resting ankle/brachial systolic blood pressure ratio is 0.50 or above, we will use 4.12B to evaluate the severity of your PAD, unless you also have a disease causing abnormal arterial calcification or small vessel disease, such as diabetes mellitus. See 4.00G7c and 4.00G8. c. We will use resting toe systolic blood pressures or resting toe/brachial systolic blood pressure ratios (determined the same way as ankle/brachial ratios, see 4.00G7b) when you have intermittent claudication and a disease that results in abnormal arterial calcification (for example, Monckeberg's sclerosis or diabetes mellitus) or small vessel disease (for example, diabetes mellitus). These diseases may result in misleadingly high blood pressure readings at the ankle. However, high blood pressures due to vascular changes related to these diseases seldom occur at the toe level. While the criteria in 4.12C and 4.12D are intended primarily for individuals who have a disease causing abnormal arterial calcification or small vessel disease, we may also use them for evaluating anyone with PAD. 8. How are toe pressures measured? 9. How do we use listing 4.12 if you have had a peripheral graft? H. Evaluating Other Cardiovascular Impairments 1. How will we evaluate hypertension? hypertension 2. How will we evaluate symptomatic congenital heart disease? Congenital heart disease 3. What is cardiomyopathy and how will we evaluate it? Cardiomyopathy Ischemic nonischemic 4. How will we evaluate valvular heart disease? 5. What do we consider when we evaluate heart transplant recipients? a. After your heart transplant, we will consider you disabled for 1 year following the surgery because there is a greater likelihood of rejection of the organ and infection during the first year. b. However, heart transplant patients generally meet our definition of disability before they undergo transplantation. We will determine the onset of your disability based on the facts in your case. c. We will not assume that you became disabled when your name was placed on a transplant waiting list. This is because you may be placed on a waiting list soon after diagnosis of the cardiac disorder that may eventually require a transplant. Physicians recognize that candidates for transplantation often have to wait months or even years before a suitable donor heart is found, so they place their patients on the list as soon as permitted. d. When we do a continuing disability review to determine whether you are still disabled, we will evaluate your residual impairment(s), as shown by symptoms, signs, and laboratory findings, including any side effects of medication. We will consider any remaining symptoms, signs, and laboratory findings indicative of cardiac dysfunction in deciding whether medical improvement (as defined in §§ 404.1594 and 416.994) has occurred. 6. When does an aneurysm have “dissection not controlled by prescribed treatment,” as required under 4.10? dissecting 7. What is hyperlipidemia and how will we evaluate it? Hyperlipidemia 8. What is Marfan syndrome and how will we evaluate it? a. Marfan syndrome is a genetic connective tissue disorder that affects multiple body systems, including the skeleton, eyes, heart, blood vessels, nervous system, skin, and lungs. There is no specific laboratory test to diagnose Marfan syndrome. The diagnosis is generally made by medical history, including family history, physical examination, including an evaluation of the ratio of arm/leg size to trunk size, a slit lamp eye examination, and a heart test(s), such as an echocardiogram. In some cases, a genetic analysis may be useful, but such analyses may not provide any additional helpful information. b. The effects of Marfan syndrome can range from mild to severe. In most cases, the disorder progresses as you age. Most individuals with Marfan syndrome have abnormalities associated with the heart and blood vessels. Your heart's mitral valve may leak, causing a heart murmur. Small leaks may not cause symptoms, but larger ones may cause shortness of breath, fatigue, and palpitations. Another effect is that the wall of the aorta may be weakened and abnormally stretch (aortic dilation). This aortic dilation may tear, dissect, or rupture, causing serious heart problems or sometimes sudden death. We will evaluate the manifestations of your Marfan syndrome under the appropriate body system criteria, such as 4.10, or if necessary, consider the functional limitations imposed by your impairment. I. Other Evaluation Issues 1. What effect does obesity have on the cardiovascular system and how will we evaluate it? 2. How do we relate treatment to functional status? 3. How do we evaluate impairments that do not meet one of the cardiovascular listings? a. These listings are only examples of common cardiovascular impairments that we consider severe enough to prevent you from doing any gainful activity. If your severe impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that satisfies the criteria of a listing in another body system. b. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairments(s) medically equals a listing. (See §§ 404.1526 and 416.926.) If you have a severe impairment(s) that does not meet or medically equal the criteria of a listing, you may or may not have the residual functional capacity to engage in substantial gainful activity. Therefore, we proceed to the fourth and, if necessary, the fifth steps of the sequential evaluation process in §§ 404.1520 and 416.920. If you are an adult, we use the rules in §§ 404.1594 or 416.994, as appropriate, when we decide whether you continue to be disabled. 4.01 Category of Impairments, Cardiovascular System 4.02 Chronic heart failure both A and B A. Medically documented presence of one of the following: 1. Systolic failure (see 4.00D1a(i)), with left ventricular end diastolic dimensions greater than 6.0 cm or ejection fraction of 30 percent or less during a period of stability (not during an episode of acute heart failure); or 2. Diastolic failure (see 4.00D1a(ii)), with left ventricular posterior wall plus septal thickness totaling 2.5 cm or greater on imaging, with an enlarged left atrium greater than or equal to 4.5 cm, with normal or elevated ejection fraction during a period of stability (not during an episode of acute heart failure); AND B. Resulting in one of the following: 1. Persistent symptoms of heart failure which very seriously limit the ability to independently initiate, sustain, or complete activities of daily living in an individual for whom an MC, preferably one experienced in the care of patients with cardiovascular disease, has concluded that the performance of an exercise test would present a significant risk to the individual; or 2. Three or more separate episodes of acute congestive heart failure within a consecutive 12-month period (see 4.00A3e), with evidence of fluid retention (see 4.00D2b(ii)) from clinical and imaging assessments at the time of the episodes, requiring acute extended physician intervention such as hospitalization or emergency room treatment for 12 hours or more, separated by periods of stabilization (see 4.00D4c); or 3. Inability to perform on an exercise tolerance test at a workload equivalent to 5 METs or less due to: a. Dyspnea, fatigue, palpitations, or chest discomfort; or b. Three or more consecutive premature ventricular contractions (ventricular tachycardia), or increasing frequency of ventricular ectopy with at least 6 premature ventricular contractions per minute; or c. Decrease of 10 mm Hg or more in systolic pressure below the baseline systolic blood pressure or the preceding systolic pressure measured during exercise (see 4.00D4d) due to left ventricular dysfunction, despite an increase in workload; or d. Signs attributable to inadequate cerebral perfusion, such as ataxic gait or mental confusion. 4.04 Ischemic heart disease A. Sign-or symptom-limited exercise tolerance test demonstrating at least one of the following manifestations at a workload equivalent to 5 METs or less: 1. Horizontal or downsloping depression, in the absence of digitalis glycoside treatment or hypokalemia, of the ST segment of at least −0.10 millivolts (−1.0 mm) in at least 3 consecutive complexes that are on a level baseline in any lead other than aVR, and depression of at least −0.10 millivolts lasting for at least 1 minute of recovery; or 2. At least 0.1 millivolt (1 mm) ST elevation above resting baseline in non-infarct leads during both exercise and 1 or more minutes of recovery; or 3. Decrease of 10 mm Hg or more in systolic pressure below the baseline blood pressure or the preceding systolic pressure measured during exercise (see 4.00E9e) due to left ventricular dysfunction, despite an increase in workload; or 4. Documented ischemia at an exercise level equivalent to 5 METs or less on appropriate medically acceptable imaging, such as radionuclide perfusion scans or stress echocardiography. OR B. Three separate ischemic episodes, each requiring revascularization or not amenable to revascularization (see 4.00E9f), within a consecutive 12-month period (see 4.00A3e). OR C. Coronary artery disease, demonstrated by angiography (obtained independent of Social Security disability evaluation) or other appropriate medically acceptable imaging, and in the absence of a timely exercise tolerance test or a timely normal drug-induced stress test, an MC, preferably one experienced in the care of patients with cardiovascular disease, has concluded that performance of exercise tolerance testing would present a significant risk to the individual, with both 1 and 2: 1. Angiographic evidence showing: a. 50 percent or more narrowing of a nonbypassed left main coronary artery; or b. 70 percent or more narrowing of another nonbypassed coronary artery; or c. 50 percent or more narrowing involving a long (greater than 1 cm) segment of a nonbypassed coronary artery; or d. 50 percent or more narrowing of at least two nonbypassed coronary arteries; or e. 70 percent or more narrowing of a bypass graft vessel; and 2. Resulting in very serious limitations in the ability to independently initiate, sustain, or complete activities of daily living. 4.05 Recurrent arrhythmias 4.06 Symptomatic congenital heart disease A. Cyanosis at rest, and: 1. Hematocrit of 55 percent or greater; or 2. Arterial O 2 2 OR B. Intermittent right-to-left shunting resulting in cyanosis on exertion (e.g., Eisenmenger's physiology) and with arterial PO 2 OR C. Secondary pulmonary vascular obstructive disease with pulmonary arterial systolic pressure elevated to at least 70 percent of the systemic arterial systolic pressure. 4.09 Heart transplant. 4.10 Aneurysm of aorta or major branches 4.11 Chronic venous insufficiency A. Extensive brawny edema (see 4.00G3) involving at least two-thirds of the leg between the ankle and knee or the distal one-third of the lower extremity between the ankle and hip. OR B. Superficial varicosities, stasis dermatitis, and either recurrent ulceration or persistent ulceration that has not healed following at least 3 months of prescribed treatment. 4.12 Peripheral arterial disease A. Resting ankle/brachial systolic blood pressure ratio of less than 0.50. OR B. Decrease in systolic blood pressure at the ankle on exercise (see 4.00G7a and 4.00C16-4.00C17) of 50 percent or more of pre-exercise level and requiring 10 minutes or more to return to pre-exercise level. OR C. Resting toe systolic pressure of less than 30 mm Hg (see 4.00G7c and 4.00G8). OR D. Resting toe/brachial systolic blood pressure ratio of less than 0.40 (see 4.00G7c). 5.00 Digestive Disorders A. Which digestive disorders do we evaluate in this body system? B. What evidence do we need to evaluate your digestive disorder? 1. General. 2. Laboratory findings. 3. Imaging C. What is chronic liver disease (CLD), and how do we evaluate it under 5.05? 1. General. a. We will evaluate your signs of CLD, such as jaundice, changes in size of the liver and spleen, ascites, peripheral edema, and altered mental status. We will also evaluate your symptoms of CLD, such as pruritus (itching), fatigue, nausea, loss of appetite, and sleep disturbances when we assess the severity of your impairment(s) and how it affects your ability to function. In the absence of evidence of a chronic liver impairment, episodes of acute liver disease do not meet the requirements of 5.05. b. Laboratory findings 2. Manifestations of CLD. a. Gastrointestinal hemorrhaging b. Ascites or hydrothorax c. Spontaneous bacterial peritonitis (SBP) 3 d. Hepatorenal syndrome e. Hepatopulmonary syndrome (i) Under 5.05E1, we require a resting arterial blood gas (ABG) measurement obtained while you are breathing room air; that is, without oxygen supplementation. The ABG report must include the P a 2 (ii) We will not purchase the specialized imaging techniques described in 5.05E2; however, if you have had the test(s) at a time relevant to your claim, we will make every reasonable effort to obtain the report. f. Hepatic encephalopathy (i) Under 5.05F2, we require documentation of a mental impairment associated with hepatic encephalopathy. A mental impairment can include abnormal behavior, changes in mental status, or an altered state of consciousness. Reports of abnormal behavior may show that you are experiencing delusions, paranoia, or hallucinations. Reports of changes in mental status may show change in sleep patterns, personality or mood changes, poor concentration, or poor judgment or cognitive dysfunction (for example, impaired memory, poor problem-solving ability, or attention deficits). Reports of altered state of consciousness may show that you are experiencing confusion, delirium, or stupor. (ii) Signs and laboratory findings that document the severity of hepatic encephalopathy when not attributable to other causes may include a “flapping tremor” (asterixis), characteristic abnormalities found on an electroencephalogram (EEG), or abnormal serum albumin or coagulation values. We will not purchase an EEG; however, if you have had this test at a time relevant to your claim, we will make every reasonable effort to obtain the report for the purpose of establishing whether your impairment meets the criteria of 5.05F. (iii) We will not evaluate acute encephalopathy under 5.05F if it results from conditions other than CLD. For example, we will evaluate acute encephalopathy caused by vascular events under the listings in 11.00 and acute encephalopathy caused by cancer under the listings in 13.00. 3. SSA Chronic Liver Disease (SSA CLD) score a. We calculate the SSA CLD score using a formula that includes up to four laboratory values: Serum creatinine (mg/dL), total bilirubin (mg/dL), INR, and under certain conditions, serum sodium (mmol/L). The SSA CLD score calculation contains at least one, and sometimes two, parts, as described in (i) and (ii). (i) The initial calculation is: SSA CLD i 9.57 × [log e + 3.78 × [log e +11.2 × [log e + 6.43 rounded to the nearest whole integer. (ii) If the value from the initial calculation is 11 or below, the SSA CLD score will be the SSA CLD i SSA CLD = SSA CLD i + 1.32 × (137−serum sodium mmol/L) −[0.033 × SSA CLD i (iii) We round the results of your SSA CLD score calculation to the nearest whole integer to arrive at your SSA CLD score. b. For any SSA CLD score calculation, all of the required laboratory values (serum creatinine, serum total bilirubin, INR, and serum sodium) must have been obtained within a continuous 30-day period. (i) We round values for serum creatinine (mg/dL), serum total bilirubin (mg/dL), or INR less than 1.0 up to 1.0 to calculate your SSA CLD score. (ii) We round values for serum creatinine (mg/dL) greater than 4.0 down to 4.0 to calculate your SSA CLD score. (iii) If there are multiple laboratory values within the 30-day interval for serum creatinine (mg/dL), serum total bilirubin (mg/dL), or INR, we use the highest (iv) If there are multiple laboratory values within the 30-day interval for serum sodium (mmol/L), we use the lowest (v) If you are in renal failure or on renal dialysis within a week of any serum creatinine test in the period used for the SSA CLD calculation, we will use a serum creatinine value of 4.0, which is the maximum serum creatinine level allowed in the calculation, to calculate your SSA CLD score. (vi) If your serum sodium is less than 125 mmol/L, we will set your serum sodium to 125 mmol/L for purposes of calculation of the SSA CLD score. If your serum sodium is higher than 137 mmol/L, we will set your serum sodium to 137 mmol/L for purposes of calculation of the SSA CLD score. c. When we indicate “log e SSA CLD i 9.57 × [log e + 3.78 × [log e + 11.2 × [log e + 6.43 = 3.22 + 0.99 + 3.11 + 6.43 = 13.75, which we round to an SSA CLD i Because the SSA CLD i SSA CLD = 14 + 1.32 × (137−serum sodium 125 mmol/L) −[0.033 × SSA CLD i = 14 + 15.84−5.54 = 24.3, which we round to an SSA CLD score of 24. D. What is inflammatory bowel disease (IBD), and how do we evaluate it under 5.06? 1. IBD is a group of inflammatory conditions of the small intestine and colon. The most common IBD disorders are Crohn's disease and ulcerative colitis. Remissions and exacerbations of variable duration are a hallmark of IBD. 2. We evaluate your signs and symptoms of IBD, such as diarrhea, fecal incontinence, rectal bleeding, abdominal pain, fatigue, fever, nausea, vomiting, arthralgia, abdominal tenderness, palpable abdominal mass (usually inflamed loops of bowel), and perianal disease (for example, fissure, fistulas, abscesses, or anal canal stenosis), when we assess the severity of your impairment(s). You may require supplemental daily nutrition due to IBD. There are two forms of supplemental daily nutrition we consider under 5.06B5: enteral nutrition (delivered directly to a part of your digestive system) via a gastrostomy, duodenostomy, or jejunostomy, and parenteral nutrition delivered via a central venous catheter. Enteral tube feedings delivered via nasal or oral tubes do not satisfy the requirement in 5.06B5. 3. Surgical diversion of the intestinal tract, including ileostomy and colostomy, does not preclude the ability to perform any gainful activity if you are able to maintain adequate nutrition and function of the stoma. However, if you are not able to maintain adequate nutrition, we will evaluate your impairment under 5.08. 4. IBD may also be associated with significant extraintestinal manifestations in a variety of body systems. These include, but are not limited to, involvement of the eye (for example, uveitis, episcleritis, or iritis); hepatobiliary disease (for example, gallstones or primary sclerosing cholangitis); urologic disease (for example, kidney stones or obstructive hydronephrosis); skin involvement (for example, erythema nodosum or pyoderma gangrenosum); or non-destructive inflammatory arthritis. You may also have associated thromboembolic disorders or vascular disease. These manifestations may not correlate with the severity of your IBD. If your impairment does not meet any of the criteria of 5.06, we will consider the effects of your extraintestinal manifestations in determining whether you have an impairment(s) that meets or medically equals another listing, and when we assess your residual functional capacity. 5. Repeated complications of IBD. a. Examples of complications of IBD include abscesses, intestinal perforation, toxic megacolon, infectious colitis, pyoderma gangrenosum, ureteral obstruction, primary sclerosing cholangitis, and hypercoagulable state (which may lead to thromboses or embolism). When we evaluate repeated complications of IBD, we consider all relevant information in your case record to determine the effects of your IBD on your ability to function independently, appropriately, effectively, and on a sustained basis. Factors we consider include, but are not limited to: your symptoms, the frequency and duration of your complications, periods of exacerbation and remission, and the functional effects of your treatment, including the side effects of your medication. Your impairment will satisfy this criterion regardless of whether you have the same kind of complication repeatedly, all different complications, or any other combination of complications; for example, two of the same kind of complication and a different one. b. To satisfy the requirements described under 5.06C, your IBD must result in repeated complications and marked limitation in one of three areas of functioning: activities of daily living; maintaining social functioning; or completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. If the complications do not last as long or occur as frequently as required under 5.06C, we will consider whether your IBD medically equals the listing. c. Marked seriously d. Activities of daily living e. Maintaining social functioning f. Completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace E. What is intestinal failure, and how do we evaluate it under 5.07? 1. Intestinal failure i.e., 2. Short bowel syndrome 3. Extensive small bowel mucosal disease 4. Chronic motility disorder 5. For short bowel syndrome, we require a copy of the operative report that includes details of the surgical findings, or postoperative imaging indicating a resection of the small intestine. If we cannot get one of these reports, we need other medical reports that include details of the surgical findings. For other chronic motility disorders or extensive small bowel mucosal disease, we need medical reports that include details of your intestinal dysfunction. For any impairment evaluated under 5.07, we also need medical documentation that you are dependent on daily parenteral nutrition to provide most of your nutritional requirements. F. How do we evaluate weight loss due to any digestive disorder under 5.08? 1. In addition to the impairments specifically mentioned in these listings, other digestive disorders, such as esophageal stricture, pancreatic insufficiency, and malabsorption, may result in significant weight loss. Impairments other than digestive disorders that cause weight loss should be evaluated under the appropriate body system for that impairment. For instance, weight loss as a result of chronic kidney disease should be evaluated under our rules for genitourinary disorders (see 6.00), and weight loss as the result of an eating disorder should be evaluated under our rules for mental disorders (see 12.00). However, if you develop a digestive disorder as the result of your other impairment, we will evaluate the acquired digestive disorder under our rules for digestive disorders. We evaluate weight loss due to any digestive disorder under 5.08 by using the body mass index (BMI). 2. BMI is the ratio of your weight to the square of your height. Calculation and interpretation of the BMI are independent of sex in adults. a. We calculate BMI using inches and pounds, meters and kilograms, or centimeters and kilograms. We must have measurements of your weight and height without shoes for these calculations. b. We calculate BMI using one of the following formulas: English Formula BMI = [Weight in Pounds/(Height in Inches × Height in Inches)] × 703 Metric Formulas BMI = Weight in Kilograms/(Height in Meters × Height in Meters) BMI = [Weight in Kilograms/(Height in Centimeters × Height in Centimeters)] × 10,000 G. How do we evaluate digestive organ transplantation? H. How do we evaluate your digestive disorder if there is no record of ongoing treatment? I. How do we evaluate your digestive disorder if there is evidence establishing a substance use disorder? J. How do we evaluate digestive disorders that do not meet one of these listings? 1. These listings are only examples of common digestive disorders that we consider severe enough to prevent you from doing any gainful activity. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that satisfies the criteria of a listing in another body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. See §§ 404.1526 and 416.926 of this chapter. Digestive disorders may be associated with disorders in other body systems, and we consider the combined effects of multiple impairments when we determine whether they medically equal a listing. If your impairment(s) does not meet or medically equal a listing, you may or may not have the residual functional capacity to engage in substantial gainful activity. We proceed to the fourth step and, if necessary, the fifth step of the sequential evaluation process in §§ 404.1520 and 416.920 of this chapter. We use the rules in §§ 404.1594 and 416.994 of this chapter, as appropriate, when we decide whether you continue to be disabled. 5.01 Category of Impairments, Digestive Disorders 5.02 Gastrointestinal hemorrhaging from any cause, requiring three blood transfusions 5.03-5.04 [Reserved] 5.05 Chronic liver disease (CLD) A. Hemorrhaging from esophageal, gastric, or ectopic varices, or from portal hypertensive gastropathy (see 5.00C2a), documented by imaging (see 5.00B3); resulting in 1 and 2: 1. Hemodynamic instability indicated by signs such as pallor (pale skin), diaphoresis (profuse perspiration), rapid pulse, low blood pressure, postural hypotension (pronounced fall in blood pressure when arising to an upright position from lying down), or syncope (fainting); and 2. Requiring hospitalization for transfusion of at least 2 units of blood. Consider under a disability for 1 year following the documented transfusion; after that, evaluate the residual impairment(s). OR B. Ascites or hydrothorax not attributable to other causes (see 5.00C2b), present on two evaluations within a consecutive 12-month period and at least 60 days apart. Each evaluation must document the ascites or hydrothorax by 1, 2, or 3: 1. Paracentesis; or 2. Thoracentesis; or 3. Imaging or physical examination with a or b: a. Serum albumin of 3.0 g/dL or less; or b. INR of at least 1.5. OR C. Spontaneous bacterial peritonitis (see 5.00C2c) documented by peritoneal fluid containing a neutrophil count of at least 250 cells/mm 3 OR D. Hepatorenal syndrome (see 5.00C2d) documented by 1, 2, or 3: 1. Serum creatinine elevation of at least 2 mg/dL; or 2. Oliguria with 24-hour urine output less than 500 mL; or 3. Sodium retention with urine sodium less than 10 mEq per liter. OR E. Hepatopulmonary syndrome (see 5.00C2e) documented by 1 or 2: 1. Arterial P a 2 a. 60 mm Hg, at test sites less than 3,000 feet above sea level; or b. 55 mm Hg, at test sites from 3,000 through 6,000 feet above sea level; or c. 50 mm Hg, at test sites over 6,000 feet above sea level; or 2. Intrapulmonary arteriovenous shunting as shown by contrast-enhanced echocardiography or macroaggregated albumin lung perfusion scan. OR F. Hepatic encephalopathy (see 5.00C2f) with documentation of abnormal behavior, cognitive dysfunction, changes in mental status, or altered state of consciousness (for example, confusion, delirium, stupor, or coma), present on two evaluations within a consecutive 12-month period and at least 60 days apart and either 1 or 2: 1. History of transjugular intrahepatic portosystemic shunt (TIPS) or other surgical portosystemic shunt; or 2. One of the following on at least two evaluations at least 60 days apart within the same consecutive 12-month period as in F: a. Asterixis or other fluctuating physical neurological abnormalities; or b. EEG demonstrating triphasic slow wave activity; or c. Serum albumin of 3.0 g/dL or less; or d. INR of 1.5 or greater. OR G. Two SSA CLD scores (see 5.00C3) of at least 20 within a consecutive 12-month period and at least 60 days apart. Consider under a disability from at least the date of the first score. 5.06 Inflammatory bowel disease (IBD) and A. Obstruction of stenotic areas (not adhesions) in the small intestine or colon with proximal dilatation, confirmed by imaging or in surgery, requiring two hospitalizations for intestinal decompression or for surgery, within a consecutive 12-month period and at least 60 days apart. OR B. Two of the following occurring within a consecutive 12-month period and at least 60 days apart: 1. Anemia with hemoglobin of less than 10.0 g/dL, present on at least two evaluations at least 60 days apart; or 2. Serum albumin of 3.0 g/dL or less, present on at least two evaluations at least 60 days apart; or 3. Clinically documented tender abdominal mass palpable on physical examination with abdominal pain or cramping; or 4. Perianal disease with a draining abscess or fistula; or 5. Need for supplemental daily enteral nutrition via a gastrostomy, duodenostomy, or jejunostomy, or daily parenteral nutrition via a central venous catheter. OR C. Repeated complications of IBD (see 5.00D5a), occurring an average of 3 times a year, or once every 4 months, each lasting 2 weeks or more, within a consecutive 12-month period, and marked limitation (see 5.00D5c) in one of the following: 1. Activities of daily living (see 5.00D5d); or 2. Maintaining social functioning (see 5.00D5e); or 3. Completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace (see 5.00D5f). 5.07 Intestinal failure 5.08 Weight loss due to any digestive disorder 5.09 Liver transplantation 5.10 [Reserved] 5.11 Small intestine transplantation 5.12 Pancreas transplantation 6.00 Genitourinary disorders A. Which disorders do we evaluate under these listings? We evaluate genitourinary disorders resulting in chronic kidney disease (CKD). Examples of such disorders include chronic glomerulonephritis, hypertensive nephropathy, diabetic nephropathy, chronic obstructive uropathy, and hereditary nephropathies. We also evaluate nephrotic syndrome due to glomerular dysfunction under these listings. B. What evidence do we need? 1. We need evidence that documents the signs, symptoms, and laboratory findings of your CKD. This evidence should include reports of clinical examinations, treatment records, and documentation of your response to treatment. Laboratory findings, such as serum creatinine or serum albumin levels, may document your kidney function. We generally need evidence covering a period of at least 90 days unless we can make a fully favorable determination or decision without it. 2. Estimated glomerular filtration rate (eGFR). 3. Kidney or bone biopsy. C. What other factors do we consider when we evaluate your genitourinary disorder? 1. Chronic hemodialysis or peritoneal dialysis. a. Dialysis is a treatment for CKD that uses artificial means to remove toxic metabolic byproducts from the blood. Hemodialysis uses an artificial kidney machine to clean waste products from the blood; peritoneal dialysis uses a dialyzing solution that is introduced into and removed from the abdomen (peritoneal cavity) either continuously or intermittently. Under 6.03, your ongoing dialysis must have lasted or be expected to last for a continuous period of at least 12 months. To satisfy the requirements in 6.03, we will accept a report from an acceptable medical source that describes your CKD and your current dialysis, and indicates that your dialysis will be ongoing. b. If you are undergoing chronic hemodialysis or peritoneal dialysis, your CKD may meet our definition of disability before you started dialysis. We will determine the onset of your disability based on the facts in your case record. 2. Kidney transplant. a. If you receive a kidney transplant, we will consider you to be disabled under 6.04 for 1 year from the date of transplant. After that, we will evaluate your residual impairment(s) by considering your post-transplant function, any rejection episodes you have had, complications in other body systems, and any adverse effects related to ongoing treatment. b. If you received a kidney transplant, your CKD may meet our definition of disability before you received the transplant. We will determine the onset of your disability based on the facts in your case record. 3. Renal osteodystrophy. 4. Peripheral neuropathy. 5. Fluid overload syndrome. 6. Anasarca 7. Anorexia (diminished appetite) with weight loss. 8. Complications of CKD. D. How do we evaluate disorders that do not meet one of the genitourinary listings? 1. The listed disorders are only examples of common genitourinary disorders that we consider severe enough to prevent you from doing any gainful activity. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that satisfies the criteria of a listing in another body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. (See §§ 404.1526 and 416.926 of this chapter.) Genitourinary disorders may be associated with disorders in other body systems, and we consider the combined effects of multiple impairments when we determine whether they medically equal a listing. If your impairment(s) does not meet or medically equal the criteria of a listing, you may or may not have the residual functional capacity to engage in substantial gainful activity. We proceed to the fourth and, if necessary, the fifth steps of the sequential evaluation process in §§ 404.1520 and 416.920 of this chapter. We use the rules in §§ 404.1594 and 416.994 of this chapter, as appropriate, when we decide whether you continue to be disabled. 6.01 Category of Impairments, Genitourinary Disorders 6.03 Chronic kidney disease, 6.04 Chronic kidney disease, 6.05 Chronic kidney disease, A. Reduced glomerular filtration evidenced by one of the following laboratory findings documented on at least two occasions at least 90 days apart during a consecutive 12-month period: 1. Serum creatinine of 4 mg/dL or greater; or 2. Creatinine clearance of 20 ml/min. or less; or 3. Estimated glomerular filtration rate (eGFR) of 20 ml/min/1.73m 2 AND B. One of the following: 1. Renal osteodystrophy (see 6.00C3) with severe bone pain and imaging studies documenting bone abnormalities, such as osteitis fibrosa, osteomalacia, or pathologic fractures; or 2. Peripheral neuropathy (see 6.00C4); or 3. Fluid overload syndrome (see 6.00C5) documented by one of the following: a. Diastolic hypertension greater than or equal to diastolic blood pressure of 110 mm Hg despite at least 90 consecutive days of prescribed therapy, documented by at least two measurements of diastolic blood pressure at least 90 days apart during a consecutive 12-month period; or b. Signs of vascular congestion or anasarca (see 6.00C6) despite at least 90 consecutive days of prescribed therapy, documented on at least two occasions at least 90 days apart during a consecutive 12-month period; or 4. Anorexia with weight loss (see 6.00C7) determined by body mass index (BMI) of 18.0 or less, calculated on at least two occasions at least 90 days apart during a consecutive 12-month period. 6.06 Nephrotic syndrome, A. Laboratory findings as described in 1 or 2, documented on at least two occasions at least 90 days apart during a consecutive 12-month period: 1. Proteinuria of 10.0 g or greater per 24 hours; or 2. Serum albumin of 3.0 g/dL or less, and a. Proteinuria of 3.5 g or greater per 24 hours; or b. Urine total-protein-to-creatinine ratio of 3.5 or greater. AND B. Anasarca (see 6.00C6) persisting for at least 90 days despite prescribed treatment. 6.09 Complications of chronic kidney disease 7.00 Hematological Disorders A. What hematological disorders do we evaluate under these listings? 1. We evaluate non-malignant (non-cancerous) hematological disorders, such as hemolytic anemias (7.05), disorders of thrombosis and hemostasis (7.08), and disorders of bone marrow failure (7.10). These disorders disrupt the normal development and function of white blood cells, red blood cells, platelets, and clotting-factor proteins (factors). 2. We evaluate malignant (cancerous) hematological disorders, such as lymphoma, leukemia, and multiple myeloma, under the appropriate listings in 13.00, except for two lymphomas associated with human immunodeficiency virus (HIV) infection. We evaluate primary central nervous system lymphoma associated with HIV infection under 14.11B, and primary effusion lymphoma associated with HIV infection under 14.11C. B. What evidence do we need to document that you have a hematological disorder? We need the following evidence to document that you have a hematological disorder: 1. A laboratory report of a definitive test that establishes a hematological disorder, signed by a physician; or 2. A laboratory report of a definitive test that establishes a hematological disorder that is not signed by a physician and a report from a physician that states you have the disorder; or 3. When we do not have a laboratory report of a definitive test, a persuasive report from a physician that a diagnosis of your hematological disorder was confirmed by appropriate laboratory analysis or other diagnostic method(s). To be persuasive, this report must state that you had the appropriate definitive laboratory test or tests for diagnosing your disorder and provide the results, or explain how your diagnosis was established by other diagnostic method(s) consistent with the prevailing state of medical knowledge and clinical practice. 4. We will make every reasonable effort to obtain the results of appropriate laboratory testing you have had. We will not purchase complex, costly, or invasive tests, such as tests of clotting-factor proteins, and bone marrow aspirations. C. What are hemolytic anemias, and how do we evaluate them under 7.05? 1. Hemolytic anemias, both congenital and acquired, 2. The hospitalizations in 7.05B do not all have to be for the same complication of the hemolytic anemia. They may be for three different complications of the disorder. Examples of complications of hemolytic anemia that may result in hospitalization include osteomyelitis, painful (vaso-occlusive) crisis, pulmonary infections or infarctions, acute chest syndrome, pulmonary hypertension, chronic heart failure, gallbladder disease, hepatic (liver) failure, renal (kidney) failure, nephrotic syndrome, aplastic crisis, and stroke. We will count the hours you receive emergency treatment in a comprehensive sickle cell disease center immediately before the hospitalization if this treatment is comparable to the treatment provided in a hospital emergency department. 3. For 7.05C, we do not require hemoglobin to be measured during a period in which you are free of pain or other symptoms of your disorder. We will accept hemoglobin measurements made while you are experiencing complications of your hemolytic anemia. 4. 7.05D refers to the most serious type of beta thalassemia major in which the bone marrow cannot produce sufficient numbers of normal RBCs to maintain life. The only available treatments for beta thalassemia major are life-long RBC transfusions (sometimes called hypertransfusion) or bone marrow transplantation. For purposes of 7.05D, we do not consider prophylactic RBC transfusions to prevent strokes or other complications in sickle cell disease and its variants to be of equal significance to life-saving RBC transfusions for beta thalassemia major. However, we will consider the functional limitations associated with prophylactic RBC transfusions and any associated side effects (for example, iron overload) under 7.18 and any affected body system(s). We will also evaluate strokes and resulting complications under 11.00 and 12.00. D. What are disorders of thrombosis and hemostasis, and how do we evaluate them under 7.08? 1. Disorders of thrombosis and hemostasis 2. The hospitalizations in 7.08 do not all have to be for the same complication of a disorder of thrombosis and hemostasis. They may be for three different complications of the disorder. Examples of complications that may result in hospitalization include anemias, thromboses, embolisms, and uncontrolled bleeding requiring multiple factor concentrate infusions or platelet transfusions. We will also consider any surgery that you have, even if it is not related to your hematological disorder, to be a complication of your disorder of thrombosis and hemostasis if you require treatment with clotting-factor proteins (for example, factor VIII or factor IX) or anticoagulant medication to control bleeding or coagulation in connection with your surgery. We will count the hours you receive emergency treatment in a comprehensive hemophilia treatment center immediately before the hospitalization if this treatment is comparable to the treatment provided in a hospital emergency department. E. What are disorders of bone marrow failure, and how do we evaluate them under 7.10? 1. Disorders of bone marrow failure 2. The hospitalizations in 7.10A do not all have to be for the same complication of bone marrow failure. They may be for three different complications of the disorder. Examples of complications that may result in hospitalization include uncontrolled bleeding, anemia, and systemic bacterial, viral, or fungal infections. 3. For 7.10B, the requirement of life-long RBC transfusions to maintain life in myelodysplastic syndromes or aplastic anemias has the same meaning as it does for beta thalassemia major. (See 7.00C4.) F. How do we evaluate bone marrow or stem cell transplantation under 7.17? We will consider you to be disabled for 12 months from the date of bone marrow or stem cell transplantation, or we may consider you to be disabled for a longer period if you are experiencing any serious post-transplantation complications, such as graft-versus-host (GVH) disease, frequent infections after immunosuppressive therapy, or significant deterioration of organ systems. We do not restrict our determination of the onset of disability to the date of the transplantation in 7.17. We may establish an earlier onset date of disability due to your transplantation if evidence in your case record supports such a finding. G. How do we use the functional criteria in 7.18? 1. When we use the functional criteria in 7.18, we consider all relevant information in your case record to determine the impact of your hematological disorder on your ability to function independently, appropriately, effectively, and on a sustained basis in a work setting. Factors we will consider when we evaluate your functioning under 7.18 include, but are not limited to: Your symptoms, the frequency and duration of complications of your hematological disorder, periods of exacerbation and remission, and the functional impact of your treatment, including the side effects of your medication. 2. Repeated complications 3. To satisfy the functional criteria in 7.18, your hematological disorder must result in a “marked” level of limitation in one of three general areas of functioning: Activities of daily living, social functioning, or difficulties in completing tasks due to deficiencies in concentration, persistence, or pace. Functional limitations may result from the impact of the disease process itself on your mental functioning, physical functioning, or both your mental and physical functioning. This limitation could result from persistent or intermittent symptoms, such as pain, severe fatigue, or malaise, resulting in a limitation of your ability to do a task, to concentrate, to persevere at a task, or to perform the task at an acceptable rate of speed. ( Severe fatigue Malaise 4. Marked seriously 5. Activities of daily living 6. Social functioning 7. Completing tasks in a timely manner H. How do we consider your symptoms, including your pain, severe fatigue, and malaise? Your symptoms, including pain, severe fatigue, and malaise, may be important factors in our determination whether your hematological disorder(s) meets or medically equals a listing, or in our determination whether you are otherwise able to work. We cannot consider your symptoms unless you have medical signs or laboratory findings showing the existence of a medically determinable impairment(s) that could reasonably be expected to produce the symptoms. If you have such an impairment(s), we will evaluate the intensity, persistence, and functional effects of your symptoms using the rules throughout 7.00 and in our other regulations. (See sections 404.1521, 404.1529, 416.921, and 416.929 of this chapter.) Additionally, when we assess the credibility of your
complaints about your symptoms and their functional effects, we will not draw any inferences from the fact that you do not receive treatment or that you are not following treatment without considering all of the relevant evidence in your case record, including any explanations you provide that may explain why you are not receiving or following treatment. I. How do we evaluate episodic events in hematological disorders? Some of the listings in this body system require a specific number of events within a consecutive 12-month period. (See 7.05, 7.08, and 7.10A.) When we use such criteria, a consecutive 12-month period means a period of 12 consecutive months, all or part of which must occur within the period we are considering in connection with your application or continuing disability review. These events must occur at least 30 days apart to ensure that we are evaluating separate events. J. How do we evaluate hematological disorders that do not meet one of these listings? 1. These listings are only common examples of hematological disorders that we consider severe enough to prevent a person from doing any gainful activity. If your disorder does not meet the criteria of any of these listings, we must consider whether you have a disorder that satisfies the criteria of a listing in another body system. For example, we will evaluate hemophilic joint deformity or bone or joint pain from myelofibrosis under 1.00; polycythemia vera under 3.00, 4.00, or 11.00; chronic iron overload resulting from repeated RBC transfusion (transfusion hemosiderosis) under 3.00, 4.00, or 5.00; and the effects of intracranial bleeding or stroke under 11.00 or 12.00. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. (See sections 404.1526 and 416.926 of this chapter.) Hematological disorders may be associated with disorders in other body systems, and we consider the combined effects of multiple impairments when we determine whether they medically equal a listing. If your impairment(s) does not medically equal a listing, you may or may not have the residual functional capacity to engage in substantial gainful activity. We proceed to the fourth, and, if necessary, the fifth steps of the sequential evaluation process in sections 404.1520 and 416.920. We use the rules in sections 404.1594, 416.994, and 416.994a of this chapter, as appropriate, when we decide whether you continue to be disabled. 7.01 Category of Impairments, Hematological Disorders 7.05 Hemolytic anemias, A. Documented painful (vaso-occlusive) crises requiring parenteral (intravenous or intramuscular) narcotic medication, occurring at least six times within a 12-month period with at least 30 days between crises. OR B. Complications of hemolytic anemia requiring at least three hospitalizations within a 12-month period and occurring at least 30 days apart. Each hospitalization must last at least 48 hours, which can include hours in a hospital emergency department or comprehensive sickle cell disease center immediately before the hospitalization (see 7.00C2). OR C. Hemoglobin measurements of 7.0 grams per deciliter (g/dL) or less, occurring at least three times within a 12-month period with at least 30 days between measurements. OR D. Beta thalassemia major requiring life-long RBC transfusions at least once every 6 weeks to maintain life (see 7.00C4). 7.08 Disorders of thrombosis and hemostasis, 7.10 Disorders of bone marrow failure, A. Complications of bone marrow failure requiring at least three hospitalizations within a 12-month period and occurring at least 30 days apart. Each hospitalization must last at least 48 hours, which can include hours in a hospital emergency department immediately before the hospitalization (see 7.00E2). OR B. Myelodysplastic syndromes or aplastic anemias requiring life-long RBC transfusions at least once every 6 weeks to maintain life (see 7.00E3). 7.17 Hematological disorders treated by bone marrow or stem cell transplantation 7.18 Repeated complications of hematological disorders A. Limitation of activities of daily living (see 7.00G5). B. Limitation in maintaining social functioning (see 7.00G6). C. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace (see 7.00G7). 8.00 Skin Disorders A. Which skin disorders do we evaluate under these listings? B. What are our definitions for the following terms used in this body system? 1. Assistive device(s): 2. Chronic skin lesions: 3. Contractures: 4. Documented medical need: 5. Fine and gross movements: 6. Surgical management: 7. Exacerbation: C. What evidence do we need to evaluate your skin disorder? 1. To establish the presence of a skin disorder as a medically determinable impairment, we need objective medical evidence from an acceptable medical source (AMS) who has examined you for the disorder. 2. We will make every reasonable effort to obtain your medical history, treatment records, and relevant laboratory findings, but we will not purchase genetic testing. 3. When we evaluate the presence and severity of your skin disorder(s), we generally need information regarding: a. The onset, duration, and frequency of exacerbations (see 8.00B7); b. The prognosis of your skin disorder; c. The location, size, and appearance of lesions and contractures; d. Any available history of familial incidence; e. Your exposure to toxins, allergens or irritants; seasonal variations; and stress factors; f. Your ability to function outside of a highly protective environment (see 8.00E4); g. Laboratory findings (for example, a biopsy obtained independently of Social Security disability evaluation or results of blood tests); h. Evidence from other medically acceptable methods consistent with the prevailing state of medical knowledge and clinical practice; and i. Statements you or others make about your disorder(s), your restrictions, and your daily activities. D. How do we evaluate the severity of skin disorders? 1. General. 2. Limitation(s) of physical functioning due to skin disorders. a. Skin disorders may be due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3), and may cause pain or restrict movement, which can limit your ability to initiate, sustain, and complete work-related activities. For example, skin lesions in the axilla may limit your ability to raise or reach with the affected arm, or lesions in the inguinal region may limit your ability to ambulate, sit, or lift and carry. To evaluate your skin disorder(s) under 8.07B, 8.08, and 8.09, we require medically documented evidence of physical limitation(s) of functioning related to your disorder. The decrease in physical function must have lasted, or can be expected to last, for a continuous period of at least 12 months (see §§ 404.1509 and 416.909 of this chapter). Xeroderma pigmentosum is the only skin disorder that does not include functional criteria because the characteristics and severity of the disorder itself are sufficient to meet the criteria in 8.07A. b. The functional criteria require impairment-related physical limitations in using upper or lower extremities that have lasted, or can be expected to last, for a continuous period of at least 12 months, medically documented by one of the following: (i) Inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 8.00B5) due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3); or (ii) Inability to use one upper extremity to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 8.00B5) due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3), and a documented medical need (see 8.00B4) for an assistive device (see 8.00B1) that requires the use of the other upper extremity; or (iii) Inability to stand up from a seated position and maintain an upright position to the extent needed to independently initiate, sustain, and complete work-related activities due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) affecting at least two extremities (including when the limitations are due to involvement of the perineum or the inguinal region); or (iv) Inability to maintain an upright position while standing or walking to the extent needed to independently initiate, sustain, and complete work-related activities due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) affecting both lower extremities (including when the limitations are due to involvement of the perineum or the inguinal region). 3. Frequency of exacerbations due to chronic skin lesions. 4. Symptoms (including pain). 5. Treatment. a. General. b. Despite adherence to prescribed medical treatment for 3 months. c. Treatment with PUVA (psoralen and ultraviolet A (UVA) light) or biologics. 6. No record of ongoing treatment. a. Despite having a skin disorder, you may not have received ongoing treatment, may have just begun treatment, may not have access to prescribed medical treatment, or may not have an ongoing relationship with the medical community. In any of these situations, you will not have a longitudinal medical record for us to review when we evaluate your disorder. In some instances, we may be able to assess the severity and duration of your skin disorder based on your medical record and current evidence alone. We may ask you to attend a consultative examination to determine the severity and potential duration of your skin disorder (see §§ 404.1519a and 416.919a of this chapter). b. If, for any reason, you have not received treatment, your skin disorder cannot meet the criteria for 8.09. If the information in your case record is not sufficient to show that you have a skin disorder that meets the criteria of one of the skin disorders listings, we will follow the rules in 8.00I. E. How do we evaluate genetic photosensitivity disorders under 8.07? 1. Xeroderma pigmentosum (XP) (8.07A). 2. Other genetic photosensitivity disorders (8.07B). 3. What evidence do we need to document that you have XP or another genetic photosensitivity disorder? a. A laboratory report of a definitive genetic test documenting appropriate chromosomal changes, including abnormal DNA repair or another DNA abnormality specific to your type of photosensitivity disorder, signed by an AMS; or b. A laboratory report of a definitive test that is not signed by an AMS, and a report from an AMS stating that you have undergone definitive genetic laboratory studies documenting appropriate chromosomal changes, including abnormal DNA repair or another DNA abnormality specific to your type of photosensitivity disorder; or c. If we do not have a laboratory report of a definitive test, we need documentation from an AMS that an appropriate laboratory analysis or other diagnostic method(s) confirms a positive diagnosis of your skin disorder. This documentation must state that you had the appropriate definitive laboratory test(s) for diagnosing your disorder and provide the results, or explain how another diagnostic method(s), consistent with the prevailing state of medical knowledge and clinical practice, established your diagnosis. 4. Inability to function outside of a highly protective environment F. How do we evaluate burns under 8.08? 1. Electrical, chemical, or thermal burns frequently affect other body systems, for example, musculoskeletal, special senses and speech, respiratory, cardiovascular, genitourinary, neurological, or mental. We evaluate burns in the same way we evaluate other disorders that can affect the skin and other body systems, using the listing for the predominant feature of your disorder. For example, if your soft tissue injuries resulting from burns are under surgical management (as defined in 8.00B6), we will evaluate your disorder under the listings in 1.00. 2. We evaluate burns resulting in chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) that have been documented by an AMS to have reached maximum therapeutic benefit and therefore are no longer receiving surgical management, under 8.08. To be disabling, these burns must result in functional limitation(s) (see 8.00D2) that has lasted or can be expected to last for a continuous period of at least 12 months. G. How do we evaluate chronic conditions of the skin or mucous membranes under 8.09? H. How do we evaluate disorders in other body systems that affect the skin? 1. Diabetes mellitus. 2. Tuberous sclerosis. 3. Malignant tumors of the skin. 4. Immune system disorders. 5. Head or facial disfigurement or deformity, and other physical deformities caused by skin disorders. I. How do we evaluate skin disorders that do not meet one of these listings? 1. These listings are only examples of common skin disorders that we consider severe enough to prevent you from doing any gainful activity. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that satisfies the criteria of a listing in another body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. See §§ 404.1526 and 416.926 of this chapter. If your impairment(s) does not meet or medically equal a listing, you may or may not have the residual functional capacity to engage in substantial gainful activity. We proceed to the fourth step and, if necessary, the fifth step of the sequential evaluation process in §§ 404.1520 and 416.920 of this chapter. We use the rules in §§ 404.1594 and 416.994 of this chapter, as appropriate, when we decide whether you continue to be disabled. 8.01 Category of Impairments, Skin Disorders 8.02-8.06 [Reserved] 8.07 Genetic photosensitivity disorders, A. Xeroderma pigmentosum (see 8.00E1). OR B. Other genetic photosensitivity disorders (see 8.00E2) with either 1 or 2: 1. Chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) that cause an inability to function outside of a highly protective environment (see 8.00E4); or 2. Chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) causing chronic pain or other physical limitation(s) that result in impairment-related functional limitations (see 8.00D2), as evidenced by: a. Inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 8.00B5) due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3); or b. Inability to use one upper extremity to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 8.00B5) due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3), and a documented medical need (see 8.00B4) for an assistive device (see 8.00B1) that requires the use of the other upper extremity; or c. Inability to stand up from a seated position and maintain an upright position to the extent needed to independently initiate, sustain, and complete work-related activities due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) affecting at least two extremities (including when the limitations are due to involvement of the perineum or the inguinal region); or d. Inability to maintain an upright position while standing or walking to the extent needed to independently initiate, sustain, and complete work-related activities, due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) affecting both lower extremities (including when the limitations are due to involvement of the perineum or the inguinal region). 8.08 Burns A. Inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 8.00B5) due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3). OR B. Inability to use one upper extremity to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 8.00B5) due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3), and a documented medical need (see 8.00B4) for an assistive device (see 8.00B1) that requires the use of the other upper extremity. OR C. Inability to stand up from a seated position and maintain an upright position to the extent needed to independently initiate, sustain, and complete work-related activities due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) affecting at least two extremities (including when the limitations are due to involvement of the perineum or the inguinal region). OR D. Inability to maintain an upright position while standing or walking to the extent needed to independently initiate, sustain, and complete work-related activities due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) affecting both lower extremities (including when the limitations are due to involvement of the perineum or the inguinal region). 8.09 Chronic conditions of the skin or mucous membranes A. Chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) causing chronic pain or other physical limitation(s) that persist despite adherence to prescribed medical treatment for 3 months (see 8.00D5b). AND B. Impairment-related functional limitations (see 8.00D2) demonstrated by 1, 2, 3, or 4: 1. Inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 8.00B5) due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3); or 2. Inability to use one upper extremity to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 8.00B5) due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3), and a documented medical need (see 8.00B4) for an assistive device (see 8.00B1) that requires the use of the other upper extremity; or 3. Inability to stand up from a seated position and maintain an upright position to the extent needed to independently initiate, sustain, and complete work-related activities due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) affecting at least two extremities (including when the limitations are due to involvement of the perineum or the inguinal region); or 4. Inability to maintain an upright position while standing or walking to the extent needed to independently initiate, sustain, and complete work-related activities due to chronic skin lesions (see 8.00B2) or contractures (see 8.00B3) affecting both lower extremities (including when the limitations are due to involvement of the perineum or the inguinal region). 9.00 Endocrine Disorders A. What is an endocrine disorder? An endocrine disorder is a medical condition that causes a hormonal imbalance. When an endocrine gland functions abnormally, producing either too much of a specific hormone (hyperfunction) or too little (hypofunction), the hormonal imbalance can cause various complications in the body. The major glands of the endocrine system are the pituitary, thyroid, parathyroid, adrenal, and pancreas. B. How do we evaluate the effects of endocrine disorders? 1. Pituitary gland disorders 2. Thyroid gland disorders 3. Parathyroid gland disorders 4. Adrenal gland disorders 5. Diabetes mellitus and other pancreatic gland disorders diabetes mellitus a. Hyperglycemia. (i) Diabetic ketoacidosis (DKA). (ii) Chronic hyperglycemia. b. Hypoglycemia. C. How do we evaluate endocrine disorders that do not have effects that meet or medically equal the criteria of any listing in other body systems? 10.00 Congenital Disorders that Affect Multiple Body Systems A. Which disorder do we evaluate under this body system? B. What is non-mosaic Down syndrome? C. What evidence do we need to document non-mosaic Down syndrome under 10.06? 1. Under 10.06A, we will find you disabled based on laboratory findings. a. To find that your disorder meets 10.06A, we need a copy of the laboratory report of karyotype analysis, which is the definitive test to establish non-mosaic Down syndrome. We will not purchase karyotype analysis. We will not accept a fluorescence in situ hybridization (FISH) test because it does not distinguish between the mosaic and non-mosaic forms of Down syndrome. b. If a physician (see §§ 404.1513(a)(1) and 416.913(a)(1) of this chapter) has not signed the laboratory report of karyotype analysis, the evidence must also include a physician's statement that you have Down syndrome. c. For purposes of 10.06A, we do not require additional evidence stating that you have the distinctive facial or other physical features of Down syndrome. 2. If we do not have a laboratory report of karyotype analysis showing that you have non-mosaic Down syndrome, we may find you disabled under 10.06B or 10.06C. a. Under 10.06B, we need a physician's report stating: (i) your karyotype diagnosis or evidence that documents your type of Down syndrome is consistent with prior karyotype analysis (for example, reference to a diagnosis of “trisomy 21”), and (ii) that you have the distinctive facial or other physical features of Down syndrome. We do not require a detailed description of the facial or other physical features of the disorder. However, we will not find that your disorder meets 10.06B if we have evidence—such as evidence of functioning inconsistent with the diagnosis—that indicates that you do not have non-mosaic Down syndrome. b. If we do not have evidence of prior karyotype analysis (you did not have testing, or you had testing but we do not have information from a physician about the test results), we will find that your disorder meets 10.06C if we have: (i) a physician's report stating that you have the distinctive facial or other physical features of Down syndrome, and (ii) evidence that your functioning is consistent with a diagnosis of non-mosaic Down syndrome. This evidence may include medical or nonmedical information about your physical and mental abilities, including information about your education, work history, or the results of psychological testing. However, we will not find that your disorder meets 10.06C if we have evidence—such as evidence of functioning inconsistent with the diagnosis—that indicates that you do not have non-mosaic Down syndrome. D. How do we evaluate mosaic Down syndrome and other congenital disorders that affect multiple body systems? 1. Mosaic Down syndrome. 2. Other congenital disorders that affect multiple body systems. 3. Evaluating the effects of mosaic Down syndrome or another congenital disorder under the listings. E. What if your disorder does not meet a listing? If you have a severe medically determinable impairment(s) that does not meet a listing, we will consider whether your impairment(s) medically equals a listing. See §§ 404.1526 and 416.926 of this chapter. If your impairment(s) does not meet or medically equal a listing, you may or may not have the residual functional capacity to engage in substantial gainful activity. We proceed to the fourth, and if necessary, the fifth steps of the sequential evaluation process in §§ 404.1520 and 416.920 of this chapter. We use the rules in §§ 404.1594 and 416.994 of this chapter, as appropriate, when we decide whether you continue to be disabled. 10.01 Category of Impairments, Congenital Disorders That Affect Multiple Body Systems 10.06 Non-mosaic Down syndrome A. A laboratory report of karyotype analysis signed by a physician, or both a laboratory report of karyotype analysis not signed by a physician and B. A physician's report stating that you have chromosome 21 trisomy or chromosome 21 translocation consistent with prior karyotype analysis with the distinctive facial or other physical features of Down syndrome (see 10.00C2a), or C. A physician's report stating that you have Down syndrome with the distinctive facial or other physical features and 11.00 Neurological Disorders A. Which neurological disorders do we evaluate under these listings? B. What evidence do we need to document your neurological disorder? 1. We need both medical and non-medical evidence (signs, symptoms, and laboratory findings) to assess the effects of your neurological disorder. Medical evidence should include your medical history, examination findings, relevant laboratory tests, and the results of imaging. Imaging refers to medical imaging techniques, such as x-ray, computerized tomography (CT), magnetic resonance imaging (MRI), and electroencephalography (EEG). The imaging must be consistent with the prevailing state of medical knowledge and clinical practice as the proper technique to support the evaluation of the disorder. In addition, the medical evidence may include descriptions of any prescribed treatment and your response to it. We consider non-medical evidence such as statements you or others make about your impairments, your restrictions, your daily activities, or your efforts to work. 2. We will make every reasonable effort to obtain the results of your laboratory and imaging evidence. When the results of any of these tests are part of the existing evidence in your case record, we will evaluate the test results and all other relevant evidence. We will not purchase imaging, or other diagnostic tests, or laboratory tests that are complex, may involve significant risk, or that are invasive. We will not routinely purchase tests that are expensive or not readily available. C. How do we consider adherence to prescribed treatment in neurological disorders? D. What do we mean by disorganization of motor function? 1. Disorganization of motor function i.e., a. Stand up from a seated position; or b. Balance while standing or walking; or c. Use the upper extremities (including fingers, wrists, hands, arms, and shoulders). 2. Extreme limitation a. Inability to stand up from a seated position means that once seated you are unable to stand and maintain an upright position without the assistance of another person or the use of an assistive device, such as a walker, two crutches, or two canes. b. Inability to maintain balance in a standing position means that you are unable to maintain an upright position while standing or walking without the assistance of another person or an assistive device, such as a walker, two crutches, or two canes. c. Inability to use your upper extremities means that you have a loss of function of both upper extremities (including fingers, wrists, hands, arms, and shoulders) that very seriously limits your ability to independently initiate, sustain, and complete work-related activities involving fine and gross motor movements. Inability to perform fine and gross motor movements could include not being able to pinch, manipulate, and use your fingers; or not being able to use your hands, arms, and shoulders to perform gross motor movements, such as handling, gripping, grasping, holding, turning, and reaching; or not being able to engage in exertional movements such a lifting, carrying, pushing, and pulling. E. How do we evaluate communication impairments under these listings? 1. Under 11.04A, we need evidence documenting that your central nervous system vascular accident or insult (CVA) and sensory or motor aphasia have resulted in ineffective speech or communication. Ineffective speech or communication 2. Under 11.07C, we need evidence documenting that your cerebral palsy has resulted in significant interference in your ability to speak, hear, or see. We will find you have “significant interference” in your ability to speak, hear, or see if your signs, such as aphasia, strabismus, or sensorineural hearing loss, seriously limit your ability to communicate on a sustained basis. 3. Under 11.11B, we need evidence documenting that your post-polio syndrome has resulted in the inability to produce intelligible speech. F. What do we mean by bulbar and neuromuscular dysfunction? G. How do we evaluate limitations in physical and mental functioning under these listings? 1. Neurological disorders may manifest in a combination of limitations in physical and mental functioning. We consider all relevant information in your case record to determine the effects of your neurological disorder on your physical and mental functioning. To satisfy the requirement described under 11.00G, your neurological disorder must result in a marked limitation in physical functioning and a marked limitation in at least one of four areas of mental functioning: Understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing oneself. If your neurological disorder results in an extreme limitation in at least one of the four areas of mental functioning, or results in marked limitation in at least two of the four areas of mental functioning, but you do not have at least a marked limitation in your physical functioning, we will consider whether your condition meets or medically equals one of the mental disorders body system listings, 12.00. 2. Marked Limitation. a. Marked limitation and physical functioning. b. Marked limitation and mental functioning. 3. Areas of physical and mental functioning. a. Physical functioning. b. Mental functioning. (i) Understanding, remembering, or applying information. (ii) Interacting with others. (iii) Concentrating, persisting, or maintaining pace. (iv) Adapting or managing oneself. 4. Signs and symptoms of your disorder and the effects of treatment. a. We will consider your signs and symptoms and how they affect your ability to function in the work place. When we evaluate your functioning, we will consider whether your signs and symptoms are persistent or intermittent, how frequently they occur and how long they last, their intensity, and whether you have periods of exacerbation and remission. b. We will consider the effectiveness of treatment in improving the signs, symptoms, and laboratory findings related to your neurological disorder, as well as any aspects of treatment that may interfere with your ability to function. We will consider, for example: The effects of medications you take (including side effects); the time-limited efficacy of some medications; the intrusiveness, complexity, and duration of your treatment (for example, the dosing schedule or need for injections); the effects of treatment, including medications, therapy, and surgery, on your functioning; the variability of your response to treatment; and any drug interactions. H. What is epilepsy, and how do we evaluate it under 11.02? 1. Epilepsy generalized tonic-clonic seizures dyscognitive seizures a. Generalized tonic-clonic seizures b. Dyscognitive seizures 2. Description of seizure. 3. Serum drug levels. 4. Counting seizures. a. Count multiple seizures occurring in a 24-hour period as one seizure. b. Count status epilepticus (a continuous series of seizures without return to consciousness between seizures) as one seizure. c. Count a dyscognitive seizure that progresses into a generalized tonic-clonic seizure as one generalized tonic-clonic seizure. d. We do not count seizures that occur during a period when you are not adhering to prescribed treatment without good reason. When we determine that you had good reason for not adhering to prescribed treatment, we will consider your physical, mental, educational, and communicative limitations (including any language barriers). We will consider you to have good reason for not following prescribed treatment if, for example, the treatment is very risky for you due to its consequences or unusual nature, or if you are unable to afford prescribed treatment that you are willing to accept, but for which no free community resources are available. We will follow guidelines found in our policy, such as §§ 404.1530(c) and 416.930(c) of this chapter, when we determine whether you have a good reason for not adhering to prescribed treatment. e. We do not count psychogenic nonepileptic seizures or pseudoseizures under 11.02. We evaluate these seizures under the mental disorders body system, 12.00. 5. Electroencephalography (EEG) testing. I. What is vascular insult to the brain, and how do we evaluate it under 11.04? 1. Vascular insult to the brain 2. We need evidence of sensory or motor aphasia that results in ineffective speech or communication under 11.04A (see 11.00E). We may evaluate your communication impairment under listing 11.04C if you have marked limitation in physical functioning and marked limitation in one of the four areas of mental functioning. 3. We generally need evidence from at least 3 months after the vascular insult to evaluate whether you have disorganization of motor functioning under 11.04B, or the impact that your disorder has on your physical and mental functioning under 11.04C. In some cases, evidence of your vascular insult is sufficient to allow your claim within 3 months post-vascular insult. If we are unable to allow your claim within 3 months after your vascular insult, we will defer adjudication of the claim until we obtain evidence of your neurological disorder at least 3 months post-vascular insult. J. What are benign brain tumors, and how do we evaluate them under 11.05? K. What is Parkinsonian syndrome, and how do we evaluate it under 11.06? L. What is cerebral palsy, and how do we evaluate it under 11.07? 1. Cerebral palsy (CP) 2. We evaluate your signs and symptoms, such as ataxia, spasticity, flaccidity, athetosis, chorea, and difficulty with precise movements when we determine your ability to stand up, balance, walk, or perform fine and gross motor movements. We will also evaluate your signs, such as dysarthria and apraxia of speech, and receptive and expressive language problems when we determine your ability to communicate. 3. We will consider your other impairments or signs and symptoms that develop secondary to the disorder, such as post-impairment syndrome (a combination of pain, fatigue, and weakness due to muscle abnormalities); overuse syndromes (repetitive motion injuries); arthritis; abnormalities of proprioception (perception of the movements and position of the body); abnormalities of stereognosis (perception and identification of objects by touch); learning problems; anxiety; and depression. M. What are spinal cord disorders, and how do we evaluate them under 11.08? 1. Spinal cord disorders 2. Spinal cord disorders with complete loss of function 3. Spinal cord disorders with disorganization of motor function 4. When we evaluate your spinal cord disorder, we generally need evidence from at least 3 months after your symptoms began in order to evaluate your disorganization of motor function. In some cases, evidence of your spinal cord disorder may be sufficient to allow your claim within 3 months after the spinal cord disorder. If the medical evidence demonstrates total cord transection causing a loss of motor and sensory functions below the level of injury, we will not wait 3 months but will make the allowance decision immediately. N. What is multiple sclerosis, and how do we evaluate it under 11.09? 1. Multiple sclerosis (MS) 2. We evaluate your signs and symptoms, such as flaccidity, spasticity, spasms, incoordination, imbalance, tremor, physical fatigue, muscle weakness, dizziness, tingling, and numbness when we determine your ability to stand up, balance, walk, or perform fine and gross motor movements. When determining whether you have limitations of physical and mental functioning, we will consider your other impairments or signs and symptoms that develop secondary to the disorder, such as fatigue; visual loss; trouble sleeping; impaired attention, concentration, memory, or judgment; mood swings; and depression. If you have a vision impairment resulting from your MS, we may evaluate that impairment under the special senses body system, 2.00. O. What is amyotrophic lateral sclerosis, and how do we evaluate it under 11.10? Amyotrophic lateral sclerosis (ALS) P. What are neurodegenerative disorders of the central nervous system, such as Huntington's disease, Friedreich's ataxia, and spinocerebellar degeneration, and how do we evaluate them under 11.17? Q. What is traumatic brain injury, and how do we evaluate it under 11.18? 1. Traumatic brain injury (TBI) 2. We generally need evidence from at least 3 months after the TBI to evaluate whether you have disorganization of motor function under 11.18A or the impact that your disorder has on your physical and mental functioning under 11.18B. In some cases, evidence of your TBI is sufficient to determine disability within 3 months post-TBI. If we are unable to allow your claim within 3 months post-TBI, we will defer adjudication of the claim until we obtain evidence of your neurological disorder at least 3 months post-TBI. If a finding of disability still is not possible at that time, we will again defer adjudication of the claim until we obtain evidence at least 6 months after your TBI. R. What are coma and persistent vegetative state, and how do we evaluate them under 11.20? S. What are motor neuron disorders, other than ALS, and how do we evaluate them under 11.22? T. How do we consider symptoms of fatigue in these listings? U. How do we evaluate your neurological disorder when it does not meet one of these listings? 1. If your neurological disorder does not meet the criteria of any of these listings, we must also consider whether your impairment(s) meets the criteria of a listing in another body system. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. See §§ 404.1526 and 416.926 of this chapter. 2. If your impairment(s) does not meet or medically equal the criteria of a listing, you may or may not have the residual functional capacity to perform your past relevant work or adjust to other work that exists in significant numbers in the national economy, which we determine at the fourth and, if necessary, the fifth steps of the sequential evaluation process in §§ 404.1520 and 416.920 of this chapter. 3. We use the rules in §§ 404.1594 and 416.994 of this chapter, as appropriate, when we decide whether you continue to be disabled. 11.01 Category of Impairments, Neurological Disorders 11.02 Epilepsy, A. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once a month for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); or B. Dyscognitive seizures (see 11.00H1b), occurring at least once a week for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); or C. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once every 2 months for at least 4 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); and a marked limitation in one of the following: 1. Physical functioning (see 11.00G3a); or 2. Understanding, remembering, or applying information (see 11.00G3b(i)); or 3. Interacting with others (see 11.00G3b(ii)); or 4. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 5. Adapting or managing oneself (see 11.00G3b(iv)); or D. Dyscognitive seizures (see 11.00H1b), occurring at least once every 2 weeks for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); and a marked limitation in one of the following: 1. Physical functioning (see 11.00G3a); or 2. Understanding, remembering, or applying information (see 11.00G3b(i)); or 3. Interacting with others (see 11.00G3b(ii)); or 4. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 5. Adapting or managing oneself (see 11.00G3b(iv)). 11.03 [Reserved] 11.04 Vascular insult to the brain, A. Sensory or motor aphasia resulting in ineffective speech or communication (see 11.00E1) persisting for at least 3 consecutive months after the insult; or B. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities, persisting for at least 3 consecutive months after the insult; or C. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a) and in one of the following areas of mental functioning, both persisting for at least 3 consecutive months after the insult: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 11.05 Benign brain tumors, A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 11.06 Parkinsonian syndrome, A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 11.07 Cerebral palsy, A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)); or C. Significant interference in communication due to speech, hearing, or visual deficit (see 11.00E2). 11.08 Spinal cord disorders, A. Complete loss of function, as described in 11.00M2, persisting for 3 consecutive months after the disorder (see 11.00M4); or B. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities persisting for 3 consecutive months after the disorder (see 11.00M4); or C. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a) and in one of the following areas of mental functioning, both persisting for 3 consecutive months after the disorder (see 11.00M4): 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 11.09 Multiple sclerosis, A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 11.10 Amyotrophic lateral sclerosis (ALS) 11.11 Post-polio syndrome, A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Unintelligible speech (see 11.00E3); or C. Bulbar and neuromuscular dysfunction (see 11.00F), resulting in: 1. Acute respiratory failure requiring mechanical ventilation; or 2. Need for supplemental enteral nutrition via a gastrostomy or parenteral nutrition via a central venous catheter; or D. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 11.12 Myasthenia gravis, A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Bulbar and neuromuscular dysfunction (see 11.00F), resulting in: 1. One myasthenic crisis requiring mechanical ventilation; or 2. Need for supplemental enteral nutrition via a gastrostomy or parenteral nutrition via a central venous catheter; or C. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 11.13 Muscular dystrophy, A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 11.14 Peripheral neuropathy, A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 11.15 [Reserved] 11.16 [Reserved] 11.17 Neurodegenerative disorders of the central nervous system, such as Huntington's disease, Friedreich's ataxia, and spinocerebellar degeneration, A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 11.18 Traumatic brain injury, A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities, persisting for at least 3 consecutive months after the injury; or B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following areas of mental functioning, persisting for at least 3 consecutive months after the injury: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 11.19 [Reserved] 11.20 Coma or persistent vegetative state, 11.21 [Reserved] 11.22 Motor neuron disorders other than ALS, A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Bulbar and neuromuscular dysfunction (see 11.00F), resulting in: 1. Acute respiratory failure requiring invasive mechanical ventilation; or 2. Need for supplemental enteral nutrition via a gastrostomy or parenteral nutrition via a central venous catheter; or C. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following: 1. Understanding, remembering, or applying information (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 4. Adapting or managing oneself (see 11.00G3b(iv)). 12.00 Mental Disorders A. How are the listings for mental disorders arranged, and what do they require? 1. The listings for mental disorders are arranged in 11 categories: Neurocognitive disorders (12.02); schizophrenia spectrum and other psychotic disorders (12.03); depressive, bipolar and related disorders (12.04); intellectual disorder (12.05); anxiety and obsessive-compulsive disorders (12.06); somatic symptom and related disorders (12.07); personality and impulse-control disorders (12.08); autism spectrum disorder (12.10); neurodevelopmental disorders (12.11); eating disorders (12.13); and trauma- and stressor-related disorders (12.15). 2. Listings 12.07, 12.08, 12.10, 12.11, and 12.13 have two paragraphs, designated A and B; your mental disorder must satisfy the requirements of both paragraphs A and B. Listings 12.02, 12.03, 12.04, 12.06, and 12.15 have three paragraphs, designated A, B, and C; your mental disorder must satisfy the requirements of both paragraphs A and B, or the requirements of both paragraphs A and C. Listing 12.05 has two paragraphs that are unique to that listing (see 12.00A3); your mental disorder must satisfy the requirements of either paragraph A or paragraph B. a. Paragraph A of each listing (except 12.05) includes the medical criteria that must be present in your medical evidence. b. Paragraph B of each listing (except 12.05) provides the functional criteria we assess, in conjunction with a rating scale (see 12.00E and 12.00F), to evaluate how your mental disorder limits your functioning. These criteria represent the areas of mental functioning a person uses in a work setting. They are: Understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. We will determine the degree to which your medically determinable mental impairment affects the four areas of mental functioning and your ability to function independently, appropriately, effectively, and on a sustained basis (see §§ 404.1520a(c)(2) and 416.920a(c)(2) of this chapter). To satisfy the paragraph B criteria, your mental disorder must result in “extreme” limitation of one, or “marked” limitation of two, of the four areas of mental functioning. (When we refer to “paragraph B criteria” or “area[s] of mental functioning” in the introductory text of this body system, we mean the criteria in paragraph B of every listing except 12.05.) c. Paragraph C of listings 12.02, 12.03, 12.04, 12.06, and 12.15 provides the criteria we use to evaluate “serious and persistent mental disorders.” To satisfy the paragraph C criteria, your mental disorder must be “serious and persistent”; that is, there must be a medically documented history of the existence of the disorder over a period of at least 2 years, and evidence that satisfies the criteria in both C1 and C2 (see 12.00G). (When we refer to “paragraph C” or “the paragraph C criteria” in the introductory text of this body system, we mean the criteria in paragraph C of listings 12.02, 12.03, 12.04, 12.06, and 12.15.) 3. Listing 12.05 has two paragraphs, designated A and B, that apply to only intellectual disorder. Each paragraph requires that you have significantly subaverage general intellectual functioning; significant deficits in current adaptive functioning; and evidence that demonstrates or supports (is consistent with) the conclusion that your disorder began prior to age 22. B. Which mental disorders do we evaluate under each listing category? 1. Neurocognitive disorders (12.02). a. These disorders are characterized by a clinically significant decline in cognitive functioning. Symptoms and signs may include, but are not limited to, disturbances in memory, executive functioning (that is, higher-level cognitive processes; for example, regulating attention, planning, inhibiting responses, decision-making), visual-spatial functioning, language and speech, perception, insight, judgment, and insensitivity to social standards. b. Examples of disorders that we evaluate in this category include major neurocognitive disorder; dementia of the Alzheimer type; vascular dementia; dementia due to a medical condition such as a metabolic disease (for example, late-onset Tay-Sachs disease), human immunodeficiency virus infection, vascular malformation, progressive brain tumor, neurological disease (for example, multiple sclerosis, Parkinsonian syndrome, Huntington disease), or traumatic brain injury; or substance-induced cognitive disorder associated with drugs of abuse, medications, or toxins. (We evaluate neurological disorders under that body system (see 11.00). We evaluate cognitive impairments that result from neurological disorders under 12.02 if they do not satisfy the requirements in 11.00 (see 11.00G).) c. This category does not include the mental disorders that we evaluate under intellectual disorder (12.05), autism spectrum disorder (12.10), and neurodevelopmental disorders (12.11). 2. Schizophrenia spectrum and other psychotic disorders (12.03). a. These disorders are characterized by delusions, hallucinations, disorganized speech, or grossly disorganized or catatonic behavior, causing a clinically significant decline in functioning. Symptoms and signs may include, but are not limited to, inability to initiate and persist in goal-directed activities, social withdrawal, flat or inappropriate affect, poverty of thought and speech, loss of interest or pleasure, disturbances of mood, odd beliefs and mannerisms, and paranoia. b. Examples of disorders that we evaluate in this category include schizophrenia, schizoaffective disorder, delusional disorder, and psychotic disorder due to another medical condition. 3. Depressive, bipolar and related disorders (12.04). a. These disorders are characterized by an irritable, depressed, elevated, or expansive mood, or by a loss of interest or pleasure in all or almost all activities, causing a clinically significant decline in functioning. Symptoms and signs may include, but are not limited to, feelings of hopelessness or guilt, suicidal ideation, a clinically significant change in body weight or appetite, sleep disturbances, an increase or decrease in energy, psychomotor abnormalities, disturbed concentration, pressured speech, grandiosity, reduced impulse control, sadness, euphoria, and social withdrawal. b. Examples of disorders that we evaluate in this category include bipolar disorders (I or II), cyclothymic disorder, major depressive disorder, persistent depressive disorder (dysthymia), and bipolar or depressive disorder due to another medical condition. 4. Intellectual disorder (12.05). a. This disorder is characterized by significantly subaverage general intellectual functioning, significant deficits in current adaptive functioning, and manifestation of the disorder before age 22. Signs may include, but are not limited to, poor conceptual, social, or practical skills evident in your adaptive functioning. b. The disorder that we evaluate in this category may be described in the evidence as intellectual disability, intellectual developmental disorder, or historically used terms such as “mental retardation.” c. This category does not include the mental disorders that we evaluate under neurocognitive disorders (12.02), autism spectrum disorder (12.10), or neurodevelopmental disorders (12.11). 5. Anxiety and obsessive-compulsive disorders (12.06). a. These disorders are characterized by excessive anxiety, worry, apprehension, and fear, or by avoidance of feelings, thoughts, activities, objects, places, or people. Symptoms and signs may include, but are not limited to, restlessness, difficulty concentrating, hyper-vigilance, muscle tension, sleep disturbance, fatigue, panic attacks, obsessions and compulsions, constant thoughts and fears about safety, and frequent physical complaints. b. Examples of disorders that we evaluate in this category include social anxiety disorder, panic disorder, generalized anxiety disorder, agoraphobia, and obsessive-compulsive disorder. c. This category does not include the mental disorders that we evaluate under trauma- and stressor-related disorders (12.15). 6. Somatic symptom and related disorders (12.07). a. These disorders are characterized by physical symptoms or deficits that are not intentionally produced or feigned, and that, following clinical investigation, cannot be fully explained by a general medical condition, another mental disorder, the direct effects of a substance, or a culturally sanctioned behavior or experience. These disorders may also be characterized by a preoccupation with having or acquiring a serious medical condition that has not been identified or diagnosed. Symptoms and signs may include, but are not limited to, pain and other abnormalities of sensation, gastrointestinal symptoms, fatigue, a high level of anxiety about personal health status, abnormal motor movement, pseudoseizures, and pseudoneurological symptoms, such as blindness or deafness. b. Examples of disorders that we evaluate in this category include somatic symptom disorder, illness anxiety disorder, and conversion disorder. 7. Personality and impulse-control disorders (12.08). a. These disorders are characterized by enduring, inflexible, maladaptive, and pervasive patterns of behavior. Onset typically occurs in adolescence or young adulthood. Symptoms and signs may include, but are not limited to, patterns of distrust, suspiciousness, and odd beliefs; social detachment, discomfort, or avoidance; hypersensitivity to negative evaluation; an excessive need to be taken care of; difficulty making independent decisions; a preoccupation with orderliness, perfectionism, and control; and inappropriate, intense, impulsive anger and behavioral expression grossly out of proportion to any external provocation or psychosocial stressors. b. Examples of disorders that we evaluate in this category include paranoid, schizoid, schizotypal, borderline, avoidant, dependent, obsessive-compulsive personality disorders, and intermittent explosive disorder. 8. Autism spectrum disorder (12.10). a. These disorders are characterized by qualitative deficits in the development of reciprocal social interaction, verbal and nonverbal communication skills, and symbolic or imaginative activity; restricted repetitive and stereotyped patterns of behavior, interests, and activities; and stagnation of development or loss of acquired skills early in life. Symptoms and signs may include, but are not limited to, abnormalities and unevenness in the development of cognitive skills; unusual responses to sensory stimuli; and behavioral difficulties, including hyperactivity, short attention span, impulsivity, aggressiveness, or self-injurious actions. b. Examples of disorders that we evaluate in this category include autism spectrum disorder with or without accompanying intellectual impairment, and autism spectrum disorder with or without accompanying language impairment. c. This category does not include the mental disorders that we evaluate under neurocognitive disorders (12.02), intellectual disorder (12.05), and neurodevelopmental disorders (12.11). 9. Neurodevelopmental disorders (12.11). a. These disorders are characterized by onset during the developmental period, that is, during childhood or adolescence, although sometimes they are not diagnosed until adulthood. Symptoms and signs may include, but are not limited to, underlying abnormalities in cognitive processing (for example, deficits in learning and applying verbal or nonverbal information, visual perception, memory, or a combination of these); deficits in attention or impulse control; low frustration tolerance; excessive or poorly planned motor activity; difficulty with organizing (time, space, materials, or tasks); repeated accidental injury; and deficits in social skills. Symptoms and signs specific to tic disorders include sudden, rapid, recurrent, non-rhythmic, motor movement or vocalization. b. Examples of disorders that we evaluate in this category include specific learning disorder, borderline intellectual functioning, and tic disorders (such as Tourette syndrome). c. This category does not include the mental disorders that we evaluate under neurocognitive disorders (12.02), autism spectrum disorder (12.10), or personality and impulse-control disorders (12.08). 10. Eating disorders (12.13). a. These disorders are characterized by disturbances in eating behavior and preoccupation with, and excessive self-evaluation of, body weight and shape. Symptoms and signs may include, but are not limited to, restriction of energy consumption when compared with individual requirements; recurrent episodes of binge eating or behavior intended to prevent weight gain, such as self-induced vomiting, excessive exercise, or misuse of laxatives; mood disturbances, social withdrawal, or irritability; amenorrhea; dental problems; abnormal laboratory findings; and cardiac abnormalities. b. Examples of disorders that we evaluate in this category include anorexia nervosa, bulimia nervosa, binge-eating disorder, and avoidant/restrictive food disorder. 11. Trauma- and stressor-related disorders (12.15). a. These disorders are characterized by experiencing or witnessing a traumatic or stressful event, or learning of a traumatic event occurring to a close family member or close friend, and the psychological aftermath of clinically significant effects on functioning. Symptoms and signs may include, but are not limited to, distressing memories, dreams, and flashbacks related to the trauma or stressor; avoidant behavior; diminished interest or participation in significant activities; persistent negative emotional states (for example, fear, anger) or persistent inability to experience positive emotions (for example, satisfaction, affection); anxiety; irritability; aggression; exaggerated startle response; difficulty concentrating; and sleep disturbance. b. Examples of disorders that we evaluate in this category include posttraumatic stress disorder and other specified trauma- and stressor-related disorders (such as adjustment-like disorders with prolonged duration without prolonged duration of stressor). c. This category does not include the mental disorders that we evaluate under anxiety and obsessive-compulsive disorders (12.06), and cognitive impairments that result from neurological disorders, such as a traumatic brain injury, which we evaluate under neurocognitive disorders (12.02). C. What evidence do we need to evaluate your mental disorder? 1. General. 2. Evidence from medical sources. a. Your reported symptoms. b. Your medical, psychiatric, and psychological history. c. The results of physical or mental status examinations, structured clinical interviews, psychiatric or psychological rating scales, measures of adaptive functioning, or other clinical findings. d. Psychological testing, imaging results, or other laboratory findings. e. Your diagnosis. f. The type, dosage, and beneficial effects of medications you take. g. The type, frequency, duration, and beneficial effects of therapy you receive. h. Side effects of medication or other treatment that limit your ability to function. i. Your clinical course, including changes in your medication, therapy, or other treatment, and the time required for therapeutic effectiveness. j. Observations and descriptions of how you function during examinations or therapy. k. Information about sensory, motor, or speech abnormalities, or about your cultural background (for example, language or customs) that may affect an evaluation of your mental disorder. l. The expected duration of your symptoms and signs and their effects on your functioning, both currently and in the future. 3. Evidence from you and people who know you. 4. Evidence from school, vocational training, work, and work-related programs. a. School. b. Vocational training, work, and work-related programs. 5. Need for longitudinal evidence. a. General. b. Non-medical sources of longitudinal evidence. c. Absence of longitudinal evidence. 6. Evidence of functioning in unfamiliar situations or supportive situations. a. Unfamiliar situations. b. Supportive situations. c. Our assessment. D. How do we consider psychosocial supports, structured settings, living arrangements, and treatment? 1. General. a. You receive help from family members or other people who monitor your daily activities and help you to function. For example, family members administer your medications, remind you to eat, shop for you and pay your bills, or change their work hours so you are never home alone. b. You participate in a special education or vocational training program, or a psychosocial rehabilitation day treatment or community support program, where you receive training in daily living and entry-level work skills. c. You participate in a sheltered, supported, or transitional work program, or in a competitive employment setting with the help of a job coach or supervisor. d. You receive comprehensive “24/7 wrap-around” mental health services while living in a group home or transitional housing, while participating in a semi-independent living program, or while living in individual housing (for example, your own home or apartment). e. You live in a hospital or other institution with 24-hour care. f. You receive assistance from a crisis response team, social workers, or community mental health workers who help you meet your physical needs, and who may also represent you in dealings with government or community social services. g. You live alone and do not receive any psychosocial support(s); however, you have created a highly structured environment by eliminating all but minimally necessary contact with the world outside your living space. 2. How we consider different levels of support and structure in psychosocial rehabilitation programs. a. Psychosocial rehabilitation programs are based on your specific needs. Therefore, we cannot make any assumptions about your mental disorder based solely on the fact that you are associated with such a program. We must know the details of the program(s) in which you are involved and the pattern(s) of your involvement over time. b. The kinds and levels of supports and structures in psychosocial rehabilitation programs typically occur on a scale of “most restrictive” to “least restrictive.” Participation in a psychosocial rehabilitation program at the most restrictive level would suggest greater limitation of your areas of mental functioning than would participation at a less restrictive level. The length of time you spend at different levels in a program also provides information about your functioning. For example, you could begin participation at the most restrictive crisis intervention level but gradually improve to the point of readiness for a lesser level of support and structure and possibly some form of employment. 3. How we consider the help or support you receive. a. We will consider the complete picture of your daily functioning, including the kinds, extent, and frequency of help and support you receive, when we evaluate your mental disorder and determine whether you are able to use the four areas of mental functioning in a work setting. The fact that you have done, or currently do, some routine activities without help or support does not necessarily mean that you do not have a mental disorder or that you are not disabled. For example, you may be able to take care of your personal needs, cook, shop, pay your bills, live by yourself, and drive a car. You may demonstrate both strengths and deficits in your daily functioning. b. You may receive various kinds of help and support from others that enable you to do many things that, because of your mental disorder, you might not be able to do independently. Your daily functioning may depend on the special contexts in which you function. For example, you may spend your time among only familiar people or surroundings, in a simple and steady routine or an unchanging environment, or in a highly structured setting. However, this does not necessarily show how you would function in a work setting on a sustained basis, throughout a normal workday and workweek. (See 12.00H for further discussion of these issues regarding significant deficits in adaptive functioning for the purpose of 12.05.) 4. How we consider treatment. E. What are the paragraph B criteria? 1. Understand, remember, or apply information (paragraph B1). 2. Interact with others (paragraph B2). 3. Concentrate, persist, or maintain pace (paragraph B3). 4. Adapt or manage oneself (paragraph B4). F. How do we use the paragraph B criteria to evaluate your mental disorder? 1. General. 2. The five-point rating scale. a. No limitation (or none). b. Mild limitation. c. Moderate limitation. d. Marked limitation. e. Extreme limitation. 3. Rating the limitations of your areas of mental functioning. a. General. b. Areas of mental functioning in daily activities. c. Areas of mental functioning in work settings. d. Overall effect of limitations. e. Effects of support, supervision, structure on functioning. f. Specific instructions for paragraphs B1, B3, and B4. (i) To do a work-related task, you must be able to understand and and and and and or or or or or (ii) We will document the rating of limitation of the whole area of mental functioning, not each individual part. We will not add ratings of the parts together. For example, with respect to paragraph B3, if you have marked limitation in maintaining pace, and mild or moderate limitations in concentrating and persisting, we will find that you have marked limitation in the whole paragraph B3 area of mental functioning. (iii) Marked limitation in more than one part of the same paragraph B area of mental functioning does not satisfy the requirement to have marked limitation in two paragraph B areas of mental functioning. 4. How we evaluate mental disorders involving exacerbations and remissions. a. When we evaluate the effects of your mental disorder, we will consider how often you have exacerbations and remissions, how long they last, what causes your mental disorder to worsen or improve, and any other relevant information. We will assess any limitation of the affected paragraph B area(s) of mental functioning using the rating scale for the paragraph B criteria. We will consider whether you can use the area of mental functioning on a regular and continuing basis (8 hours a day, 5 days a week, or an equivalent work schedule). We will not find that you are able to work solely because you have a period(s) of improvement (remission), or that you are disabled solely because you have a period of worsening (exacerbation), of your mental disorder. b. If you have a mental disorder involving exacerbations and remissions, you may be able to use the four areas of mental functioning to work for a few weeks or months. Recurrence or worsening of symptoms and signs, however, can interfere enough to render you unable to sustain the work. G. What are the paragraph C criteria, and how do we use them to evaluate your mental disorder? 1. General. 2. Paragraph C criteria. a. We find a mental disorder to be “serious and persistent” when there is a medically documented history of the existence of the mental disorder in the listing category over a period of at least 2 years, and evidence shows that your disorder satisfies both C1 and C2. b. The criterion in C1 is satisfied when the evidence shows that you rely, on an ongoing basis, upon medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s), to diminish the symptoms and signs of your mental disorder (see 12.00D). We consider that you receive ongoing medical treatment when the medical evidence establishes that you obtain medical treatment with a frequency consistent with accepted medical practice for the type of treatment or evaluation required for your medical condition. We will consider periods of inconsistent treatment or lack of compliance with treatment that may result from your mental disorder. If the evidence indicates that the inconsistent treatment or lack of compliance is a feature of your mental disorder, and it has led to an exacerbation of your symptoms and signs, we will not use it as evidence to support a finding that you have not received ongoing medical treatment as required by this paragraph. c. The criterion in C2 is satisfied when the evidence shows that, despite your diminished symptoms and signs, you have achieved only marginal adjustment. “Marginal adjustment” means that your adaptation to the requirements of daily life is fragile; that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life. We will consider that you have achieved only marginal adjustment when the evidence shows that changes or increased demands have led to exacerbation of your symptoms and signs and to deterioration in your functioning; for example, you have become unable to function outside of your home or a more restrictive setting, without substantial psychosocial supports (see 12.00D). Such deterioration may have necessitated a significant change in medication or other treatment. Similarly, because of the nature of your mental disorder, evidence may document episodes of deterioration that have required you to be hospitalized or absent from work, making it difficult for you to sustain work activity over time. H. How do we document and evaluate intellectual disorder under 12.05? 1. General. 2. Establishing significantly subaverage general intellectual functioning. a. Definition. b. Psychometric standards. c. Qualified specialist. d. Responsibility for conclusions based on testing. (i) The data obtained in testing; (ii) Your developmental history, including when your signs and symptoms began; (iii) Information about how you function on a daily basis in a variety of settings; and (iv) Clinical observations made during the testing period, such as your ability to sustain attention, concentration, and effort; to relate appropriately to the examiner; and to perform tasks independently without prompts or reminders. 3. Establishing significant deficits in adaptive functioning. a. Definition. b. Evidence. (i) Medical sources, including their clinical observations; (ii) Standardized tests of adaptive functioning (see 12.00H3c); (iii) Third party information, such as a report of your functioning from a family member or friend; (iv) School records, if you were in school recently; (v) Reports from employers or supervisors; and (vi) Your own statements about how you handle all of your daily activities. c. Standardized tests of adaptive functioning. d. How we consider common everyday activities. (i) The fact that you engage in common everyday activities, such as caring for your personal needs, preparing simple meals, or driving a car, will not always mean that you do not have deficits in adaptive functioning as required by 12.05B2. You may demonstrate both strengths and deficits in your adaptive functioning. However, a lack of deficits in one area does not negate the presence of deficits in another area. When we assess your adaptive functioning, we will consider all of your activities and your performance of them. (ii) Our conclusions about your adaptive functioning rest on whether you do your daily activities independently, appropriately, effectively, and on a sustained basis. If you receive help in performing your activities, we need to know the kind, extent, and frequency of help you receive in order to perform them. We will not assume that your ability to do some common everyday activities, or to do some things without help or support, demonstrates that your mental disorder does not meet the requirements of 12.05B2. (See 12.00D regarding the factors we consider when we evaluate your functioning, including how we consider any help or support you receive.) e. How we consider work activity. 4. Establishing that the disorder began before age 22. a. Tests of intelligence or adaptive functioning; b. School records indicating a history of special education services based on your intellectual functioning; c. An Individualized Education Program (IEP), including your transition plan; d. Reports of your academic performance and functioning at school; e. Medical treatment records; f. Interviews or reports from employers; g. Statements from a supervisor in a group home or a sheltered workshop; and h. Statements from people who have known you and can tell us about your functioning in the past and currently. I. How do we evaluate substance use disorders? J. How do we evaluate mental disorders that do not meet one of the mental disorders listings? 1. These listings include only examples of mental disorders that we consider serious enough to prevent you from doing any gainful activity. If your severe mental disorder does not meet the criteria of any of these listings, we will consider whether you have an impairment(s) that meets the criteria of a listing in another body system. You may have another impairment(s) that is secondary to your mental disorder. For example, if you have an eating disorder and develop a cardiovascular impairment because of it, we will evaluate your cardiovascular impairment under the listings for the cardiovascular body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing (see §§ 404.1526 and 416.926 of this chapter). 3. If your impairment(s) does not meet or medically equal a listing, we will assess your residual functional capacity for engaging in substantial gainful activity (see §§ 404.1545 and 416.945 of this chapter). When we assess your residual functional capacity, we consider all of your impairment-related mental and physical limitations. For example, the side effects of some medications may reduce your general alertness, concentration, or physical stamina, affecting your residual functional capacity for non-exertional or exertional work activities. Once we have determined your residual functional capacity, we proceed to the fourth, and if necessary, the fifth steps of the sequential evaluation process in §§ 404.1520 and 416.920 of this chapter. We use the rules in §§ 404.1594 and 416.994 of this chapter, as appropriate, when we decide whether you continue to be disabled. 12.01 Category of Impairments, Mental Disorders 12.02 Neurocognitive disorders A. Medical documentation of a significant cognitive decline from a prior level of functioning in one 1. Complex attention; 2. Executive function; 3. Learning and memory; 4. Language; 5. Perceptual-motor; or 6. Social cognition. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). OR C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c). 12.03 Schizophrenia spectrum and other psychotic disorders A. Medical documentation of one 1. Delusions or hallucinations; 2. Disorganized thinking (speech); or 3. Grossly disorganized behavior or catatonia. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). OR C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c). 12.04 Depressive, bipolar and related disorders A. Medical documentation of the requirements of paragraph 1 or 2: 1. Depressive disorder, characterized by five a. Depressed mood; b. Diminished interest in almost all activities; c. Appetite disturbance with change in weight; d. Sleep disturbance; e. Observable psychomotor agitation or retardation; f. Decreased energy; g. Feelings of guilt or worthlessness; h. Difficulty concentrating or thinking; or i. Thoughts of death or suicide. 2. Bipolar disorder, characterized by three a. Pressured speech; b. Flight of ideas; c. Inflated self-esteem; d. Decreased need for sleep; e. Distractibility; f. Involvement in activities that have a high probability of painful consequences that are not recognized; or g. Increase in goal-directed activity or psychomotor agitation. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). OR C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c). 12.05 Intellectual disorder A. Satisfied by 1, 2, and 3 (see 12.00H): 1. Significantly subaverage general intellectual functioning evident in your cognitive inability to function at a level required to participate in standardized testing of intellectual functioning; and 2. Significant deficits in adaptive functioning currently manifested by your dependence upon others for personal needs (for example, toileting, eating, dressing, or bathing); and 3. The evidence about your current intellectual and adaptive functioning and about the history of your disorder demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22. OR B. Satisfied by 1, 2, and 3 (see 12.00H): 1. Significantly subaverage general intellectual functioning evidenced by a or b: a. A full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence; or b. A full scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below on an individually administered standardized test of general intelligence; and 2. Significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: a. Understand, remember, or apply information (see 12.00E1); or b. Interact with others (see 12.00E2); or c. Concentrate, persist, or maintain pace (see 12.00E3); or d. Adapt or manage oneself (see 12.00E4); and 3. The evidence about your current intellectual and adaptive functioning and about the history of your disorder demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22. 12.06 Anxiety and obsessive-compulsive disorders A. Medical documentation of the requirements of paragraph 1, 2, or 3: 1. Anxiety disorder, characterized by three a. Restlessness; b. Easily fatigued; c. Difficulty concentrating; d. Irritability; e. Muscle tension; or f. Sleep disturbance. 2. Panic disorder or agoraphobia, characterized by one a. Panic attacks followed by a persistent concern or worry about additional panic attacks or their consequences; or b. Disproportionate fear or anxiety about at least two different situations (for example, using public transportation, being in a crowd, being in a line, being outside of your home, being in open spaces). 3. Obsessive-compulsive disorder, characterized by one a. Involuntary, time-consuming preoccupation with intrusive, unwanted thoughts; or b. Repetitive behaviors aimed at reducing anxiety. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). OR C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c). 12.07 Somatic symptom and related disorders A. Medical documentation of one 1. Symptoms of altered voluntary motor or sensory function that are not better explained by another medical or mental disorder; 2. One or more somatic symptoms that are distressing, with excessive thoughts, feelings, or behaviors related to the symptoms; or 3. Preoccupation with having or acquiring a serious illness without significant symptoms present. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). 12.08 Personality and impulse-control disorders A. Medical documentation of a pervasive pattern of one 1. Distrust and suspiciousness of others; 2. Detachment from social relationships; 3. Disregard for and violation of the rights of others; 4. Instability of interpersonal relationships; 5. Excessive emotionality and attention seeking; 6. Feelings of inadequacy; 7. Excessive need to be taken care of; 8. Preoccupation with perfectionism and orderliness; or 9. Recurrent, impulsive, aggressive behavioral outbursts. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). 12.09 [Reserved] 12.10 Autism spectrum disorder A. Medical documentation of both 1. Qualitative deficits in verbal communication, nonverbal communication, and social interaction; and 2. Significantly restricted, repetitive patterns of behavior, interests, or activities. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). 12.11 Neurodevelopmental disorders A. Medical documentation of the requirements of paragraph 1, 2, or 3: 1. One a. Frequent distractibility, difficulty sustaining attention, and difficulty organizing tasks; or b. Hyperactive and impulsive behavior (for example, difficulty remaining seated, talking excessively, difficulty waiting, appearing restless, or behaving as if being “driven by a motor”). 2. Significant difficulties learning and using academic skills; or 3. Recurrent motor movement or vocalization. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). 12.12 [Reserved] 12.13 Eating disorders A. Medical documentation of a persistent alteration in eating or eating-related behavior that results in a change in consumption or absorption of food and that significantly impairs physical or psychological health. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). 12.15 Trauma- and stressor-related disorders A. Medical documentation of all 1. Exposure to actual or threatened death, serious injury, or violence; 2. Subsequent involuntary re-experiencing of the traumatic event (for example, intrusive memories, dreams, or flashbacks); 3. Avoidance of external reminders of the event; 4. Disturbance in mood and behavior; and 5. Increases in arousal and reactivity (for example, exaggerated startle response, sleep disturbance). AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). OR C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c). 13.00 Cancer (Malignant Neoplastic Diseases) A. What impairments do these listings cover? B. What do we consider when we evaluate cancer under these listings? 1. Origin of the cancer. 2. Extent of involvement. 3. Duration, frequency, and response to anticancer therapy. 4. Effects of any post-therapeutic residuals. C. How do we apply these listings? D. What evidence do we need? 1. We need medical evidence that specifies the type, extent, and site of the primary, recurrent, or metastatic lesion. When the primary site cannot be identified, we will use evidence documenting the site(s) of metastasis to evaluate the impairment under 13.27. 2. For operative procedures, including a biopsy or a needle aspiration, we generally need a copy of both the: a. Operative note, and b. Pathology report. 3. When we cannot get these documents, we will accept the summary of hospitalization(s) or other medical reports. This evidence should include details of the findings at surgery and, whenever appropriate, the pathological findings. 4. In some situations, we may also need evidence about recurrence, persistence, or progression of the cancer, the response to therapy, and any significant residuals. (See 13.00G.) E. When do we need longitudinal evidence? 1. Cancer with distant metastases. 2. Other cancers. 3. Types of treatment. a. Whenever the initial planned therapy is a single modality, enough time must pass to allow a determination about whether the therapy will achieve its intended effect. If the treatment fails, the failure often happens within 6 months after treatment starts, and there will often be a change in the treatment regimen. b. Whenever the initial planned therapy is multimodal, we usually cannot make a determination about the effectiveness of the therapy until we can determine the effects of all the planned modalities. In some cases, we may need to defer adjudication until we can assess the effectiveness of therapy. However, we do not need to defer adjudication to determine whether the therapy will achieve its intended effect if we can make a fully favorable determination or decision based on the length and effects of therapy, or the residuals of the cancer or therapy (see 13.00G). c. We need evidence under 13.02E, 13.11D, and 13.14C to establish that your treating source initiated multimodal anticancer therapy. We do not need to make a determination about the length or effectiveness of your therapy. Multimodal therapy has been initiated, and satisfies the requirements in 13.02E, 13.11D, and 13.14C, when your treating source starts the first modality. We may defer adjudication if your treating source plans multimodal therapy and has not yet initiated it. F. How do we evaluate impairments that do not meet one of the cancer listings? 1. These listings are only examples of cancer that we consider severe enough to prevent you from doing any gainful activity. If your severe impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that meets the criteria of a listing in another body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. (See §§ 404.1526 and 416.926 of this chapter.) If your impairment(s) does not meet or medically equal a listing, you may or may not have the residual functional capacity to engage in substantial gainful activity. In that situation, we proceed to the fourth, and, if necessary, the fifth steps of the sequential evaluation process in §§ 404.1520 and 416.920 of this chapter. We use the rules in §§ 404.1594 and 416.994 of this chapter, as appropriate, when we decide whether you continue to be disabled. G. How do we consider the effects of anticancer therapy? 1. How we consider the effects of anticancer therapy under the listings. 2. Effects can vary widely. a. We consider each case on an individual basis because the therapy and its toxicity may vary widely. We will request a specific description of the therapy, including these items: i. Drugs given. ii. Dosage. iii. Frequency of drug administration. iv. Plans for continued drug administration. v. Extent of surgery. vi. Schedule and fields of radiation therapy. b. We will also request a description of the complications or adverse effects of therapy, such as the following: i. Continuing gastrointestinal symptoms. ii. Persistent weakness. iii. Neurological complications. iv. Cardiovascular complications. v. Reactive mental disorders. 3. Effects of therapy may change. 4. When the initial anticancer therapy is effective. H. How long do we consider your impairment to be disabling? 1. In some listings, we specify that we will consider your impairment to be disabling until a particular point in time (for example, until at least 12 months from the date of transplantation). We may consider your impairment to be disabling beyond this point when the medical and other evidence justifies it. 2. When a listing does not contain such a specification, we will consider an impairment(s) that meets or medically equals a listing in this body system to be disabling until at least 3 years after onset of complete remission. When the impairment(s) has been in complete remission for at least 3 years, that is, the original tumor or a recurrence (or relapse) and any metastases have not been evident for at least 3 years, the impairment(s) will no longer meet or medically equal the criteria of a listing in this body system. 3. Following the appropriate period, we will consider any residuals, including residuals of the cancer or therapy (see 13.00G), in determining whether you are disabled. If you have a recurrence or relapse of your cancer, your impairment may meet or medically equal one of the listings in this body system again. I. What do we mean by the following terms? 1. Anticancer therapy 2. Inoperable Neoadjuvant therapy 3. Metastases 4. Multimodal therapy a. Surgery followed by chemotherapy or radiation. b. Chemotherapy followed by surgery. c. Chemotherapy and concurrent radiation. 5. Persistent 6. Progressive 7. Recurrent or relapse 8. Unresectable Adjuvant therapy J. Can we establish the existence of a disabling impairment prior to the date of the evidence that shows the cancer satisfies the criteria of a listing? 1. The type of cancer and its location. 2. The extent of involvement when the cancer was first demonstrated. 3. Your symptoms. K. How do we evaluate specific cancers? 1. Lymphoma. a. Many indolent (non-aggressive) lymphomas are controlled by well-tolerated treatment modalities, although the lymphomas may produce intermittent symptoms and signs. We may defer adjudicating these cases for an appropriate period after therapy is initiated to determine whether the therapy will achieve its intended effect, which is usually to stabilize the disease process. (See 13.00E3.) Once your disease stabilizes, we will assess severity based on the extent of involvement of other organ systems and residuals from therapy. b. A change in therapy for indolent lymphomas is usually an indicator that the therapy is not achieving its intended effect. However, your impairment will not meet the requirements of 13.05A2 if your therapy is changed solely because you or your physician chooses to change it and not because of a failure to achieve stability. c. We consider Hodgkin lymphoma that recurs more than 12 months after completing initial anticancer therapy to be a new disease rather than a recurrence. 2. Leukemia. a. Acute leukemia. b. Chronic myelogenous leukemia (CML). c. Chronic lymphocytic leukemia. i. We require the diagnosis of chronic lymphocytic leukemia (CLL) to be documented by evidence of a chronic lymphocytosis of at least 10,000 cells/mm 3 ii. We evaluate the complications and residual impairment(s) from CLL under the appropriate listings, such as 13.05A2 or the hematological listings (7.00). d. Elevated white cell count. 3. Macroglobulinemia or heavy chain disease. 4. Primary breast cancer. a. We evaluate bilateral primary breast cancer (synchronous or metachronous) under 13.10A, which covers local primary disease, and not as a primary disease that has metastasized. b. We evaluate secondary lymphedema that results from anticancer therapy for breast cancer under 13.10E if the lymphedema is treated by surgery to salvage or restore the functioning of an upper extremity. Secondary lymphedema is edema that results from obstruction or destruction of normal lymphatic channels. We may not restrict our determination of the onset of disability to the date of the surgery; we may establish an earlier onset date of disability if the evidence in your case record supports such a finding. 5. Carcinoma-in-situ. 6. Primary central nervous system (CNS) cancers. a. The CNS cancers listed in 13.13A1 are highly malignant and respond poorly to treatment, and therefore we do not require additional criteria to evaluate them. We do not list pituitary gland cancer (for example, pituitary gland carcinoma) in 13.13A1, although this CNS cancer is highly malignant and responds poorly to treatment. We evaluate pituitary gland cancer under 13.13A1 and do not require additional criteria to evaluate it. b. We consider a CNS tumor to be malignant if it is classified as Grade II, Grade III, or Grade IV under the World Health Organization (WHO) classification of tumors of the CNS ( WHO Classification of Tumours of the Central Nervous System, c. We evaluate benign (for example, WHO Grade I) CNS tumors under 11.05. We evaluate metastasized CNS cancers from non-CNS sites under the primary cancers (see 13.00C). We evaluate any complications of CNS cancers, such as resultant neurological or psychological impairments, under the criteria for the affected body system. 7. Primary peritoneal carcinoma. 8. Prostate cancer. 9. Melanoma. L. How do we evaluate cancer treated by bone marrow or stem cell transplantation, including transplantation using stem cells from umbilical cord blood? 1. Acute leukemia (including T-cell lymphoblastic lymphoma) or accelerated or blast phase of CML. 2. Lymphoma, multiple myeloma, or chronic phase of CML. 3. Other cancers. a. Allogeneic bone marrow or stem cell transplantation. b. Autologous bone marrow or stem cell transplantation. 4. Evaluating disability after the appropriate time period has elapsed. a. Graft-versus-host (GVH) disease. b. Immunosuppressant therapy, such as frequent infections. c. Significant deterioration of other organ systems. 13.01 Category of Impairments, Malignant Neoplastic Diseases 13.02 Soft tissue cancers of the head and neck (except salivary glands—13.08—and thyroid gland—13.09). A. Inoperable or unresectable. OR B. Persistent or recurrent disease following initial anticancer therapy, except persistence or recurrence in the true vocal cord. OR C. With metastases beyond the regional lymph nodes. OR D. Small-cell (oat cell) carcinoma. OR E. Soft tissue cancers originating in the head and neck treated with multimodal anticancer therapy (see 13.00E3c). Consider under a disability until at least 18 months from the date of diagnosis. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. 13.03 Skin. A. Sarcoma or carcinoma with metastases to or beyond the regional lymph nodes. OR B. Carcinoma invading deep extradermal structures (for example, skeletal muscle, cartilage, or bone). 13.04 Soft tissue sarcoma. A. With regional or distant metastases. OR B. Persistent or recurrent following initial anticancer therapy. 13.05 Lymphoma (including mycosis fungoides, but excluding T-cell lymphoblastic lymphoma—13.06). See A. Non-Hodgkin's lymphoma, as described in 1 or 2: 1. Aggressive lymphoma (including diffuse large B-cell lymphoma) persistent or recurrent following initial anticancer therapy. 2. Indolent lymphoma (including mycosis fungoides and follicular small cleaved cell) requiring initiation of more than one (single mode or multimodal) anticancer treatment regimen within a period of 12 consecutive months. Consider under a disability from at least the date of initiation of the treatment regimen that failed within 12 months. OR B. Hodgkin lymphoma with failure to achieve clinically complete remission, or recurrent lymphoma within 12 months of completing initial anticancer therapy. OR C. With bone marrow or stem cell transplantation. Consider under a disability until at least 12 months from the date of transplantation. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. OR D. Mantle cell lymphoma. 13.06 Leukemia. See A. Acute leukemia (including T-cell lymphoblastic lymphoma). Consider under a disability until at least 24 months from the date of diagnosis or relapse, or at least 12 months from the date of bone marrow or stem cell transplantation, whichever is later. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. OR B. Chronic myelogenous leukemia, as described in 1 or 2: 1. Accelerated or blast phase (see 13.00K2b). Consider under a disability until at least 24 months from the date of diagnosis or relapse, or at least 12 months from the date of bone marrow or stem cell transplantation, whichever is later. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. 2. Chronic phase, as described in a or b: a. Consider under a disability until at least 12 months from the date of bone marrow or stem cell transplantation. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. b. Progressive disease following initial anticancer therapy. 13.07 Multiple myeloma (confirmed by appropriate serum or urine protein electrophoresis and bone marrow findings). A. Failure to respond or progressive disease following initial anticancer therapy. OR B. With bone marrow or stem cell transplantation. Consider under a disability until at least 12 months from the date of transplantation. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. 13.08 Salivary glands 13.09 Thyroid gland. A. Anaplastic (undifferentiated) carcinoma. OR B. Carcinoma with metastases beyond the regional lymph nodes progressive despite radioactive iodine therapy. OR C. Medullary carcinoma with metastases beyond the regional lymph nodes. 13.10 Breast (except sarcoma—13.04). See A. Locally advanced cancer (inflammatory carcinoma, cancer of any size with direct extension to the chest wall or skin, or cancer of any size with metastases to the ipsilateral internal mammary nodes). OR B. Carcinoma with metastases to the supraclavicular or infraclavicular nodes, to 10 or more axillary nodes, or with distant metastases. OR C. Recurrent carcinoma, except local recurrence that remits with anticancer therapy. OR D. Small-cell (oat cell) carcinoma. OR E. With secondary lymphedema that is caused by anticancer therapy and treated by surgery to salvage or restore the functioning of an upper extremity. (See 13.00K4b.) Consider under a disability until at least 12 months from the date of the surgery that treated the secondary lymphedema. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. 13.11 Skeletal system A. Inoperable or unresectable. OR B. Recurrent cancer (except local recurrence) after initial anticancer therapy. OR C. With distant metastases. OR D. All other cancers originating in bone with multimodal anticancer therapy (see 13.00E3c). Consider under a disability for 12 months from the date of diagnosis. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. 13.12 Maxilla, orbit, or temporal fossa. A. Sarcoma or carcinoma of any type with regional or distant metastases. OR B. Carcinoma of the antrum with extension into the orbit or ethmoid or sphenoid sinus. OR C. Cancer with extension to the orbit, meninges, sinuses, or base of the skull. 13.13 Nervous system. A. Primary central nervous system (CNS; that is, brain and spinal cord) cancers, as described in 1, 2, or 3: 1. Glioblastoma multiforme, ependymoblastoma, and diffuse intrinsic brain stem gliomas (see 13.00K6a). 2. Any Grade III or Grade IV CNS cancer (see 13.00K6b), including astrocytomas, sarcomas, and medulloblastoma and other primitive neuroectodermal tumors (PNETs). 3. Any primary CNS cancer, as described in a or b: a. Metastatic. b. Progressive or recurrent following initial anticancer therapy. OR B. Primary peripheral nerve or spinal root cancers, as described in 1 or 2: 1. Metastatic. 2. Progressive or recurrent following initial anticancer therapy. 13.14 Lungs. A. Non-small-cell carcinoma—inoperable, unresectable, recurrent, or metastatic disease to or beyond the hilar nodes. OR B. Small-cell (oat cell) carcinoma. OR C. Carcinoma of the superior sulcus (including Pancoast tumors) with multimodal anticancer therapy (see 13.00E3c). Consider under a disability until at least 18 months from the date of diagnosis. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. 13.15 Pleura or mediastinum. A. Malignant mesothelioma of pleura. OR B. Tumors of the mediastinum, as described in 1 or 2: 1. With metastases to or beyond the regional lymph nodes. 2. Persistent or recurrent following initial anticancer therapy. OR C. Small-cell (oat cell) carcinoma. 13.16 Esophagus or stomach. A. Carcinoma or sarcoma of the esophagus. OR B. Carcinoma or sarcoma of the stomach, as described in 1 or 2: 1. Inoperable, unresectable, extending to surrounding structures, or recurrent. 2. With metastases to or beyond the regional lymph nodes. OR C. Small-cell (oat cell) carcinoma. 13.17 Small intestine A. Inoperable, unresectable, or recurrent. OR B. With metastases beyond the regional lymph nodes. OR C. Small-cell (oat cell) carcinoma. 13.18 Large intestine (from ileocecal valve to and including anal canal). A. Adenocarcinoma that is inoperable, unresectable, or recurrent. OR B. Squamous cell carcinoma of the anus, recurrent after surgery. OR C. With metastases beyond the regional lymph nodes. OR D. Small-cell (oat cell) carcinoma. 13.19 Liver or gallbladder 13.20 Pancreas. A. Carcinoma (except islet cell carcinoma). OR B. Islet cell carcinoma that is physiologically active and is either inoperable or unresectable. 13.21 Kidneys, adrenal glands, or ureters A. Inoperable, unresectable, or recurrent. OR B. With metastases to or beyond the regional lymph nodes. 13.22 Urinary bladder A. With infiltration beyond the bladder wall. OR B. Recurrent after total cystectomy. OR C. Inoperable or unresectable. OR D. With metastases to or beyond the regional lymph nodes. OR E. Small-cell (oat cell) carcinoma. 13.23 Cancers of the female genital tract A. Uterus (corpus), as described in 1, 2, or 3: 1. Invading adjoining organs. 2. With metastases to or beyond the regional lymph nodes. 3. Persistent or recurrent following initial anticancer therapy. OR B. Uterine cervix, as described in 1, 2, or 3: 1. Extending to the pelvic wall, lower portion of the vagina, or adjacent or distant organs. 2. Persistent or recurrent following initial anticancer therapy. 3. With metastases to distant (for example, para-aortic or supraclavicular) lymph nodes. OR C. Vulva or vagina, as described in 1, 2, or 3: 1. Invading adjoining organs. 2. With metastases to or beyond the regional lymph nodes. 3. Persistent or recurrent following initial anticancer therapy. OR D. Fallopian tubes, as described in 1 or 2: 1. Extending to the serosa or beyond. 2. Persistent or recurrent following initial anticancer therapy. E. Ovaries, as described in 1 or 2: 1. All cancers except germ-cell cancers, with at least one of the following: a. Extension beyond the pelvis; for example, implants on, or direct extension to, peritoneal, omental, or bowel surfaces. b. Metastases to or beyond the regional lymph nodes. c. Recurrent following initial anticancer therapy. 2. Germ-cell cancers—progressive or recurrent following initial anticancer therapy. OR F. Small-cell (oat cell) carcinoma. 13.24 Prostate gland A. Progressive or recurrent (not including biochemical recurrence) despite initial hormonal intervention. (See 13.00K8.) OR B. With visceral metastases (metastases to internal organs). OR C. Small cell (oat cell) carcinoma. 13.25 Testicles 13.26 Penis 13.27 Primary site unknown after appropriate search for primary 13.28 Cancer treated by bone marrow or stem cell transplantation. A. Allogeneic transplantation. Consider under a disability until at least 12 months from the date of transplantation. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. OR B. Autologous transplantation. Consider under a disability until at least 12 months from the date of the first treatment under the treatment plan that includes transplantation. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. 13.29 Malignant melanoma A. Recurrent (except an additional primary melanoma at a different site, which is not considered to be recurrent disease) following either 1 or 2: 1. Wide excision (skin melanoma). 2. Enucleation of the eye (ocular melanoma). OR B. With metastases as described in 1, 2, or 3: 1. Metastases to one or more clinically apparent nodes; that is, nodes that are detected by imaging studies (excluding lymphoscintigraphy) or by clinical evaluation (palpable). 2. If the nodes are not clinically apparent, with metastases to four or more nodes. 3. Metastases to adjacent skin (satellite lesions) or distant sites (for example, liver, lung, or brain). OR C. Mucosal melanoma. 14.00 Immune System Disorders A. What disorders do we evaluate under the immune system disorders listings? 1. We evaluate immune system disorders that cause dysfunction in one or more components of your immune system. a. The dysfunction may be due to problems in antibody production, impaired cell-mediated immunity, a combined type of antibody/cellular deficiency, impaired phagocytosis, or complement deficiency. b. Immune system disorders may result in recurrent and unusual infections, or inflammation and dysfunction of the body's own tissues. Immune system disorders can cause a deficit in a single organ or body system that results in extreme (that is, very serious) loss of function. They can also cause lesser degrees of limitations in two or more organs or body systems, and when associated with symptoms or signs, such as severe fatigue, fever, malaise, diffuse musculoskeletal pain, or involuntary weight loss, can also result in extreme limitation. c. We organize the discussions of immune system disorders in three categories: Autoimmune disorders; Immune deficiency disorders, excluding human immunodeficiency virus (HIV) infection; and HIV infection. 2. Autoimmune disorders (14.00D). 3. Immune deficiency disorders, excluding HIV infection (14.00E). primary acquired. 4. Human immunodeficiency virus (HIV) infection (14.00F). B. What information do we need to show that you have an immune system disorder? C. Definitions 1. Appropriate medically acceptable imaging 2. Constitutional symptoms or signs Severe fatigue Malaise 3. Disseminated 4. Dysfunction 5. Extra-articular 6. Documented medical need 7. Fine and gross movements 8. Major joint of an upper or a lower extremity 9. Persistent 10. Recurrent 11. Resistant to treatment 12. Severe D. How do we document and evaluate the listed autoimmune disorders? 1. Systemic lupus erythematosus (14.02). a. General. b. Documentation of SLE. Primer on the Rheumatic Diseases 2. Systemic vasculitis (14.03). a. General. (i) Vasculitis is an inflammation of blood vessels. It may occur acutely in association with adverse drug reactions, certain chronic infections, and occasionally, malignancies. More often, it is chronic and the cause is unknown. Symptoms vary depending on which blood vessels are involved. Systemic vasculitis may also be associated with other autoimmune disorders; for example, SLE or dermatomyositis. (ii) There are several clinical patterns, including but not limited to polyarteritis nodosa, Takayasu's arteritis (aortic arch arteritis), giant cell arteritis (temporal arteritis), and Wegener's granulomatosis. b. Documentation of systemic vasculitis. 3. Systemic sclerosis (scleroderma) (14.04). a. General. b. Diffuse cutaneous systemic sclerosis. c. Localized scleroderma (linear scleroderma and morphea). (i) Localized scleroderma (linear scleroderma and morphea) is more common in children than in adults. However, this type of scleroderma can persist into adulthood. To assess the severity of the impairment, we need a description of the extent of involvement of linear scleroderma and the location of the lesions. For example, linear scleroderma involving the arm but not crossing any joints is not as functionally limiting as sclerodactyly (scleroderma localized to the fingers). Linear scleroderma of a lower extremity involving skin thickening and atrophy of underlying muscle or bone caesult in contractures and leg length discrepancy. In such cases, we may evaluate your impairment under the musculoskeletal listings (1.00). (ii) When there is isolated morphea of the face causing facial disfigurement from unilateral hypoplasia of the mandible, maxilla, zygoma, or orbit, adjudication may be more appropriate under the criteria in the affected body system, such as special senses and speech (2.00) or mental disorders (12.00). (iii) Chronic variants of these syndromes include disseminated morphea, Shulman's disease (diffuse fasciitis with eosinophilia), and eosinophilia-myalgia syndrome (often associated with toxins such as toxic oil or contaminated tryptophan), all of which can impose medically severe musculoskeletal dysfunction and may also lead to restrictive pulmonary disease. We evaluate these variants of the disease under the criteria in the musculoskeletal listings (1.00) or respiratory system listings (3.00). d. Documentation of systemic sclerosis (scleroderma). 4. Polymyositis and dermatomyositis (14.05). a. General. b. Documentation of polymyositis and dermatomyositis. c. Additional information about how we evaluate polymyositis and dermatomyositis under the listings. (i) Weakness of your pelvic girdle muscles that results in your inability to rise independently from a squatting or sitting position or to climb stairs may be an indication that you are unable to walk without assistance. Weakness of your shoulder girdle muscles may result in your inability to perform lifting, carrying, and reaching overhead, and also may seriously affect your ability to perform activities requiring fine movements. We evaluate these limitations under 14.05A. (ii) We use the malignant neoplastic diseases listings (13.00) to evaluate malignancies associated with polymyositis or dermatomyositis. We evaluate the involvement of other organs/body systems under the criteria for the listings in the affected body system. 5. Undifferentiated and mixed connective tissue disease (14.06). a. General. b. Documentation of undifferentiated and mixed connective tissue disease. 6. Inflammatory arthritis (14.09). a. General. b. Inflammatory arthritis involving the axial spine (spondyloarthropathy). (i) Reiter's syndrome; (ii) Ankylosing spondylitis; (iii) Psoriatic arthritis; (iv) Whipple's disease; (v) Behçet's disease; and (vi) Inflammatory bowel disease. c. Inflammatory arthritis involving the peripheral joints. (i) Rheumatoid arthritis; (ii) Sjögren's syndrome; (iii) Psoriatic arthritis; (iv) Crystal deposition disorders (gout and pseudogout); (v) Lyme disease; and (vi) Inflammatory bowel disease. d. Documentation of inflammatory arthritis. e. How we evaluate inflammatory arthritis under the listings. (i) Listing-level severity in 14.09A and 14.09C1 is shown by the presence of an impairment-related physical limitation of functioning. In 14.09C1, if you have the required ankylosis (fixation) of your cervical or dorsolumbar spine, we will find that you have a listing-level impairment-related physical limitation in your ability to see in front of you, above you, and to the side, even though you might not require bilateral upper limb assistance. (ii) Listing-level severity in 14.09B, 14.09C2, and 14.09D is shown by inflammatory arthritis that involves various combinations of complications (such as inflammation or deformity, extra-articular features, repeated manifestations, and constitutional symptoms and signs) of one or more major joints in an upper or a lower extremity (see 14.00C8) or other joints. Extra-articular impairments may also meet listings in other body systems. (iii) Extra-articular features of inflammatory arthritis may involve any body system; for example: Musculoskeletal (heel enthesopathy), ophthalmologic (iridocyclitis, keratoconjunctivitis sicca, uveitis), pulmonary (pleuritis, pulmonary fibrosis or nodules, restrictive lung disease), cardiovascular (aortic valve insufficiency, arrhythmias, coronary arteritis, myocarditis, pericarditis, Raynaud's phenomenon, systemic vasculitis), renal (amyloidosis of the kidney), hematologic (chronic anemia, thrombocytopenia), neurologic (peripheral neuropathy, radiculopathy, spinal cord or cauda equina compression with sensory and motor loss), mental (cognitive dysfunction, poor memory), and immune system (Felty's syndrome (hypersplenism with compromised immune competence)). (iv) If both inflammation and chronic deformities are present, we evaluate your impairment under the criteria of any appropriate listing. 7. Sjögren's syndrome (14.10). a. General. (i) Sjögren's syndrome is an immune-mediated disorder of the exocrine glands. Involvement of the lacrimal and salivary glands is the hallmark feature, resulting in symptoms of dry eyes and dry mouth, and possible complications, such as corneal damage, blepharitis (eyelid inflammation), dysphagia (difficulty in swallowing), dental caries, and the inability to speak for extended periods of time. Involvement of the exocrine glands of the upper airways may result in persistent dry cough. (ii) Many other organ systems may be involved, including musculoskeletal (arthritis, myositis), respiratory (interstitial fibrosis), gastrointestinal (dysmotility, dysphagia, involuntary weight loss), genitourinary (interstitial cystitis, renal tubular acidosis), skin (purpura, vasculitis), neurologic (central nervous system disorders, cranial and peripheral neuropathies), mental (cognitive dysfunction, poor memory), and neoplastic (lymphoma). Severe fatigue and malaise are frequently reported. Sjögren's syndrome may be associated with other autoimmune disorders (for example, rheumatoid arthritis or SLE); usually the clinical features of the associated disorder predominate. b. Documentation of Sjögren's syndrome. Primer on the Rheumatic Diseases E. How do we document and evaluate immune deficiency disorders, excluding HIV infection? 1. General. a. Immune deficiency disorders can be classified as: (i) Primary (ii) Acquired; b. Primary immune deficiency disorders are seen mainly in children. However, recent advances in the treatment of these disorders have allowed many affected children to survive well into adulthood. Occasionally, these disorders are first diagnosed in adolescence or adulthood. 2. Documentation of immune deficiency disorders. 3. Immune deficiency disorders treated by stem cell transplantation. a. Evaluation in the first 12 months. b. Evaluation after the 12-month period has elapsed. (i) Graft-versus-host (GVH) disease. (ii) Immunosuppressant therapy, such as frequent infections. (iii) Significant deterioration of other organ systems. 4. Medication-induced immune suppression. a. The frequency and severity of infections. b. Residuals from the organ transplant itself, after the 12-month period has elapsed. c. Significant deterioration of other organ systems. F. How do we document and evaluate HIV infection? 1. Documentation of HIV infection. a. Definitive documentation of HIV infection. (i) HIV antibody screening test (for example, enzyme immunoassay, or EIA), confirmed by a supplemental HIV antibody test such as the Western blot (immunoblot), an immunofluorescence assay, or an HIV-1/HIV-2 antibody differentiation immunoassay. (ii) HIV nucleic acid (DNA or RNA) detection test (for example, polymerase chain reaction, or PCR). (iii) HIV p24 antigen (p24Ag) test. (iv) Isolation of HIV in viral culture. (v) Other tests that are highly specific for detection of HIV and that are consistent with the prevailing state of medical knowledge. b. We will make every reasonable effort to obtain the results of your laboratory testing. Pursuant to §§ 404.1519f and 416.919f of this chapter, we will purchase examinations or tests necessary to make a determination in your claim if no other acceptable documentation exists. c. Other acceptable documentation of HIV infection. (i) We will accept a persuasive report from a physician that a positive diagnosis of your HIV infection was confirmed by an appropriate laboratory test(s), such as those described in 14.00F1a. To be persuasive, this report must state that you had the appropriate definitive laboratory test(s) for diagnosing your HIV infection and provide the results. The report must also be consistent with the remaining evidence of record. (ii) We may also document HIV infection by the medical history, clinical and laboratory findings, and diagnosis(es) indicated in the medical evidence, provided that such documentation is consistent with the prevailing state of medical knowledge and clinical practice and is consistent with the other evidence in your case record. For example, we will accept a diagnosis of HIV infection without definitive laboratory evidence of the HIV infection if you have an opportunistic disease that is predictive of a defect in cell-mediated immunity (for example, toxoplasmosis of the brain or Pneumocystis 2. Documentation of the manifestations of HIV infection. a. Definitive documentation of manifestations of HIV infection. b. We will make every reasonable effort to obtain the results of your laboratory testing. Pursuant to §§ 404.1519f and 416.919f of this chapter, we will purchase examinations or tests necessary to make a determination of your claim if no other acceptable documentation exists. c. Other acceptable documentation of manifestations of HIV infection. (i) We will accept a persuasive report from a physician that a positive diagnosis of your manifestation of HIV infection was confirmed by an appropriate laboratory test(s). To be persuasive, this report must state that you had the appropriate definitive laboratory test(s) for diagnosing your manifestation of HIV infection and provide the results. The report must also be consistent with the remaining evidence of record. (ii) We may also document manifestations of HIV infection without the definitive laboratory evidence described in 14.00F2a, provided that such documentation is consistent with the prevailing state of medical knowledge and clinical practice and is consistent with the other evidence in your case record. For example, many conditions are now commonly diagnosed based on some or all of the following: Medical history, clinical manifestations, laboratory findings (including appropriate medically acceptable imaging), and treatment responses. In such cases, we will make every reasonable effort to obtain full details of the history, medical findings, and results of testing. 3. Disorders associated with HIV infection (14.11A-E). a. Multicentric Castleman disease localized b. Primary central nervous system lymphoma c. Primary effusion lymphoma d. Progressive multifocal leukoencephalopathy e. Pulmonary Kaposi sarcoma 4. CD4 measurement (14.11F). 5. Measurement of CD4 and either body mass index or hemoglobin (14.11G). and 6. Complications of HIV infection requiring hospitalization (14.11H). a. Complications of HIV infection may include infections (common or opportunistic), cancers, and other conditions. Examples of complications that may result in hospitalization include: Depression; diarrhea; immune reconstitution inflammatory syndrome; malnutrition; and PCP and other severe infections. b. Under 14.11H, we require three hospitalizations within a 12-month period that are at least 30 days apart and that result from a complication(s) of HIV infection. The hospitalizations may be for the same complication or different complications of HIV infection and are not limited to the examples of complications that may result in hospitalization listed in 14.00F6a. All three hospitalizations must occur within the period we are considering in connection with your application or continuing disability review. Each hospitalization must last at least 48 hours, including hours in a hospital emergency department immediately before the hospitalization. c. We will use the rules on medical equivalence in §§ 404.1526 and 416.926 of this chapter to evaluate your HIV infection if you have fewer, but longer, hospitalizations, or more frequent, but shorter, hospitalizations, or if you receive nursing, rehabilitation, or other care in alternative settings. 7. HIV infection manifestations specific to women. a. General. Candida b. Additional considerations for evaluating HIV infection in women. 8. HIV-associated dementia (HAD). G. How do we consider the effects of treatment in evaluating your autoimmune disorder, immune deficiency disorder, or HIV infection? 1. General. a. The effects of medications you take. b. Adverse side effects (acute and chronic). c. The intrusiveness and complexity of your treatment (for example, the dosing schedule, need for injections). d. The effect of treatment on your mental functioning (for example, cognitive changes, mood disturbance). e. Variability of your response to treatment (see 14.00G2). f. The interactive and cumulative effects of your treatments. For example, many individuals with immune system disorders receive treatment both for their immune system disorders and for the manifestations of the disorders or co-occurring impairments, such as treatment for HIV infection and hepatitis C. The interactive and cumulative effects of these treatments may be greater than the effects of each treatment considered separately. g. The duration of your treatment. h. Any other aspects of treatment that may interfere with your ability to function. 2. Variability of your response to treatment. 3. How we evaluate the effects of treatment for autoimmune disorders on your ability to function. 4. How we evaluate the effects of treatment for immune deficiency disorders, excluding HIV infection, on your ability to function. 5. How we evaluate the effects of treatment for HIV infection on your ability to function. a. General. b. Structured treatment interruptions. 6. When there is no record of ongoing treatment. H. How do we consider your symptoms, including your pain, severe fatigue, and malaise? Your symptoms, including pain, severe fatigue, and malaise, may be important factors in our determination whether your immune system disorder(s) meets or medically equals a listing or in our determination whether you are otherwise able to work. In order for us to consider your symptoms, you must have medical signs or laboratory findings showing the existence of a medically determinable impairment(s) that could reasonably be expected to produce the symptoms. If you have such an impairment(s), we will evaluate the intensity, persistence, and functional effects of your symptoms using the rules throughout 14.00 and in our other regulations. See §§ 404.1521, 404.1529, 416.921, and 416.929. Additionally, when we assess the credibility of your complaints about your symptoms and their functional effects, we will not draw any inferences from the fact that you do not receive treatment or that you are not following treatment without considering all of the relevant evidence in your case record, including any explanations you provide that may explain why you are not receiving or following treatment. I. How do we use the functional criteria in these listings? 1. The following listings in this body system include standards for evaluating the functional limitations resulting from immune system disorders: 14.02B, for systemic lupus erythematosus; 14.03B, for systemic vasculitis; 14.04D, for systemic sclerosis (scleroderma); 14.05E, for polymyositis and dermatomyositis; 14.06B, for undifferentiated and mixed connective tissue disease; 14.07C, for immune deficiency disorders, excluding HIV infection; 14.09D, for inflammatory arthritis; 14.10B, for Sjögren's syndrome; and 14.11I, for HIV infection. 2. When we use one of the listings cited in 14.00I1, we will consider all relevant information in your case record to determine the full impact of your immune system disorder on your ability to function on a sustained basis. Important factors we will consider when we evaluate your functioning under these listings include, but are not limited to: Your symptoms, the frequency and duration of manifestations of your immune system disorder, periods of exacerbation and remission, and the functional impact of your treatment, including the side effects of your medication. 3. As used in these listings, “repeated” means that the manifestations occur on an average of three times a year, or once every 4 months, each lasting 2 weeks or more; or the manifestations do not last for 2 weeks but occur substantially more frequently than three times in a year or once every 4 months; or they occur less frequently than an average of three times a year or once every 4 months but last substantially longer than 2 weeks. Your impairment will satisfy this criterion regardless of whether you have the same kind of manifestation repeatedly, all different manifestations, or any other combination of manifestations; for example, two of the same kind of manifestation and a different one. You must have the required number of manifestations with the frequency and duration required in this section. Also, the manifestations must occur within the period covered by your claim. 4. To satisfy the functional criterion in a listing, your immune system disorder must result in a “marked” level of limitation in one of three general areas of functioning: Activities of daily living, social functioning, or difficulties in completing tasks due to deficiencies in concentration, persistence, or pace. Functional limitation may result from the impact of the disease process itself on your mental functioning, physical functioning, or both your mental and physical functioning. This could result from persistent or intermittent symptoms, such as depression, severe fatigue, or pain, resulting in a limitation of your ability to do a task, to concentrate, to persevere at a task, or to perform the task at an acceptable rate of speed. You may also have limitations because of your treatment and its side effects (see 14.00G). 5. Marked seriously 6. Activities of daily living 7. Social functioning 8. Completing tasks in a timely manner J. How do we evaluate your immune system disorder when it does not meet one of these listings? 1. These listings are only examples of immune system disorders that we consider severe enough to prevent you from doing any gainful activity. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that satisfies the criteria of a listing in another body system. 2. Individuals with immune system disorders, including HIV infection, may manifest signs or symptoms of a mental impairment or of another physical impairment. For example, HIV infection may accelerate the onset of conditions such as diabetes or affect the course of or treatment options for diseases such as cardiovascular disease or hepatitis. We may evaluate these impairments under the affected body system. 3. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. (See §§ 404.1526 and 416.926.) If it does not, you may or may not have the residual functional capacity to engage in substantial gainful activity. Therefore, we proceed to the fourth, and if necessary, the fifth steps of the sequential evaluation process in §§ 404.1520 and 416.920. We use the rules in §§ 404.1594, 416.994, and 416.994a as appropriate, when we decide whether you continue to be disabled. 14.01 Category of Impairments, Immune System Disorders. 14.02 Systemic lupus erythematosus. A. Involvement of two or more organs/body systems, with: 1. One of the organs/body systems involved to at least a moderate level of severity; and 2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss). or B. Repeated manifestations of SLE, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level: 1. Limitation of activities of daily living. 2. Limitation in maintaining social functioning. 3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. 14.03 Systemic vasculitis. A. Involvement of two or more organs/body systems, with: 1. One of the organs/body systems involved to at least a moderate level of severity; and 2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss). or B. Repeated manifestations of systemic vasculitis, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level: 1. Limitation of activities of daily living. 2. Limitation in maintaining social functioning. 3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. 14.04 Systemic sclerosis (scleroderma). A. Involvement of two or more organs/body systems, with: 1. One of the organs/body systems involved to at least a moderate level of severity; and 2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss). or B. One of the following: 1. Toe contractures or fixed deformity of one or both feet and medical documentation of at least one a. A documented medical need (see 14.00C6) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); or b. An inability to use one 2. Finger contractures or fixed deformity in both hands and medical documentation of an inability to use both 3. Atrophy with irreversible damage in one or both lower extremities and medical documentation of at least one a. A documented medical need (see 14.00C6) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); or b. An inability to use one 4. Atrophy with irreversible damage in both both C. Raynaud's phenomenon, characterized by: 1. Gangrene involving at least two extremities; or 2. Ischemia with ulcerations of toes or fingers and medical documentation of at least one a. A documented medical need (see 14.00C6) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); or b. An inability to use one c. An inability to use both D. Repeated manifestations of systemic sclerosis (scleroderma), with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level: 1. Limitation of activities of daily living. 2. Limitation in maintaining social functioning. 3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. 14.05 Polymyositis and dermatomyositis. A. Proximal limb-girdle (pelvic or shoulder) muscle weakness and medical documentation of at least one 1. A documented medical need (see 14.00C6) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); or 2. An inability to use one 3. An inability to use both B. Impaired swallowing (dysphagia) with aspiration due to muscle weakness. or C. Impaired respiration due to intercostal and diaphragmatic muscle weakness. or D. Diffuse calcinosis with limitation of joint mobility or intestinal motility. or E. Repeated manifestations of polymyositis or dermatomyositis, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level: 1. Limitation of activities of daily living. 2. Limitation in maintaining social functioning. 3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. 14.06 Undifferentiated and mixed connective tissue disease. A. Involvement of two or more organs/body systems, with: 1. One of the organs/body systems involved to at least a moderate level of severity; and 2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss). or B. Repeated manifestations of undifferentiated or mixed connective tissue disease, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level: 1. Limitation of activities of daily living. 2. Limitation in maintaining social functioning. 3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. 14.07 Immune deficiency disorders, excluding HIV infection. A. One or more of the following infections. The infection(s) must either be resistant to treatment or require hospitalization or intravenous treatment three or more times in a 12-month period. 1. Sepsis; or 2. Meningitis; or 3. Pneumonia; or 4. Septic arthritis; or 5. Endocarditis; or 6. Sinusitis documented by appropriate medically acceptable imaging. or B. Stem cell transplantation as described under 14.00E3. Consider under a disability until at least 12 months from the date of transplantation. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. or C. Repeated manifestations of an immune deficiency disorder, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level: 1. Limitation of activities of daily living. 2. Limitation in maintaining social function. 3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. 14.08 [Reserved] 14.09 Inflammatory arthritis. A. Persistent inflammation or persistent deformity of: 1. One or more major joints in a lower extremity (see 14.00C8) and medical documentation of at least one a. A documented medical need (see 14.00C6) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); or b. An inability to use one 2. One or more major joints in each upper extremity (see 14.00C8) and medical documentation of an inability to use both B. Inflammation or deformity in one or more major joints of an upper or a lower extremity (see 14.00C8) with: 1. Involvement of two or more organs/body systems with one of the organs/body systems involved to at least a moderate level of severity; and 2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss). or C. Ankylosing spondylitis or other spondyloarthropathies, with: 1. Ankylosis (fixation) of the dorsolumbar or cervical spine as shown by appropriate medically acceptable imaging and measured on physical examination at 45° or more of flexion from the vertical position (zero degrees); or 2. Ankylosis (fixation) of the dorsolumbar or cervical spine as shown by appropriate medically acceptable imaging and measured on physical examination at 30° or more of flexion (but less than 45°) measured from the vertical position (zero degrees), and involvement of two or more organs/body systems with one of the organs/body systems involved to at least a moderate level of severity. or D. Repeated manifestations of inflammatory arthritis, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level: 1. Limitation of activities of daily living. 2. Limitation in maintaining social functioning. 3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. 14.10 Sjögren's syndrome. A. Involvement of two or more organs/body systems, with: 1. One of the organs/body systems involved to at least a moderate level of severity; and 2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss). or B. Repeated manifestations of Sjögren's syndrome, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level: 1. Limitation of activities of daily living. 2. Limitation in maintaining social functioning. 3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. 14.11 Human immunodeficiency virus (HIV) infection. A. Multicentric (not localized or unicentric) Castleman disease affecting multiple groups of lymph nodes or organs containing lymphoid tissue (see 14.00F3a). OR B. Primary central nervous system lymphoma (see 14.00F3b). OR C. Primary effusion lymphoma (see 14.00F3c). OR D. Progressive multifocal leukoencephalopathy (see 14.00F3d). OR E. Pulmonary Kaposi sarcoma (see 14.00F3e). OR F. Absolute CD4 count of 50 cells/mm 3 OR G. Absolute CD4 count of less than 200 cells/mm 3 and 1. BMI measurement of less than 18.5; or 2. Hemoglobin measurement of less than 8.0 grams per deciliter (g/dL). OR H. Complication(s) of HIV infection requiring at least three hospitalizations within a 12-month period and at least 30 days apart (see 14.00F6). Each hospitalization must last at least 48 hours, including hours in a hospital emergency department immediately before the hospitalization. OR I. Repeated (as defined in 14.00I3) manifestations of HIV infection, including those listed in 14.11A-H, but without the requisite findings for those listings (for example, Kaposi sarcoma not meeting the criteria in 14.11E), or other manifestations (including, but not limited to, cardiovascular disease (including myocarditis, pericardial effusion, pericarditis, endocarditis, or pulmonary arteritis), diarrhea, distal sensory polyneuropathy, glucose intolerance, gynecologic conditions (including cervical cancer or pelvic inflammatory disease, see 14.00F7), hepatitis, HIV-associated dementia, immune reconstitution inflammatory syndrome (IRIS), infections (bacterial, fungal, parasitic, or viral), lipodystrophy (lipoatrophy or lipohypertrophy), malnutrition, muscle weakness, myositis, neurocognitive or other mental limitations not meeting the criteria in 12.00, oral hairy leukoplakia, osteoporosis, pancreatitis, peripheral neuropathy) resulting in significant, documented symptoms or signs (for example, but not limited to, fever, headaches, insomnia, involuntary weight loss, malaise, nausea, night sweats, pain, severe fatigue, or vomiting) and one of the following at the marked level: 1. Limitation of activities of daily living. 2. Limitation in maintaining social functioning. 3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. Part B Medical criteria for the evaluation of impairments of children under age 18 (where criteria in part A do not give appropriate consideration to the particular disease process in childhood). Sec. 100.00 Low Birth Weight and Failure to Thrive. 101.00 Musculoskeletal Disorders. 102.00 Special Senses and Speech. 103.00 Respiratory Disorders. 104.00 Cardiovascular System. 105.00 Digestive Disorders 106.00 Genitourinary Disorders. 107.00 Hematological Disorders. 108.00 Skin Disorders 109.00 Endocrine Disorders. 110.00 Congenital Disorders That Affect Multiple Body Systems. 111.00 Neurological Disorders. 112.00 Mental Disorders. 113.00 Cancer (Malignant Neoplastic Diseases) 114.00 Immune System Disorders. 100.00 Low Birth Weight and Failure to Thrive A. What conditions do we evaluate under these listings? B. How do we evaluate disability based on LBW under 100.04? Birth weight gestational age C. How do we evaluate disability based on FTT under 100.05? 1. General. 2. Growth failure. a. For children from birth to attainment of age 2, we use the weight-for-length table corresponding to the child's sex (Table I or Table II). b. For children age 2 to attainment of age 3, we use the body mass index (BMI)-for-age table corresponding to the child's sex (Table III or Table IV). c. BMI is the ratio of a child's weight to the square of his or her height. We calculate BMI using the formulas in the digestive disorders body system (105.00). d. Growth measurements. 3. Developmental delay. a. Under 100.05B and C, we use reports from acceptable medical sources to establish delay in a child's development. b. Under 100.05B, we document the severity of developmental delay with results from a standardized developmental assessment, which compares a child's level of development to the level typically expected for his or her chronological age. If the child was born prematurely, we may use the corrected chronological age (CCA) for comparison. (See § 416.924b(b) of this chapter.) CCA is the chronological age adjusted by a period of gestational prematurity. CCA = (chronological age)—(number of weeks premature). Acceptable medical sources or early intervention specialists, physical or occupational therapists, and other sources may conduct standardized developmental assessments and developmental screenings. The results of these tests and screenings must be accompanied by a statement or records from an acceptable medical source who established the child has a developmental delay. c. Under 100.05C, when there are no results from a standardized developmental assessment in the case record, we need narrative developmental reports from the child's medical sources in sufficient detail to assess the severity of his or her developmental delay. A narrative developmental report is based on clinical observations, progress notes, and well-baby check-ups. To meet the requirements for 100.05C, the report must include: The child's developmental history; examination findings (with abnormal findings noted on repeated examinations); and an overall assessment of the child's development (that is, more than one or two isolated skills) by the medical source. Some narrative developmental reports may include results from developmental screening tests, which can identify a child who is not developing or achieving skills within expected timeframes. Although medical sources may refer to screening test results as supporting evidence in the narrative developmental report, screening test results alone cannot establish a diagnosis or the severity of developmental delay. D. How do we evaluate disorders that do not meet one of these listings? 1. We may find infants disabled due to other disorders when their birth weights are greater than 1200 grams but less than 2000 grams and their weight and gestational age do not meet listing 100.04. The most common disorders of prematurity and LBW include retinopathy of prematurity (ROP), chronic lung disease of infancy (CLD, previously known as bronchopulmonary dysplasia, or BPD), intraventricular hemorrhage (IVH), necrotizing enterocolitis (NEC), and periventricular leukomalacia (PVL). Other disorders include poor nutrition and growth failure, hearing disorders, seizure disorders, cerebral palsy, and developmental disorders. We evaluate these disorders under the affected body systems. 2. We may evaluate infants and toddlers with growth failure that is associated with a known medical disorder under the body system of that medical disorder, for example, the respiratory or digestive body systems. 3. If an infant or toddler has a severe medically determinable impairment(s) that does not meet the criteria of any listing, we must also consider whether the child has an impairment(s) that medically equals a listing (see § 416.926 of this chapter). If the child's impairment(s) does not meet or medically equal a listing, we will determine whether the child's impairment(s) functionally equals the listings (see § 416.926a of this chapter) considering the factors in § 416.924a of this chapter. We use the rule in § 416.994a of this chapter when we decide whether a child continues to be disabled. 100.01 Category of Impairments, Low Birth Weight and Failure to Thrive 100.04 Low birth weight in infants from birth to attainment of age 1. A. Birth weight (see 100.00B) of less than 1200 grams. OR B. The following gestational age and birth weight: Gestational age Birth weight 37-40 2000 grams or less. 36 1875 grams or less. 35 1700 grams or less. 34 1500 grams or less. 33 1325 grams or less. 32 1250 grams or less. 100.05 Failure to thrive in children from birth to attainment of age 3 A. Growth failure as required in 1 or 2: 1. For children from birth to attainment of age 2, a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile on the appropriate weight-for-length table in listing 105.08B1; or 2. For children age 2 to attainment of age 3, a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile on the appropriate BMI-for-age table in listing 105.08B2. AND B. Developmental delay (see 100.00C1 and C3), established by an acceptable medical source and documented by findings from one current report of a standardized developmental assessment (see 100.00C3b) that: 1. Shows development not more than two-thirds of the level typically expected for the child's age; or 2. Results in a valid score that is at least two standard deviations below the mean. OR C. Developmental delay (see 100.00C3), established by an acceptable medical source and documented by findings from two narrative developmental reports (see 100.00C3c) that: 1. Are dated at least 120 days apart (see 100.00C1); and 2. Indicate current development not more than two-thirds of the level typically expected for the child's age. 101.00 Musculoskeletal Disorders A. Which musculoskeletal disorders do we evaluate under these listings? 1. We evaluate disorders of the skeletal spine (vertebral column) or of the upper or lower extremities that affect musculoskeletal functioning under these listings. We use the term “skeletal” when we are referring to the structure of the bony skeleton. The skeletal spine neurological spine 2. We evaluate soft tissue injuries (including burns) or abnormalities that are under continuing surgical management (see 101.00P1). The injuries or abnormalities may affect any part of the body, including the face and skull. 3. We evaluate curvatures of the skeletal spine that affect musculoskeletal functioning under 101.15. If a curvature of the skeletal spine is under continuing surgical management (see 101.00P1), we will evaluate it under 101.21 using our rules for determining medical equivalence. See § 416.926 of this chapter. B. Which related disorders do we evaluate under other listings? 1. We evaluate a disorder or injury of the skeletal spine that results in damage to, and neurological dysfunction of, the spinal cord and its associated nerves (for example, paraplegia or quadriplegia) under the listings in 111.00. 2. We evaluate inflammatory arthritis (for example, rheumatoid arthritis) under the listings in 114.00. 3. We evaluate curvatures of the skeletal spine that interfere with your ability to breathe under the listings in 103.00, impair myocardial function under the listings in 104.00, or result in social withdrawal or depression under the listings in 112.00. 4. We evaluate non-healing or pathological fractures due to cancer, whether it is a primary site or metastases, under the listings in 113.00. 5. We evaluate the leg pain associated with peripheral vascular claudication under the listings in 104.00. 6. We evaluate burns that do not require continuing surgical management under the listings in 108.00. C. What evidence do we need to evaluate your musculoskeletal disorder? 1. General. 2. Physical examination report(s). a. When the medical source reports that a clinical test sign(s) is positive, unless we have evidence to the contrary, we will assume that he or she performed the test properly and accept the medical source's interpretation of the test. For example, we will assume a straight-leg raising test was conducted properly (that is, in sitting and supine positions), even if the medical source does not specify the positions in which the test was performed. b. If you use an assistive device (see 101.00C6), the report must support the medical need for the device. c. If your musculoskeletal disorder causes a reduction in muscle strength, the report must document measurement of the strength of the muscle(s) in question. The measurement should be based on a muscle strength grading system that is considered medically acceptable based on your age and impairments. For example, a grading system of 0 to 5, with 0 indicating complete loss of strength and 5 indicating maximum strength or equivalent medically acceptable scale (see Table 1). Reduction in muscle strength is demonstrated by evidence that your muscle strength is less than active range of motion (ROM) against gravity with maximum resistance. If the reduction in muscle strength involves one or both of your hands, the report must also document measurements of grip and pinch strength. Table 1—Grading System of Muscle Function Grade Function of the muscle 0—None No visible or palpable contraction. 1—Trace Visible or palpable contraction with no motion. 2—Poor Active ROM with gravity eliminated. 3—Fair Active ROM against gravity only, without resistance. 4—Good Active ROM against gravity, moderate resistance. 5—Normal Active ROM against gravity, maximum resistance. 3. Imaging and other diagnostic tests. a. Imaging b. Findings on imaging must have lasted, or be expected to last, for a continuous period of at least 12 months. c. Imaging and other diagnostic tests can provide evidence of physical abnormalities; however, these abnormalities may correlate poorly with your symptoms, including pain, or with your musculoskeletal functioning. Accordingly, we will not use findings on imaging or other diagnostic tests as a substitute for findings on physical examination about your ability to function, nor can we infer severity or functional limitations based solely on such tests. d. For our rules on purchasing imaging and other diagnostic tests, see §§ 416.919k and 416.919m of this chapter. 4. Operative reports. 5. Effects of treatment. a. General. b. Response to treatment. 6. Assistive devices. a. General. b. Prosthesis(es). c. Orthosis(es). d. Hand-held assistive devices. e. Wheeled and seated mobility devices. (i) Wheeled and seated mobility devices involving the use of both hands. (ii) Wheeled and seated devices involving the use of one hand. 7. Longitudinal evidence. a. The term pandemic period post-pandemic evaluation period b. We generally need a longitudinal medical record to assess the severity and duration of your musculoskeletal disorder because the severity of symptoms, signs, and laboratory findings related to most musculoskeletal disorders may improve over time or respond to treatment. Evidence over an extended period will show whether your musculoskeletal functioning is improving, worsening, or unchanging. c. For 101.15, 101.16, 101.17, 101.18, 101.20C, 101.20D, 101.22, and 101.23, all of the required criteria must be present simultaneously, or within a close proximity of time, to satisfy the level of severity needed to meet the listing. The phrase “within a close proximity of time” means that all of the relevant criteria must appear in the medical record within a consecutive 4-month period, except for claims determined or decided during the pandemic period or post-pandemic evaluation period. For claims determined or decided during the pandemic period or post-pandemic evaluation period, all of the relevant criteria must appear in the medical record within a consecutive 12-month period. When the criterion is imaging, we mean that we could reasonably expect the findings on imaging to have been present at the date of impairment or date of onset. For listings that use the word “and” to link the elements of the required criteria, the medical record must establish the simultaneous presence, or presence within a close proximity of time, of all the required medical criteria. Once this level of severity is established, the medical record must also show that this level of severity has continued, or is expected to continue, for a continuous period of at least 12 months. 8. Surgical treatment or physical therapy. D. How do we consider symptoms, including pain, under these listings? 1. Musculoskeletal disorders may cause pain or other symptoms; however, your statements about your pain or other symptoms will not alone establish that you are disabled. We will not substitute an alleged or a reported increase in the intensity of a symptom, such as pain, no matter how severe, for a medical sign or diagnostic finding present in the listing criteria. Pain is included as just one consideration in 101.15A, 101.16A, and 101.18A, but it is not required to satisfy the criteria in 101.15, 101.16, and 101.18. 2. To consider your symptom(s), we require objective medical evidence from an acceptable medical source showing the existence of a medically determinable musculoskeletal impairment that we could reasonably expect to produce the symptom(s). See § 416.929 of this chapter for how we evaluate symptoms, including pain, related to your musculoskeletal disorder. E. How do we use the functional criteria to evaluate your musculoskeletal disorder under these listings? 1. General. 2. Medical and functional criteria, birth to attainment of age 3. 3. Functional criteria, age 3 to attainment of age 18. a. A documented medical need (see 101.00C6a) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)); b. An inability to use one upper extremity to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (see 101.00E4), and a documented medical need (see 101.00C6a) for a one-handed, hand-held assistive device (see 101.00C6d) that requires the use of your other upper extremity or a wheeled and seated mobility device involving the use of one hand (see 101.00C6e(ii)); c. An inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (see 101.00E4). 4. Fine and gross movements. Fine Gross F. What do we consider when we evaluate disorders of the skeletal spine resulting in compromise of a nerve root(s) (101.15)? 1. General. 2. Compromise of a nerve root(s). a. Compromise of unilateral nerve root of the cervical spine. b. Compromise of bilateral nerve roots of the cervical spine. c. Compromise of a nerve root(s) of the lumbar spine. G. What do we consider when we evaluate lumbar spinal stenosis resulting in compromise of the cauda equina (101.16)? 1. General. 2. Compromise of the cauda equina H. What do we consider when we evaluate reconstructive surgery or surgical arthrodesis of a major weight-bearing joint (101.17)? 1. General. 2. Major weight-bearing joints 3. Surgical arthrodesis I. What do we consider when we evaluate abnormality of a major joint(s) in any extremity (101.18)? 1. General. a. An anatomical b. A functional 2. Major joint of an upper extremity 3. Major joint of a lower extremity J. What do we consider when we evaluate pathologic fractures due to any cause (101.19)? K. What do we consider when we evaluate amputation due to any cause (101.20)? 1. General. 2. Amputation of both upper extremities (101.20A). 3. Hemipelvectomy or hip disarticulation (101.20B). 4. Amputation of one upper extremity and one lower extremity (101.20C). 5. Amputation of one lower extremity or both lower extremities with complications of the residual limb(s) (101.20D). L. What do we consider when we evaluate soft tissue injury or abnormality under continuing surgical management (101.21)? 1. General. a. We consider any soft tissue injury or abnormality involving the soft tissues of the body, whether congenital or acquired, when an acceptable medical source(s) documents the need for ongoing surgical procedures and associated medical treatments to restore function of the affected body part(s) (see 101.00P1). Surgical management includes the surgery(ies) itself, as well as various post-surgical procedures, surgical complications, infections or other medical complications, related illnesses, or related treatments that delay your attainment of maximum benefit from therapy (see 101.00P2). b. Surgical procedures and associated treatments typically take place over extended periods, which may render you unable to perform age-appropriate activity on a sustained basis. To document such inability, we must have evidence from an acceptable medical source(s) confirming that the surgical management has continued, or is expected to continue, for at least 12 months from the date of the first surgical intervention. These procedures and treatments must be directed toward saving, reconstructing, or replacing the affected part of the body to re-establish or improve its function, and not for cosmetic appearances alone. c. Examples include malformations, third- and fourth-degree burns, crush injuries, craniofacial injuries, avulsive injuries, and amputations with complications of the residual limb(s). d. We evaluate skeletal spine abnormalities or injuries under 101.15 or 101.16, as appropriate. We evaluate abnormalities or injuries of bones in the lower extremities under 101.17, 101.18, or 101.22. We evaluate abnormalities or injuries of bones in the upper extremities under 101.18 or 101.23. 2. Documentation. a. Operative reports and related laboratory findings; b. Records of post-surgical procedures; c. Records of any surgical or medical complications (for example, related infections or systemic illnesses); d. Records of any prolonged post-operative recovery periods and related treatments (for example, surgeries and treatments for burns); e. An acceptable medical source's plans for additional surgeries; and f. Records detailing any other factors that have delayed, or that an acceptable medical source expects to delay, the saving, restoring, or replacing of the involved part for a continuous period of at least 12 months following the initiation of the surgical management. 3. Burns. under continuing surgical management 4. Craniofacial injuries or congenital abnormalities. M. What do we consider when we evaluate non-healing or complex fractures of the femur, tibia, pelvis, or one or more of the talocrural bones (101.22)? 1. Non-healing fracture. 2. Complex fracture. a. Comminuted (broken into many pieces) bone fragments; b. Multiple fractures in a single bone; c. Bone loss due to severe trauma; d. Damage to the surrounding soft tissue; e. Severe cartilage damage to the associated joint; or f. Dislocation of the associated joint. 3. When a complex fracture involves soft tissue damage, the treatment may involve continuing surgical management to restore or improve functioning. In such cases, we may evaluate the fracture(s) under 101.21. N. What do we consider when we evaluate non-healing or complex fractures of an upper extremity (101.23)? 1. Non-healing fracture. 2. Complex fracture. a. Comminuted (broken into many pieces) bone fragments; b. Multiple fractures in a single bone; c. Bone loss due to severe trauma; d. Damage to the surrounding soft tissue; e. Severe cartilage damage to the associated joint; or f. Dislocation of the associated joint. 3. When a complex fracture involves soft tissue damage, the treatment may involve continuing surgical management to restore or improve functioning. In such cases, we may evaluate the fracture(s) under 101.21. O. What do we consider when we evaluate musculoskeletal disorders of infants and toddlers from birth to attainment of age 3 with developmental motor delay (101.24)? 1. General. 2. Severity of developmental motor delay. a. If there is a standardized developmental assessment in your medical record, we will use the results to evaluate your developmental motor delay under 101.24A. Such an assessment compares your level of development to the level typically expected for children of your chronological age. If you were born prematurely, we use your corrected chronological age for comparison. See § 416.924b(b) of this chapter. b. If there is no standardized developmental assessment in your medical record, we will use narrative developmental reports from a medical source(s) to evaluate your developmental motor delay under 101.24B. These reports must provide detailed information sufficient for us to assess the severity of your motor delay. If we cannot obtain sufficient detail from narrative reports, we may purchase standardized developmental assessments. (i) A narrative developmental report is based on clinical observations, progress notes, and well-baby check-ups, and must include your developmental history, examination findings (with abnormal findings noted on repeated examinations), and an overall assessment of your development (that is, more than one or two isolated skills) by the medical source. (ii) Some narrative developmental reports may include results from developmental screening tests, which can show that you are not developing or achieving skills within expected timeframes. Although medical sources may refer to screening test results as supporting evidence in the narrative developmental report, screening test results alone cannot establish a medically determinable impairment or the severity of developmental motor delay. P. How will we determine whether your soft tissue injury or abnormality or your upper extremity fracture is no longer under continuing surgical management or you have received maximum benefit from therapy? 1. We will determine that your soft tissue injury or abnormality, or your upper extremity fracture, is no longer under continuing surgical management, 2. We will determine that you have received maximum benefit from therapy, 3. When you have received maximum benefit from therapy, we will evaluate any impairment-related residual symptoms, signs, and laboratory findings (including those on imaging), any complications associated with your surgical procedures or medical treatments, and any residual limitations in your functioning (see 101.00R). Q. How do we evaluate your musculoskeletal disorder if there is no record of ongoing treatment? 1. Despite having a musculoskeletal disorder, you may not have received ongoing treatment, may have just begun treatment, may not have access to prescribed medical treatment, or may not have an ongoing relationship with the medical community. In any of these situations, you will not have a longitudinal medical record for us to review when we evaluate your disorder and we may ask you to attend a consultative examination to determine the severity and potential duration of your disorder. See § 416.919a(b) of this chapter. 2. In some instances, we may be able to assess the severity and duration of your musculoskeletal disorder based on your medical record and current evidence alone. If the information in your case record is not sufficient to show that you have a musculoskeletal disorder that meets the criteria of one of the musculoskeletal disorders listings, we will follow the rules described in 101.00R. R. How do we evaluate musculoskeletal disorders that do not meet one of these listings? 1. These listings are only examples of musculoskeletal disorders that we consider severe enough to result in marked and severe functional limitations. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that meets the criteria of a listing in another body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. See § 416.926 of this chapter. If your impairment(s) does not meet or medically equal a listing, we will determine whether it functionally equals the listings. See § 416.926a of this chapter. 3. We use the rules in § 416.994a of this chapter when we decide whether you continue to be disabled. 101.01 Category of Impairments, Musculoskeletal Disorders 101.15 Disorders of the skeletal spine resulting in compromise of a nerve root(s) and A. Neuro-anatomic (radicular) distribution of one or more of the following symptoms 1. Pain; or 2. Paresthesia; or 3. Muscle fatigue. AND B. Radicular distribution of neurological signs 1. Muscle weakness; and 2. Sign(s) of nerve root irritation, tension, or compression, consistent with compromise of the affected nerve root (see 101.00F2) 3. Sensory changes evidenced by: a. Decreased sensation; or b. Sensory nerve deficit (abnormal sensory nerve latency) on electrodiagnostic testing; or 4. Decreased deep tendon reflexes. AND C. Findings on imaging (see 101.00C3) consistent with compromise of a nerve root(s) in the cervical or lumbosacral spine. AND D. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months, and medical documentation of at least one 1. A documented medical need (see 101.C6a) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)); or 2. An inability to use one and 3. An inability to use both 101.16 Lumbar spinal stenosis resulting in compromise of the cauda equina and A. Symptom(s) of neurological compromise manifested as: 1. Nonradicular distribution of pain in one or both lower extremities; or 2. Nonradicular distribution of sensory loss in one or both lower extremities; or 3. Neurogenic claudication. AND B. Nonradicular neurological signs present during physical examination (see 101.00C2) or on a diagnostic test (see 101.00C3) and evidenced by 1 and either 2 or 3: 1. Muscle weakness. 2. Sensory changes evidenced by: a. Decreased sensation; or b. Sensory nerve deficit (abnormal sensory nerve latency) on electrodiagnostic testing; or c. Areflexia, trophic ulceration, or bladder or bowel incontinence. 3. Decreased deep tendon reflexes in one or both lower extremities. AND C. Findings on imaging (see 101.00C3) or in an operative report (see 101.00C4) consistent with compromise of the cauda equina with lumbar spinal stenosis. AND D. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months, and medical documentation of at least one 1. A documented medical need (see 101.00C6a) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)); or 2. An inability to use one and 101.17 Reconstructive surgery or surgical arthrodesis of a major weight-bearing joint and A. History of reconstructive surgery or surgical arthrodesis of a major weight-bearing joint. AND B. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months. AND C. A documented medical need (see 101.00C6a) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)). 101.18 Abnormality of a major joint(s) in any extremity and A. Chronic joint pain or stiffness. AND B. Abnormal motion, instability, or immobility of the affected joint(s). AND C. Anatomical abnormality of the affected joint(s) noted on: 1. Physical examination (for example, subluxation, contracture, or bony or fibrous ankylosis); or 2. Imaging (for example, joint space narrowing, bony destruction, or ankylosis or arthrodesis of the affected joint). AND D. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months, and medical documentation of at least one 1. A documented medical need (see 101.00C6a) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)); or 2. An inability to use one and 3. An inability to use both 101.19 Pathologic fractures due to any cause and A. Pathologic fractures occurring on three separate occasions within a 12-month period. AND B. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months, and medical documentation of at least one 1. A documented medical need (see 101.00C6a) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)); or 2. An inability to use one and 3. An inability to use both 101.20 Amputation due to any cause or A. Amputation of both upper extremities, occurring at any level at or above the wrists (carpal joints), up to and including the shoulder (glenohumeral) joint. OR B. Hemipelvectomy or hip disarticulation. OR C. Amputation of one upper extremity, occurring at any level at or above the wrist (carpal joints), and amputation of one lower extremity, occurring at or above the ankle (talocrural joint), and one 1. A documented medical need (see 101.00C6a) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)); or 2. A documented medical need (see 101.00C6a) for a one-handed, hand-held assistive device (see 101.00C6d) requiring the use of the other upper extremity or a wheeled and seated mobility device involving the use of one hand (see 101.00C6e(ii)); or 3. The inability to use the remaining upper extremity to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (101.00E4). OR D. Amputation of one or both lower extremities, occurring at or above the ankle (talocrural joint), with complications of the residual limb(s) that have lasted, or are expected to last, for a continuous period of at least 12 months, and 1. The inability to use a prosthesis(es); and 2. A documented medical need (see 101.00C6a) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)). 101.21 Soft tissue injury or abnormality under continuing surgical management and A. Evidence confirms continuing surgical management (see 101.00P1) directed toward saving, reconstructing, or replacing the affected part of the body. AND B. The surgical management has been, or is expected to be, ongoing for a continuous period of at least 12 months. AND C. Maximum benefit from therapy (see 101.00P2) has not yet been achieved. 101.22 Non-healing or complex fracture of the femur, tibia, pelvis, or one or more of the talocrural bones and A. Solid union not evident on imaging (see 101.00C3) and not clinically solid. AND B. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months. AND C. A documented medical need (see 101.00C6a) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)). 101.23 Non-healing or complex fracture of an upper extremity and A. Nonunion or complex fracture, of the shaft of the humerus, radius, or ulna, under continuing surgical management (see 101.00P1) directed toward restoration of functional use of the extremity. AND B. Medical documentation of an inability to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (see 101.00E4) that has lasted, or is expected to last, for a continuous period of at least 12 months. 101.24 Musculoskeletal disorders of infants and toddlers, from birth to attainment of age 3, with developmental motor delay or A. A standardized developmental motor assessment that: 1. Shows motor development not more than one-half of the level typically expected for the child's age; or 2. Results in a valid score that is at least three standard deviations below the mean. OR B. Two narrative developmental reports that: 1. Are dated at least 120 days apart; and 2. Indicate current motor development not more than one-half of the level typically expected for the child's age. 102.00 Special Senses and Speech A. How do we evaluate visual disorders? 1. What are visual disorders? 2. How do we define statutory blindness? a. The Act defines blindness as central visual acuity of 20/200 or less in the better eye with the use of a correcting lens. We use your best-corrected central visual acuity for distance in the better eye when we determine if this definition is met. (For visual acuity testing requirements, see 102.00A5.) b. The Act also provides that an eye that has a visual field limitation such that the widest diameter of the visual field subtends an angle no greater than 20 degrees is considered as having a central visual acuity of 20/200 or less. (For visual field testing requirements, see 102.00A6.) c. You have statutory blindness only if your visual disorder meets the criteria of 102.02A, 102.02B, or 102.03A. You do not have statutory blindness if your visual disorder medically equals the criteria of 102.02A, 102.02B, or 102.03A or meets or medically equals the criteria of 102.03B, 102.03C, 102.04A, or 102.04B because your disability is based on criteria other than those in the statutory definition of blindness. 3. What evidence do we need to establish statutory blindness under title XVI? 4. What evidence do we need to evaluate visual disorders, including those that result in statutory blindness under title II? 5. How do we measure your best-corrected central visual acuity? a. Visual acuity testing. (i) Your best-corrected central visual acuity for distance is usually measured by determining what you can see from 20 feet. If your visual acuity is measured for a distance other than 20 feet, we will convert it to a 20-foot measurement. For example, if your visual acuity is measured at 10 feet and is reported as 10/40, we will convert this measurement to 20/80. (ii) A visual acuity recorded as CF (counts fingers), HM (hand motion only), LP or LPO (light perception or light perception only), or NLP (no light perception) indicates that no optical correction will improve your visual acuity. If your central visual acuity in an eye is recorded as CF, HM, LP or LPO, or NLP, we will determine that your best-corrected central visual acuity is 20/200 or less in that eye. (iii) We will not use the results of pinhole testing or automated refraction acuity to determine your best-corrected central visual acuity. These tests provide an estimate of potential visual acuity but not an actual measurement of your best-corrected central visual acuity. (iv) Very young children, such as infants and toddlers, cannot participate in testing using Snellen methodology or other comparable testing. If you are unable to participate in testing using Snellen methodology or other comparable testing due to your young age, we will consider clinical findings of your fixation and visual-following behavior. If both these behaviors are absent, we will consider the anatomical findings or the results of neuroimaging, electroretinogram, or visual evoked response (VER) testing when this testing has been performed. b. Other test charts. (i) Children between the ages of 3 and 5 often cannot identify the letters on a Snellen or other letter test chart. Specialists with expertise in assessment of childhood vision use alternate methods for measuring visual acuity in young children. We consider alternate methods, for example, the Landolt C test or the tumbling-E test, which are used to evaluate young children who are unable to participate in testing using Snellen methodology, to be comparable to testing using Snellen methodology. (ii) Most test charts that use Snellen methodology do not have lines that measure visual acuity between 20/100 and 20/200. Some test charts, such as the Bailey-Lovie or the Early Treatment Diabetic Retinopathy Study (ETDRS), used mostly in research settings, have such lines. If your visual acuity is measured with one of these charts, and you cannot read any of the letters on the 20/100 line, we will determine that you have statutory blindness based on a visual acuity of 20/200 or less. For example, if your best-corrected central visual acuity for distance in the better eye is 20/160 using an ETDRS chart, we will find that you have statutory blindness. Regardless of the type of test chart used, you do not have statutory blindness if you can read at least one letter on the 20/100 line. For example, if your best-corrected central visual acuity for distance in the better eye is 20/125 + 1 using an ETDRS chart, we will find that you do not have statutory blindness because you are able to read one letter on the 20/100 line. c. Testing using a specialized lens. d. Cycloplegic refraction e. VER testing 6. How do we measure your visual fields? a. General. b. Automated static threshold perimetry requirements. (i) The test must use a white size III Goldmann stimulus and a 31.5 apostilb (asb) white background (or a 10 candela per square meter (cd/m 2 (ii) We measure the extent of your visual field loss by determining the portion of the visual field in which you can see a white III4e stimulus. The “III” refers to the standard Goldmann test stimulus size III (4 mm 2 (iii) In automated static threshold perimetry, the intensity of the stimulus varies. The intensity of the stimulus is expressed in decibels (dB). A perimeter's maximum stimulus luminance is usually assigned the value 0 dB. We need to determine the dB level that corresponds to a 4e intensity for the particular perimeter being used. We will then use the dB printout to determine which points you see at a 4e intensity level (a “seeing point”). For example: A. B. C. c. Evaluation under 102.03A. d. Evaluation under 102.03B. e. Other types of perimetry. 2 automated f. Screening tests. g. Use of corrective lenses. h. Scotoma. 7. How do we determine your visual acuity efficiency, visual field efficiency, and visual efficiency? a. General. Visual efficiency, visual acuity efficiency visual field efficiency b. Visual acuity efficiency. Table 1—Visual Acuity Efficiency Snellen best-corrected central visual acuity for distance Visual acuity efficiency (%) English Metric 20/16 6/5 100 20/20 6/6 100 20/25 6/7.5 95 20/30 6/9 90 20/40 6/12 85 20/50 6/15 75 20/60 6/18 70 20/70 6/21 65 20/80 6/24 60 20/100 6/30 50 c. Visual field efficiency. A. B. d. Visual efficiency. 8. How do we determine your visual acuity impairment value, visual field impairment value, and visual impairment value? a. General. Visual impairment value, visual acuity impairment value visual field impairment value. b. Visual acuity impairment value. Table 2—Visual Acuity Impairment Value Snellen best-corrected central visual acuity for distance Visual acuity English Metric 20/16 6/5 0.00 20/20 6/6 0.00 20/25 6/7.5 0.10 20/30 6/9 0.18 20/40 6/12 0.30 20/50 6/15 0.40 20/60 6/18 0.48 20/70 6/21 0.54 20/80 6/24 0.60 20/100 6/30 0.70 c. Visual field impairment value. d. Visual impairment value. 9. What are our requirements for an acceptable perimeter? a. Uses optical projection to generate the test stimuli. b. Has an internal normative database for automatically comparing your performance with that of the general population. c. Has a statistical analysis package that is able to calculate visual field indices, particularly mean deviation or mean defect. d. Demonstrates the ability to correctly detect visual field loss and correctly identify normal visual fields. e. Demonstrates good test-retest reliability. f. Has undergone clinical validation studies by three or more independent laboratories with results published in peer-reviewed ophthalmic journals. B. How do we evaluate hearing loss? 1. What evidence do we need? a. We need evidence showing that you have a medically determinable impairment that causes your hearing loss and audiometric measurements of the severity of your hearing loss. We generally require both an otologic examination and audiometric testing to establish that you have a medically determinable impairment that causes your hearing loss. You should have this audiometric testing within 2 months of the otologic examination. Once we have evidence that you have a medically determinable impairment, we can use the results of later audiometric testing to assess the severity of your hearing loss without another otologic examination. We will consider your test scores together with any other relevant information we have about your hearing, including information from outside of the test setting. b. The otologic examination must be performed by a licensed physician (medical or osteopathic doctor) or audiologist. It must include your medical history, your description of how your hearing loss affects you, and the physician's or audiologist's description of the appearance of the external ears (pinnae and external ear canals), evaluation of the tympanic membranes, and assessment of any middle ear abnormalities. c. Audiometric testing must be performed by, or under the direct supervision of, a licensed audiologist or an otolaryngologist. 2. What audiometric testing do we need when you do not have a cochlear implant? a. General. See b. Testing requirements. otoscopic examination c. Children from birth to the attainment of age 6 months. (i) We need physiologic testing, such as auditory brainstem response (ABR) testing. (ii) To determine whether your hearing loss meets 102.10A, we will average your hearing thresholds at 500, 1000, 2000, and 4000 Hertz (Hz). If you do not have a response at a particular frequency, we will use a threshold of 5 decibels (dB) over the limit of the audiometer. d. Children from age 6 months to the attainment of age 2. (i) We need air conduction thresholds determined by a behavioral assessment, usually visual reinforcement audiometry (VRA). We can use ABR testing if the behavioral assessment cannot be completed or if the results are inconclusive or unreliable. (ii) To determine whether your hearing loss meets 102.10A, we will average your hearing thresholds at 500, 1000, 2000, and 4000 Hz. If you do not have a response at a particular frequency, we will use a threshold of 5 dB over the limit of the audiometer. (iii) For this age group, behavioral assessments are often performed in a sound field, and each ear is not tested separately. If each ear is not tested separately, we will consider the test results to represent the hearing in the better ear. e. Children from age 2 to the attainment of age 5. (i) We need air conduction thresholds determined by a behavioral assessment, such as conditioned play audiometry (CPA), tangible or visually reinforced operant conditioning audiometry (TROCA, VROCA), or VRA. If you have had ABR testing, we can use the results of that testing if the behavioral assessment cannot be completed or the results are inconclusive or unreliable. (ii) To determine whether your hearing loss meets 102.10A, we will average your hearing thresholds at 500, 1000, 2000, and 4000 Hz. If you do not have a response at a particular frequency, we will use a threshold of 5 dB over the limit of the audiometer. (iii) For this age group, behavioral assessments are often performed in a sound field and each ear is not tested separately. If each ear is not tested separately, we will consider the test results to represent the hearing in the better ear. f. Children from age 5 to the attainment of age 18. (i) We generally need pure tone air conduction and bone conduction testing, speech reception threshold (SRT) testing (also referred to as “spondee threshold” or “ST” testing), and word recognition testing (also referred to as “word discrimination” or “speech discrimination” testing). This testing must be conducted in a sound-treated booth or room and must be in accordance with the most recently published ANSI standards. Each ear must be tested separately. (ii) To determine whether your hearing loss meets the air and bone conduction criterion in 102.10B1 or 102.10B3, we will average your hearing thresholds at 500, 1000, 2000, and 4000 Hz. If you do not have a response at a particular frequency, we will use a threshold of 5 dB over the limit of the audiometer. (iii) The SRT is the minimum dB level required for you to recognize 50 percent of the words on a standard list of spondee words. (Spondee words are two-syllable words that have equal stress on each syllable.) The SRT is usually within 10 dB of the average pure tone air conduction hearing thresholds at 500, 1000, and 2000 Hz. If the SRT is not within 10 dB of the average pure tone air conduction threshold, the reason for the discrepancy must be documented. If we cannot determine that there is a medical basis for the discrepancy, we will not use the results of the testing to determine whether your hearing loss meets a listing. (iv) Word recognition testing determines your ability to recognize an age-appropriate, standardized list of phonetically balanced monosyllabic words in the absence of any visual cues. This testing must be performed in quiet. The list may be recorded or presented live, but in either case, the words should be presented at a level of amplification that will measure your maximum ability to discriminate words, usually 35 to 40 dB above your SRT. However, the amplification level used in the testing must be medically appropriate, and you must be able to tolerate it. If you cannot be tested at 35 to 40 dB above your SRT, the person who performs the test should report your word recognition testing score at your highest comfortable level of amplification. g. Screening testing. See 3. What audiometric testing do we need when you have a cochlear implant? a. If you have a cochlear implant, we will consider you to be disabled until age 5, or for 1 year after initial implantation, whichever is later. b. After that period, we need word recognition testing performed with any age-appropriate version of the Hearing in Noise Test (HINT) or the Hearing in Noise Test for Children (HINT-C) to determine whether your impairment meets 102.11B. This testing must be conducted in quiet in a sound field. Your implant must be functioning properly and adjusted to your normal settings. The sentences should be presented at 60 dB HL (Hearing Level) and without any visual cues. 4. How do we evaluate your word recognition ability if you are not fluent in English? If you are not fluent in English, you should have word recognition testing using an appropriate word list for the language in which you are most fluent. The person conducting the test should be fluent in the language used for the test. If there is no appropriate word list or no person who is fluent in the language and qualified to perform the test, it may not be possible to measure your word recognition ability. If your word recognition ability cannot be measured, your hearing loss cannot meet 102.10B2 or 102.11B. Instead, we will consider the facts of your case to determine whether you have difficulty understanding words in the language in which you are most fluent, and if so, whether that degree of difficulty medically equals 102.10B2 or 102.11B. For example, we will consider how you interact with family members, interpreters, and other persons who speak the language in which you are most fluent. 5. What do we mean by a marked limitation in speech or language as used in 102.10B3? a. We will consider you to have a marked limitation in speech if: (i) Entire phrases or sentences in your conversation are intelligible to unfamiliar listeners at least 50 percent (half) of the time but no more than 67 percent (two-thirds) of the time on your first attempt; and (ii) Your sound production or phonological patterns (the ways in which you combine speech sounds) are atypical for your age. b. We will consider you to have a marked limitation in language when your current and valid test score on an appropriate comprehensive, standardized test of overall language functioning is at least two standard deviations below the mean. In addition, the evidence of your daily communication functioning must be consistent with your test score. If you are not fluent in English, it may not be possible to test your language performance. If we cannot test your language performance, your hearing loss cannot meet 102.10B3. Instead, we will consider the facts of your case to determine whether your hearing loss medically equals 102.10B3. 102.01 Category of Impairments, Special Senses and Speech 102.02 Loss of central visual acuity. A. Remaining vision in the better eye after best correction is 20/200 or less. OR B. An inability to participate in visual acuity testing using Snellen methodology or other comparable testing, clinical findings that fixation and visual-following behavior are absent in the better eye, and one of the following: 1. Abnormal anatomical findings indicating a visual acuity of 20/200 or less in the better eye (such as the presence of Stage III or worse retinopathy of prematurity despite surgery, hypoplasia of the optic nerve, albinism with macular aplasia, or bilateral optic atrophy); or 2. Abnormal neuroimaging documenting damage to the cerebral cortex which would be expected to prevent the development of a visual acuity better than 20/200 in the better eye (such as neuroimaging showing bilateral encephalomyelitis or bilateral encephalomalacia); or 3. Abnormal electroretinogram documenting the presence of Leber's congenital amaurosis or achromatopsia in the better eye; or 4. An absent response to VER testing in the better eye. 102.03 Contraction of the visual field in the better eye, A. The widest diameter subtending an angle around the point of fixation no greater than 20 degrees. OR B. An MD of 22 decibels or greater, determined by automated static threshold perimetry that measures the central 30 degrees of the visual field (see 102.00A6d.). OR C. A visual field efficiency of 20 percent or less, determined by kinetic perimetry (see 102.00A7c). 102.04 Loss of visual efficiency, or visual impairment, in the better eye: A. A visual efficiency percentage of 20 or less after best correction (see 102.00A7d.). OR B. A visual impairment value of 1.00 or greater after best correction (see 102.00A8d). 102.10 Hearing loss not treated with cochlear implantation. A. For children from birth to the attainment of age 5, an average air conduction hearing threshold of 50 decibels or greater in the better ear (see 102.00B2). OR B. For children from age 5 to the attainment of age 18: 1. An average air conduction hearing threshold of 70 decibels or greater in the better ear and an average bone conduction hearing threshold of 40 decibels or greater in the better ear (see 102.00B2f); or 2. A word recognition score of 40 percent or less in the better ear determined using a standardized list of phonetically balanced monosyllabic words (see 102.00B2f); or 3. An average air conduction hearing threshold of 50 decibels or greater in the better ear and a marked limitation in speech or language (see 102.00B2f and 102.00B5). 102.11 Hearing loss treated with cochlear implantation. A. Consider under a disability until the attainment of age 5 or for 1 year after initial implantation, whichever is later. OR B. Upon the attainment of age 5 or 1 year after initial implantation, whichever is later, a word recognition score of 60 percent or less determined using the HINT or the HINT-C ( see 103.00 Respiratory Disorders A. Which disorders do we evaluate in this body system? 1. We evaluate respiratory disorders that result in obstruction (difficulty moving air out of the lungs) or restriction (difficulty moving air into the lungs), or that interfere with diffusion (gas exchange) across cell membranes in the lungs. Examples of such disorders and the listings we use to evaluate them include chronic obstructive pulmonary disease (103.02), chronic lung disease of infancy (also known as bronchopulmonary dysplasia, 103.02C or 103.02E), pulmonary fibrosis (103.02), asthma (103.02 or 103.03), and cystic fibrosis (103.04). We also use listings in this body system to evaluate respiratory failure resulting from an underlying chronic respiratory disorder (103.04E or 103.14) and lung transplantation (103.11). 2. We evaluate cancers affecting the respiratory system under the listings in 113.00. We evaluate the pulmonary effects of neuromuscular and autoimmune disorders under these listings or under the listings in 111.00 or 114.00, respectively. B. What are the symptoms and signs of respiratory disorders? C. What abbreviations do we use in this body system? 1. BiPAP 2. BTPS 3. CF 4. CFRD 5. CFTR 6. CLD 7. FEV 1 8. FVC 9. L D. What documentation do we need to evaluate your respiratory disorder? 1. We need medical evidence 2. If you use supplemental oxygen, 3. Imaging E. What is spirometry and what are our requirements for an acceptable test and report? 1. Spirometry, which measures how well you move air into and out of your lungs, involves at least three forced expiratory maneuvers during the same test session. A forced expiratory maneuver is a maximum inhalation followed by a forced maximum exhalation, and measures exhaled volumes of air over time. The volume of air you exhale in the first second of the forced expiratory maneuver is the FEV 1 1 2. We have the following requirements for spirometry under these listings: a. You must be medically stable at the time of the test. Examples of when we would not consider you to be medically stable include when you are: (i) Within 2 weeks of a change in your prescribed respiratory medication. (ii) Experiencing, or within 30 days of completion of treatment for, a lower respiratory tract infection. (iii) Experiencing, or within 30 days of completion of treatment for, an acute exacerbation (temporary worsening) of a chronic respiratory disorder. Wheezing by itself does not indicate that you are not medically stable. b. During testing, if your FEV 1 1 c. Your forced expiratory maneuvers must be satisfactory. We consider a forced expiratory maneuver to be satisfactory when you exhale with maximum effort following a full inspiration, and when the test tracing has a sharp takeoff and rapid rise to peak flow, has a smooth contour, and either lasts for at least 6 seconds (for children age 10 and older) or for at least 3 seconds (for children who have not attained age 10), or maintains a plateau for at least 1 second. 3. The spirometry report must include the following information: a. The date of the test and your name, age or date of birth, sex, and height without shoes. (We will assume that your recorded height on the date of the test is without shoes, unless we have evidence to the contrary.) If your spine is abnormally curved (for example, you have kyphoscoliosis), we will substitute the longest distance between your outstretched fingertips with your arms abducted 90 degrees in place of your height when this measurement is greater than your standing height without shoes. b. Any factors, if applicable, that can affect the interpretation of the test results (for example, your cooperation or effort in doing the test). c. Legible tracings of your forced expiratory maneuvers in a volume-time format showing your name and the date of the test for each maneuver. 4. If you have attained age 6, we may need to purchase spirometry to determine whether your disorder meets a listing, unless we can make a fully favorable determination or decision on another basis. 5. Before we purchase spirometry for a child age 6 or older, a medical consultant (see § 416.1016 of this chapter), preferably one with experience in the care of children with respiratory disorders, must review your case record to determine if we need the test. If we purchase spirometry, the medical source we designate to administer the test is solely responsible for deciding whether it is safe for you to do the test and for how to administer it. F. What is CLD and how do we evaluate it? 1. CLD, 2. If you have CLD, are not yet 6 months old, and need 24-hour-per-day oxygen supplementation, we will not evaluate your CLD under 103.02C until you are 6 months old. Depending on the evidence in your case record, we may make a fully favorable determination or decision under other rules before you are 6 months old. 3. We evaluate your CLD under 103.02C if you are at least 6 months old and you need 24-hour-per-day oxygen supplementation. (If you were born prematurely, we use your corrected chronological age. See § 416.924b(b) of this chapter.) We also evaluate your CLD under 103.02C if you were weaned off oxygen supplementation but needed it again by the time you were 6 months old or older. 4. We evaluate your CLD under 103.02E if you are any age from birth to the attainment of age 2 and have CLD exacerbations or complications (for example, wheezing, lower respiratory tract infections, or acute respiratory distress) that require hospitalization. For the purpose of 103.02E, we count your initial birth hospitalization as one hospitalization. The phrase “consider under a disability for 1 year from the discharge date of the last hospitalization or G. What is asthma and how do we evaluate it? 1. Asthma 2. For the purposes of 103.03: a. The phrase “consider under a disability for 1 year” explains how long your asthma can meet the requirements of the listing. It does not refer to the date on which your disability began, only to the date on which we must reevaluate whether your asthma continues to meet a listing or is otherwise disabling. b. We determine the onset of your disability based on the facts of your case, but it will be no later than the admission date of your first of three hospitalizations that satisfy the criteria of 103.03. H. What is CF and how do we evaluate it? 1. General. CF, 2. Documentation of CF. and a. One of the following: (i) A positive newborn screen for CF; or (ii) A history of CF in a sibling; or (iii) Documentation of at least one specific CF phenotype or clinical criterion (for example, chronic sino-pulmonary disease with persistent colonization or infections with typical CF pathogens, pancreatic insufficiency, or salt-loss syndromes); and b. One of the following definitive laboratory tests: (i) An elevated sweat chloride concentration equal to or greater than 60 millimoles per L; or (ii) The identification of two CF gene mutations affecting the CFTR; or (iii) Characteristic abnormalities in ion transport across the nasal epithelium. c. When we have the report showing a and b, but it is not signed by a physician, we also need a report from a physician stating that you have CF. d. When we do not have the report showing a and b, we need a report from a physician that is persuasive that a positive diagnosis of CF was confirmed by an appropriate definitive laboratory test. To be persuasive, this report must include a statement by the physician that you had the appropriate definitive laboratory test for diagnosing CF. The report must provide the test results or explain how your diagnosis was established that is consistent with the prevailing state of medical knowledge and clinical practice. 3. CF pulmonary exacerbations. 4. For 103.04G, we require any two exacerbations or complications from the list in 103.04G1 through 103.04G4 within a 12-month period. You may have two of the same exacerbation or complication or two different ones. a. If you have two of the acute exacerbations or complications we describe in 103.04G1 and 103.04G2, there must be at least 30 days between the two. b. If you have one of the acute exacerbations or complications we describe in 103.04G1 and 103.04G2 and one of the chronic complications we describe in 103.04G3 and 103.04G4, the two can occur during the same time. For example, your CF meets 103.04G if you have the pulmonary hemorrhage we describe in 103.04G2 and the weight loss we describe in 103.04G3 even if the pulmonary hemorrhage occurs during the 90-day period in 103.04G3. c. Your CF also meets 103.04G if you have both of the chronic complications in 103.04G3 and 103.04G4. 5. CF may also affect other body systems such as digestive or endocrine. If your CF, including pulmonary exacerbations and nonpulmonary complications, does not meet or medically equal a respiratory disorders listing, we may evaluate your CF-related impairments under the listings in the affected body system. I. How do we evaluate lung transplantation? J. What is respiratory failure and how do we evaluate it? chronic K. How do we evaluate growth failure due to any chronic respiratory disorder? 1. To evaluate growth failure due to any chronic respiratory disorder, we require documentation of the oxygen supplementation described in 103.06A and the growth measurements in 103.06B within the same consecutive 12-month period. The dates of oxygen supplementation may be different from the dates of growth measurements. 2. Under 103.06B, we use the appropriate table(s) under 105.08B in the digestive system to determine whether a child's growth is less than the third percentile. a. For children from birth to attainment of age 2, we use the weight-for-length table corresponding to the child's sex (Table I or Table II). b. For children age 2 to attainment of age 18, we use the body mass index (BMI)-for-age table corresponding to the child's sex (Table III or Table IV). c. BMI is the ratio of a child's weight to the square of his or her height. We calculate BMI using the formulas in the digestive disorders body system (105.00). L. How do we evaluate respiratory disorders that do not meet one of these listings? 1. These listings are only examples of common respiratory disorders that we consider severe enough to result in marked and severe functional limitations. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that meets the criteria of a listing in another body system. For example, if your CF has resulted in chronic pancreatic or hepatobiliary disease, we evaluate your impairment under the listings in 105.00. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. See § 416.926 of this chapter. Respiratory disorders may be associated with disorders in other body systems, and we consider the combined effects of multiple impairments when we determine whether they medically equal a listing. If your impairment(s) does not meet or medically equal a listing, we will also consider whether it functionally equals the listings. See § 416.926a of this chapter. We use the rules in § 416.994a of this chapter when we decide whether you continue to be disabled. 103.01 Category of Impairments, Respiratory Disorders 103.02 Chronic respiratory disorders A. FEV 1 Table I—FEV 1 Table I-A Table I-B Age 6 to attainment of age 13 Age 13 to attainment of age 18 Height without shoes less than Height without shoes less than FEV 1 Height without shoes less than Height without shoes less than Females FEV 1 Males FEV 1 <123.0 <48.50 0.80 <153.0 <60.25 1.35 1.40 123.0 to <129.0 48.50 to <50.75 0.90 153.0 to <159.0 60.25 to <62.50 1.45 1.50 129.0 to <134.0 50.75 to <52.75 1.00 159.0 to <164.0 62.50 to <64.50 1.55 1.60 134.0 to <139.0 52.75 to <54.75 1.10 164.0 to <169.0 64.50 to <66.50 1.65 1.70 139.0 to <144.0 54.75 to <56.75 1.20 169.0 to <174.0 66.50 to <68.50 1.75 1.85 144.0 to <149.0 56.75 to <58.75 1.30 174.0 to <180.0 68.50 to <70.75 1.85 2.00 149.0 or more 58.75 or more 1.40 180.0 or more 70.75 or more 1.95 2.10 OR B. FVC (see 103.00E) less than or equal to the value in Table II-A or II-B for your age, sex, and height without shoes (see 103.00E3a). Table II—FVC Criteria for 103.02B Table II-A Table II-B Age 6 to attainment of age 13 Age 13 to attainment of age 18 Height without shoes (centimeters) less than Height without shoes less than FVC Height without shoes less than Height without shoes less than Females Males <123.0 <48.50 0.85 <153.0 <60.25 1.65 1.65 123.0 to <129.0 48.50 to <50.75 1.00 153.0 to <159.0 60.25 to <62.50 1.70 1.80 129.0 to <134.0 50.75 to <52.75 1.10 159.0 to <164.0 62.50 to <64.50 1.80 1.95 134.0 to <139.0 52.75 to <54.75 1.30 164.0 to <169.0 64.50 to <66.50 1.95 2.10 139.0 to <144.0 54.75 to <56.75 1.40 169.0 to <174.0 66.50 to <68.50 2.05 2.25 144.0 to <149.0 56.75 to <58.75 1.55 174.0 to <180.0 68.50 to <70.75 2.20 2.45 149.0 or more 58.75 or more 1.70 180.0 or more 70.75 or more 2.30 2.55 OR C. Hypoxemia with the need for at least 1.0 L per minute of continuous (24 hours per day) oxygen supplementation for at least 90 consecutive days. OR D. The presence of a tracheostomy. 1. Consider under a disability until the attainment of age 3; or 2. Upon the attainment of age 3, documented need for mechanical ventilation via a tracheostomy for at least 4 hours per day and for at least 90 consecutive days. OR E. For children who have not attained age 2, CLD (see 103.00F) with exacerbations or complications requiring three hospitalizations within a 12-month period and at least 30 days apart (the 12-month period must occur within the period we are considering in connection with your application or continuing disability review). Each hospitalization must last at least 48 hours, including hours in a hospital emergency department immediately before the hospitalization. (A child's initial birth hospitalization when CLD is first diagnosed counts as one hospitalization.) Consider under a disability for 1 year from the discharge date of the last hospitalization or 103.03 Asthma 103.04 Cystic fibrosis A. FEV 1 Table III—FEV 1 Table III-A Table III-B Age 6 to attainment of age 13 Age 13 to attainment of age 18 Height without shoes (centimeters) less than Height without shoes less than FEV 1 Height without shoes (centimeters) less than Height without shoes less than Females 1 Males 1 <123.0 <48.50 1.00 <153.0 <60.25 1.75 1.85 123.0 to <129.0 48.50 to <50.75 1.15 153.0 to <159.0 60.25 to <62.50 1.85 2.05 129.0 to <134.0 50.75 to <52.75 1.25 159.0 to <164.0 62.50 to <64.50 1.95 2.15 134.0 to <139.0 52.75 to <54.75 1.40 164.0 to <169.0 64.50 to <66.50 2.10 2.30 139.0 to <144.0 54.75 to <56.75 1.50 169.0 to <174.0 66.50 to <68.50 2.25 2.45 144.0 to <149.0 56.75 to <58.75 1.70 174.0 to <180.0 68.50 to <70.75 2.35 2.60 149.0 or more 58.75 or more 1.80 180.0 or more 70.75 or more 2.50 2.70 OR B. For children who have not attained age 6, findings on imaging (see 103.00D3) of thickening of the proximal bronchial airways, nodular-cystic lesions, segmental or lobular atelectasis, or consolidation, and 1. Shortness of breath with activity; or 2. Accumulation of secretions as manifested by repetitive coughing; or 3. Bilateral rales or rhonchi, or reduction of breath sounds. OR C. Exacerbations or complications (see 103.00H3) requiring three hospitalizations of any length within a 12-month period and at least 30 days apart (the 12-month period must occur within the period we are considering in connection with your application or continuing disability review). OR D. Spontaneous pneumothorax, secondary to CF, requiring chest tube placement. OR E. Respiratory failure (see 103.00J) requiring invasive mechanical ventilation, noninvasive ventilation with BiPAP, or a combination of both treatments, for a continuous period of at least 48 hours, or for a continuous period of at least 72 hours if postoperatively. OR F. Pulmonary hemorrhage requiring vascular embolization to control bleeding. OR G. Two of the following exacerbations or complications (either two of the same or two different, see 103.00H3 and 103.00H4) within a 12-month period (the 12-month period must occur within the period we are considering in connection with your application or continuing disability review): 1. Pulmonary exacerbation requiring 10 consecutive days of intravenous antibiotic treatment. 2. Pulmonary hemorrhage (hemoptysis with more than blood-streaked sputum but not requiring vascular embolization) requiring hospitalization of any length. 3. Weight loss requiring daily supplemental enteral nutrition via a gastrostomy for at least 90 consecutive days or 4. CFRD requiring daily insulin therapy for at least 90 consecutive days. 103.05 [Reserved] 103.06 Growth failure due to any chronic respiratory disorder A. Hypoxemia with the need for at least 1.0 L per min of oxygen supplementation for at least 4 hours per day and for at least 90 consecutive days. AND B. Growth failure as required in 1 or 2: 1. For children from birth to attainment of age 2, a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile on the appropriate weight-for-length table under 105.08B1; or 2. For children age 2 to attainment of age 18, a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile on the appropriate BMI-for-age table under 105.08B2. 103.07 [Reserved] 103.08 [Reserved] 103.09 [Reserved] 103.10 [Reserved] 103.11 Lung transplantation 103.12 [Reserved] 103.13 [Reserved] 103.14 Respiratory failure twice 104.00 Cardiovascular System A. General 1. What do we mean by a cardiovascular impairment? a. We mean any disorder that affects the proper functioning of the heart or the circulatory system (that is, arteries, veins, capillaries, and the lymphatic drainage). The disorder can be congenital or acquired. b. Cardiovascular impairment results from one or more of four consequences of heart disease: (i) Chronic heart failure or ventricular dysfunction. (ii) Discomfort or pain due to myocardial ischemia, with or without necrosis of heart muscle. (iii) Syncope, or near syncope, due to inadequate cerebral perfusion from any cardiac cause, such as obstruction of flow or disturbance in rhythm or conduction resulting in inadequate cardiac output. (iv) Central cyanosis due to right-to-left shunt, reduced oxygen concentration in the arterial blood, or pulmonary vascular disease. c. Disorders of the veins or arteries (for example, obstruction, rupture, or aneurysm) may cause impairments of the lower extremities (peripheral vascular disease), the central nervous system, the eyes, the kidneys, and other organs. We will evaluate peripheral vascular disease under 4.11 or 4.12 in part A, and impairments of another body system(s) under the listings for that body system(s). 2. What do we consider in evaluating cardiovascular impairments? 3. What do the following terms or phrases mean in these listings? a. Medical consultant b. Persistent c. Recurrent d. Appropriate medically acceptable imaging e. A consecutive 12-month period f. Currently present g. Uncontrolled B. Documenting Cardiovascular Impairment 1. What basic documentation do we need? 2. Why is a longitudinal clinical record important? 3. What if you have not received ongoing medical treatment? a. You may not have received ongoing treatment or have an ongoing relationship with the medical community despite the existence of a severe impairment(s). In this situation, we will base our evaluation on the current objective medical evidence and the other evidence we have. If you do not receive treatment, you cannot show an impairment that meets the criteria of these listings. However, we may find you disabled because you have another impairment(s) that in combination with your cardiovascular impairment medically equals the severity of a listed impairment or that functionally equals the listings. b. Unless we can decide your claim favorably on the basis of the current evidence, a longitudinal record is still important. In rare instances where there is no or insufficient longitudinal evidence, we may purchase a consultative examination(s) to help us establish the severity and duration of your impairment. 4. When will we wait before we ask for more evidence? a. We will wait when we have information showing that your impairment is not yet stable and the expected change in your impairment might affect our determination or decision. In these situations, we need to wait to properly evaluate the severity and duration of your impairment during a stable period. Examples of when we might wait are: (i) If you have had a recent acute event; for example, acute rheumatic fever. (ii) If you have recently had a corrective cardiac procedure; for example, open-heart surgery. (iii) If you have started new drug therapy and your response to this treatment has not yet been established; for example, beta-blocker therapy for dilated congestive cardiomyopathy. b. In these situations, we will obtain more evidence 3 months following the event before we evaluate your impairment. However, we will not wait if we have enough information to make a determination or decision based on all of the relevant evidence in your case. 5. Will we purchase any studies? 6. What studies will we not purchase? 7. Will we use exercise tolerance tests (ETTs) for evaluating children with cardiovascular impairment? a. ETTs, though increasingly used, are still less frequently indicated in children than in adults, and can rarely be performed successfully by children under 6 years of age. An ETT may be of value in the assessment of some arrhythmias, in the assessment of the severity of chronic heart failure, and in the assessment of recovery of function following cardiac surgery or other treatment. b. We will purchase an ETT in a childhood claim only if we cannot make a determination or decision based on the evidence we have and an MC, preferably one with experience in the care of children with cardiovascular impairments, has determined that an ETT is needed to evaluate your impairment. We will not purchase an ETT if you are less than 6 years of age. If we do purchase an ETT for a child age 12 or younger, it must be performed by a qualified medical source in a specialty center for pediatric cardiology or other facility qualified to perform exercise tests of children. c. For full details on ETT requirements and usage, see 4.00C in part A. C. Evaluating Chronic Heart Failure 1. What is chronic heart failure (CHF)? a. CHF b. CHF is considered in these listings as a single category whether due to atherosclerosis (narrowing of the arteries), cardiomyopathy, hypertension, or rheumatic, congenital, or other heart disease. However, if the CHF is the result of primary pulmonary hypertension secondary to disease of the lung (cor pulmonale), we will evaluate your impairment using 3.09 in the respiratory system listings in part A. 2. What evidence of CHF do we need? a. Cardiomegaly or ventricular dysfunction must be present and demonstrated by appropriate medically acceptable imaging, such as chest x-ray, echocardiography (M-Mode, 2-dimensional, and Doppler), radionuclide studies, or cardiac catheterization. (i) Cardiomegaly is present when: ( A ( B ( C (ii) Ventricular dysfunction is present when indices of left ventricular function, such as fractional shortening or ejection fraction (the percentage of the blood in the ventricle actually pumped out with each contraction), are greater than 2 standard deviations below the mean for the child's age. (Fractional shortening, also called shortening fraction, reflects the left ventricular systolic function in the absence of segmental wall motion abnormalities and has a linear correlation with ejection fraction. In children, fractional shortening is more commonly used than ejection fraction.) (iii) However, these measurements alone do not reflect your functional capacity, which we evaluate by considering all of the relevant evidence. (iv) Other findings on appropriate medically acceptable imaging may include increased pulmonary vascular markings, pleural effusion, and pulmonary edema. These findings need not be present on each report, since CHF may be controlled by prescribed treatment. b. To establish that you have chronic (i) Symptoms of congestion or of limited cardiac output include easy fatigue, weakness, shortness of breath (dyspnea), cough, or chest discomfort at rest or with activity. Children with CHF may also experience shortness of breath on lying flat (orthopnea) or episodes of shortness of breath that wake them from sleep (paroxysmal nocturnal dyspnea). They may also experience cardiac arrhythmias resulting in palpitations, lightheadedness, or fainting. Fatigue or exercise intolerance in an infant may be manifested by prolonged feeding time, often associated with excessive respiratory effort and sweating. (ii) During infancy, other manifestations of chronic heart failure may include repeated lower respiratory tract infections. (iii) Signs of congestion may include hepatomegaly, ascites, increased jugular venous distention or pressure, rales, peripheral edema, rapid shallow breathing (tachypnea), or rapid weight gain. However, these signs need not be found on all examinations because fluid retention may be controlled by prescribed treatment. 3. How do we evaluate growth failure due to CHF? a. To evaluate growth failure due to CHF, we require documentation of the clinical findings of CHF described in 104.00C2 and the growth measurements in 104.02C within the same consecutive 12-month period. The dates of clinical findings may be different from the dates of growth measurements. b. Under 104.02C, we use the appropriate table(s) under 105.08B in the digestive system to determine whether a child's growth is less than the third percentile. (i) For children from birth to attainment of age 2, we use the weight-for-length table corresponding to the child's sex (Table I or Table II). (ii) For children age 2 to attainment of age 18, we use the body mass index (BMI)-for-age table corresponding to the child's sex (Table III or Table IV). (iii) BMI is the ratio of a child's weight to the square of his or her height. We calculate BMI using the formulas in the digestive disorders body system (105.00). D. Evaluating Congenital Heart Disease 1. What is congenital heart disease? a. Abnormalities of cardiac septation, b. Abnormalities resulting in cyanotic heart disease, c. Valvular defects or obstructions to ventricular outflow, d. Major abnormalities of ventricular development, 2. How will we evaluate symptomatic congenital heart disease? a. Because of improved treatment methods, more children with congenital heart disease are living longer. Although some types of congenital heart disease may be corrected by surgery, many children with treated congenital heart disease continue to have problems throughout their lives (symptomatic congenital heart disease). If you have congenital heart disease that results in chronic heart failure with evidence of ventricular dysfunction or in recurrent arrhythmias, we will evaluate your impairment under 104.02 or 104.05. Otherwise, we will evaluate your impairment under 104.06. b. For 104.06A2, we will accept pulse oximetry measurements instead of arterial O 2 2 c. For 104.06D, examples of impairments that in most instances will require life-saving surgery or a combination of surgery and other major interventional procedures (for example, multiple “balloon” catheter procedures) before age 1 include, but are not limited to, the following: (i) Hypoplastic left heart syndrome, (ii) Critical aortic stenosis with neonatal heart failure, (iii) Critical coarctation of the aorta, with or without associated anomalies, (iv) Complete atrioventricular canal defects, (v) Transposition of the great arteries, (vi) Tetralogy of Fallot, (vii) Pulmonary atresia with intact ventricular septum, (viii) Single ventricle, (ix) Tricuspid atresia, and (x) Multiple ventricular septal defects. E. Evaluating Arrhythmias 1. What is an arrhythmia? arrhythmia 2. What are the different types of arrhythmias? a. There are many types of arrhythmias. Arrhythmias are identified by where they occur in the heart (atria or ventricles) and by what happens to the heart's rhythm when they occur. b. Arrhythmias arising in the cardiac atria (upper chambers of the heart) are called atrial or supraventricular arrhythmias. Ventricular arrhythmias begin in the ventricles (lower chambers). In general, ventricular arrhythmias caused by heart disease are the most serious. 3. How do we evaluate arrhythmias using 104.05? a. We will use 104.05 when you have arrhythmias that are not fully controlled by medication, an implanted pacemaker, or an implanted cardiac defibrillator and you have uncontrolled recurrent episodes of syncope or near syncope. If your arrhythmias are controlled, we will evaluate your underlying heart disease using the appropriate listing. For other considerations when we evaluate arrhythmias in the presence of an implanted cardiac defibrillator, see 104.00E4. b. We consider near syncope c. For purposes of 104.05, there must be a documented association between the syncope or near syncope and the recurrent arrhythmia. The recurrent arrhythmia, not some other cardiac or non-cardiac disorder, must be established as the cause of the associated symptom. This documentation of the association between the symptoms and the arrhythmia may come from the usual diagnostic methods, including Holter monitoring (also called ambulatory electrocardiography) and tilt-table testing with a concurrent ECG. Although an arrhythmia may be a coincidental finding on an ETT, we will not purchase an ETT to document the presence of a cardiac arrhythmia. 4. What will we consider when you have an implanted cardiac defibrillator and you do not have arrhythmias that meet the requirements of 104.05? a. Implanted cardiac defibrillators are used to prevent sudden cardiac death in children who have had, or are at high risk for, cardiac arrest from life-threatening ventricular arrhythmias. The largest group of children at risk for sudden cardiac death consists of children with cardiomyopathy (ischemic or non-ischemic) and reduced ventricular function. However, life-threatening ventricular arrhythmias can also occur in children with little or no ventricular dysfunction. The shock from the implanted cardiac defibrillator is a unique form of treatment; it rescues a child from what may have been cardiac arrest. However, as a consequence of the shock(s), children may experience psychological distress, which we may evaluate under the mental disorders listings in 112.00ff. b. Most implantable cardiac defibrillators have rhythm-correcting and pacemaker capabilities. In some children, these functions may result in the termination of ventricular arrhythmias without an otherwise painful shock. (The shock is like being kicked in the chest.) Implanted cardiac defibrillators may deliver inappropriate shocks, often repeatedly, in response to benign arrhythmias or electrical malfunction. Also, exposure to strong electrical or magnetic fields, such as from MRI (magnetic resonance imaging), can trigger or reprogram an implanted cardiac defibrillator, resulting in inappropriate shocks. We must consider the frequency of, and the reason(s) for, the shocks when evaluating the severity and duration of your impairment. c. In general, the exercise limitations imposed on children with an implanted cardiac defibrillator are those dictated by the underlying heart impairment. However, the exercise limitations may be greater when the implanted cardiac defibrillator delivers an inappropriate shock in response to the increase in heart rate with exercise, or when there is exercise-induced ventricular arrhythmia. F. Evaluating Other Cardiovascular Impairments 1. What is ischemic heart disease (IHD) and how will we evaluate it in children? IHD 2. How will we evaluate hypertension? hypertension 3. What is cardiomyopathy and how will we evaluate it? Cardiomyopathy Ischemic nonischemic 4. How will we evaluate valvular heart disease? 5. What do we consider when we evaluate heart transplant recipients? a. After your heart transplant, we will consider you disabled for 1 year following the surgery because there is a greater likelihood of rejection of the organ and infection during the first year. b. However, heart transplant patients generally meet our definition of disability before they undergo transplantation. We will determine the onset of your disability based on the facts in your case. c. We will not assume that you became disabled when your name was placed on a transplant waiting list. This is because you may be placed on a waiting list soon after diagnosis of the cardiac disorder that may eventually require a transplant. Physicians recognize that candidates for transplantation often have to wait months or even years before a suitable donor heart is found, so they place their patients on the list as soon as permitted. d. When we do a continuing disability review to determine whether you are still disabled, we will evaluate your residual impairment(s), as shown by symptoms, signs, and laboratory findings, including any side effects of medication. We will consider any remaining symptoms, signs, and laboratory findings indicative of cardiac dysfunction in deciding whether medical improvement (as defined in § 416.994a) has occurred. 6. How will we evaluate chronic rheumatic fever or rheumatic heart disease? 7. What is hyperlipidemia and how will we evaluate it? Hyperlipidemia 8. How will we evaluate Kawasaki disease? 9. What is lymphedema and how will we evaluate it? a. Lymphedema b. Lymphedema does not meet the requirements of 4.11 in part A, although it may medically equal the severity of that listing. We will evaluate lymphedema by considering whether the underlying cause meets or medically equals any listing or whether the lymphedema medically equals a cardiovascular listing, such as 4.11, or a musculoskeletal disorders listing, such as 101.18. If no listing is met or medically equaled, we will evaluate any functional limitations imposed by your lymphedema when we consider whether you have an impairment that functionally equals the listings. 10. What is Marfan syndrome and how will we evaluate it? a. Marfan syndrome is a genetic connective tissue disorder that affects multiple body systems, including the skeleton, eyes, heart, blood vessels, nervous system, skin, and lungs. There is no specific laboratory test to diagnose Marfan syndrome. The diagnosis is generally made by medical history, including family history, physical examination, including an evaluation of the ratio of arm/leg size to trunk size, a slit lamp eye examination, and a heart test(s), such as an echocardiogram. In some cases, a genetic analysis may be useful, but such analyses may not provide any additional helpful information. b. The effects of Marfan syndrome can range from mild to severe. In most cases, the disorder progresses as you age. Most individuals with Marfan syndrome have abnormalities associated with the heart and blood vessels. Your heart's mitral valve may leak, causing a heart murmur. Small leaks may not cause symptoms, but larger ones may cause shortness of breath, fatigue, and palpitations. Another effect is that the wall of the aorta may be weakened and stretch (aortic dilation). This aortic dilation may tear, dissect, or rupture, causing serious heart problems or sometimes sudden death. We will evaluate the manifestations of your Marfan syndrome under the appropriate body system criteria, such as 4.10 in part A, or if necessary consider the functional limitations imposed by your impairment. G. Other Evaluation Issues 1. What effect does obesity have on the cardiovascular system and how will we evaluate it? 2. How do we relate treatment to functional status? 3. How do we evaluate impairments that do not meet one of the cardiovascular listings? a. These listings are only examples of common cardiovascular disorders that we consider severe enough to result in marked and severe functional limitations. If your severe impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that satisfies the criteria of a listing in another body system. b. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. (See § 416.926.) If you have a severe impairment(s) that does not meet or medically equal the criteria of a listing, we will consider whether it functionally equals the listings. (See § 416.926a.) When we decide whether you continue to be disabled, we use the rules in § 416.994a. 104.01 Category of Impairments, Cardiovascular System 104.02. Chronic heart failure A. Persistent tachycardia at rest (see Table I); OR B. Persistent tachypnea at rest (see Table II) or markedly decreased exercise tolerance (see 104.00C2b); OR C. Growth failure as required in 1 or 2: 1. For children from birth to attainment of age 2, a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile on the appropriate weight-for-length table under 105.08B1; or 2. For children age 2 to attainment of age 18, a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile on the appropriate BMI-for-age table under 105.08B2. 104.05 Recurrent arrhythmias, 104.06 Congenital heart disease, A. Cyanotic heart disease, with persistent, chronic hypoxemia as manifested by: 1. Hematocrit of 55 percent or greater on two evaluations 3 months or more apart within a consecutive 12-month period (see 104.00A3e); or 2. Arterial O 2 2 3. Hypercyanotic spells, syncope, characteristic squatting, or other incapacitating symptoms directly related to documented cyanotic heart disease; or 4. Exercise intolerance with increased hypoxemia on exertion. OR B. Secondary pulmonary vascular obstructive disease with pulmonary arterial systolic pressure elevated to at least 70 percent of the systemic arterial systolic pressure. OR C. Symptomatic acyanotic heart disease, with ventricular dysfunction interfering very seriously with the ability to independently initiate, sustain, or complete activities. OR D. For infants under 12 months of age at the time of filing, with life-threatening congenital heart impairment that will require or already has required surgical treatment in the first year of life, and the impairment is expected to be disabling (because of residual impairment following surgery, or the recovery time required, or both) until the attainment of at least 1 year of age, consider the infant to be under disability until the attainment of at least age 1; thereafter, evaluate impairment severity with reference to the appropriate listing. 104.09 Heart transplant. 104.13 Rheumatic heart disease, 105.00 Digestive Disorders A. Which digestive disorders do we evaluate in this body system? B. What evidence do we need to evaluate your digestive disorder? 1. General. 2. Laboratory findings. 3. Imaging C. What is chronic liver disease (CLD), and how do we evaluate it under 105.05? 1. General. a. We will evaluate your signs of CLD, such as jaundice, changes in size of the liver and spleen, ascites, peripheral edema, and altered mental status. We will also evaluate your symptoms of CLD, such as pruritus (itching), fatigue, nausea, loss of appetite, and sleep disturbances when we assess the severity of your impairment(s) and how it affects your ability to function. In the absence of evidence of a chronic liver impairment, episodes of acute liver disease do not meet the requirements of 105.05. b. Laboratory findings 2. Manifestations of CLD. a. Gastrointestinal hemorrhaging b. Ascites or hydrothorax c. Spontaneous bacterial peritonitis (SBP) 3 d. Hepatorenal syndrome e. Hepatopulmonary syndrome (i) Under 105.05E1, we require a resting arterial blood gas (ABG) measurement obtained while you are breathing room air; that is, without oxygen supplementation. The ABG report must include the P a 2 (ii) We will not purchase the specialized imaging techniques described in 105.05E2; however, if you have had the test(s) at a time relevant to your claim, we will make every reasonable effort to obtain the report. f. Hepatic encephalopathy (i) Under 105.05F2, we require documentation of a mental impairment associated with hepatic encephalopathy. A mental impairment can include abnormal behavior, changes in mental status, or an altered state of consciousness. Reports of abnormal behavior may show that you are experiencing delusions, paranoia, or hallucinations. Reports of changes in mental status may show change in sleep patterns, personality or mood changes, poor concentration, or poor judgment or cognitive dysfunction (for example, impaired memory, poor problem-solving ability, or attention deficits). Reports of altered state of consciousness may show that you are experiencing confusion, delirium, or stupor. (ii) Signs and laboratory findings that document the severity of hepatic encephalopathy when not attributable to other causes may include a “flapping tremor” (asterixis), characteristic abnormalities found on an electroencephalogram (EEG), or abnormal serum albumin or coagulation values. We will not purchase an EEG; however, if you have had this test at a time relevant to your claim, we will make every reasonable effort to obtain the report for the purpose of establishing whether your impairment meets the criteria of 105.05F. (iii) We will not evaluate acute encephalopathy under 105.05F if it results from conditions other than CLD. For example, we will evaluate acute encephalopathy caused by vascular events under the listings in 111.00 and acute encephalopathy caused by cancer under the listings in 113.00. 3. SSA Chronic Liver Disease (SSA CLD) and SSA Chronic Liver Disease-Pediatric (SSA CLD-P) scores a. SSA CLD score. (i) If you are age 12 or older, we will calculate the SSA CLD score using a formula that includes up to four laboratory values: Serum creatinine (mg/dL), total bilirubin (mg/dL), INR, and under certain conditions, serum sodium (mmol/L). The SSA CLD score calculation contains at least one, and sometimes two, parts, as described in (a) and (b). (a) The initial calculation is: SSA CLD i 9.57 × [log e + 3.78 × [log e + 11.2 × [log e + 6.43 rounded to the nearest whole integer. (b) If the value from the initial calculation is 11 or below, the SSA CLD score will be the SSA CLD i SSA CLD = SSA CLD i + 1.32 × (137 − serum sodium mmol/L) − [0.033 × SSA CLD i (c) We round the results of your SSA CLD score calculation to the nearest whole integer to arrive at your SSA CLD score. (ii) For any SSA CLD score calculation, all of the required laboratory values (serum creatinine, serum total bilirubin, INR, and serum sodium) must have been obtained within a continuous 30-day period. (a) We round values for serum creatinine (mg/dL), serum total bilirubin (mg/dL), or INR less than 1.0 up to 1.0 to calculate your SSA CLD score. (b) We round values for serum creatinine (mg/dL) greater than 4.0 down to 4.0 to calculate your SSA CLD score. (c) If there are multiple laboratory values within the 30-day interval for serum creatinine (mg/dL), serum total bilirubin (mg/dL), or INR, we use the highest (d) If there are multiple laboratory values within the 30-day interval for serum sodium (mmol/L), we use the lowest (e) If you are in renal failure or on renal dialysis within a week of any serum creatinine test in the period used for the SSA CLD calculation, we will use a serum creatinine value of 4.0, which is the maximum serum creatinine level allowed in the calculation, to calculate your SSA CLD score. (f) If your serum sodium is less than 125 mmol/L, we will set your serum sodium to 125 mmol/L for purposes of calculation of the SSA CLD score. If your serum sodium is higher than 137 mmol/L, we will set your serum sodium to 137 mmol/L for purposes of calculation of the SSA CLD score. (iii) When we indicate “log e SSA CLD i 9.57 × [log e + 3.78 × [log e + 11.2 × [log e + 6.43 = 3.22 + 0.99 + 3.11 + 6.43 = 13.75, which we round to an SSA CLD i Because the SSA CLD i SSA CLD = 14 + 1.32 × (137−serum sodium 125 mmol/L) −[0.033 × SSA CLD i = 14 + 15.84−5.54 = 24.3, which we round to an SSA CLD score of 24. b. SSA CLD-P score (i) We calculate the SSA CLD-P score using a formula that includes four parameters: Serum total bilirubin (mg/dL), INR, serum albumin (g/dL), and whether you have growth failure. The formula for the SSA CLD-P score calculation is: 4.80 × [log e + 18.57 × [log e −6.87 × [log e + 6.67 if you have growth failure (<−2 standard deviations for weight or height) (ii) When we indicate “log e e e 4.80 × [log e + 18.57 × [log e −6.87 × [log e + 6.67 = 3.78 + 0−8.61 + 6.67 = 1.84, which we round to an SSA CLD-P score of 2. (iii) For an SSA CLD-P score calculation, all of the required laboratory values (serum total bilirubin, INR, and serum albumin) must have been obtained within a continuous 30-day period. We round any of the required laboratory values less than 1.0 up to 1.0 to calculate your SSA CLD-P score. If there are multiple laboratory values within the 30-day interval for any given laboratory test, we use the highest lowest (iv) The weight and length/height measurements used for the calculation must be obtained within the same 30-day period as the laboratory values. 4. Extrahepatic biliary atresia D. What is inflammatory bowel disease (IBD), and how do we evaluate it under 105.06? 1. IBD 2. We evaluate your signs and symptoms of IBD, such as diarrhea, fecal incontinence, rectal bleeding, abdominal pain, fatigue, fever, nausea, vomiting, arthralgia, abdominal tenderness, palpable abdominal mass (usually inflamed loops of bowel), and perianal disease (for example, fissure, fistulas, abscesses, or anal canal stenosis), when we assess the severity of your impairment(s). You may require supplemental daily nutrition due to IBD. There are two forms of supplemental daily nutrition we consider under 105.06B5: enteral nutrition (delivered directly to a part of your digestive system) via a gastrostomy, duodenostomy, or jejunostomy, and parenteral nutrition delivered via a central venous catheter. Enteral tube feedings delivered via nasal or oral tubes do not satisfy the requirement in 105.06B5. 3. Surgical diversion of the intestinal tract, including ileostomy and colostomy, does not very seriously interfere with age-appropriate functioning if you are able to maintain adequate nutrition and function of the stoma. However, if you are not able to maintain adequate nutrition, we will evaluate your impairment under 105.08. 4. IBD may be associated with significant extraintestinal manifestations in a variety of body systems. These include, but are not limited to, involvement of the eye (for example, uveitis, episcleritis, or iritis); hepatobiliary disease (for example, gallstones or primary sclerosing cholangitis); urologic disease (for example, kidney stones or obstructive hydronephrosis); skin involvement (for example, erythema nodosum or pyoderma gangrenosum); or non-destructive inflammatory arthritis. You may also have associated thromboembolic disorders or vascular disease. These manifestations may not correlate with the severity of your IBD. If your impairment does not meet any of the criteria of 105.06, we will consider the effects of your extraintestinal manifestations in determining whether you have an impairment(s) that meets or medically equals another listing, and when we determine whether your impairment(s) functionally equals the listings. 5. Examples of complications of IBD that may result in hospitalization include abscesses, intestinal perforation, toxic megacolon, infectious colitis, pyoderma gangrenosum, ureteral obstruction, primary sclerosing cholangitis, and hypercoagulable state (which may lead to thromboses or embolism). E. What is intestinal failure, and how do we evaluate it under 105.07? 1. Intestinal failure i.e., 2. Short bowel syndrome 3. Extensive small bowel mucosal disease 4. Chronic motility disorder 5. For short bowel syndrome, we require a copy of the operative report that includes details of the surgical findings, or postoperative imaging indicating a resection of the small intestine. If we cannot get one of these reports, we need other medical reports that include details of the surgical findings. For other chronic motility disorders or extensive small bowel mucosal disease, we need medical reports that include details of your intestinal dysfunction. For any impairment evaluated under 105.07, we also need medical documentation that you are dependent on daily parenteral nutrition to provide most of your nutritional requirements. F. How do we evaluate growth failure due to any digestive disorder under 105.08? 1. To evaluate growth failure due to any digestive disorder, we require documentation of the laboratory findings of chronic nutritional deficiency described in 105.08A and the growth measurements in 105.08B within the same consecutive 12-month period. The dates of laboratory findings may be different from the dates of growth measurements. Impairments other than digestive disorders that cause weight loss should be evaluated under the appropriate body system. For instance, weight loss as a result of chronic kidney disease should be evaluated under our rules for genitourinary disorders (see 106.00), and weight loss as the result of an eating disorder should be evaluated under our rules for mental disorders (see 112.00). However, if you develop a digestive disorder as the result of your other impairment, we will evaluate the acquired digestive disorder under our rules for digestive disorders. 2. Under 105.08B, we evaluate a child's growth failure by using the appropriate table for age and sex. a. For children from birth to attainment of age 2, we use the weight-for-length table (see Table I or Table II). b. For children age 2 to attainment of age 18, we use the body mass index (BMI)-for-age table (see Table III or Table IV). c. BMI is the ratio of your weight to the square of your height. We calculate BMI using one of the following formulas: English Formula BMI = [Weight in Pounds/(Height in Inches × Height in Inches)] × 703 Metric Formulas BMI = Weight in Kilograms/(Height in Meters × Height in Meters) BMI = [Weight in Kilograms/(Height in Centimeters × Height in Centimeters)] × 10,000 G. How do we evaluate digestive organ transplantation? H. How do we evaluate the need for supplemental daily enteral feeding via a gastrostomy, duodenostomy, or jejunostomy? I. How do we evaluate esophageal stricture or stenosis? J. How do we evaluate your digestive disorder if there is no record of ongoing treatment? K. How do we evaluate your digestive disorder if there is evidence establishing a substance use disorder? L. How do we evaluate digestive disorders that do not meet one of these listings? 1. These listings are only examples of common digestive disorders that we consider severe enough to result in marked and severe functional limitations. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that satisfies the criteria of a listing in another body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. See § 416.926 of this chapter. Digestive disorders may be associated with disorders in other body systems, and we consider the combined effects of multiple impairments when we determine whether they medically equal a listing. If your impairment(s) does not meet or medically equal a listing, we will also consider whether it functionally equals the listings. See § 416.926a of this chapter. We use the rules in § 416.994a of this chapter when we decide whether you continue to be disabled. 105.01 Category of Impairments, Digestive Disorders 105.02 Gastrointestinal hemorrhaging from any cause, requiring three blood transfusions 105.03-105.04 [Reserved] 105.05 Chronic liver disease (CLD) A. Hemorrhaging from esophageal, gastric, or ectopic varices, or from portal hypertensive gastropathy (see 105.00C2a), documented by imaging (see 105.00B3); resulting in 1 and 2: 1. Hemodynamic instability indicated by signs such as pallor (pale skin), diaphoresis (profuse perspiration), rapid pulse, low blood pressure, postural hypotension (pronounced fall in blood pressure when arising to an upright position from lying down), or syncope (fainting); and 2. Requiring hospitalization for transfusion of at least 10 cc of blood/kg of body weight. Consider under a disability for 1 year following the documented transfusion; after that, evaluate the residual impairment(s). OR B. Ascites or hydrothorax not attributable to other causes (see 105.00C2b), present on two evaluations within a consecutive 12-month period and at least 60 days apart. Each evaluation must document the ascites or hydrothorax by 1, 2, or 3: 1. Paracentesis; or 2. Thoracentesis; or 3. Imaging or physical examination with a or b: a. Serum albumin of 3.0 g/dL or less; or b. INR of at least 1.5. OR C. Spontaneous bacterial peritonitis (see 105.00C2c) documented by peritoneal fluid containing a neutrophil count of at least 250 cells/mm 3 OR D. Hepatorenal syndrome (see 105.00C2d) documented by 1, 2, or 3: 1. Serum creatinine elevation of at least 2 mg/dL; or 2. Oliguria with 24-hour urine output less than 1 mL/kg/hr; or 3. Sodium retention with urine sodium less than 10 mEq per liter. OR E. Hepatopulmonary syndrome (see 105.00C2e) documented by 1 or 2: 1. Arterial P a 2 a. 60 mm Hg, at test sites less than 3,000 feet above sea level; or b. 55 mm Hg, at test sites from 3,000 through 6,000 feet above sea level; or c. 50 mm Hg, at test sites over 6,000 feet above sea level; or 2. Intrapulmonary arteriovenous shunting as shown on contrast-enhanced echocardiography or macroaggregated albumin lung perfusion scan. OR F. Hepatic encephalopathy (see 105.00C2f) with documentation of abnormal behavior, cognitive dysfunction, changes in mental status, or altered state of consciousness (for example, confusion, delirium, stupor, or coma), present on two evaluations within a consecutive 12-month period and at least 60 days apart and either 1 or 2: 1. History of transjugular intrahepatic portosystemic shunt (TIPS) or other surgical portosystemic shunt; or 2. One of the following on at least two evaluations at least 60 days apart within the same consecutive 12-month period as in F: a. Asterixis or other fluctuating physical neurological abnormalities; or b. EEG demonstrating triphasic slow wave activity; or c. Serum albumin of 3.0 g/dL or less; or d. INR of 1.5 or greater. OR G. SSA CLD or SSA CLD-P scores (see 105.00C3): 1. For children age 12 or older, two SSA CLD scores of at least 20 within a consecutive 12-month period and at least 60 days apart. Consider under a disability from at least the date of the first score; or 2. For children who have not attained age 12, one SSA CLD-P score of at least 11. OR H. Extrahepatic biliary atresia as diagnosed on liver biopsy or intraoperative cholangiogram (see 105.00C4). Consider under a disability for 1 year following diagnosis; after that, evaluate the residual impairment(s). 105.06 Inflammatory bowel disease (IBD) and A. Obstruction of stenotic areas (not adhesions) in the small intestine or colon with proximal dilatation, confirmed by imaging or in surgery, requiring two hospitalizations for intestinal decompression or for surgery, within a consecutive 12-month period and at least 60 days apart. OR B. Two of the following occurring within a consecutive 12-month period and at least 60 days apart: 1. Anemia with hemoglobin less than 10.0 g/dL, present on at least two evaluations at least 60 days apart; or 2. Serum albumin of 3.0 g/dL or less, present on at least two evaluations at least 60 days apart; or 3. Clinically documented tender abdominal mass palpable on physical examination with abdominal pain or cramping; or 4. Perianal disease with a draining abscess or fistula; or 5. Need for supplemental daily enteral nutrition via a gastrostomy, duodenostomy, or jejunostomy, or daily parenteral nutrition via a central venous catheter (see 105.10 for children who have not attained age 3). 105.07 Intestinal failure 105.08 Growth failure due to any digestive disorder A. Chronic nutritional deficiency present on two evaluations within a consecutive 12-month period and at least 60 days apart documented by 1 or 2: 1. Anemia with hemoglobin less than 10.0 g/dL; or 2. Serum albumin of 3.0 g/dL or less. AND B. Growth failure as required in 1 or 2: 1. For children from birth to attainment of age 2, a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile values in Table I or Table II; or Table I—Males Birth to Attainment of Age 2 [Third percentile values for weight-for-length] Length Weight Length Weight Length Weight 45.0 1.597 64.5 6.132 84.5 10.301 45.5 1.703 65.5 6.359 85.5 10.499 46.5 1.919 66.5 6.584 86.5 10.696 47.5 2.139 67.5 6.807 87.5 10.895 48.5 2.364 68.5 7.027 88.5 11.095 49.5 2.592 69.5 7.245 89.5 11.296 50.5 2.824 70.5 7.461 90.5 11.498 51.5 3.058 71.5 7.674 91.5 11.703 52.5 3.294 72.5 7.885 92.5 11.910 53.5 3.532 73.5 8.094 93.5 12.119 54.5 3.771 74.5 8.301 94.5 12.331 55.5 4.010 75.5 8.507 95.5 12.546 56.5 4.250 76.5 8.710 96.5 12.764 57.5 4.489 77.5 8.913 97.5 12.987 58.5 4.728 78.5 9.113 98.5 13.213 59.5 4.966 79.5 9.313 99.5 13.443 60.5 5.203 80.5 9.512 100.5 13.678 61.5 5.438 81.5 9.710 101.5 13.918 62.5 5.671 82.5 9.907 102.5 14.163 63.5 5.903 83.5 10.104 103.5 14.413 Table II—Females Birth to Attainment of Age 2 [Third percentile values for weight-for-length] Length Weight Length Weight Length Weight 45.0 1.613 64.5 5.985 84.5 10.071 45.5 1.724 65.5 6.200 85.5 10.270 46.5 1.946 66.5 6.413 86.5 10.469 47.5 2.171 67.5 6.625 87.5 10.670 48.5 2.397 68.5 6.836 88.5 10.871 49.5 2.624 69.5 7.046 89.5 11.074 50.5 2.852 70.5 7.254 90.5 11.278 51.5 3.081 71.5 7.461 91.5 11.484 52.5 3.310 72.5 7.667 92.5 11.691 53.5 3.538 73.5 7.871 93.5 11.901 54.5 3.767 74.5 8.075 94.5 12.112 55.5 3.994 75.5 8.277 95.5 12.326 56.5 4.220 76.5 8.479 96.5 12.541 57.5 4.445 77.5 8.679 97.5 12.760 58.5 4.669 78.5 8.879 98.5 12.981 59.5 4.892 79.5 9.078 99.5 13.205 60.5 5.113 80.5 9.277 100.5 13.431 61.5 5.333 81.5 9.476 101.5 13.661 62.5 5.552 82.5 9.674 102.5 13.895 63.5 5.769 83.5 9.872 103.5 14.132 2. For children age 2 to attainment of age 18, a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile value in Table III or Table IV. Table III—Males Age 2 to Attainment of Age 18 [Third percentile values for BMI-for-age] Age BMI Age BMI Age BMI 2.0 to 2.1 14.5 10.11 to 11.2 14.3 14.9 to 14.10 16.1 2.2 to 2.4 14.4 11.3 to 11.5 14.4 14.11 to 15.0 16.2 2.5 to 2.7 14.3 11.6 to 11.8 14.5 15.1 to 15.3 16.3 2.8 to 2.11 14.2 11.9 to 11.11 14.6 15.4 to 15.5 16.4 3.0 to 3.2 14.1 12.0 to 12.1 14.7 15.6 to 15.7 16.5 3.3 to 3.6 14.0 12.2 to 12.4 14.8 15.8 to 15.9 16.6 3.7 to 3.11 13.9 12.5 to 12.7 14.9 15.10 to 15.11 16.7 4.0 to 4.5 13.8 12.8 to 12.9 15.0 16.0 to 16.1 16.8 4.6 to 5.0 13.7 12.10 to 13.0 15.1 16.2 to 16.3 16.9 5.1 to 6.0 13.6 13.1 to 13.2 15.2 16.4 to 16.5 17.0 6.1 to 7.6 13.5 13.3 to 13.4 15.3 16.6 to 16.8 17.1 7.7 to 8.6 13.6 13.5 to 13.7 15.4 16.9 to 16.10 17.2 8.7 to 9.1 13.7 13.8 to 13.9 15.5 16.11 to 17.0 17.3 9.2 to 9.6 13.8 13.10 to 13.11 15.6 17.1 to 17.2 17.4 9.7 to 9.11 13.9 14.0 to 14.1 15.7 17.3 to 17.5 17.5 10.0 to 10.3 14.0 14.2 to 14.4 15.8 17.6 to 17.7 17.6 10.4 to 10.7 14.1 14.5 to 14.6 15.9 17.8 to 17.9 17.7 10.8 to 10.10 14.2 14.7 to 14.8 16.0 17.10 to 17.11 17.8 Table IV—Females Age 2 to Attainment of Age 18 [Third percentile values for BMI-for-age] Age BMI Age BMI Age BMI 2.0 to 2.2 14.1 10.8 to 10.10 14.0 14.3 to 14.5 15.6 2.3 to 2.6 14.0 10.11 to 11.2 14.1 14.6 to 14.7 15.7 2.7 to 2.10 13.9 11.3 to 11.5 14.2 14.8 to 14.9 15.8 2.11 to 3.2 13.8 11.6 to 11.7 14.3 14.10 to 15.0 15.9 3.3 to 3.6 13.7 11.8 to 11.10 14.4 15.1 to 15.2 16.0 3.7 to 3.11 13.6 11.11 to 12.1 14.5 15.3 to 15.5 16.1 4.0 to 4.4 13.5 12.2 to 12.4 14.6 15.6 to 15.7 16.2 4.5 to 4.11 13.4 12.5 to 12.6 14.7 15.8 to 15.10 16.3 5.0 to 5.9 13.3 12.7 to 12.9 14.8 15.11 to 16.0 16.4 5.10 to 7.6 13.2 12.10 to 12.11 14.9 16.1 to 16.3 16.5 7.7 to 8.4 13.3 13.0 to 13.2 15.0 16.4 to 16.6 16.6 8.5 to 8.10 13.4 13.3 to 13.4 15.1 16.7 to 16.9 16.7 8.11 to 9.3 13.5 13.5 to 13.7 15.2 16.10 to 17.0 16.8 9.4 to 9.8 13.6 13.8 to 13.9 15.3 17.1 to 17.3 16.9 9.9 to 10.0 13.7 13.10 to 14.0 15.4 17.4 to 17.7 17.0 10.1 to 10.4 13.8 14.1 to 14.2 15.5 17.8 to 17.11 17.1 10.5 to 10.7 13.9 105.09 Liver transplantation 105.10 Need for supplemental daily enteral feeding via a gastrostomy, duodenostomy, or jejunostomy 105.11 Small intestine transplantation 105.12 Pancreas transplantation 106.00 Genitourinary Disorders A. Which disorders do we evaluate under these listings? We evaluate genitourinary disorders resulting in chronic kidney disease (CKD). Examples of such disorders include chronic glomerulonephritis, hypertensive nephropathy, diabetic nephropathy, chronic obstructive uropathy, and hereditary nephropathies. We also evaluate nephrotic syndrome due to glomerular dysfunction, and congenital genitourinary disorders, such as ectopic ureter, exstrophic urinary bladder, urethral valves, and Eagle-Barrett syndrome (prune belly syndrome), under these listings. B. What evidence do we need? 1. We need evidence that documents the signs, symptoms, and laboratory findings of your CKD. This evidence should include reports of clinical examinations, treatment records, and documentation of your response to treatment. Laboratory findings, such as serum creatinine or serum albumin levels, may document your kidney function. We generally need evidence covering a period of at least 90 days unless we can make a fully favorable determination or decision without it. 2. Estimated glomerular filtration rate (eGFR). 3. Kidney or bone biopsy. C. What other factors do we consider when we evaluate your genitourinary disorder? 1. Chronic hemodialysis or peritoneal dialysis. a. Dialysis is a treatment for CKD that uses artificial means to remove toxic metabolic byproducts from the blood. Hemodialysis uses an artificial kidney machine to clean waste products from the blood; peritoneal dialysis uses a dialyzing solution that is introduced into and removed from the abdomen (peritoneal cavity) either continuously or intermittently. Under 106.03, your ongoing dialysis must have lasted or be expected to last for a continuous period of at least 12 months. To satisfy the requirement in 106.03, we will accept a report from an acceptable medical source that describes your CKD and your current dialysis, and indicates that your dialysis will be ongoing. b. If you are undergoing chronic hemodialysis or peritoneal dialysis, your CKD may meet our definition of disability before you started dialysis. We will determine the onset of your disability based on the facts in your case record. 2. Kidney transplant. a. If you receive a kidney transplant, we will consider you to be disabled under 106.04 for 1 year from the date of transplant. After that, we will evaluate your residual impairment(s) by considering your post-transplant function, any rejection episodes you have had, complications in other body systems, and any adverse effects related to ongoing treatment. b. If you received a kidney transplant, your CKD may meet our definition of disability before you received the transplant. We will determine the onset of your disability based on the facts in your case record. 3. Anasarca 4. Congenital genitourinary disorder. 5. Growth failure due to any chronic renal disease. a. To evaluate growth failure due to any chronic renal disease, we require documentation of the laboratory findings described in 106.08A and the growth measurements in 106.08B within the same consecutive 12-month period. The dates of laboratory findings may be different from the dates of growth measurements. b. Under 106.08B, we use the appropriate table(s) under 105.08B in the digestive system to determine whether a child's growth is less than the third percentile. (i) For children from birth to attainment of age 2, we use the weight-for-length table corresponding to the child's sex (Table I or Table II). (ii) For children age 2 to attainment of age 18, we use the body mass index (BMI)-for-age table corresponding to the child's sex (Table III or Table IV). (iii) BMI is the ratio of a child's weight to the square of his or her height. We calculate BMI using the formulas in the digestive disorders body system (105.00). 6. Complications of CKD. D. How do we evaluate disorders that do not meet one of the genitourinary listings? 1. The listed disorders are only examples of common genitourinary disorders that we consider severe enough to result in marked and severe functional limitations. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that satisfies the criteria of a listing in another body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. (See § 416.926 of this chapter.) Genitourinary disorders may be associated with disorders in other body systems, and we consider the combined effects of multiple impairments when we determine whether they medically equal a listing. If your impairment(s) does not medically equal a listing, we will also consider whether it functionally equals the listings. (See § 416.926a of this chapter.) We use the rules in § 416.994a of this chapter when we decide whether you continue to be disabled. 106.01 Category of Impairments, Genitourinary Disorders 106.03 Chronic kidney disease, 106.04 Chronic kidney disease, 106.05 Chronic kidney disease, A. Serum creatinine of 3 mg/dL or greater; OR B. Creatinine clearance of 30 ml/min/1.73m 2 OR C. Estimated glomerular filtration rate (eGFR) of 30 ml/min/1.73m 2 106.06 Nephrotic syndrome, A. Laboratory findings as described in 1 or 2, documented on at least two occasions at least 90 days apart during a consecutive 12-month period: 1. Serum albumin of 3.0 g/dL or less, or 2. Proteinuria of 40 mg/m 2 AND B. Anasarca (see 106.00C3) persisting for at least 90 days despite prescribed treatment. 106.07 Congenital genitourinary disorder 106.09 Complications of chronic kidney disease 106.08 Growth failure due to any chronic renal disease A. Serum creatinine of 2 mg/dL or greater, documented at least two times within a consecutive 12-month period with at least 60 days between measurements. AND B. Growth failure as required in 1 or 2: 1. For children from birth to attainment of age 2, a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile on the appropriate weight-for-length table under 105.08B1; or 2. For children age 2 to attainment of age 18, a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile on the appropriate BMI-for-age table under 105.08B2. 107.00 Hematological Disorders A. What hematological disorders do we evaluate under these listings? 1. We evaluate non-malignant (non-cancerous) hematological disorders, such as hemolytic anemias (107.05), disorders of thrombosis and hemostasis (107.08), and disorders of bone marrow failure (107.10). These disorders disrupt the normal development and function of white blood cells, red blood cells, platelets, and clotting-factor proteins (factors). 2. We evaluate malignant (cancerous) hematological disorders, such as lymphoma, leukemia, and multiple myeloma, under the appropriate listings in 113.00, except for two lymphomas associated with human immunodeficiency virus (HIV) infection. We evaluate primary central nervous system lymphoma associated with HIV infection under 114.11B, and primary effusion lymphoma associated with HIV infection under 114.11C. B. What evidence do we need to document that you have a hematological disorder? We need the following evidence to document that you have a hematological disorder: 1. A laboratory report of a definitive test that establishes a hematological disorder, signed by a physician; or 2. A laboratory report of a definitive test that establishes a hematological disorder that is not signed by a physician and a report from a physician that states you have the disorder; or 3. When we do not have a laboratory report of a definitive test, a persuasive report from a physician that a diagnosis of your hematological disorder was confirmed by appropriate laboratory analysis or other diagnostic method(s). To be persuasive, this report must state that you had the appropriate definitive laboratory test or tests for diagnosing your disorder and provide the results, or explain how your diagnosis was established by other diagnostic method(s) consistent with the prevailing state of medical knowledge and clinical practice. 4. We will make every reasonable effort to obtain the results of appropriate laboratory testing you have had. We will not purchase complex, costly, or invasive tests, such as tests of clotting-factor proteins, and bone marrow aspirations. C. What are hemolytic anemias, and how do we evaluate them under 107.05? 1. Hemolytic anemias, both congenital and acquired, 2. The hospitalizations in 107.05B do not all have to be for the same complication of the hemolytic anemia. They may be for three different complications of the disorder. Examples of complications of hemolytic anemia that may result in hospitalization include dactylitis, osteomyelitis, painful (vaso-occlusive) crisis, pulmonary infections or infarctions, acute chest syndrome, pulmonary hypertension, chronic heart failure, gallbladder disease, hepatic (liver) failure, renal (kidney) failure, nephrotic syndrome, aplastic crisis, and strokes. We will count the hours you receive emergency treatment in a comprehensive sickle cell disease center immediately before the hospitalization if this treatment is comparable to the treatment provided in a hospital emergency department. 3. For 107.05C, we do not require hemoglobin to be measured during a period in which you are free of pain or other symptoms of your disorder. We will accept hemoglobin measurements made while you are experiencing complications of your hemolytic anemia. 4. 107.05D refers to the most serious type of beta thalassemia major in which the bone marrow cannot produce sufficient numbers of normal RBCs to maintain life. The only available treatments for beta thalassemia major are life-long RBC transfusions (sometimes called hypertransfusion) or bone marrow transplantation. For purposes of 107.05D, we do not consider prophylactic RBC transfusions to prevent strokes or other complications in sickle cell disease and its variants to be of equal significance to life-saving RBC transfusions for beta thalassemia major. However, we will consider the functional limitations associated with prophylactic RBC transfusions and any associated side effects (for example, iron overload) under functional equivalence and any affected body system(s). We will also evaluate strokes and resulting complications under 111.00 and 112.00. D. What are disorders of thrombosis and hemostasis, and how do we evaluate them under 107.08? 1. Disorders of thrombosis and hemostasis 2. The hospitalizations in 107.08 do not all have to be for the same complication of a disorder of thrombosis and hemostasis. They may be for three different complications of the disorder. Examples of complications that may result in hospitalization include anemias, thromboses, embolisms, and uncontrolled bleeding requiring multiple factor concentrate infusions or platelet transfusions. We will also consider any surgery that you have, even if it is not related to your hematological disorder, to be a complication of your disorder of thrombosis and hemostasis if you require treatment with clotting-factor proteins (for example, factor VIII or IX) or anticoagulant medication to control bleeding or coagulation in connection with your surgery. We will count the hours you receive emergency treatment in a comprehensive hemophilia treatment center immediately before the hospitalization if this treatment is comparable to the treatment provided in a hospital emergency department. E. What are disorders of bone marrow failure, and how do we evaluate them under 107.10? 1. Disorders of bone marrow failure 2. The hospitalizations in 107.10A do not all have to be for the same complication of bone marrow failure. They may be for three different complications of the disorder. Examples of complications that may result in hospitalization include uncontrolled bleeding, anemia, and systemic bacterial, viral, or fungal infections. 3. For 107.10B, the requirement of life-long RBC transfusions to maintain life in myelodysplastic syndromes or aplastic anemias has the same meaning as it does for beta thalassemia major. (See 107.00C4.) F. How do we evaluate bone marrow or stem cell transplantation under 107.17? We will consider you to be disabled for 12 months from the date of bone marrow or stem cell transplantation, or we may consider you to be disabled for a longer period if you are experiencing any serious post-transplantation complications, such as graft-versus-host (GVH) disease, frequent infections after immunosuppressive therapy, or significant deterioration of organ systems. We do not restrict our determination of the onset of disability to the date of the transplantation in 107.17. We may establish an earlier onset of disability due to your transplantation if evidence in your case record supports such a finding. G. How do we consider your symptoms, including your pain, severe fatigue, and malaise? Your symptoms, including pain, severe fatigue, and malaise, may be important factors in our determination whether your hematological disorder meets or medically equals a listing, or in our determination whether you otherwise have marked and severe functional limitations. We cannot consider your symptoms unless you have medical signs or laboratory findings showing the existence of a medically determinable impairment(s) that could reasonably be expected to produce the symptoms. If you have such an impairment(s), we will evaluate the intensity, persistence, and functional effects of your symptoms using the rules throughout 107.00 and in our other regulations. (See sections 416.921 and 416.929 of this chapter.) Additionally, when we assess the credibility of your complaints about your symptoms and their functional effects, we will not draw any inferences from the fact that you do not receive treatment or that you are not following treatment without considering all of the relevant evidence in your case record, including any explanations you provide on why you are not receiving or following treatment. H. How do we evaluate episodic events in hematological disorders? Some of the listings in this body system require a specific number of events within a consecutive 12-month period. (See 107.05, 107.08, and 107.10A.) When we use such criteria, a consecutive 12-month period means a period of 12 consecutive months, all or part of which must occur within the period we are considering in connection with your application or continuing disability review. These events must occur at least 30 days apart to ensure that we are evaluating separate events. I. How do we evaluate hematological disorders that do not meet one of these listings? 1. These listings are only common examples of hematological disorders that we consider severe enough to result in marked and severe functional limitations. If your disorder does not meet the criteria of any of these listings, we must consider whether you have a disorder that satisfies the criteria of a listing in another body system. For example, we will evaluate hemophilic joint deformity under 101.00; polycythemia vera under 103.00, 104.00, or 111.00; chronic iron overload resulting from repeated RBC transfusion (transfusion hemosiderosis) under 103.00, 104.00, or 105.00; and the effects of intracranial bleeding or stroke under 111.00 or 112.00. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. (See section 416.926 of this chapter.) Hematological disorders may be associated with disorders in other body systems, and we consider the combined effects of multiple impairments when we determine whether they medically equal a listing. If your impairment(s) does not medically equal a listing, we will also consider whether it functionally equals the listings. (See section 416.926a of this chapter.) We use the rules in § 416.994a of this chapter when we decide whether you continue to be disabled. 107.01 Category of Impairments, Hematological Disorders 107.05 Hemolytic anemias, A. Documented painful (vaso-occlusive) crises requiring parenteral (intravenous or intramuscular) narcotic medication, occurring at least six times within a 12-month period with at least 30 days between crises. OR B. Complications of hemolytic anemia requiring at least three hospitalizations within a 12-month period and occurring at least 30 days apart. Each hospitalization must last at least 48 hours, which can include hours in a hospital emergency department or comprehensive sickle cell disease center immediately before the hospitalization (see 107.00C2). OR C. Hemoglobin measurements of 7.0 grams per deciliter (g/dL) or less, occurring at least three times within a 12-month period with at least 30 days between measurements. OR D. Beta thalassemia major requiring life-long RBC transfusions at least once every 6 weeks to maintain life (see 107.00C4). 107.08 Disorders of thrombosis and hemostasis, 107.10 Disorders of bone marrow failure, A. Complications of bone marrow failure requiring at least three hospitalizations within a 12-month period and occurring at least 30 days apart. Each hospitalization must last at least 48 hours, which can include hours in a hospital emergency department immediately before the hospitalization (see 107.00E2). OR B. Myelodysplastic syndromes or aplastic anemias requiring life-long RBC transfusions at least once every 6 weeks to maintain life (see 107.00E3). 107.17 Hematological disorders treated by bone marrow or stem cell transplantation 108.00 Skin Disorders A. Which skin disorders do we evaluate under these listings? B. What are our definitions for the following terms used in this body system? 1. Assistive device(s): 2. Chronic skin lesions: 3. Contractures: 4. Documented medical need: 5. Fine and gross movements: 6. Surgical management: 7. Exacerbation: C. What evidence do we need to evaluate your skin disorder? 1. To establish the presence of a skin disorder as a medically determinable impairment, we need objective medical evidence from an acceptable medical source (AMS) who has examined you for the disorder. 2. We will make every reasonable effort to obtain your medical history, treatment records, and relevant laboratory findings, but we will not purchase genetic testing. 3. When we evaluate the presence and severity of your skin disorder(s), we generally need information regarding: a. The onset, duration, and frequency of exacerbations (see 108.00B7); b. The prognosis of your skin disorder; c. The location, size, and appearance of lesions and contractures; d. Any available history of familial incidence; e. Your exposure to toxins, allergens or irritants; seasonal variations; and stress factors; f. Your ability to function outside of a highly protective environment (see 108.00E4); g. Laboratory findings (for example, a biopsy obtained independently of Social Security disability evaluation or results of blood tests); h. Evidence from other medically acceptable methods consistent with the prevailing state of medical knowledge and clinical practice; and i. Statements you or others make about your disorder(s), your restrictions, and your daily activities. D. How do we evaluate the severity of skin disorders? 1. General. 2. Limitation(s) of physical functioning due to skin disorders. a. Skin disorders may be due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3), and may cause pain or restrict movement, which can limit your ability to initiate, sustain, and complete age-appropriate activities. For example, skin lesions in the axilla may limit your ability to raise or reach with the affected arm, or lesions in the inguinal region may limit your ability to ambulate, sit, or lift and carry. To evaluate your skin disorder(s) under 108.07B, 108.08, and 108.09, we require medically documented evidence of physical limitation(s) of functioning related to your disorder. The decrease in physical function must have lasted, or can be expected to last, for a continuous period of at least 12 months (see § 416.909 of this chapter). Xeroderma pigmentosum is the only skin disorder that does not include functional criteria because the characteristics and severity of the disorder itself are sufficient to meet the criteria in 108.07A. b. The functional criteria require impairment-related physical limitations in using upper or lower extremities that have lasted, or can be expected to last, for a continuous period of at least 12 months, medically documented by one of the following: (i) Inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (see 108.00B5) due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3); or (ii) Inability to use one upper extremity to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (see 108.00B5) due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3), and a documented medical need (see 108.00B4) for an assistive device (see 108.00B1) that requires the use of the other upper extremity; or (iii) Inability to stand up from a seated position and maintain an upright position to the extent needed to independently initiate, sustain, and complete age-appropriate activities due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) affecting at least two extremities (including when the limitations are due to involvement of the perineum or the inguinal region); or (iv) Inability to maintain an upright position while standing or walking to the extent needed to independently initiate, sustain, and complete age-appropriate activities due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) affecting both lower extremities (including when the limitations are due to involvement of the perineum or the inguinal region). 3. Frequency of exacerbations due to chronic skin lesions. 4. Symptoms (including pain). 5. Treatment. a. General. b. Despite adherence to prescribed medical treatment for 3 months. c. Treatment with PUVA (psoralen and ultraviolet A (UVA) light) or biologics. 6. No record of ongoing treatment. a. Despite having a skin disorder, you may not have received ongoing treatment, may have just begun treatment, may not have access to prescribed medical treatment, or may not have an ongoing relationship with the medical community. In any of these situations, you will not have a longitudinal medical record for us to review when we evaluate your disorder. In some instances, we may be able to assess the severity and duration of your skin disorder based on your medical record and current evidence alone. We may ask you to attend a consultative examination to determine the severity and potential duration of your skin disorder (see § 416.919a of this chapter). b. If, for any reason, you have not received treatment, your skin disorder cannot meet the criteria for 108.09. If the information in your case record is not sufficient to show that you have a skin disorder that meets the criteria of one of the skin disorders listings, we will follow the rules in 108.00I. E. How do we evaluate genetic photosensitivity disorders under 108.07? 1. Xeroderma pigmentosum (XP) (108.07A). 2. Other genetic photosensitivity disorders (108.07B). 3. What evidence do we need to document that you have XP or another genetic photosensitivity disorder? a. A laboratory report of a definitive genetic test documenting appropriate chromosomal changes, including abnormal DNA repair or another DNA abnormality specific to your type of photosensitivity disorder, signed by an AMS; or b. A laboratory report of a definitive test that is not signed by an AMS, and a report from an AMS stating that you have undergone definitive genetic laboratory studies documenting appropriate chromosomal changes, including abnormal DNA repair or another DNA abnormality specific to your type of photosensitivity disorder; or c. If we do not have a laboratory report of a definitive test, we need documentation from an AMS that an appropriate laboratory analysis or other diagnostic method(s) confirms a positive diagnosis of your skin disorder. This documentation must state that you had the appropriate definitive laboratory test(s) for diagnosing your disorder and provide the results, or explain how another diagnostic method(s), consistent with the prevailing state of medical knowledge and clinical practice, established your diagnosis. 4. Inability to function outside of a highly protective environment F. How do we evaluate burns under 108.08? 1. Electrical, chemical, or thermal burns frequently affect other body systems; for example, musculoskeletal, special senses and speech, respiratory, cardiovascular, genitourinary, neurological, or mental. We evaluate burns in the same way we evaluate other disorders that can affect the skin and other body systems, using the listing for the predominant feature of your disorder. For example, if your soft tissue injuries resulting from burns are under surgical management (as defined in 108.00B6), we will evaluate your disorder under the listings in 101.00. 2. We evaluate burns resulting in chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) that have been documented by an AMS to have reached maximum therapeutic benefit and therefore are no longer receiving surgical management, under 108.08. To be disabling, these burns must result in functional limitation(s) (see 108.00D2) that has lasted or can be expected to last for a continuous period of at least 12 months. G. How do we evaluate chronic conditions of the skin or mucous membranes under 108.09? H. How do we evaluate disorders in other body systems that affect the skin? 1. Tuberous sclerosis. 2. Malignant tumors of the skin. 3. Immune system disorders. 4. Head or facial disfigurement or deformity, and other physical deformities caused by skin disorders. 5. Porphyria. 6. Hemangiomas. I. How do we evaluate skin disorders that do not meet one of these listings? 1. These listings are only examples of common skin disorders that we consider severe enough to result in marked and severe limitations. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that satisfies the criteria of a listing in another body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. See § 416.926 of this chapter. If your impairment(s) does not meet or medically equal a listing, we will also consider whether your impairment(s) functionally equals the listings. See § 416.926a of this chapter. We use the rules in § 416.994a of this chapter when we decide whether you continue to be disabled. 108.01 Category of Impairments, Skin Disorders 108.02-108.06 [Reserved] 108.07 Genetic photosensitivity disorders, A. Xeroderma pigmentosum (see 108.00E1). OR B. Other genetic photosensitivity disorders (see 108.00E2) with either 1 or 2: 1. Chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) that cause an inability to function outside of a highly protective environment (see 108.00E4); or 2. Chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) causing chronic pain or other physical limitation(s) that result in impairment-related functional limitations (see 108.00D2), as evidenced by: a. Inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (see 108.00B5) due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3); or b. Inability to use one upper extremity to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (see 108.00B5) due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3), and a documented medical need (see 108.00B4) for an assistive device (see 108.00B1) that requires the use of the other upper extremity; or c. Inability to stand up from a seated position and maintain an upright position to the extent needed to independently initiate, sustain, and complete age-appropriate activities due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) affecting at least two extremities (including when the limitations are due to involvement of the perineum or the inguinal region); or d. Inability to maintain an upright position while standing or walking to the extent needed to independently initiate, sustain, and complete age-appropriate activities due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) affecting both lower extremities (including when the limitations are due to involvement of the perineum or the inguinal region). 108.08 Burns A. Inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (see 108.00B5) due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3). OR B. Inability to use one upper extremity to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (see 108.00B5) due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3), and a documented medical need (see 108.00B4) for an assistive device (see 108.00B1) that requires the use of the other upper extremity. OR C. Inability to stand up from a seated position and maintain an upright position to the extent needed to independently initiate, sustain, and complete age-appropriate activities due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) affecting at least two extremities (including when the limitations are due to involvement of the perineum or the inguinal region). OR D. Inability to maintain an upright position while standing or walking to the extent needed to independently initiate, sustain, and complete age-appropriate activities due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) affecting both lower extremities (including when the limitations are due to involvement of the perineum or the inguinal region). 108.09 Chronic conditions of the skin or mucous membranes A. Chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) causing chronic pain or other physical limitation(s) that persist despite adherence to prescribed medical treatment for 3 months (see 108.00D5b). AND B. Impairment-related functional limitations (see 108.00D2) demonstrated by 1, 2, 3, or 4: 1. Inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (see 108.00B5) due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3); or 2. Inability to use one upper extremity to independently initiate, sustain, and complete age-appropriate activities involving fine and gross movements (see 108.00B5) due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3), and a documented medical need (see 108.00B4) for an assistive device (see 108.00B1) that requires the use of the other upper extremity; or 3. Inability to stand up from a seated position and maintain an upright position to the extent needed to independently initiate, sustain, and complete age-appropriate activities due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) affecting at least two extremities (including when the limitations are due to involvement of the perineum or the inguinal region); or 4. Inability to maintain an upright position while standing or walking to the extent needed to independently initiate, sustain, and complete age-appropriate activities due to chronic skin lesions (see 108.00B2) or contractures (see 108.00B3) affecting both lower extremities (including when the limitations are due to involvement of the perineum or the inguinal region). 109.00 Endocrine Disorders A. What is an endocrine disorder? An endocrine disorder is a medical condition that causes a hormonal imbalance. When an endocrine gland functions abnormally, producing either too much of a specific hormone (hyperfunction) or too little (hypofunction), the hormonal imbalance can cause various complications in the body. The major glands of the endocrine system are the pituitary, thyroid, parathyroid, adrenal, and pancreas. B. How do we evaluate the effects of endocrine disorders? 1. Pituitary gland disorders 2. Thyroid gland disorders 3. Parathyroid gland disorders 4. Adrenal gland disorders 5. Diabetes mellitus and other pancreatic gland disorders diabetes mellitus a. Hyperglycemia. b. Diabetic ketoacidosis (DKA). c. Hypoglycemia. C. How do we evaluate DM in children? D. How do we evaluate other endocrine disorders that do not have effects that meet or medically equal the criteria of any listing in other body systems? 109.01 Category of Impairments, Endocrine 109.08 Any type of diabetes mellitus in a child who requires daily insulin and has not attained age 6. 110.00 Congenital Disorders That Affect Multiple Body Systems A. Which disorders do we evaluate under this body system? B. What is non-mosaic Down syndrome? C. What evidence do we need to document non-mosaic Down syndrome under 110.06? 1. Under 110.06A, we will find you disabled based on laboratory findings. a. To find that your disorder meets 110.06A, we need a copy of the laboratory report of karyotype analysis, which is the definitive test to establish non-mosaic Down syndrome. We will not purchase karyotype analysis. We will not accept a fluorescence in situ hybridization (FISH) test because it does not distinguish between the mosaic and non-mosaic forms of Down syndrome. b. If a physician (see §§ 404.1513(a)(1) and 416.913(a)(1) of this chapter) has not signed the laboratory report of karyotype analysis, the evidence must also include a physician's statement that you have Down syndrome. c. For purposes of 110.06A, we do not require evidence stating that you have the distinctive facial or other physical features of Down syndrome. 2. If we do not have a laboratory report of karyotype analysis documenting that you have non-mosaic Down syndrome, we may find you disabled under 110.06B or 110.06C. a. Under 110.06B, we need a physician's report stating: (i) your karyotype diagnosis or evidence that documents your type of Down syndrome that is consistent with prior karyotype analysis (for example, reference to a diagnosis of “trisomy 21”) and (ii) that you have the distinctive facial or other physical features of Down syndrome. We do not require a detailed description of the facial or other physical features of the disorder. However, we will not find that your disorder meets 110.06B if we have evidence—such as evidence of functioning inconsistent with the diagnosis—that indicates that you do not have non-mosaic Down syndrome. b. If we do not have evidence of prior karyotype analysis (you did not have testing, or you had testing but we do not have information from a physician about the test results), we will find that your disorder meets 110.06C if we have: (i) a physician's report stating that you have the distinctive facial or other physical features of Down syndrome and (ii) evidence that your functioning is consistent with a diagnosis of non-mosaic Down syndrome. This evidence may include medical or nonmedical information about your physical and mental abilities, including information about your development, education, work history, or the results of psychological testing. However, we will not find that your disorder meets 110.06C if we have evidence—such as evidence of functioning inconsistent with the diagnosis—that indicates that you do not have non-mosaic Down syndrome. D. What are catastrophic congenital disorders? E. What evidence do we need under 110.08? We need one of the following to determine if your disorder meets 110.08A or B: 1. A laboratory report of the definitive test that documents your disorder (for example, genetic analysis or evidence of biochemical abnormalities) signed by a physician. 2. A laboratory report of the definitive test that documents your disorder that is not signed by a physician and 3. A report from a physician stating that you have the disorder with the typical clinical features of the disorder and that you had definitive testing that documented your disorder. In this case, we will find that your disorder meets 110.08A or B unless we have evidence that indicates that you do not have the disorder. 4. If we do not have the definitive laboratory evidence we need under E1, E2, or E3, we will find that your disorder meets 110.08A or B if we have: (i) a report from a physician stating that you have the disorder and that you have the typical clinical features of the disorder, and 5. For obvious catastrophic congenital anomalies that are expected to result in early death, such as anencephaly and cyclopia, we need evidence from a physician that demonstrates that the infant has the characteristic physical features of the disorder. In these rare cases, we do not need laboratory testing or any other evidence that confirms the disorder. F. How do we evaluate mosaic Down syndrome and other congenital disorders that affect multiple body systems? 1. Mosaic Down syndrome. 2. Other congenital disorders that affect multiple body systems. 3. Evaluating the effects of mosaic Down syndrome or another congenital disorder under the listings. G. What if your disorder does not meet a listing? 110.01 Category of Impairments, Congenital Disorders That Affect Multiple Body Systems 110.06 Non-mosaic Down syndrome A. A laboratory report of karyotype analysis signed by a physician, or both a laboratory report of karyotype analysis not signed by a physician and B. A physician's report stating that the child has chromosome 21 trisomy or chromosome 21 translocation consistent with karyotype analysis with the distinctive facial or other physical features of Down syndrome (see 110.00C2a), or C. A physician's report stating that the child has Down syndrome with the distinctive facial or other physical features and 110.08 A catastrophic congenital disorder A. Death usually expected within the first months of life, or B. Very serious interference with development or functioning. 111.00 Neurological Disorders A. Which neurological disorders do we evaluate under these listings? B. What evidence do we need to document your neurological disorder? 1. We need both medical and non-medical evidence (signs, symptoms, and laboratory findings) to assess the effects of your neurological disorder. Medical evidence should include your medical history, examination findings, relevant laboratory tests, and the results of imaging. Imaging refers to medical imaging techniques, such as x-ray, computerized tomography (CT), magnetic resonance imaging (MRI), and electroencephalography (EEG). The imaging must be consistent with the prevailing state of medical knowledge and clinical practice as the proper technique to support the evaluation of the disorder. In addition, the medical evidence may include descriptions of any prescribed treatment and your response to it. We consider non-medical evidence such as statements you or others make about your impairments, your restrictions, your daily activities, or, if you are an adolescent, your efforts to work. 2. We will make every reasonable effort to obtain the results of your laboratory and imaging evidence. When the results of any of these tests are part of the existing evidence in your case record, we will evaluate the test results and all other relevant evidence. We will not purchase imaging, or other diagnostic tests or laboratory tests that are complex, may involve significant risk, or that are invasive. We will not routinely purchase tests that are expensive or not readily available. C. How do we consider adherence to prescribed treatment in neurological disorders D. What do we mean by disorganization of motor function? 1. Disorganization of motor function i.e., a. Stand up from a seated position; or b. Balance while standing or walking; or c. Use the upper extremities (e.g., fingers, wrists, hands, arms, and shoulders). 2. Extreme limitation a. Inability to stand up from a seated position means that once seated you are unable to stand and maintain an upright position without the assistance of another person or the use of an assistive device, such as a walker, two crutches, or two canes. b. Inability to maintain balance in a standing position means that you are unable to maintain an upright position while standing or walking without the assistance of another person or an assistive device, such as a walker, two crutches, or two canes. c. Inability to use your upper extremities means that you have a loss of function of both upper extremities (e.g., fingers, wrists, hands, arms, and shoulders) that very seriously limits your ability to independently initiate, sustain, and complete age- appropriate activities involving fine and gross motor movements. Inability to perform fine and gross motor movements could include not being able to pinch, manipulate, and use your fingers; or not being able to use your hands, arms, and shoulders to perform gross motor movements, such as handling, gripping, grasping, holding, turning, and reaching; or not being able to engage in exertional movements such a lifting, carrying, pushing, and pulling. 3. For children who are not yet able to balance, stand up, or walk independently, we consider their function based on assessments of limitations in the ability to perform comparable age-appropriate activities with the lower and upper extremities, given normal developmental milestones. For such children, an extreme level of limitation means developmental milestones at less than one-half of the child's chronological age. E. What do we mean by bulbar and neuromuscular dysfunction? F. What is epilepsy, and how do we evaluate it under 111.02? 1. Epilepsy generalized tonic-clonic seizures, dyscognitive seizures and absence seizures. a. Generalized tonic-clonic seizures b. Dyscognitive seizures c. Absence seizures (petit mal) d. Febrile seizures 2. Description of seizure. 3. Serum drug levels. 4. Counting seizures. a. Count multiple seizures occurring in a 24-hour period as one seizure. b. Count status epilepticus (a continuous series of seizures without return to consciousness between seizures) as one seizure. c. Count a dyscognitive seizure that progresses into a generalized tonic-clonic seizure as one generalized tonic-clonic seizure. d. We do not count seizures that occur during a period when you are not adhering to prescribed treatment without good reason. When we determine that you had a good reason for not adhering to prescribed treatment, we will consider your physical, mental, educational, and communicative limitations (including any language barriers). We will consider you to have good reason for not following prescribed treatment if, for example, the treatment is very risky for you due to its consequences or unusual nature, or if you are unable to afford prescribed treatment that you are willing to accept, but for which no free community resources are available. We will follow guidelines found in our policy, such as § 416.930(c) of this chapter, when we determine whether you have a good reason for not adhering to prescribed treatment. e. We do not count psychogenic nonepileptic seizures or pseudoseizures under 111.02.We evaluate these seizures under the mental disorders body system, 112.00. 5. Electroencephalography (EEG) testing. G. What is vascular insult to the brain, and how do we evaluate it under 111.04? 1. Vascular insult to the brain 2. We generally need evidence from at least 3 months after the vascular insult to determine whether you have disorganization of motor function under 111.04. In some cases, evidence of your vascular insult is sufficient to allow your claim within 3 months post-vascular insult. If we are unable to allow your claim within 3 months after your vascular insult, we will defer adjudication of the claim until we obtain evidence of your neurological disorder at least 3 months post-vascular insult. H. What are benign brain tumors, and how do we evaluate them under 111.05? I. What is cerebral palsy, and how do we evaluate it under 111.07? 1. Cerebral palsy (CP) 2. We evaluate your signs and symptoms, such as ataxia, spasticity, flaccidity, athetosis, chorea, and difficulty with precise movements when we determine your ability to stand up, balance, walk, or perform fine and gross motor movements. We will also evaluate your signs, such as dysarthria and apraxia of speech, and receptive and expressive language problems when we determine your ability to communicate. 3. We will consider your other impairments or signs and symptoms that develop secondary to the disorder, such as post-impairment syndrome (a combination of pain, fatigue, and weakness due to muscle abnormalities); overuse syndromes (repetitive motion injuries); arthritis; abnormalities of proprioception (perception of the movements and position of the body); abnormalities of stereognosis (perception and identification of objects by touch); learning problems; anxiety; and depression. J. What are spinal cord disorders, and how do we evaluate them under 111.08? 1. Spinal cord disorders 2. Spinal cord disorders with complete loss of function 3. Spinal cord disorders with disorganization of motor function 4. When we evaluate your spinal cord disorder, we generally need evidence from at least 3 months after your symptoms began in order to evaluate your disorganization of motor function. In some cases, evidence of your spinal cord disorder may be sufficient to allow your claim within 3 months after the spinal cord disorder. If the medical evidence demonstrates total cord transection causing a loss of motor and sensory functions below the level of injury, we will not wait 3 months but will make the allowance decision immediately. K. What are communication impairments associated with neurological disorders, and how do we evaluate them under 111.09 1. Communication impairments result from medically determinable neurological disorders that cause dysfunction in the parts of the brain responsible for speech and language. Under 111.09, we must have recent comprehensive evaluation including all areas of affective and effective communication, performed by a qualified professional, to document a communication impairment associated with a neurological disorder. 2. Under 111.09A, we need documentation from a qualified professional that your neurological disorder has resulted in a speech deficit that significantly affects your ability to communicate. Significantly affects 3. Under 111.09B, we need documentation from a qualified professional that shows that your neurological disorder has resulted in a comprehension deficit that results in ineffective verbal communication for your age. For the purposes of 111.09B, comprehension deficit 4. Under 111.09C, we need documentation of a neurological disorder that has resulted in hearing loss. Your hearing loss will be evaluated under listing 102.10 or 102.11. 5. We evaluate speech deficits due to non-neurological disorders under 2.09. L. What are neurodegenerative disorders of the central nervous system, such as Juvenile-onset Huntington's disease and Friedreich's ataxia, and how do we evaluate them under 111.17? M. What is traumatic brain injury, and how do we evaluate it under 111.18? 1. Traumatic brain injury (TBI) 2. We generally need evidence from at least 3 months after the TBI to evaluate whether you have disorganization of motor function under 111.18. In some cases, evidence of your TBI is sufficient to determine disability. If we are unable to allow your claim within 3 months post-TBI, we will defer adjudication of the claim until we obtain evidence of your neurological disorder at least 3 months post-TBI. If a finding of disability still is not possible at that time, we will again defer adjudication of the claim until we obtain evidence at least 6 months after your TBI. N. What are coma and persistent vegetative state, and how do we evaluate them under 111.20? O. What is multiple sclerosis, and how do we evaluate it under 111.21? 1. Multiple sclerosis (MS) 2. We evaluate your signs and symptoms, such as flaccidity, spasticity, spasms, incoordination, imbalance, tremor, physical fatigue, muscle weakness, dizziness, tingling, and numbness when we determine your ability to stand up, balance, walk, or perform fine and gross motor movements, such as using your arms, hands, and fingers. If you have a vision impairment resulting from your MS, we may evaluate that impairment under the special senses body system, 102.00. P. What are motor neuron disorders, and how do we evaluate them under 111.22? Q. How do we consider symptoms of fatigue in these listings? R. How do we evaluate your neurological disorder when it does not meet one of these listings? 1. If your neurological disorder does not meet the criteria of any of these listings, we must also consider whether your impairment(s) meets the criteria of a listing in another body system. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. See § 416.926 of this chapter. 2. If your impairment(s) does not meet or medically equal a listing, we will consider whether your impairment(s) functionally equals the listings. See § 416.926a of this chapter. 3. We use the rules in § 416.994a of this chapter when we decide whether you continue to be disabled. 111.01 Category of Impairments, Neurological Disorders 111.02 Epilepsy, A. Generalized tonic-clonic seizures (see 111.00F1a), occurring at least once a month for at least 3 consecutive months (see 111.00F4) despite adherence to prescribed treatment (see 111.00C); or B. Dyscognitive seizures (see 111.00F1b) or absence seizures (see 111.00F1c), occurring at least once a week for at least 3 consecutive months (see 111.00F4) despite adherence to prescribed treatment (see 111.00C). 111.03 [Reserved] 111.04 Vascular insult to the brain, 111.05 Benign brain tumors, 111.06 [Reserved] 111.07 Cerebral palsy, 111.08 Spinal cord disorders, A. Complete loss of function, as described in 111.00J2, persisting for 3 consecutive months after the disorder (see 111.00J4); or B. Disorganization of motor function in two extremities (see 111.00D1), resulting in an extreme limitation (see 111.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities persisting for 3 consecutive months after the disorder (see 111.00J4). 111.09 Communication impairment, A. Documented speech deficit that significantly affects (see 111.00K1) the clarity and content of the speech; or B. Documented comprehension deficit resulting in ineffective verbal communication (see 111.00K2) for age; or C. Impairment of hearing as described under the criteria in 102.10 or 102.11. 111.10 [Reserved] 111.11 [Reserved] 111.12 Myasthenia gravis, A. Disorganization of motor function in two extremities (see 111.00D1), resulting in an extreme limitation (see 111.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Bulbar and neuromuscular dysfunction (see 111.00E), resulting in: 1. One myasthenic crisis requiring mechanical ventilation; or 2. Need for supplemental enteral nutrition via a gastrostomy or parenteral nutrition via a central venous catheter. 111.13 Muscular dystrophy, 111.14 Peripheral neuropathy, 111.15 [Reserved] 111.16 [Reserved] 111.17 Neurodegenerative disorders of the central nervous system, such as Juvenile-onset Huntington's disease and Friedreich's ataxia, 111.18 Traumatic brain injury, 111.19 [Reserved] 111.20 Coma or persistent vegetative state, 111.21 Multiple sclerosis, 111.22 Motor neuron disorders, A. Disorganization of motor function in two extremities (see 111.00D1), resulting in an extreme limitation (see 111.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities; or B. Bulbar and neuromuscular dysfunction (see 111.00E), resulting in: 1. Acute respiratory failure requiring invasive mechanical ventilation; or 2. Need for supplemental enteral nutrition via a gastrostomy or parenteral nutrition via a central venous catheter. 112.00 Mental Disorders A. How are the listings for mental disorders for children arranged, and what do they require? 1. The listings for mental disorders for children are arranged in 12 categories: neurocognitive disorders (112.02); schizophrenia spectrum and other psychotic disorders (112.03); depressive, bipolar and related disorders (112.04); intellectual disorder (112.05); anxiety and obsessive-compulsive disorders (112.06); somatic symptom and related disorders (112.07); personality and impulse-control disorders (112.08); autism spectrum disorder (112.10); neurodevelopmental disorders (112.11); eating disorders (112.13); developmental disorders in infants and toddlers (112.14); and trauma- and stressor-related disorders (112.15). All of these listings, with the exception of 112.14, apply to children from age three to attainment of age 18. Listing 112.14 is for children from birth to attainment of age 3. 2. Listings 112.07, 112.08, 112.10, 112.11, 112.13, and 112.14 have two paragraphs, designated A and B; your mental disorder must satisfy the requirements of both paragraphs A and B. Listings 112.02, 112.03, 112.04, 112.06, and 112.15 have three paragraphs, designated A, B, and C; your mental disorder must satisfy the requirements of both paragraphs A and B, or the requirements of both paragraphs A and C. Listing 112.05 has two paragraphs that are unique to that listing (see 112.00A3); your mental disorder must satisfy the requirements of either paragraph A or paragraph B. a. Paragraph A of each listing (except 112.05) includes the medical criteria that must be present in your medical evidence. b. Paragraph B of each listing (except 112.05) provides the functional criteria we assess to evaluate how your mental disorder limits your functioning. For children ages 3 to 18, these criteria represent the areas of mental functioning a child uses to perform age-appropriate activities. They are: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. (See 112.00I for a discussion of the criteria for children from birth to attainment of age 3 under 112.14.) We will determine the degree to which your medically determinable mental impairment affects the four areas of mental functioning and your ability to function age-appropriately in a manner comparable to that of other children your age who do not have impairments. (Hereinafter, the words “age-appropriately” incorporate the qualifying statement, “in a manner comparable to that of other children your age who do not have impairments.”) To satisfy the paragraph B criteria, your mental disorder must result in “extreme” limitation of one, or “marked” limitation of two, of the four areas of mental functioning. (When we refer to “paragraph B criteria” or “area[s] of mental functioning” in the introductory text of this body system, we mean the criteria in paragraph B of every listing except 112.05 and 112.14.) c. Paragraph C of listings 112.02, 112.03, 112.04, 112.06, and 112.15 provides the criteria we use to evaluate “serious and persistent mental disorders.” To satisfy the paragraph C criteria, your mental disorder must be “serious and persistent”; that is, there must be a medically documented history of the existence of the disorder over a period of at least 2 years, and evidence that satisfies the criteria in both C1 and C2 (see 112.00G). (When we refer to “paragraph C” or “the paragraph C criteria” in the introductory text of this body system, we mean the criteria in paragraph C of listings 112.02, 112.03, 112.04, 112.06, and 112.15.) 3. Listing 112.05 has two paragraphs, designated A and B, that apply to only intellectual disorder. Each paragraph requires that you have significantly subaverage general intellectual functioning and significant deficits in current adaptive functioning. B. Which mental disorders do we evaluate under each listing category for children? 1. Neurocognitive disorders (112.02). a. These disorders are characterized in children by a clinically significant deviation in normal cognitive development or by a decline in cognitive functioning. Symptoms and signs may include, but are not limited to, disturbances in memory, executive functioning (that is, higher-level cognitive processes; for example, regulating attention, planning, inhibiting responses, decision-making), visual-spatial functioning, language and speech, perception, insight, and judgment. b. Examples of disorders that we evaluate in this category include major neurocognitive disorder; mental impairments resulting from medical conditions such as a metabolic disease (for example, juvenile Tay-Sachs disease), human immunodeficiency virus infection, vascular malformation, progressive brain tumor, or traumatic brain injury; or substance-induced cognitive disorder associated with drugs of abuse, medications, or toxins. (We evaluate neurological disorders under that body system (see 111.00). We evaluate cognitive impairments that result from neurological disorders under 112.02 if they do not satisfy the requirements in 111.00. We evaluate catastrophic genetic disorders under listings in 110.00, 111.00, or 112.00, as appropriate. We evaluate genetic disorders that are not catastrophic under the affected body system(s).) c. This category does not include the mental disorders that we evaluate under intellectual disorder (112.05), autism spectrum disorder (112.10), and neurodevelopmental disorders (112.11). 2. Schizophrenia spectrum and other psychotic disorders (112.03). a. These disorders are characterized by delusions, hallucinations, disorganized speech, or grossly disorganized or catatonic behavior, causing a clinically significant decline in functioning. Symptoms and signs may include, but are not limited to, inability to initiate and persist in goal-directed activities, social withdrawal, flat or inappropriate affect, poverty of thought and speech, loss of interest or pleasure, disturbances of mood, odd beliefs and mannerisms, and paranoia. b. Examples of disorders that we evaluate in this category include schizophrenia, schizoaffective disorder, delusional disorder, and psychotic disorder due to another medical condition. 3. Depressive, bipolar and related disorders (112.04). a. These disorders are characterized by an irritable, depressed, elevated, or expansive mood, or by a loss of interest or pleasure in all or almost all activities, causing a clinically significant decline in functioning. Symptoms and signs may include, but are not limited to, feelings of hopelessness or guilt, suicidal ideation, a clinically significant change in body weight or appetite, sleep disturbances, an increase or decrease in energy, psychomotor abnormalities, disturbed concentration, pressured speech, grandiosity, reduced impulse control, sadness, euphoria, and social withdrawal. Depending on a child's age and developmental stage, certain features, such as somatic complaints, irritability, anger, aggression, and social withdrawal may be more commonly present than other features. b. Examples of disorders that we evaluate in this category include bipolar disorders (I or II), cyclothymic disorder, disruptive mood dysregulation disorder, major depressive disorder, persistent depressive disorder (dysthymia), and bipolar or depressive disorder due to another medical condition. 4. Intellectual disorder (112.05). a. This disorder is characterized by significantly subaverage general intellectual functioning and significant deficits in current adaptive functioning. Signs may include, but are not limited to, poor conceptual, social, or practical skills evident in your adaptive functioning. b. The disorder that we evaluate in this category may be described in the evidence as intellectual disability, intellectual developmental disorder, or historically used terms such as “mental retardation.” c. This category does not include the mental disorders that we evaluate under neurocognitive disorders (112.02), autism spectrum disorder (112.10), or neurodevelopmental disorders (112.11). 5. Anxiety and obsessive-compulsive disorders (112.06). a. These disorders are characterized by excessive anxiety, worry, apprehension, and fear, or by avoidance of feelings, thoughts, activities, objects, places, or people. Symptoms and signs may include, but are not limited to, restlessness, difficulty concentrating, hyper-vigilance, muscle tension, sleep disturbance, fatigue, panic attacks, obsessions and compulsions, constant thoughts and fears about safety, and frequent physical complaints. Depending on a child's age and developmental stage, other features may also include refusal to go to school, academic failure, frequent stomachaches and other physical complaints, extreme worries about sleeping away from home, being overly clinging, and exhibiting tantrums at times of separation from caregivers. b. Examples of disorders that we evaluate in this category include separation anxiety disorder, social anxiety disorder, panic disorder, generalized anxiety disorder, agoraphobia, and obsessive-compulsive disorder. c. This category does not include the mental disorders that we evaluate under trauma- and stressor-related disorders (112.15). 6. Somatic symptom and related disorders (112.07). a. These disorders are characterized by physical symptoms or deficits that are not intentionally produced or feigned, and that, following clinical investigation, cannot be fully explained by a general medical condition, another mental disorder, the direct effects of a substance, or a culturally sanctioned behavior or experience. Symptoms and signs may include, but are not limited to, pain and other abnormalities of sensation, gastrointestinal symptoms, fatigue, abnormal motor movement, pseudoseizures, and pseudoneurological symptoms, such as blindness or deafness. b. Examples of disorders that we evaluate in this category include somatic symptom disorder and conversion disorder. 7. Personality and impulse-control disorders (112.08). a. These disorders are characterized by enduring, inflexible, maladaptive, and pervasive patterns of behavior. Onset may occur in childhood but more typically occurs in adolescence or young adulthood. Symptoms and signs may include, but are not limited to, patterns of distrust, suspiciousness, and odd beliefs; social detachment, discomfort, or avoidance; hypersensitivity to negative evaluation; an excessive need to be taken care of; difficulty making independent decisions; a preoccupation with orderliness, perfectionism, and control; and inappropriate, intense, impulsive anger and behavioral expression grossly out of proportion to any external provocation or psychosocial stressors. b. Examples of disorders that we evaluate in this category include paranoid, schizoid, schizotypal, borderline, avoidant, dependent, obsessive-compulsive personality disorders, and intermittent explosive disorder. 8. Autism spectrum disorder (112.10). a. These disorders are characterized by qualitative deficits in the development of reciprocal social interaction, verbal and nonverbal communication skills, and symbolic or imaginative play; restricted repetitive and stereotyped patterns of behavior, interests, and activities; and stagnation of development or loss of acquired skills. Symptoms and signs may include, but are not limited to, abnormalities and unevenness in the development of cognitive skills; unusual responses to sensory stimuli; and behavioral difficulties, including hyperactivity, short attention span, impulsivity, aggressiveness, or self-injurious actions. b. Examples of disorders that we evaluate in this category include autism spectrum disorder with or without accompanying intellectual impairment, and autism spectrum disorder with or without accompanying language impairment. c. This category does not include the mental disorders that we evaluate under neurocognitive disorders (112.02), intellectual disorder (112.05), and neurodevelopmental disorders (112.11). 9. Neurodevelopmental disorders (112.11). a. These disorders are characterized by onset during the developmental period, that is, during childhood or adolescence, although sometimes they are not diagnosed until adulthood. Symptoms and signs may include, but are not limited to, underlying abnormalities in cognitive processing (for example, deficits in learning and applying verbal or nonverbal information, visual perception, memory, or a combination of these); deficits in attention or impulse control; low frustration tolerance; excessive or poorly planned motor activity; difficulty with organizing (time, space, materials, or tasks); repeated accidental injury; and deficits in social skills. Symptoms and signs specific to tic disorders include sudden, rapid, recurrent, non-rhythmic, motor movement or vocalization. b. Examples of disorders that we evaluate in this category include specific learning disorder, borderline intellectual functioning, and tic disorders (such as Tourette syndrome). c. This category does not include the mental disorders that we evaluate under neurocognitive disorders (112.02), autism spectrum disorder (112.10), or personality and impulse-control disorders (112.08). 10. Eating disorders (112.13). a. These disorders are characterized in young children by persistent eating of nonnutritive substances or repeated episodes of regurgitation and re-chewing of food, or by persistent failure to consume adequate nutrition by mouth. In adolescence, these disorders are characterized by disturbances in eating behavior and preoccupation with, and excessive self-evaluation of, body weight and shape. Symptoms and signs may include, but are not limited to, failure to make expected weight gains; restriction of energy consumption when compared with individual requirements; recurrent episodes of binge eating or behavior intended to prevent weight gain, such as self-induced vomiting, excessive exercise, or misuse of laxatives; mood disturbances, social withdrawal, or irritability; amenorrhea; dental problems; abnormal laboratory findings; and cardiac abnormalities. b. Examples of disorders that we evaluate in this category include anorexia nervosa, bulimia nervosa, binge-eating disorder, and avoidant/restrictive food disorder. 11. Developmental disorders in infants and toddlers (112.14). a. Developmental disorders are characterized by a delay or deficit in the development of age-appropriate skills, or a loss of previously acquired skills, involving motor planning and control, learning, relating and communicating, and self-regulating. b. Examples of disorders that we evaluate in this category include developmental coordination disorder, separation anxiety disorder, autism spectrum disorder, and regulation disorders of sensory processing (difficulties in regulating emotions, behaviors, and motor abilities in response to sensory stimulation). Some infants and toddlers may have only a general diagnosis of “developmental delay.” c. This category does not include eating disorders related to low birth weight and failure to thrive, which we evaluate under that body system (100.00). 12. Trauma- and stressor-related disorders (112.15). a. These disorders are characterized by experiencing or witnessing a traumatic or stressful event, or learning of a traumatic event occurring to a close family member or close friend, and the psychological aftermath of clinically significant effects on functioning. Symptoms and signs may include, but are not limited to, distressing memories, dreams, and flashbacks related to the trauma or stressor; avoidant or withdrawn behavior; constriction of play and significant activities; increased frequency of negative emotional states (for example, fear, sadness) or reduced expression of positive emotions (for example, satisfaction, affection); anxiety; irritability; aggression; exaggerated startle response; difficulty concentrating; sleep disturbance; and a loss of previously acquired developmental skills. b. Examples of disorders that we evaluate in this category include posttraumatic stress disorder, reactive attachment disorder, and other specified trauma- and stressor-related disorders (such as adjustment-like disorders with prolonged duration without prolonged duration of stressor). c. This category does not include the mental disorders that we evaluate under anxiety and obsessive-compulsive disorders (112.06), and cognitive impairments that result from neurological disorders, such as a traumatic brain injury, which we evaluate under neurocognitive disorders (112.02). C. What evidence do we need to evaluate your mental disorder? 1. General. 2. Evidence from medical sources. a. Your reported symptoms. b. Your developmental, medical, psychiatric, and psychological history. c. The results of physical or mental status examinations, structured clinical interviews, psychiatric or psychological rating scales, measures of adaptive functioning, or other clinical findings. d. Developmental assessments, psychological testing, imaging results, or other laboratory findings. e. Your diagnosis. f. The type, dosage, and beneficial effects of medications you take. g. The type, frequency, duration, and beneficial effects of therapy you receive. h. Side effects of medication or other treatment that limit your ability to function. i. Your clinical course, including changes in your medication, therapy, or other treatment, and the time required for therapeutic effectiveness. j. Observations and descriptions of how you function during examinations or therapy. k. Information about sensory, motor, or speech abnormalities, or about your cultural background (for example, language or customs) that may affect an evaluation of your mental disorder. l. The expected duration of your symptoms and signs and their effects on your ability to function age-appropriately, both currently and in the future. 3. Evidence from you and people who know you. 4. Evidence from early intervention programs, school, vocational training, work, and work-related programs. a. Early intervention programs. b. School. c. Vocational training, work, and work-related programs. 5. Need for longitudinal evidence. a. General. b. Non-medical sources of longitudinal evidence. c. Absence of longitudinal evidence. 6. Evidence of functioning in unfamiliar situations or supportive situations. a. Unfamiliar situations. b. Supportive situations. c. Our assessment. D. How do we consider psychosocial supports, structured settings, living arrangements, and treatment when we evaluate the functioning of children? 1. General. a. You receive help from family members or other people in ways that children your age without impairments typically do not need in order to function age-appropriately. For example, an aide may accompany you on the school bus to help you control your actions or to monitor you to ensure you do not injure yourself or others. b. You receive one-on-one assistance in your classes every day; or you have a full-time personal aide who helps you to function in your classroom; or you are a student in a self-contained classroom; or you attend a separate or alternative school where you receive special education services. c. You participate in a special education or vocational training program, or a psychosocial rehabilitation day treatment or community support program, where you receive training in daily living and entry-level work skills. d. You participate in a sheltered, supported, or transitional work program, or in a competitive employment setting with the help of a job coach or supervisor. e. You receive comprehensive “24/7 wrap-around” mental health services while living in a group home or transitional housing, while participating in a semi-independent living program, or while living at home. f. You live in a residential school, hospital, or other institution with 24-hour care. g. You receive assistance from a crisis response team, social workers, or community mental health workers who help you meet your physical needs, and who may also represent you in dealings with government or community social services. 2. How we consider different levels of support and structure in psychosocial rehabilitation programs. a. Psychosocial rehabilitation programs are based on your specific needs. Therefore, we cannot make any assumptions about your mental disorder based solely on the fact that you are associated with such a program. We must know the details of the program(s) in which you are involved and the pattern(s) of your involvement over time. b. The kinds and levels of supports and structures in psychosocial rehabilitation programs typically occur on a scale of “most restrictive” to “least restrictive.” Participation in a psychosocial rehabilitation program at the most restrictive level would suggest greater limitation of your areas of mental functioning than would participation at a less restrictive level. The length of time you spend at different levels in a program also provides information about your functioning. For example, you could begin participation at the most restrictive crisis intervention level but gradually improve to the point of readiness for a lesser level of support and structure and, if you are an older adolescent, possibly some form of employment. 3. How we consider the help or support you receive. a. We will consider the complete picture of your daily functioning, including the kinds, extent, and frequency of help and support you receive, when we evaluate your mental disorder and determine whether you are able to use the four areas of mental functioning age-appropriately. The fact that you have done, or currently do, some routine activities without help or support does not necessarily mean that you do not have a mental disorder or that you are not disabled. For example, you may be able to take age-appropriate care of your personal needs, or you may be old enough and able to cook, shop, and take public transportation. You may demonstrate both strengths and deficits in your daily functioning. b. You may receive various kinds of help and support from others that enable you to do many things that, because of your mental disorder, you might not be able to do independently. Your daily functioning may depend on the special contexts in which you function. For example, you may spend your time among only familiar people or surroundings, in a simple and steady routine or an unchanging environment, or in a highly structured classroom or alternative school. However, this does not necessarily show whether you would function age-appropriately without those supports or contexts. (See 112.00H for further discussion of these issues regarding significant deficits in adaptive functioning for the purpose of 112.05.) 4. How we consider treatment. E. What are the paragraph B criteria for children age 3 to the attainment of age 18? 1. Understand, remember, or apply information (paragraph B1). 2. Interact with others (paragraph B2). 3. Concentrate, persist, or maintain pace (paragraph B3). 4. Adapt or manage oneself (paragraph B4). F. How do we use the paragraph B criteria to evaluate mental disorders in children? 1. General. 2. Degrees of limitation. 3. Rating the limitations of your areas of mental functioning. a. General. b. Areas of mental functioning in daily activities. c. Overall effect of limitations. d. Effects of support, supervision, structure on functioning. e. Specific instructions for paragraphs B1, B3, and B4. (i) To do an age-appropriate activity, you must be able to understand and and and and and or or or or or (ii) We will document the rating of limitation of the whole area of mental functioning, not each individual part. We will not add ratings of the parts together. For example, with respect to paragraph B3, if you have marked limitation in concentrating, but your limitations in persisting and maintaining pace do not rise to a marked level, we will find that you have marked limitation in the whole paragraph B3 area of mental functioning. (iii) Marked limitation in more than one part of the same paragraph B area of mental functioning does not satisfy the requirement to have marked limitation in two paragraph B areas of mental functioning. 4. How we evaluate mental disorders involving exacerbations and remissions. a. When we evaluate the effects of your mental disorder, we will consider how often you have exacerbations and remissions, how long they last, what causes your mental disorder to worsen or improve, and any other relevant information. We will assess whether your mental impairment(s) causes marked or extreme limitation of the affected paragraph B area(s) of mental functioning (see 112.00F2). We will consider whether you can use the area of mental functioning age-appropriately on a sustained basis. We will not find that you function age-appropriately solely because you have a period(s) of improvement (remission), or that you are disabled solely because you have a period of worsening (exacerbation), of your mental disorder. b. If you have a mental disorder involving exacerbations and remissions, you may be able to use the four areas of mental functioning at home, at school, or in the community for a few weeks or months. Recurrence or worsening of symptoms and signs, however, can interfere enough to render you unable to function age-appropriately. G. What are the paragraph C criteria, and how do we use them to evaluate mental disorders in children age 3 to the attainment of age 18? 1. General. 2. Paragraph C criteria. a. We find a mental disorder to be “serious and persistent” when there is a medically documented history of the existence of the mental disorder in the listing category over a period of at least 2 years, and evidence shows that your disorder satisfies both C1 and C2. b. The criterion in C1 is satisfied when the evidence shows that you rely, on an ongoing basis, upon medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s), to diminish the symptoms and signs of your mental disorder (see 112.00D). We consider that you receive ongoing medical treatment when the medical evidence establishes that you obtain medical treatment with a frequency consistent with accepted medical practice for the type of treatment or evaluation required for your medical condition. We will consider periods of inconsistent treatment or lack of compliance with treatment that may result from your mental disorder. If the evidence indicates that the inconsistent treatment or lack of compliance is a feature of your mental disorder, and it has led to an exacerbation of your symptoms and signs, we will not use it as evidence to support a finding that you have not received ongoing medical treatment as required by this paragraph. c. The criterion in C2 is satisfied when the evidence shows that, despite your diminished symptoms and signs, you have achieved only marginal adjustment. “Marginal adjustment” means that your adaptation to the requirements of daily life is fragile; that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life. We will consider that you have achieved only marginal adjustment when the evidence shows that changes or increased demands have led to exacerbation of your symptoms and signs and to deterioration in your functioning; for example, you have become unable to function outside of your home or a more restrictive setting, without substantial psychosocial supports (see 112.00D). Such deterioration may have necessitated a significant change in medication or other treatment. Similarly, because of the nature of your mental disorder, evidence may document episodes of deterioration that have required you to be hospitalized or absent from school, making it difficult for you to sustain age-appropriate activity over time. H. How do we document and evaluate intellectual disorder under 112.05? 1. General. 2. Establishing significantly subaverage general intellectual functioning. a. Definition. b. Psychometric standards. c. Qualified specialist. d. Responsibility for conclusions based on testing. (i) The data obtained in testing; (ii) Your developmental history, including when your signs and symptoms began; (iii) Information about how you function on a daily basis in a variety of settings; and (iv) Clinical observations made during the testing period, such as your ability to sustain attention, concentration, and effort; to relate appropriately to the examiner; and to perform tasks independently without prompts or reminders. 3. Establishing significant deficits in adaptive functioning. a. Definition. b. Evidence. (i) Medical sources, including their clinical observations; (ii) Standardized tests of adaptive functioning (see 112.00H3c); (iii) Third party information, such as a report of your functioning from a family member or your caregiver; (iv) School records; (v) A teacher questionnaire; (vi) Reports from employers or supervisors; and (vii) Your own statements about how you handle all of your daily activities. c. Standardized tests of adaptive functioning. d. Standardized developmental assessments. e. How we consider common everyday activities. (i) The fact that you engage in common everyday activities, such as caring for your personal needs, preparing simple meals, or driving a car, will not always mean that you do not have deficits in adaptive functioning as required by 112.05B2. You may demonstrate both strengths and deficits in your adaptive functioning. However, a lack of deficits in one area does not negate the presence of deficits in another area. When we assess your adaptive functioning, we will consider all of your activities and your performance of them. (ii) Our conclusions about your adaptive functioning rest on the quality of your daily activities and whether you do them age-appropriately. If you receive help in performing your activities, we need to know the kind, extent, and frequency of help you receive in order to perform them. We will not assume that your ability to do some common everyday activities, or to do some things without help or support, demonstrates that your mental disorder does not meet the requirements of 112.05B2. (See 112.00D regarding the factors we consider when we evaluate your functioning, including how we consider any help or support you receive.) f. How we consider work activity. I. What additional considerations do we use to evaluate developmental disorders of infants and toddlers? 1. General. 2. Age and typical development in early childhood. a. Prematurity and age. b. Developmental assessment. c. Variation. 3. Evidence. a. Standardized developmental assessments. b. Narrative developmental reports. 4. What are the paragraph B criteria for 112.14? a. General. b. Definitions of the 112.14 paragraph B developmental abilities. (i) Ability to plan and control motor movement. (ii) Ability to learn and remember. (iii) Ability to interact with others. (iv) Ability to regulate physiological functions, attention, emotion, and behavior. 5. Deferral of determination. a. Full-term infants. b. Premature infants. c. When we will not defer a determination. J. How do we evaluate substance use disorders? K. How do we evaluate mental disorders that do not meet one of the mental disorders listings? 1. These listings include only examples of mental disorders that we consider serious enough to result in marked and severe functional limitations. If your severe mental disorder does not meet the criteria of any of these listings, we will consider whether you have an impairment(s) that meets the criteria of a listing in another body system. You may have another impairment(s) that is secondary to your mental disorder. For example, if you have an eating disorder and develop a cardiovascular impairment because of it, we will evaluate your cardiovascular impairment under the listings for the cardiovascular body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing (see § 416.926 of this chapter). 3. If your impairment(s) does not meet or medically equal a listing, we will consider whether you have an impairment(s) that functionally equals the listings (see § 416.926a of this chapter). 4. Although we present these alternatives in a specific sequence above, each represents listing-level severity, and we can evaluate your claim in any order. For example, if the factors of your case indicate that the combination of your impairments may functionally equal the listings, we may start with that analysis. We use the rules in § 416.994a of this chapter, as appropriate, when we decide whether you continue to be disabled. 112.01 Category of Impairments, Mental Disorders 112.02 Neurocognitive disorders A. Medical documentation of a clinically significant deviation in normal cognitive development or by significant cognitive decline from a prior level of functioning in one 1. Complex attention; 2. Executive function; 3. Learning and memory; 4. Language; 5. Perceptual-motor; or 6. Social cognition. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 112.00F): 1. Understand, remember, or apply information (see 112.00E1). 2. Interact with others (see 112.00E2). 3. Concentrate, persist, or maintain pace (see 112.00E3). 4. Adapt or manage oneself (see 112.00E4). OR C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 112.00G2b); and 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 112.00G2c). 112.03 Schizophrenia spectrum and other psychotic disorders A. Medical documentation of one 1. Delusions or hallucinations; 2. Disorganized thinking (speech); or 3. Grossly disorganized behavior or catatonia. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 112.00F): 1. Understand, remember, or apply information (see 112.00E1). 2. Interact with others (see 112.00E2). 3. Concentrate, persist, or maintain pace (see 112.00E3). 4. Adapt or manage oneself (see 112.00E4). OR C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 112.00G2b); and 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 112.00G2c). 112.04 Depressive, bipolar and related disorders A. Medical documentation of the requirements of paragraph 1, 2, or 3: 1. Depressive disorder, characterized by five a. Depressed or irritable mood; b. Diminished interest in almost all activities; c. Appetite disturbance with change in weight (or a failure to achieve an expected weight gain); d. Sleep disturbance; e. Observable psychomotor agitation or retardation; f. Decreased energy; g. Feelings of guilt or worthlessness; h. Difficulty concentrating or thinking; or i. Thoughts of death or suicide. 2. Bipolar disorder, characterized by three a. Pressured speech; b. Flight of ideas; c. Inflated self-esteem; d. Decreased need for sleep; e. Distractibility; f. Involvement in activities that have a high probability of painful consequences that are not recognized; or g. Increase in goal-directed activity or psychomotor agitation. 3. Disruptive mood dysregulation disorder, beginning prior to age 10, and all a. Persistent, significant irritability or anger; b. Frequent, developmentally inconsistent temper outbursts; and c. Frequent aggressive or destructive behavior. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 112.00F): 1. Understand, remember, or apply information (see 112.00E1). 2. Interact with others (see 112.00E2). 3. Concentrate, persist, or maintain pace (see 112.00E3). 4. Adapt or manage oneself (see 112.00E4). OR C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 112.00G2b); and 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 112.00G2c). 112.05 Intellectual disorder A. Satisfied by 1 and 2 (see 112.00H): 1. Significantly subaverage general intellectual functioning evident in your cognitive inability to function at a level required to participate in standardized testing of intellectual functioning; and 2. Significant deficits in adaptive functioning currently manifested by your dependence upon others for personal needs (for example, toileting, eating, dressing, or bathing) in excess of age-appropriate dependence. OR B. Satisfied by 1 and 2 (see 112.00H): 1. Significantly subaverage general intellectual functioning evidenced by a or b: a. A full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence; or b. A full scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below on an individually administered standardized test of general intelligence; and 2. Significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: a. Understand, remember, or apply information (see 112.00E1); or b. Interact with others (see 112.00E2); or c. Concentrate, persist, or maintain pace (see 112.00E3); or d. Adapt or manage oneself (see 112.00E4). 112.06 Anxiety and obsessive-compulsive disorders A. Medical documentation of the requirements of paragraph 1, 2, 3, or 4: 1. Anxiety disorder, characterized by one a. Restlessness; b. Easily fatigued; c. Difficulty concentrating; d. Irritability; e. Muscle tension; or f. Sleep disturbance. 2. Panic disorder or agoraphobia, characterized by one a. Panic attacks followed by a persistent concern or worry about additional panic attacks or their consequences; or b. Disproportionate fear or anxiety about at least two different situations (for example, using public transportation, being in a crowd, being in a line, being outside of your home, being in open spaces). 3. Obsessive-compulsive disorder, characterized by one a. Involuntary, time-consuming preoccupation with intrusive, unwanted thoughts; or; b. Repetitive behaviors that appear aimed at reducing anxiety. 4. Excessive fear or anxiety concerning separation from those to whom you are attached. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 112.00F): 1. Understand, remember, or apply information (see 112.00E1). 2. Interact with others (see 112.00E2). 3. Concentrate, persist, or maintain pace (see 112.00E3). 4. Adapt or manage oneself (see 112.00E4). OR C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 112.00G2b); and 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 112.00G2c). 112.07 Somatic symptom and related disorders A. Medical documentation of one 1. Symptoms of altered voluntary motor or sensory function that are not better explained by another medical or mental disorder; or 2. One or more somatic symptoms that are distressing, with excessive thoughts, feelings, or behaviors related to the symptoms. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 112.00F): 1. Understand, remember, or apply information (see 112.00E1). 2. Interact with others (see 112.00E2). 3. Concentrate, persist, or maintain pace (see 112.00E3). 4. Adapt or manage oneself (see 112.00E4). 112.08 Personality and impulse-control disorders A. Medical documentation of a pervasive pattern of one 1. Distrust and suspiciousness of others; 2. Detachment from social relationships; 3. Disregard for and violation of the rights of others; 4. Instability of interpersonal relationships; 5. Excessive emotionality and attention seeking; 6. Feelings of inadequacy; 7. Excessive need to be taken care of; 8. Preoccupation with perfectionism and orderliness; or 9. Recurrent, impulsive, aggressive behavioral outbursts. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 112.00F): 1. Understand, remember, or apply information (see 112.00E1). 2. Interact with others (see 112.00E2). 3. Concentrate, persist, or maintain pace (see 112.00E3). 4. Adapt or manage oneself (see 112.00E4). 112.09 [Reserved] 112.10 Autism spectrum disorder A. Medical documentation of both 1. Qualitative deficits in verbal communication, nonverbal communication, and social interaction; and 2. Significantly restricted, repetitive patterns of behavior, interests, or activities. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 112.00F): 1. Understand, remember, or apply information (see 112.00E1). 2. Interact with others (see 112.00E2). 3. Concentrate, persist, or maintain pace (see 112.00E3). 4. Adapt or manage oneself (see 112.00E4). 112.11 Neurodevelopmental disorders A. Medical documentation of the requirements of paragraph 1, 2, or 3: 1. One a. Frequent distractibility, difficulty sustaining attention, and difficulty organizing tasks; or b. Hyperactive and impulsive behavior (for example, difficulty remaining seated, talking excessively, difficulty waiting, appearing restless, or behaving as if being “driven by a motor”). 2. Significant difficulties learning and using academic skills; or 3. Recurrent motor movement or vocalization. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 112.00F): 1. Understand, remember, or apply information (see 112.00E1). 2. Interact with others (see 112.00E2). 3. Concentrate, persist, or maintain pace (see 112.00E3). 4. Adapt or manage oneself (see 112.00E4). 112.12 [Reserved] 112.13 Eating disorders A. Medical documentation of a persistent alteration in eating or eating-related behavior that results in a change in consumption or absorption of food and that significantly impairs physical or psychological health. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 112.00F): 1. Understand, remember, or apply information (see 112.00E1). 2. Interact with others (see 112.00E2). 3. Concentrate, persist, or maintain pace (see 112.00E3). 4. Adapt or manage oneself (see 112.00E4). 112.14 Developmental disorders in infants and toddlers A. Medical documentation of one 1. A delay or deficit in the development of age-appropriate skills; or 2. A loss of previously acquired skills. AND B. Extreme limitation of one, or marked limitation of two, of the following developmental abilities (see 112.00F): 1. Plan and control motor movement (see 112.00I4b(i)). 2. Learn and remember (see 112.00I4b(ii)). 3. Interact with others (see 112.00I4b(iii)). 4. Regulate physiological functions, attention, emotion, and behavior (see 112.00I4b(iv)). 112.15 Trauma- and stressor-related disorders A. Medical documentation of the requirements of paragraph 1 or 2: 1. Posttraumatic stress disorder, characterized by all a. Exposure to actual or threatened death, serious injury, or violence; b. Subsequent involuntary re-experiencing of the traumatic event (for example, intrusive memories, dreams, or flashbacks); c. Avoidance of external reminders of the event; d. Disturbance in mood and behavior (for example, developmental regression, socially withdrawn behavior); and e. Increases in arousal and reactivity (for example, exaggerated startle response, sleep disturbance). 2. Reactive attachment disorder, characterized by two a. Rarely seeks comfort when distressed; b. Rarely responds to comfort when distressed; or c. Episodes of unexplained emotional distress. AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 112.00F): 1. Understand, remember, or apply information (see 112.00E1). 2. Interact with others (see 112.00E2). 3. Concentrate, persist, or maintain pace (see 112.00E3). 4. Adapt or manage oneself (see 112.00E4). OR C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 112.00G2b); and 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 112.00G2c). 113.00 Cancer (Malignant Neoplastic Diseases) A. What impairments do these listings cover? B. What do we consider when we evaluate cancer under these listings? 1. Origin of the cancer. 2. Extent of involvement. 3. Duration, frequency, and response to anticancer therapy. 4. Effects of any post-therapeutic residuals. C. How do we apply these listings? D. What evidence do we need? 1. We need medical evidence that specifies the type, extent, and site of the primary, recurrent, or metastatic lesion. When the primary site cannot be identified, we will use evidence documenting the site(s) of metastasis to evaluate the impairment under 13.27 in part A. 2. For operative procedures, including a biopsy or a needle aspiration, we generally need a copy of both the: a. Operative note, and b. Pathology report. 3. When we cannot get these documents, we will accept the summary of hospitalization(s) or other medical reports. This evidence should include details of the findings at surgery and, whenever appropriate, the pathological findings. 4. In some situations, we may also need evidence about recurrence, persistence, or progression of the cancer, the response to therapy, and any significant residuals. (See 113.00G.) E. When do we need longitudinal evidence? 1. Cancer with distant metastases. 2. Other cancers. 3. Types of treatment. a. Whenever the initial planned therapy is a single modality, enough time must pass to allow a determination about whether the therapy will achieve its intended effect. If the treatment fails, the failure often happens within 6 months after treatment starts, and there will often be a change in the treatment regimen. b. Whenever the initial planned therapy is multimodal, we usually cannot make a determination about the effectiveness of the therapy until we can determine the effects of all the planned modalities. In some cases, we may need to defer adjudication until we can assess the effectiveness of therapy. However, we do not need to defer adjudication to determine whether the therapy will achieve its intended effect if we can make a fully favorable determination or decision based on the length and effects of therapy, or the residuals of the cancer or therapy (see 113.00G). F. How do we evaluate impairments that do not meet one of the cancer listings? 1. These listings are only examples of cancers that we consider severe enough to result in marked and severe functional limitations. If your severe impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that meets the criteria of a listing in another body system. 2. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. (See §§ 404.1526 and 416.926 of this chapter.) If your impairment(s) does not meet or medically equal a listing, we will also consider whether you have an impairment(s) that functionally equals the listings. (See § 416.926a of this chapter.) We use the rules in § 416.994a of this chapter when we decide whether you continue to be disabled. G. How do we consider the effects of anticancer therapy? 1. How we consider the effects of anticancer therapy under the listings. 2. Effects can vary widely. a. We consider each case on an individual basis because the therapy and its toxicity may vary widely. We will request a specific description of the therapy, including these items: i. Drugs given. ii. Dosage. iii. Frequency of drug administration. iv. Plans for continued drug administration. v. Extent of surgery. vi. Schedule and fields of radiation therapy. b. We will also request a description of the complications or adverse effects of therapy, such as the following: i. Continuing gastrointestinal symptoms. ii. Persistent weakness. iii. Neurological complications. iv. Cardiovascular complications. v. Reactive mental disorders. 3. Effects of therapy may change. 4. When the initial anticancer therapy is effective. H. How long do we consider your impairment to be disabling? 1. In some listings, we specify that we will consider your impairment to be disabling until a particular point in time (for example, until at least 12 months from the date of transplantation). We may consider your impairment to be disabling beyond this point when the medical and other evidence justifies it. 2. When a listing does not contain such a specification, we will consider an impairment(s) that meets or medically equals a listing in this body system to be disabling until at least 3 years after onset of complete remission. When the impairment(s) has been in complete remission for at least 3 years, that is, the original tumor or a recurrence (or relapse) and any metastases have not been evident for at least 3 years, the impairment(s) will no longer meet or medically equal the criteria of a listing in this body system. 3. Following the appropriate period, we will consider any residuals, including residuals of the cancer or therapy (see 113.00G), in determining whether you are disabled. If you have a recurrence or relapse of your cancer, your impairment may meet or medically equal one of the listings in this body system again. I. What do we mean by the following terms? 1. Anticancer therapy 2. Metastases 3. Multimodal therapy a. Surgery followed by chemotherapy or radiation. b. Chemotherapy followed by surgery. c. Chemotherapy and concurrent radiation. 4. Persistent 5. Progressive 6. Recurrent or relapse J. Can we establish the existence of a disabling impairment prior to the date of the evidence that shows the cancer satisfies the criteria of a listing? 1. The type of cancer and its location. 2. The extent of involvement when the cancer was first demonstrated. 3. Your symptoms. K. How do we evaluate specific cancers? 1. Lymphoma. a. We provide criteria for evaluating lymphomas that are disseminated or have not responded to anticancer therapy in 113.05. b. Lymphoblastic lymphoma is treated with leukemia-based protocols, so we evaluate this type of cancer under 113.06. 2. Leukemia. a. Acute leukemia. b. Chronic myelogenous leukemia (CML). c. Juvenile chronic myelogenous leukemia (JCML). d. Elevated white cell count. 3. Malignant solid tumors. 4. Primary central nervous system (CNS) cancers. a. The CNS cancers listed in 113.13A are highly malignant and respond poorly to treatment, and therefore we do not require additional criteria to evaluate them. We do not list pituitary gland cancer (for example, pituitary gland carcinoma) in 113.13A, although this CNS cancer is highly malignant and responds poorly to treatment. We evaluate pituitary gland cancer under 113.13A and do not require additional criteria to evaluate it. b. We consider a CNS tumor to be malignant if it is classified as Grade II, Grade III, or Grade IV under the World Health Organization (WHO) classification of tumors of the CNS ( WHO Classification of Tumours of the Central Nervous System, c. We evaluate benign (for example, WHO Grade I) CNS tumors under 111.05. We evaluate metastasized CNS cancers from non-CNS sites under the primary cancers (see 113.00C). We evaluate any complications of CNS cancers, such as resultant neurological or psychological impairments, under the criteria for the affected body system. 5. Retinoblastoma. 6. Melanoma. L. How do we evaluate cancer treated by bone marrow or stem cell transplantation, including transplantation using stem cells from umbilical cord blood? 1. Acute leukemia (including all types of lymphoblastic lymphomas and JCML) or accelerated or blast phase of CML. 2. Lymphoma or chronic phase of CML. 3. Evaluating disability after the appropriate time period has elapsed. a. Graft-versus-host (GVH) disease. b. Immunosuppressant therapy, such as frequent infections. c. Significant deterioration of other organ systems. 113.01 Category of Impairments, Cancer (Malignant Neoplastic Diseases) 113.01 Category of Impairments, Malignant Neoplastic Diseases 113.03 Malignant solid tumors. A. For 24 months from the date of initial diagnosis. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. OR B. For 24 months from the date of recurrence of active disease. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. 113.05 Lymphoma (excluding all types of lymphoblastic lymphomas—113.06). A. Non-Hodgkin lymphoma (including Burkitt's and anaplastic large cell), with either 1 or 2: 1. Bone marrow, brain, spinal cord, liver, or lung involvement at initial diagnosis. Consider under a disability for 24 months from the date of diagnosis. Thereafter, evaluate under 113.05A2, or any residual impairments(s) under the criteria for the affected body system. 2. Persistent or recurrent following initial anticancer therapy. OR B. Hodgkin lymphoma, with either 1 or 2: 1. Bone marrow, brain, spinal cord, liver, or lung involvement at initial diagnosis. Consider under a disability for 24 months from the date of diagnosis. Thereafter, evaluate under 113.05B2, or any residual impairment(s) under the criteria for the affected body system. 2. Persistent or recurrent following initial anticancer therapy. OR C. With bone marrow or stem cell transplantation. Consider under a disability until at least 12 months from the date of transplantation. Thereafter, evaluate any residual impairment(s) under the criteria of the affected body system. OR D. Mantle cell lymphoma. 113.06 Leukemia. A. Acute leukemia (including all types of lymphoblastic lymphomas and juvenile chronic myelogenous leukemia (JCML)). Consider under a disability until at least 24 months from the date of diagnosis or relapse, or at least 12 months from the date of bone marrow or stem cell transplantation, whichever is later. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. OR B. Chronic myelogenous leukemia (except JCML), as described in 1 or 2: 1. Accelerated or blast phase (see 113.00K2b). Consider under a disability until at least 24 months from the date of diagnosis or relapse, or at least 12 months from the date of bone marrow or stem cell transplantation, whichever is later. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. 2. Chronic phase, as described in a or b: a. Consider under a disability until at least 12 months from the date of bone marrow or stem cell transplantation. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. b. Progressive disease following initial antineoplastic therapy. 113.09 Thyroid gland. A. Anaplastic (undifferentiated) carcinoma. OR B. Carcinoma with metastases beyond the regional lymph nodes progressive despite radioactive iodine therapy. OR C. Medullary carcinoma with metastases beyond the regional lymph nodes. 113.12 Retinoblastoma. A. With extension beyond the orbit. OR B. Persistent or recurrent following initial anticancer therapy. OR C. With regional or distant metastases. 113.13 Nervous system. A. Glioblastoma multiforme, ependymoblastoma, and diffuse intrinsic brain stem gliomas (see 113.00K4a). B. Any Grade III or Grade IV CNS cancer (see 113.00K4b), including astrocytomas, sarcomas, and medulloblastoma and other primitive neuroectodermal tumors (PNETs). C. Any primary CNS cancer, as described in 1 or 2: 1. Metastatic. 2. Progressive or recurrent following initial anticancer therapy. 113.21 Neuroblastoma. A. With extension across the midline. OR B. With distant metastases. OR C. Recurrent. OR D. With onset at age 1 year or older. 113.29 Malignant melanoma A. Recurrent (except an additional primary melanoma at a different site, which is not considered to be recurrent disease) following either 1 or 2: 1. Wide excision (skin melanoma). 2. Enucleation of the eye (ocular melanoma). OR B. With metastases as described in 1, 2, or 3: 1. Metastases to one or more clinically apparent nodes; that is, nodes that are detected by imaging studies (excluding lymphoscintigraphy) or by clinical evaluation (palpable). 2. If the nodes are not clinically apparent, with metastases to four or more nodes. 3. Metastases to adjacent skin (satellite lesions) or distant sites (for example, liver, lung, or brain). OR C. Mucosal melanoma. 114.00 Immune System Disorders A. What disorders do we evaluate under the immune system disorders listings? 1. We evaluate immune system disorders that cause dysfunction in one or more components of your immune system. a. The dysfunction may be due to problems in antibody production, impaired cell-mediated immunity, a combined type of antibody/cellular deficiency, impaired phagocytosis, or complement deficiency. b. Immune system disorders may result in recurrent and unusual infections, or inflammation and dysfunction of the body's own tissues. Immune system disorders can cause a deficit in a single organ or body system that results in extreme (that is, very serious) loss of function. They can also cause lesser degrees of limitations in two or more organs or body systems, and when associated with symptoms or signs, such as severe fatigue, fever, malaise, diffuse musculoskeletal pain, or involuntary weight loss, can also result in extreme limitation. In children, immune system disorders or their treatment may also affect growth, development, and the performance of age-appropriate activities. c. We organize the discussions of immune system disorders in three categories: Autoimmune disorders; Immune deficiency disorders, excluding human immunodeficiency virus (HIV) infection; and HIV infection. 2. Autoimmune disorders (114.00D). 3. Immune deficiency disorders, excluding HIV infection (114.00E). primary acquired. 4. Human immunodeficiency virus (HIV) infection (114.00F). B. What information do we need to show that you have an immune system disorder? Generally, we need your medical history, a report(s) of a physical examination, a report(s) of laboratory findings, and in some instances, appropriate medically acceptable imaging or tissue biopsy reports to show that you have an immune system disorder. Therefore, we will make every reasonable effort to obtain your medical history, medical findings, and results of laboratory tests. We explain the information we need in more detail in the sections below. C. Definitions 1. Appropriate medically acceptable imaging 2. Constitutional symptoms or signs, Severe fatigue Malaise 3. Disseminated 4. Dysfunction 5. Extra-articular 6. Documented medical need 7. Fine and gross movements 8. Major joint of an upper or a lower extremity 9. Persistent 10. Recurrent 11. Resistant to treatment 12. Severe D. How do we document and evaluate the listed autoimmune disorders? 1. Systemic lupus erythematosus (114.02). a. General. b. Documentation of SLE. Primer on the Rheumatic Diseases 2. Systemic vasculitis (114.03). a. General. (i) Vasculitis is an inflammation of blood vessels. It may occur acutely in association with adverse drug reactions, certain chronic infections, and occasionally, malignancies. More often, it is chronic and the cause is unknown. Symptoms vary depending on which blood vessels are involved. Systemic vasculitis may also be associated with other autoimmune disorders; for example, SLE or dermatomyositis. (ii) Children can develop the vasculitis of Kawasaki disease, of which the most serious manifestation is formation of coronary artery aneurysms and related complications. We evaluate heart problems related to Kawasaki disease under the criteria in the cardiovascular listings (104.00). Children can also develop the vasculitis of anaphylactoid purpura (Henoch-Schoenlein purpura), which may cause intestinal and renal disorders. We evaluate intestinal and renal disorders related to vasculitis of anaphylactoid purpura under the criteria in the digestive (105.00) or genitourinary (106.00) listings. Other clinical patterns include, but are not limited to, polyarteritis nodosa, Takayasu's arteritis (aortic arch arteritis), and Wegener's granulomatosis. b. Documentation of systemic vasculitis. 3. Systemic sclerosis (scleroderma) (114.04). a. General. b. Diffuse cutaneous systemic sclerosis. c. Localized scleroderma (linear scleroderma and morphea). (i) Localized scleroderma (linear scleroderma and morphea) is more common in children than systemic scleroderma. To assess the severity of the impairment, we need a description of the extent of involvement of linear scleroderma and the location of the lesions. For example, linear scleroderma involving the arm but not crossing any joints is not as functionally limiting as sclerodactyly (scleroderma localized to the fingers). Linear scleroderma of a lower extremity involving skin thickening and atrophy of underlying muscle or bone can result in contractures and leg length discrepancy. In such cases, we may evaluate your impairment under the musculoskeletal listings (101.00). (ii) When there is isolated morphea of the face causing facial disfigurement from unilateral hypoplasia of the mandible, maxilla, zygoma, or orbit, adjudication may be more appropriate under the criteria in the affected body system, such as special senses and speech (102.00) or mental disorders (112.00). (iii) Chronic variants of these syndromes include disseminated morphea, Shulman's disease (diffuse fasciitis with eosinophilia), and eosinophilia-myalgia syndrome (often associated with toxins such as toxic oil or contaminated tryptophan), all of which can impose medically severe musculoskeletal dysfunction and may also lead to restrictive pulmonary disease. We evaluate these variants of the disease under the criteria in the musculoskeletal listings (101.00) or respiratory system listings (103.00). d. Documentation of systemic sclerosis (scleroderma). 4. Polymyositis and dermatomyositis (114.05). a. General. (i) Polymyositis and dermatomyositis are related disorders that are characterized by an inflammatory process in striated muscle, occurring alone or in association with other autoimmune disorders. The most common manifestations are symmetric weakness, and less frequently, pain and tenderness of the proximal limb-girdle (shoulder or pelvic) musculature. There may also be involvement of the cervical, cricopharyngeal, esophageal, intercostal, and diaphragmatic muscles. (ii) Polymyositis occurs rarely in children; the more common presentation in children is dermatomyositis with symmetric proximal muscle weakness and characteristic skin findings. The clinical course of dermatomyositis can be more severe when it is accompanied by systemic vasculitis rather than just localized to striated muscle. Late in the disease, some children with dermatomyositis develop calcinosis of the skin and subcutaneous tissues, muscles, and joints. We evaluate the involvement of other organs/body systems under the criteria for the listings in the affected body system. b. Documentation of polymyositis and dermatomyositis. c. Additional information about how we evaluate polymyositis and dermatomyositis under the listings. (i) In newborn and younger infants (birth to attainment of age 1), we consider muscle weakness that affects motor skills, such as head control, reaching, grasping, taking solids, or self-feeding, under 114.05A. In older infants and toddlers (age 1 to attainment of age 3), we also consider muscle weakness affecting your ability to roll over, sit, crawl, or walk under 114.05A. (ii) If you are of preschool age through adolescence (age 3 to attainment of age 18), weakness of your pelvic girdle muscles that results in your inability to rise independently from a squatting or sitting position or to climb stairs may be an indication that you are unable to walk without assistance. Weakness of your shoulder girdle muscles may result in your inability to perform lifting, carrying, and reaching overhead, and also may seriously affect your ability to perform activities requiring fine movements. We evaluate these limitations under 114.05A. 5. Undifferentiated and mixed connective tissue disease (114.06). a. General. b. Documentation of undifferentiated and mixed connective tissue disease. 6. Inflammatory arthritis (114.09). a. General. b. Inflammatory arthritis involving the axial spine (spondyloarthropathy). (i) Reactive arthropathies; (ii) Juvenile ankylosing spondylitis; (iii) Psoriatic arthritis; (iv) SEA syndrome (seronegative enthesopathy arthropathy syndrome); (v) Behçet's disease; and (vi) Inflammatory bowel disease. c. Inflammatory arthritis involving the peripheral joints. (i) Juvenile rheumatoid arthritis; (ii) Sjöogren's syndrome; (iii) Psoriatic arthritis; (iv) Crystal deposition disorders (gout and pseudogout); (v) Lyme disease; and (vi) Inflammatory bowel disease. d. Documentation of inflammatory arthritis. Primer on the Rheumatic Diseases e. How we evaluate inflammatory arthritis under the listings. (i) Listing-level severity in 114.09A and 114.09C1 is shown by the presence of an impairment-related physical limitation of functioning. In 114.09C1, if you have the required ankylosis (fixation) of your cervical or dorsolumbar spine, we will find that you have a listing-level impairment-related physical limitation in your ability to see in front of you, above you, and to the side, even though you might not require bilateral upper limb assistance. (ii) Listing-level severity in 114.09B and 114.09C2 is shown by inflammatory arthritis that involves various combinations of complications (such as inflammation or deformity, extra-articular features, repeated manifestations, and constitutional symptoms and signs) of one or more major joints in an upper or a lower extremity (see 114.00C8) or other joints. Extra-articular impairments may also meet listings in other body systems. (iii) Extra-articular features of inflammatory arthritis may involve any body system; for example: Musculoskeletal (heel enthesopathy), ophthalmologic (iridocyclitis, keratoconjunctivitis sicca, uveitis), pulmonary (pleuritis, pulmonary fibrosis or nodules, restrictive lung disease), cardiovascular (aortic valve insufficiency, arrhythmias, coronary arteritis, myocarditis, pericarditis, Raynaud's phenomenon, systemic vasculitis), renal (amyloidosis of the kidney), hematologic (chronic anemia, thrombocytopenia), neurologic (peripheral neuropathy, radiculopathy, spinal cord or cauda equina compression with sensory and motor loss), mental (cognitive dysfunction, poor memory), and immune system (Felty's syndrome (hypersplenism with compromised immune competence)). (iv) If both inflammation and chronic deformities are present, we evaluate your impairment under the criteria of any appropriate listing. 7. Sjögren's syndrome (114.10). a. General. (i) Sjögren's syndrome is an immune-mediated disorder of the exocrine glands. Involvement of the lacrimal and salivary glands is the hallmark feature, resulting in symptoms of dry eyes and dry mouth, and possible complications, such as corneal damage, blepharitis (eyelid inflammation), dysphagia (difficulty in swallowing), dental caries, and the inability to speak for extended periods of time. Involvement of the exocrine glands of the upper airways may result in persistent dry cough. (ii) Many other organ systems may be involved, including musculoskeletal (arthritis, myositis), respiratory (interstitial fibrosis), gastrointestinal (dysmotility, dysphagia, involuntary weight loss), genitourinary (interstitial cystitis, renal tubular acidosis), skin (purpura, vasculitis,), neurologic (central nervous system disorders, cranial and peripheral neuropathies), mental (cognitive dysfunction, poor memory), and neoplastic (lymphoma). Severe fatigue and malaise are frequently reported. Sjögren's syndrome may be associated with other autoimmune disorders (for example, rheumatoid arthritis or SLE); usually the clinical features of the associated disorder predominate. b. Documentation of Sjögren's syndrome. Primer on the Rheumatic Diseases E. How do we document and evaluate immune deficiency disorders, excluding HIV infection? 1. General. a. Immune deficiency disorders can be classified as: (i) Primary (ii) Acquired; b. Primary immune deficiency disorders are seen mainly in children. However, recent advances in the treatment of these disorders have allowed many affected children to survive well into adulthood. Occasionally, these disorders are first diagnosed in adolescence or adulthood. 2. Documentation of immune deficiency disorders. 3. Immune deficiency disorders treated by stem cell transplantation. a. Evaluation in the first 12 months. b. Evaluation after the 12-month period has elapsed. (i) Graft-versus-host (GVH) disease. (ii) Immunosuppressant therapy, such as frequent infections. (iii) Significant deterioration of other organ systems. 4. Medication-induced immune suppression. a. The frequency and severity of infections. b. Residuals from the organ transplant itself, after the 12-month period has elapsed. c. Significant deterioration of other organ systems. F. How do we document and evaluate HIV infection? 1. Documentation of HIV infection. a. Definitive documentation of HIV infection. (i) HIV antibody screening test (for example, enzyme immunoassay, or EIA), confirmed by a supplemental HIV antibody test such as the Western blot (immunoblot) or immunofluorescence assay, for any child age 18 months or older. (ii) HIV nucleic acid (DNA or RNA) detection test (for example, polymerase chain reaction, or PCR). (iii) HIV p24 antigen (p24Ag) test, for any child age 1 month or older. (iv) Isolation of HIV in viral culture. (v) Other tests that are highly specific for detection of HIV and that are consistent with the prevailing state of medical knowledge. b. We will make every reasonable effort to obtain the results of your laboratory testing. Pursuant to § 416.919f of this chapter, we will purchase examinations or tests necessary to make a determination in your claim if no other acceptable documentation exists. c. Other acceptable documentation of HIV infection. (i) We will accept a persuasive report from a physician that a positive diagnosis of your HIV infection was confirmed by an appropriate laboratory test(s), such as those described in 114.00F1a. To be persuasive, this report must state that you had the appropriate definitive laboratory test(s) for diagnosing your HIV infection and provide the results. The report must also be consistent with the remaining evidence of record. (ii) We may also document HIV infection by the medical history, clinical and laboratory findings, and diagnosis(es) indicated in the medical evidence, provided that such documentation is consistent with the prevailing state of medical knowledge and clinical practice and is consistent with the other evidence in your case record. For example, we will accept a diagnosis of HIV infection without definitive laboratory evidence of the HIV infection if you have an opportunistic disease that is predictive of a defect in cell-mediated immunity (for example, toxoplasmosis of the brain or Pneumocystis 2. Documentation of the manifestations of HIV infection. a. Definitive documentation of manifestations of HIV infection. b. We will make every reasonable effort to obtain the results of your laboratory testing. Pursuant to § 416.919f of this chapter, we will purchase examinations or tests necessary to make a determination of your claim if no other acceptable documentation exists. c. Other acceptable documentation of manifestations of HIV infection. (i) We will accept a persuasive report from a physician that a positive diagnosis of your manifestation of HIV infection was confirmed by an appropriate laboratory test(s). To be persuasive, this report must state that you had the appropriate definitive laboratory test(s) for diagnosing your manifestation of HIV infection and provide the results. The report must also be consistent with the remaining evidence of record. (ii) We may also document manifestations of HIV infection without the definitive laboratory evidence described in 114.00F2a, provided that such documentation is consistent with the prevailing state of medical knowledge and clinical practice and is consistent with the other evidence in your case record. For example, many conditions are now commonly diagnosed based on some or all of the following: Medical history, clinical manifestations, laboratory findings (including appropriate medically acceptable imaging), and treatment responses. In such cases, we will make every reasonable effort to obtain full details of the history, medical findings, and results of testing. 3. Disorders associated with HIV infection (114.11A-E). a. Multicentric Castleman disease localized b. Primary central nervous system lymphoma c. Primary effusion lymphoma d. Progressive multifocal leukoencephalopathy e. Pulmonary Kaposi sarcoma 4. CD4 measurement (114.11F). 5. Complications of HIV infection requiring hospitalization (114.11G). a. Complications of HIV infection may include infections (common or opportunistic), cancers, and other conditions. Examples of complications that may result in hospitalization include: Depression; diarrhea; immune reconstitution inflammatory syndrome; malnutrition; and PCP and other severe infections. b. Under 114.11G, we require three hospitalizations within a 12-month period that are at least 30 days apart and that result from a complication(s) of HIV infection. The hospitalizations may be for the same complication or different complications of HIV infection and are not limited to the examples of complications that may result in hospitalization listed in 114.00F5a. All three hospitalizations must occur within the period we are considering in connection with your application or continuing disability review. Each hospitalization must last at least 48 hours, including hours in a hospital emergency department immediately before the hospitalization. c. We will use the rules on medical equivalence in § 416.926 of this chapter to evaluate your HIV infection if you have fewer, but longer, hospitalizations, or more frequent, but shorter, hospitalizations, or if you receive nursing, rehabilitation, or other care in alternative settings. 6. Neurological manifestations specific to children (114.11H). 7. Growth failure due to HIV immune suppression (114.11I). a. To evaluate growth failure due to HIV immune suppression, we require documentation of the laboratory values described in 114.11I1 and the growth measurements in 114.11I2 or 114.11I3 within the same consecutive 12-month period. The dates of laboratory findings may be different from the dates of growth measurements. b. Under 114.11I2 and 114.11I3, we use the appropriate table under 105.08B in the digestive system to determine whether a child's growth is less than the third percentile. (i) For children from birth to attainment of age 2, we use the weight-for-length table corresponding to the child's sex (Table I or Table II). (ii) For children from age 2 to attainment of age 18, we use the body mass index (BMI)-for-age corresponding to the child's sex (Table III or Table IV). (iii) BMI is the ratio of a child's weight to the square of his or her height. We calculate BMI using the formulas in the digestive disorders body system (105.00). G. How do we consider the effects of treatment in evaluating your autoimmune disorder, immune deficiency disorder, or HIV infection? 1. General. a. The effects of medications you take. b. Adverse side effects (acute and chronic). c. The intrusiveness and complexity of your treatment (for example, the dosing schedule, need for injections). d. The effect of treatment on your mental functioning (for example, cognitive changes, mood disturbance). e. Variability of your response to treatment (see 114.00G2). f. The interactive and cumulative effects of your treatments. For example, many children with immune system disorders receive treatment both for their immune system disorders and for the manifestations of the disorders or co-occurring impairments, such as treatment for HIV infection and hepatitis C. The interactive and cumulative effects of these treatments may be greater than the effects of each treatment considered separately. g. The duration of your treatment. h. Any other aspects of treatment that may interfere with your ability to function. 2. Variability of your response to treatment. 3. How we evaluate the effects of treatment for autoimmune disorders on your ability to function. 4. How we evaluate the effects of treatment for immune deficiency disorders, excluding HIV infection, on your ability to function. 5. How we evaluate the effects of treatment for HIV infection on your ability to function. a. General. b. Structured treatment interruptions. 6. When there is no record of ongoing treatment. H. How do we consider your symptoms, including your pain, severe fatigue, and malaise? Your symptoms, including pain, severe fatigue, and malaise, may be important factors in our determination whether your immune system disorder(s) meets or medically equals a listing or in our determination whether you otherwise have marked and severe functional limitations. In order for us to consider your symptoms, you must have medical signs or laboratory findings showing the existence of a medically determinable impairment(s) that could reasonably be expected to produce the symptoms. If you have such an impairment(s), we will evaluate the intensity, persistence, and functional effects of your symptoms using the rules throughout 114.00 and in our other regulations. See §§ 416.921 and 416.929. Additionally, when we assess the credibility of your complaints about your symptoms and their functional effects, we will not draw any inferences from the fact that you do not receive treatment or that you are not following treatment without considering all of the relevant evidence in your case record, including any explanations you provide that may explain why you are not receiving or following treatment. I. How do we consider the impact of your immune system disorder on your functioning? 1. We will consider all relevant information in your case record to determine the full impact of your immune system disorder, including HIV infection, on your ability to function. Functional limitation may result from the impact of the disease process itself on your mental functioning, physical functioning, or both your mental and physical functioning. This could result from persistent or intermittent symptoms, such as depression, diarrhea, severe fatigue, or pain, resulting in a limitation of your ability to acquire information, to concentrate, to persevere at a task, to interact with others, to move about, or to cope with stress. You may also have limitations because of your treatment and its side effects (see 114.00G). 2. Important factors we will consider when we evaluate your functioning include, but are not limited to: Your symptoms (see 114.00H), the frequency and duration of manifestations of your immune system disorder, periods of exacerbation and remission, and the functional impact of your treatment, including the side effects of your medication (see 114.00G). See §§ 416.924a and 416.926a of this chapter for additional guidance on the factors we consider when we evaluate your functioning. 3. We will use the rules in §§ 416.924a and 416.926a of this chapter to evaluate your functional limitations and determine whether your impairment functionally equals the listings. J. How do we evaluate your immune system disorder when it does not meet one of these listings? 1. These listings are only examples of immune system disorders that we consider severe enough to result in marked and severe functional limitations. If your impairment(s) does not meet the criteria of any of these listings, we must also consider whether you have an impairment(s) that satisfies the criteria of a listing in another body system. 2. Children with immune system disorders, including HIV infection, may manifest signs or symptoms of a mental impairment or of another physical impairment. For example, HIV infection may accelerate the onset of conditions such as diabetes or affect the course of or treatment options for diseases such as cardiovascular disease or hepatitis. We may evaluate these impairments under the affected body system.
For example, we will evaluate: a. Growth impairment under 100.00. b. Musculoskeletal involvement, such as surgical reconstruction of a joint, under 101.00. c. Ocular involvement, such as dry eye, under 102.00. d. Respiratory impairments, such as pleuritis, under 103.00. e. Cardiovascular impairments, such as cardiomyopathy, under 104.00. f. Digestive impairments, such as hepatitis (including hepatitis C) or weight loss as a result of HIV infection that affects the digestive system, under 105.00. g. Genitourinary impairments, such as nephropathy, under 106.00. h. Hematologic abnormalities, such as anemia, granulocytopenia, and thrombocytopenia, under 107.00. i. Skin impairments, such as persistent fungal and other infectious skin eruptions, and photosensitivity, under 108.00. j. Neurologic impairments, such as neuropathy or seizures, under 111.00. k. Mental disorders, such as depression, anxiety, or cognitive deficits, under 112.00. l. Allergic disorders, such as asthma or atopic dermatitis, under 103.00 or 108.00 or under the criteria in another affected body system. m. Syphilis or neurosyphilis under the criteria for the affected body system, for example, 102.00 Special senses and speech, 104.00 Cardiovascular system, or 111.00 Neurological. 3. If you have a severe medically determinable impairment(s) that does not meet a listing, we will determine whether your impairment(s) medically equals a listing. (See § 416.926.) If it does not, we will also consider whether you have an impairment(s) that functionally equals the listings. (See § 416.926a.) We use the rules in § 416.994a when we decide whether you continue to be disabled. 114.01 Category of Impairments, Immune System Disorders. 114.02 Systemic lupus erythematosus, A. One of the organs/body systems involved to at least a moderate level of severity; AND B. At least two of the constitutional symptoms and signs (severe fatigue, fever, malaise, or involuntary weight loss). 114.03 Systemic vasculitis, A. One of the organs/body systems involved to at least a moderate level of severity; AND B. At least two of the constitutional symptoms and signs (severe fatigue, fever, malaise, or involuntary weight loss). 114.04 Systemic sclerosis (scleroderma). A. Involvement of two or more organs/body systems, with: 1. One of the organs/body systems involved to at least a moderate level of severity; and 2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss). or B. One of the following: 1. Toe contractures or fixed deformity of one or both feet and medical documentation of at least one a. A documented medical need (see 114.00C6) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)); or b. An inability to use one 2. Finger contractures or fixed deformity in both hands and medical documentation of an inability to use both 3. Atrophy with irreversible damage in one or both lower extremities and medical documentation of at least one a. A documented medical need (see 114.00C6) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)); or b. An inability to use one 4. Atrophy with irreversible damage in both both C. Raynaud's phenomenon, characterized by: 1. Gangrene involving at least two extremities; or 2. Ischemia with ulcerations of toes or fingers and medical documentation of at least one a. A documented medical need (see 114.00C6) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)); or b. An inability to use one c. An inability to use both 114.05 Polymyositis and dermatomyositis. A. Proximal limb-girdle (pelvic or shoulder) muscle weakness and medical documentation of at least one 1. A documented medical need (see 114.00C6) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)); or 2. An inability to use one 3. An inability to use both B. Impaired swallowing (dysphagia) with aspiration due to muscle weakness. or C. Impaired respiration due to intercostal and diaphragmatic muscle weakness. or D. Diffuse calcinosis with limitation of joint mobility or intestinal motility. 114.06 Undifferentiated and mixed connective tissue disease, A. One of the organs/body systems involved to at least a moderate level of severity; AND B. At least two of the constitutional symptoms and signs (severe fatigue, fever, malaise, or involuntary weight loss). 114.07 Immune deficiency disorders, excluding HIV infection. A. One or more of the following infections. The infection(s) must either be resistant to treatment or require hospitalization or intravenous treatment three or more times in a 12-month period. 1. Sepsis; or 2. Meningitis; or 3. Pneumonia; or 4. Septic arthritis; or 5. Endocarditis; or 6. Sinusitis documented by appropriate medically acceptable imaging. or B. Stem cell transplantation as described under 114.00E3. Consider under a disability until at least 12 months from the date of transplantation. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system. 114.08 [Reserved] 114.09 Inflammatory arthritis. A. Persistent inflammation or persistent deformity of: 1. One or more major joints in a lower extremity (see 114.00C8) and medical documentation of at least one a. A documented medical need (see 114.00C6) for a walker, bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 101.00C6e(i)); or b. An inability to use one 2. One or more major joints in each upper extremity (see 114.00C8) and medical documentation of an inability to use both B. Inflammation or deformity in one or more major joints of an upper or lower extremity (see 114.00C8) with: 1. Involvement of two or more organs/body systems with one of the organs/body systems involved to at least a moderate level of severity; and 2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss). or C. Ankylosing spondylitis or other spondyloarthropathies, with: 1. Ankylosis (fixation) of the dorsolumbar or cervical spine as shown by appropriate medically acceptable imaging and measured on physical examination at 45° or more of flexion from the vertical position (zero degrees); or 2. Ankylosis (fixation) of the dorsolumbar or cervical spine as shown by appropriate medically acceptable imaging and measured on physical examination at 30° or more of flexion (but less than 45°) measured from the vertical position (zero degrees), and involvement of two or more organs/body systems with one of the organs/body systems involved to at least a moderate level of severity. 114.10 Sjögren's syndrome, A. One of the organs/body systems involved to at least a moderate level of severity; AND B. At least two of the constitutional symptoms and signs (severe fatigue, fever, malaise, or involuntary weight loss). 114.11 Human immunodeficiency virus (HIV) infection. A. Multicentric (not localized or unicentric) Castleman disease affecting multiple groups of lymph nodes or organs containing lymphoid tissue (see 114.00F3a). OR B. Primary central nervous system lymphoma (see 114.00F3b). OR C. Primary effusion lymphoma (see 114.00F3c). OR D. Progressive multifocal leukoencephalopathy (see 114.00F3d). OR E. Pulmonary Kaposi sarcoma (see 114.00F3e). OR F. Absolute CD4 count or CD4 percentage (see 114.00F4): 1. For children from birth to attainment of age 1, absolute CD4 count of 500 cells/mm 3 2. For children from age 1 to attainment of age 5, absolute CD4 count of 200 cells/mm 3 3. For children from age 5 to attainment of age 18, absolute CD4 count of 50 cells/mm 3 OR G. Complication(s) of HIV infection requiring at least three hospitalizations within a 12-month period and at least 30 days apart (see 114.00F5). Each hospitalization must last at least 48 hours, including hours in a hospital emergency department immediately before the hospitalization. OR H. A neurological manifestation of HIV infection (for example, HIV encephalopathy or peripheral neuropathy) (see 114.00F6) resulting in one of the following: 1. Loss of previously acquired developmental milestones or intellectual ability (including the sudden onset of a new learning disability), documented on two examinations at least 60 days apart; or 2. Progressive motor dysfunction affecting gait and station or fine and gross motor skills, documented on two examinations at least 60 days apart; or 3. Microcephaly with head circumference that is less than the third percentile for age, documented on two examinations at least 60 days apart; or 4. Brain atrophy, documented by appropriate medically acceptable imaging. OR I. Immune suppression and growth failure (see 114.00F7) documented by 1 and 2, or by 1 and 3: 1. CD4 measurement: a. For children from birth to attainment of age 5, CD4 percentage of less than 20 percent; or b. For children from age 5 to attainment of age 18, absolute CD4 count of less than 200 cells/mm 3 2. For children from birth to attainment of age 2, three weight-for-length measurements that are: a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile on the appropriate weight-for-length table under 105.08B1; or 3. For children from age 2 to attainment of age 18, three BMI-for-age measurements that are: a. Within a consecutive 12-month period; and b. At least 60 days apart; and c. Less than the third percentile on the appropriate BMI-for-age table under 105.08B2. [45 FR 55584, Aug. 20, 1980] Editorial Note: For Federal Register www.govinfo.gov. Effective Date Note: At 90 FR 5590, Jan. 17, 2025, appendix 1 to subpart P of part 404 was amended by: a. In part A, section 1.00C7, revising paragraphs a and c; and b. In part B, section 101.00C7, revising paragraphs a and c., effective until May 11, 2029. Appendix 2 to Subpart P of Part 404—Medical-Vocational Guidelines Sec. 200.00 Introduction. 201.00 Maximum sustained work capability limited to sedentary work as a result of severe medically determinable impairment(s). 202.00 Maximum sustained work capability limited to light work as a result of severe medically determinable impairment(s). 203.00 Maximum sustained work capability limited to medium work as a result of severe medically determinable impairment(s). 204.00 Maximum sustained work capability limited to heavy work (or very heavy work) as a result of severe medically determinable impairment(s). 200.00 Introduction. i.e. (b) The existence of jobs in the national economy is reflected in the “Decisions” shown in the rules; i.e. (c) In the application of the rules, the individual's residual functional capacity ( i.e. (d) The correct disability decision ( i.e. (e) Since the rules are predicated on an individual's having an impairment which manifests itself by limitations in meeting the strength requirements of jobs, they may not be fully applicable where the nature of an individual's impairment does not result in such limitations, e.g., certain mental, sensory, or skin impairments. In addition, some impairments may result solely in postural and manipulative limitations or environmental restrictions. Environmental restrictions are those restrictions which result in inability to tolerate some physical feature(s) of work settings that occur in certain industries or types of work, e.g., an inability to tolerate dust or fumes. (1) In the evaluation of disability where the individual has solely a nonexertional type of impairment, determination as to whether disability exists shall be based on the principles in the appropriate sections of the regulations, giving consideration to the rules for specific case situations in this appendix 2. The rules do not direct factual conclusions of disabled or not disabled for individuals with solely nonexertional types of impairments. (2) However, where an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the rule(s) reflecting the individual's maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations. Also, in these combinations of nonexertional and exertional limitations which cannot be wholly determined under the rules in this appendix 2, full consideration must be given to all of the relevant facts in the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations, which will provide insight into the adjudicative weight to be accorded each factor. 201.00 Maximum sustained work capability limited to sedentary work as a result of severe medically determinable impairment(s). (b) These unskilled sedentary occupations are standard within the industries in which they exist. While sedentary work represents a significantly restricted range of work, this range in itself is not so prohibitively restricted as to negate work capability for substantial gainful activity. (c) Vocational adjustment to sedentary work may be expected where the individual has special skills or experience relevant to sedentary work or where age and basic educational competences provide sufficient occupational mobility to adapt to the major segment of unskilled sedentary work. Inability to engage in substantial gainful activity would be indicated where an individual who is restricted to sedentary work because of a severe medically determinable impairment lacks special skills or experience relevant to sedentary work, lacks educational qualifications relevant to most sedentary work (e.g., has a limited education or less) and the individual's age, though not necessarily advanced, is a factor which significantly limits vocational adaptability. (d) The adversity of functional restrictions to sedentary work at advanced age (55 and over) for individuals with no relevant past work or who can no longer perform vocationally relevant past work and have no transferable skills, warrants a finding of disabled in the absence of the rare situation where the individual has recently completed education which provides a basis for direct entry into skilled sedentary work. Advanced age and a history of unskilled work or no work experience would ordinarily offset any vocational advantages that might accrue by reason of any remote past education, whether it is more or less than limited education. (e) The presence of acquired skills that are readily transferable to a significant range of skilled work within an individual's residual functional capacity would ordinarily warrant a finding of ability to engage in substantial gainful activity regardless of the adversity of age, or whether the individual's formal education is commensurate with his or her demonstrated skill level. The acquisition of work skills demonstrates the ability to perform work at the level of complexity demonstrated by the skill level attained regardless of the individual's formal educational attainments. (f) In order to find transferability of skills to skilled sedentary work for individuals who are of advanced age (55 and over), there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry. (g) Individuals approaching advanced age (age 50-54) may be significantly limited in vocational adaptability if they are restricted to sedentary work. When such individuals have no past work experience or can no longer perform vocationally relevant past work and have no transferable skills, a finding of disabled ordinarily obtains. However, recently completed education which provides for direct entry into sedentary work will preclude such a finding. For this age group, even a high school education or more (ordinarily completed in the remote past) would have little impact for effecting a vocational adjustment unless relevant work experience reflects use of such education. (h)(1) The term younger individual (i) Are restricted to sedentary work, (ii) Are unskilled or have no transferable skills, (iii) Have no past relevant work or can no longer perform past relevant work, and (iv) Are illiterate. (2) For individuals who are under age 45, age is a more advantageous factor for making an adjustment to other work. It is usually not a significant factor in limiting such individual's ability to make an adjustment to other work, including an adjustment to unskilled sedentary work, even when the individuals are illiterate. (3) Nevertheless, a decision of “disabled” may be appropriate for some individuals under age 45 (or individuals age 45-49 for whom rule 201.17 does not direct a decision of disabled) who do not have the ability to perform a full range of sedentary work. However, the inability to perform a full range of sedentary work does not necessarily equate with a finding of “disabled.” Whether an individual will be able to make an adjustment to other work requires an adjudicative assessment of factors such as the type and extent of the individual's limitations or restrictions and the extent of the erosion of the occupational base. It requires an individualized determination that considers the impact of the limitations or restrictions on the number of sedentary, unskilled occupations or the total number of jobs to which the individual may be able to adjust, considering his or her age, education and work experience, including any transferable skills or education providing for direct entry into skilled work. (4) “Sedentary work” represents a significantly restricted range of work, and individuals with a maximum sustained work capability limited to sedentary work have very serious functional limitations. Therefore, as with any case, a finding that an individual is limited to less than the full range of sedentary work will be based on careful consideration of the evidence of the individual's medical impairment(s) and the limitations and restrictions attributable to it. Such evidence must support the finding that the individual's residual functional capacity is limited to less than the full range of sedentary work. (i) While illiteracy may significantly limit an individual's vocational scope, the primary work functions in most unskilled occupations involve working with things (rather than with data or people). In these work functions, education has the least significance. Similarly the lack of relevant work experience would have little significance since the bulk of unskilled jobs require no qualifying work experience. Thus, the functional capacity for a full range of sedentary work represents sufficient numbers of jobs to indicate substantial vocational scope for those individuals age 18-44, even if they are illiterate. Table No. 1—Residual Functional Capacity: Maximum Sustained Work Capability Limited to Sedentary Work as a Result of Severe Medically Determinable Impairment(s) Rule Age Education Previous work experience Decision 201.01 Advanced age Limited or less Unskilled or none Disabled 201.02 ......do ......do Skilled or semiskilled—skills not transferable 1 Do. 201.03 ......do ......do Skilled or semiskilled—skills transferable 1 Not disabled 201.04 ......do High school graduate or more—does not provide for direct entry into skilled work 2 Unskilled or none Disabled 201.05 ......do High school graduate or more—provides for direct entry into skilled work 2 ......do Not disabled 201.06 ......do High school graduate or more—does not provide for direct entry into skilled work 2 Skilled or semiskilled—skills not transferable 1 Disabled 201.07 ......do ......do Skilled or semiskilled—skills transferable 1 Not disabled 201.08 ......do High school graduate or more—provides for direct entry into skilled work 2 Skilled or semiskilled—skills not transferable 1 Do. 201.09 Closely approaching advanced age Limited or less Unskilled or none Disabled 201.10 ......do ......do Skilled or semiskilled—skills not transferable Do. 201.11 ......do ......do Skilled or semiskilled—skills transferable Not disabled 201.12 ......do High school graduate or more—does not provide for direct entry into skilled work 3 Unskilled or none Disabled 201.13 ......do High school graduate or more—provides for direct entry into skilled work 3 ......do Not disabled 201.14 ......do High school graduate or more—does not provide for direct entry into skilled work 3 Skilled or semiskilled—skills not transferable Disabled 201.15 ......do ......do Skilled or semiskilled—skills transferable Not disabled 201.16 ......do High school graduate or more—provides for direct entry into skilled work 3 Skilled or semiskilled—skills not transferable Do. 201.17 Younger individual age 45-49 Illiterate Unskilled or none Disabled. 201.18 ......do Limited or Marginal, but not Illiterate ......do Not disabled. 201.19 ......do Limited or less Skilled or semiskilled—skills not transferable Do. 201.20 ......do ......do Skilled or semiskilled—skills transferable Do. 201.21 ......do High school graduate or more Skilled or semiskilled—skills not transferable Do. 201.22 ......do ......do Skilled or semiskilled—skills transferable Do. 201.23 Younger individual age 18-44 Illiterate Unskilled or none 4 201.24 ......do Limited or Marginal, but not Illiterate ......do 4 201.25 ......do Limited or less Skilled or semiskilled—skills not transferable Do. 4 201.26 ......do ......do Skilled or semiskilled—skills transferable Do. 4 201.27 ......do High school graduate or more Unskilled or none Do. 4 201.28 ......do ......do Skilled or semiskilled—skills not transferable Do. 4 201.29 ......do ......do Skilled or semiskilled—skills transferable Do. 4 1 2 3 4 202.00 Maximum sustained work capability limited to light work as a result of severe medically determinable impairment(s). (b) The functional capacity to perform a wide or full range of light work represents substantial work capability compatible with making a work adjustment to substantial numbers of unskilled jobs and, thus, generally provides sufficient occupational mobility even for severely impaired individuals who are not of advanced age and have sufficient educational competences for unskilled work. (c) However, for individuals of advanced age who can no longer perform vocationally relevant past work and who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual's functional capacity, or who have no work experience, the limitations in vocational adaptability represented by functional restriction to light work warrant a finding of disabled. Ordinarily, even a high school education or more which was completed in the remote past will have little positive impact on effecting a vocational adjustment unless relevant work experience reflects use of such education. (d) A finding of disabled is warranted where the same factors in paragraph (c) of this section regarding education and previous work experience are present, but where age, though not advanced, is a factor which significantly limits vocational adaptability ( i.e., (e) The presence of acquired skills that are readily transferable to a significant range of semi-skilled or skilled work within an individual's residual functional capacity would ordinarily warrant a finding of not disabled regardless of the adversity of age, or whether the individual's formal education is commensurate with his or her demonstrated skill level. The acquisition of work skills demonstrates the ability to perform work at the level of complexity demonstrated by the skill level attained regardless of the individual's formal educational attainments. (f) For a finding of transferability of skills to light work for persons of advanced age who are closely approaching retirement age (age 60 or older), there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry. (g) While illiteracy may significantly limit an individual's vocational scope, the primary work functions in most unskilled occupations relate to working with things (rather than data or people). In these work functions, education has the least significance. Similarly, the lack of relevant work experience would have little significance since the bulk of unskilled jobs require no qualifying work experience. The capability for light work, which includes the ability to do sedentary work, represents the capability for substantial numbers of such jobs. This, in turn, represents substantial vocational scope for younger individuals (age 18-49), even if they are illiterate. Table No. 2—Residual Functional Capacity: Maximum Sustained Work Capability Limited to Light Work as a Result of Severe Medically Determinable Impairment(s) Rule Age Education Previous work experience Decision 202.01 Advanced age Limited or less Unskilled or none Disabled. 202.02 ......do ......do Skilled or semiskilled—skills not transferable Do. 202.03 ......do ......do Skilled or semiskilled—skills transferable 1 Not disabled. 202.04 ......do High school graduate or more—does not provide for direct entry into skilled work 2 Unskilled or none Disabled. 202.05 ......do High school graduate or more—provides for direct entry into skilled work 2 ......do Not disabled. 202.06 ......do High school graduate or more—does not provide for direct entry into skilled work 2 Skilled or semiskilled—skills not transferable Disabled. 202.07 ......do ......do Skilled or semiskilled—skills transferable 2 Not disabled. 202.08 ......do High school graduate or more—provides for direct entry into skilled work 2 Skilled or semiskilled—skills not transferable Do. 202.09 Closely approaching advanced age Illiterate Unskilled or none Disabled. 202.10 ......do Limited or Marginal, but not Illiterate ......do Not disabled. 202.11 ......do Limited or less Skilled or semiskilled—skills not transferable Do. 202.12 ......do ......do Skilled or semiskilled—skills transferable Do. 202.13 ......do High school graduate or more Unskilled or none Do. 202.14 ......do ......do Skilled or semiskilled—skills not transferable Do. 202.15 ......do ......do Skilled or semiskilled—skills transferable Do. 202.16 Younger individual Illiterate Unskilled or none Do. 202.17 ......do Limited or Marginal, but not Illiterate ......do Do. 202.18 ......do Limited or less Skilled or semiskilled—skills not transferable Do. 202.19 ......do ......do Skilled or semiskilled—skills transferable Do. 202.20 ......do High school graduate or more Unskilled or none Do. 202.21 ......do ......do Skilled or semiskilled—skills not transferable Do. 202.22 ......do ......do Skilled or semiskilled—skills transferable Do. 1 2 203.00 Maximum sustained work capability limited to medium work as a result of severe medically determinable impairment(s). (b) The functional capacity to perform medium work represents such substantial work capability at even the unskilled level that a finding of disabled is ordinarily not warranted in cases where a severely impaired person retains the functional capacity to perform medium work. Even the adversity of advanced age (55 or over) and a work history of unskilled work may be offset by the substantial work capability represented by the functional capacity to perform medium work. However, we will find that a person who (1) has a marginal education, (2) has work experience of 35 years or more doing only arduous unskilled physical labor, (3) is not working, and (4) is no longer able to do this kind of work because of a severe impairment(s) is disabled, even though the person is able to do medium work. ( See (c) However, the absence of any relevant work experience becomes a more significant adversity for persons of advanced age (55 and over). Accordingly, this factor, in combination with a limited education or less, militates against making a vocational adjustment to even this substantial range of work and a finding of disabled is appropriate. Further, for persons closely approaching retirement age (60 or older) with a work history of unskilled work and with marginal education or less, a finding of disabled is appropriate. Table No. 3—Residual Functional Capacity: Maximum Sustained Work Capability Limited to Medium Work as a Result of Severe Medically Determinable Impairment(s) Rule Age Education Previous work experience Decision 203.01 Closely approaching retirement age Marginal or Illiterate Unskilled or none Disabled. 203.02 ......do Limited or less None Do. 203.03 ......do Limited Unskilled Not disabled. 203.04 ......do Limited or less Skilled or semiskilled—skills not transferable Do. 203.05 ......do ......do Skilled or semiskilled—skills transferable Do. 203.06 ......do High school graduate or more Unskilled or none Do. 203.07 ......do High school graduate or more—does not provide for direct entry into skilled work Skilled or semiskilled—skills not transferable Do. 203.08 ......do ......do Skilled or semiskilled—skills transferable Do. 203.09 ......do High school graduate or more—provides for direct entry into skilled work Skilled or semiskilled—skills not transferable Do. 203.10 Advanced age Limited or less None Disabled. 203.11 ......do ......do Unskilled Not disabled. 203.12 ......do ......do Skilled or semiskilled—skills not transferable Do. 203.13 ......do ......do Skilled or semiskilled—skills transferable Do. 203.14 ......do High school graduate or more Unskilled or none Do. 203.15 ......do High school graduate or more—does not provide for direct entry into skilled work Skilled or semiskilled—skills not transferable Do. 203.16 ......do ......do Skilled or semiskilled—skills transferable Do. 203.17 ......do High school graduate or more—provides for direct entry into skilled work Skilled or semiskilled—skills not transferable Do. 203.18 Closely approaching advanced age Limited or less Unskilled or none Do. 203.19 ......do ......do Skilled or semiskilled—skills not transferable Do. 203.20 ......do ......do Skilled or semiskilled—skills transferable Do. 203.21 ......do High school graduate or more Unskilled or none Do. 203.22 ......do High school graduate or more—does not provide for direct entry into skilled work Skilled or semiskilled—skills not transferable Do. 203.23 ......do ......do Skilled or semiskilled—skills transferable Do. 203.24 ......do High school graduate or more—provides for direct entry into skilled work Skilled or semiskilled—skills not transferable Do. 203.25 Younger individual Limited or less Unskilled or none Do. 203.26 ......do ......do Skilled or semiskilled—skills not transferable Do. 203.27 ......do ......do Skilled or semiskilled—skills transferable Do. 203.28 ......do High school graduate or more Unskilled or none Do. 203.29 ......do High school graduate or more—does not provide for direct entry into skilled work Skilled or semiskilled—skills not transferable Do. 203.30 ......do ......do Skilled or semiskilled—skills transferable Do. 203.31 ......do High school graduate or more—provides for direct entry into skilled work Skilled or semiskilled—skills not transferable Do. 204.00 Maximum sustained work capability limited to heavy work (or very heavy work) as a result of severe medically determinable impairment(s). [45 FR 55584, Aug. 20, 1980, as amended at 56 FR 57944, Nov. 14, 1991; 68 FR 51164, Aug. 26, 2003; 73 FR 64197, Oct. 29, 2008; 85 FR 10602, Feb. 25, 2020] Subpart Q—Determinations of Disability Authority: Secs. 205(a), 221, and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a), 421, and 902(a)(5)). Source: 46 FR 29204, May 29, 1981, unless otherwise noted. General Provisions § 404.1601 Purpose and scope. This subpart describes the standards of performance and administrative requirements and procedures for States making determinations of disability for the Commissioner under title II of the Act. It also establishes the Commissioner's responsibilities in carrying out the disability determination function. (a) Sections 404.1601 through 404.1603 describe the purpose of the regulations and the meaning of terms frequently used in the regulations. They also briefly set forth the responsibilities of the Commissioner and the States covered in detail in other sections. (b) Sections 404.1610 through 404.1618 describe the Commissioner's and the State's responsibilities in performing the disability determination function. (c) Sections 404.1620 through 404.1633 describe the administrative responsibilities and requirements of the States. The corresponding role of the Commissioner is also set out. (d) Sections 404.1640 through 404.1650 describe the performance accuracy and processing time standards for measuring State agency performance. (e) Sections 404.1660 through 404.1661 describe when and what kind of assistance the Commissioner will provide State agencies to help them improve performance. (f) Sections 404.1670 through 404.1675 describe the level of performance below which the Commissioner will consider a State agency to be substantially failing to make disability determinations consistent with the regulations and other written guidelines and the resulting action the Commissioner will take. (g) Sections 404.1680 through 404.1683 describe the rules for resolving disputes concerning fiscal issues and providing hearings when we propose to find that a State is in substantial failure. (h) Sections 404.1690 through 404.1694 describe when and what action the Commissioner will take and what action the State will be expected to take if the Commissioner assumes the disability determination function from a State agency. [46 FR 29204, May 29, 1981, as amended at 62 FR 38451, July 18, 1997; 71 FR 16445, Mar. 31, 2006; 76 FR 24808, May 3, 2011] § 404.1602 Definitions. For purposes of this subpart: Act Class or classes of cases Commissioner Compassionate allowance Determination of disability disability determination (a) Whether or not a person is under a disability; (b) The date a person's disability began; or (c) The date a person's disability ended. Disability disability blindness Disability determination function Disability program Initial Other written guidelines Quick disability determination Regulations State State agency We, us, our [46 FR 29204, May 29, 1981, as amended at 56 FR 11018, Mar. 14, 1991; 62 FR 38452, July 18, 1997; 72 FR 51177, Sept. 6, 2007; 75 FR 62682, Oct. 13, 2010] § 404.1603 Basic responsibilities for us and the State. (a) General. (b) Our responsibilities. (1) Periodically review the regulations and other written guidelines to determine whether they insure effective and uniform administration of the disability program. To the extent feasible, we will consult with and take into consideration the experience of the States in issuing regulations and guidelines necessary to insure effective and uniform administration of the disability program; (2) Provide training materials or in some instances conduct or specify training, see § 404.1622; (3) Provide funds to the State agency for the necessary cost of performing the disability determination function, see § 404.1626; (4) Monitor and evaluate the performance of the State agency under the established standards, see §§ 404.1644 and 404.1645; and (5) Maintain liaison with the medical profession nationally and with national organizations and agencies whose interests or activities may affect the disability program. (c) Responsibilities of the State. (1) Provide management needed to insure that the State agency carries out the disability determination function so that disability determinations are made accurately and promptly; (2) Provide an organizational structure, adequate facilities, qualified personnel, medical consultant services, designated quick disability determination examiners (§§ 404.1619 and 404.1620(c)), and a quality assurance function (§§ 404.1620 through 404.1624); (3) Furnish reports and records relating to the administration of the disability program (§ 404.1625); (4) Submit budgets (§ 404.1626); (5) Cooperate with audits (§ 404.1627); (6) Insure that all applicants for and recipients of disability benefits are treated equally and courteously; (7) Be responsible for property used for disability program purposes (§ 404.1628); (8) Take part in the research and demonstration projects (§ 404.1629); (9) Coordinate with other agencies (§ 404.1630); (10) Safeguard the records created by the State in performing the disability determination function (§ 404.1631); (11) Comply with other provisions of the Federal law and regulations that apply to the State in performing the disability determination function; (12) Comply with other written guidelines (§ 404.1633); (13) Maintain liaison with the medical profession and organizations that may facilitate performing the disability determination function; and (14) Assist us in other ways that we determine may promote the objectives of effective and uniform administration. [46 FR 29204, May 29, 1981, as amended at 72 FR 51177, Sept. 6, 2007] Responsibilities for Performing the Disability Determination Function § 404.1610 How a State notifies us that it wishes to perform the disability determination function. (a) Deemed notice. (b) Written notice. § 404.1611 How we notify a State whether it may perform the disability determination function. (a) If a State notifies us in writing that it wishes to perform the disability determination function, we will notify the State in writing whether or not it may perform the function. The State will begin performing the disability determination function beginning with the month we and the State agree upon. (b) If we have previously found that a State agency has substantially failed to make disability determinations in accordance with the law or these regulations and other written guidelines or if the State has previously notified us in writing that it does not wish to make disability determinations, the notice will advise the State whether the State agency may again make the disability determinations and, if so, the date and the conditions under which the State may again make them. § 404.1613 Disability determinations the State makes. (a) General rule. (b) New classes of cases. (c) Temporary transfer of classes of cases. [46 FR 29204, May 29, 1981, as amended at 62 FR 38452, July 18, 1997] § 404.1614 Responsibilities for obtaining evidence to make disability determinations. (a) We or the State agency will secure from the claimant or other sources any evidence the State agency needs to make a disability determination. When we secure the evidence, we will furnish it to the State agency for use in making the disability determination. (b) At our request, the State agency will obtain and furnish medical or other evidence and provide assistance as may be necessary for us to carry out our responsibilities— (1) For making disability determinations in those classes of cases described in the written guidelines for which the State agency does not make the determination; or (2) Under international agreements with respect to social security benefits payable under section 233 of the Act. [46 FR 29204, May 29, 1981, as amended at 79 FR 33682, June 12, 2014] § 404.1615 Making disability determinations. (a) When making a disability determination, the State agency will apply subpart P, part 404, of our regulations. (b) The State agency will make disability determinations based only on the medical and nonmedical evidence in its files. (c) Disability determinations will be made by: (1) A State agency medical or psychological consultant and a State agency disability examiner; (2) A State agency disability examiner alone when there is no medical evidence to be evaluated ( i.e. (3) A State agency disability examiner alone if the claim is adjudicated under the quick disability determination process (see § 404.1619) or the compassionate allowance process (see § 404.1602), and the initial or reconsidered determination is fully favorable to you. This paragraph (c)(3) will no longer be effective on December 28, 2018 unless we terminate it earlier by publication of a final rule in the Federal Register (4) A State agency disability hearing officer. See § 404.1616 for the definition of medical or psychological consultant and § 404.915 for the definition of disability hearing officer. The State agency disability examiner and disability hearing officer must be qualified to interpret and evaluate medical reports and other evidence relating to the claimant's physical or mental impairments and as necessary to determine the capacities of the claimant to perform substantial gainful activity. See § 404.1572 for what we mean by substantial gainful activity. (d) The State agency will certify each determination of disability to us on forms we provide. (e) The State agency will furnish us with all the evidence it considered in making its determination. (f) The State agency will not be responsible for defending in court any determination made, or any procedure for making determinations, under these regulations. [52 FR 33926, Sept. 9, 1987, as amended at 56 FR 11018, Mar. 14, 1991; 61 FR 11135, Mar. 19, 1996; 62 FR 38452, July 18, 1997; 65 FR 34958, June 1, 2000; 75 FR 62682, Oct. 13, 2010; 78 FR 66639, Nov. 6, 2013; 79 FR 51243, Aug. 28, 2014; 80 FR 63093, Oct. 19, 2015; 81 FR 73028, Oct. 24, 2016; 82 FR 5872, Jan. 18, 2017] § 404.1616 Medical consultants and psychological consultants. (a) What is a medical consultant? (b) What qualifications must a medical consultant have? (c) What is a psychological consultant? (d) What qualifications must a psychological consultant have? (1) Is licensed or certified as a psychologist at the independent practice level of psychology by the State in which he or she practices; and (2)(i) Possesses a doctorate degree in psychology from a program in clinical psychology of an educational institution accredited by an organization recognized by the Council on Post-Secondary Accreditation; or (ii) Is listed in a national register of health service providers in psychology which the Commissioner of Social Security deems appropriate; and (3) Possesses 2 years of supervised clinical experience as a psychologist in health service, at least 1 year of which is post-masters degree. (e) Cases involving both physical and mental impairments. [82 FR 5873, Jan. 18, 2017] § 404.1617 Reasonable efforts to obtain review by a physician, psychiatrist, and psychologist. (a) When the evidence of record indicates the existence of a physical impairment, the State agency must make every reasonable effort to ensure that a medical consultant completes the medical portion of the case review and any applicable residual functional capacity assessment. When the evidence of record indicates the existence of a mental impairment, the State agency must make every reasonable effort to ensure that a psychological consultant completes the medical portion of the case review and any applicable residual functional capacity assessment. The State agency must determine if additional physicians, psychiatrists, and psychologists are needed to make the necessary reviews. When it does not have sufficient resources to make the necessary reviews, the State agency must attempt to obtain the resources needed. If the State agency is unable to obtain additional physicians, psychiatrists, and psychologists because of low salary rates or fee schedules, it should attempt to raise the State agency's levels of compensation to meet the prevailing rates for these services. If these efforts are unsuccessful, the State agency will seek assistance from us. We will assist the State agency as necessary. We will also monitor the State agency's efforts and where the State agency is unable to obtain the necessary services, we will make every reasonable effort to provide the services using Federal resources. (b) Federal resources may include the use of Federal contracts for the services of qualified psychiatrists and psychologists to review mental impairment cases. Where Federal resources are required to perform these reviews, which are a basic State agency responsibility, and where appropriate, the State agency's budget will be reduced accordingly. (c) Where every reasonable effort is made to obtain the services of a qualified psychiatrist or psychologist to review a mental impairment case, but the professional services are not obtained, a physician who is not a psychiatrist will review the mental impairment case. For these purposes, every reasonable effort to ensure that a qualified psychiatrist or psychologist review mental impairment cases will be considered to have been made only after efforts by both State and Federal agencies as set forth in paragraphs (a) and (b) of this section are made. [52 FR 33927, Sept. 9, 1987, as amended at 82 FR 5873, Jan. 18, 2017] § 404.1618 Notifying claimants of the disability determination. The State agency will prepare denial notices in accordance with subpart J of this part whenever it makes a disability determination which is fully or partially unfavorable to the claimant. [46 FR 29204, May 29, 1981, as amended at 75 FR 33168, June 11, 2010] Quick Disability Determinations § 404.1619 Quick disability determination process. (a) If we identify a claim as one involving a high degree of probability that the individual is disabled, and we expect that the individual's allegations will be easily and quickly verified, we will refer the claim to the State agency for consideration under the quick disability determination process pursuant to this section and § 404.1620(c). (b) If we refer a claim to the State agency for a quick disability determination, a designated quick disability determination examiner must do all of the following: (1) Subject to the provisions in paragraph (c) of this section, make the disability determination after consulting with a State agency medical or psychological consultant if the State agency disability examiner determines consultation is appropriate or if consultation is required under § 404.1526(c). The State agency may certify the disability determination forms to us without the signature of the medical or psychological consultant. (2) Make the quick disability determination based only on the medical and nonmedical evidence in the file. (3) Subject to the provisions in paragraph (c) of this section, make the quick disability determination by applying the rules in subpart P of this part. (c) If the quick disability determination examiner cannot make a determination that is fully favorable, or if there is an unresolved disagreement between the disability examiner and the medical or psychological consultant (except when a disability examiner makes the determination alone under § 404.1615(c)(3)), the State agency will adjudicate the claim using the regularly applicable procedures in this subpart. [72 FR 51177, Sept. 6, 2007, as amended at 75 FR 62682, Oct. 13, 2010] Administrative Responsibilities and Requirements § 404.1620 General administrative requirements. (a) The State will provide the organizational structure, qualified personnel, medical consultant services, and a quality assurance function sufficient to ensure that disability determinations are made accurately and promptly. We may impose specific administrative requirements in these areas and in those under “Administrative Responsibilities and Requirements” in order to establish uniform, national administrative practices or to correct the areas of deficiencies which may later cause the State to be substantially failing to comply with our regulations or other written guidelines. We will notify the State, in writing, of the administrative requirements being imposed and of any administrative deficiencies it is required to correct. We will allow the State 90 days from the date of this notice to make appropriate corrections. Once corrected, we will monitor the State's administrative practices for 180 days. If the State does not meet the requirements or correct all of the deficiencies, or, if some of the deficiencies recur, we may initiate procedures to determine if the State is substantially failing to follow our regulations or other written guidelines. (b) The State is responsible for making accurate and prompt disability determinations. (c) Each State agency will designate experienced disability examiners to handle claims we refer to it under § 404.1619(a). [46 FR 29204, May 29, 1981, as amended at 56 FR 11018, Mar. 14, 1991; 72 FR 51177, Sept. 6, 2007] § 404.1621 Personnel. (a) Equal employment opportunity. (b) Selection, tenure, and compensation. (c) Travel. (d) Restrictions. § 404.1622 Training. The State will insure that all employees have an acceptable level of competence. We will provide training and other instructional materials to facilitate basic and advanced technical proficiency of disability staff in order to insure uniformity and effectiveness in the administration of the disability program. We will conduct or specify training, as appropriate, but only if: (a) A State agency's performance approaches unacceptable levels; or (b) The material required for the training is complex or the capacity of the State to deliver the training is in doubt and uniformity of the training is essential. § 404.1623 Facilities. (a) Space, equipment, supplies, and other services. (b) Location of facilities. (c) Access. [46 FR 29204, May 29, 1981, as amended at 56 FR 11019, Mar. 14, 1991] § 404.1624 Medical and other purchased services. The State will determine the rates of payment for purchasing medical or other services necessary to make determinations of disability. The rates may not exceed the highest rate paid by Federal or other agencies in the State for the same or similar type of service. The State will maintain documentation to support the rates of payment it uses. [46 FR 29204, May 29, 1981,as amended at 71 FR 16445, Mar. 31, 2006; 76 FR 24808, May 3, 2011] § 404.1625 Records and reports. (a) The State will establish and maintain the records and furnish the schedules, financial, cost, and other reports relating to the administration of the disability programs as we may require. (b) The State will permit us and the Comptroller General of the United States (including duly authorized representatives) access to and the right to examine records relating to the work which the State performs under these regulations. These records will be retained by the State for the periods of time specified for retention of records in the Federal Procurement Regulations (41 CFR parts 1-20). § 404.1626 Fiscal. (a) We will give the State funds, in advance or by way of reimbursement, for necessary costs in making disability determinations under these regulations. Necessary costs are direct as well as indirect costs as defined in 41 CFR part 1-15, subpart 1-15.7 of the Federal Procurement Regulations System for costs incurred before April 1, 1984; and 48 CFR part 31, subpart 31.6 of the Federal Acquisition Regulations System and Federal Management Circular A-74-4 1 1 (b) The State will submit estimates of anticipated costs in the form of a budget at the time and in the manner we require. (c) We will notify the State of the amount which will be made available to it as well as what anticipated costs are being approved. (d) The State may not incur or make expenditures for items of cost not approved by us or in excess of the amount we make available to the State. (e) After the close of a period for which funds have been made available to the State, the State will submit a report of its expenditures. Based on an audit arranged by the State under Pub. L. 98-502, the Single Audit Act of 1984, or by the Inspector General of the Social Security Administration or based on an audit or review by the Social Security Administration (see § 404.1627), we will determine whether the expenditures were consistent with cost principles described in 41 CFR part 1-15, subpart 1-15.7 for costs incurred before April 1, 1984; and 48 CFR part 31, subpart 31.6 and Federal Management Circular A-741-4 for costs incurred after March 31, 1984: and in other applicable written guidelines in effect at the time the expenditures were made or incurred. (f) Any monies paid to the State which are used for purposes not within the scope of these regulations will be paid back to the Treasury of the United States. [46 FR 29204, May 29, 1981, as amended at 56 FR 11019, Mar. 14, 1991; 62 FR 38452, July 18, 1997] § 404.1627 Audits. (a) Audits performed by the State Generally. (2) Questioned items. (3) State appeal of audit determinations. (b) Audits performed by the Commissioner Generally. (2) Questioned items. (3) State appeal of audit determinations. [56 FR 11019, Mar. 14, 1991, as amended at 62 FR 38452, July 18, 1997] § 404.1628 Property. The State will have title to equipment purchased for disability program purposes. The State will be responsible for maintaining all property it acquires or which we furnish to it for performing the disability determination function. The State will identify the equipment by labeling and by inventory and will credit the SSA account with the fair market value of disposed property. In the event we assume the disability determination function from a State, ownership of all property and equipment acquired with SSA funds will be transferred to us effective on the date the State is notified that we are assuming the disability determination function or we are notified that the State is terminating the relationship. § 404.1629 Participation in research and demonstration projects. We will invite State participation in federally funded research and demonstration projects to assess the effectiveness of the disability program and to ascertain the effect of program policy changes. Where we determine that State participation is necessary for the project to be complete, for example, to provide national uniformity in a claims process, State participation is mandatory. § 404.1630 Coordination with other agencies. (a) The State will establish cooperative working relationships with other agencies concerned with serving the disabled and, insofar as practicable, use their services, facilities, and records to: (1) Assist the State in developing evidence and making determinations of disability; and (2) Insure that referral of disabled or blind persons for rehabilitation services will be carried out effectively. (b) The State may pay these agencies for the services, facilities, or records they provide. The State will include these costs in its estimates of anticipated costs and reports of actual expenditures. § 404.1631 Confidentiality of information and records. The State will comply with the confidentiality of information, including the security of systems, and records requirements described in 20 CFR part 401 and pertinent written guidelines (see § 404.1633). § 404.1632 Other Federal laws and regulations. The State will comply with the provisions of other Federal laws and regulations that directly affect its responsibilities in carrying out the disability determination function; for example, Treasury Department regulations on letters of credit (31 CFR part 205). § 404.1633 Policies and operating instructions. (a) We will provide the State agency with written guidelines necessary for it to carry out its responsibilities in performing the disability determination function. (b) The State agency making determinations of disability will comply with our written guidelines that are not designated as advisory or discretionary. (See § 404.1602 for what we mean by written guidelines.) (c) A representative group of State agencies will be given an opportunity to participate in formulating disability program policies that have an affect on their role in carrying out the disability determination function. State agencies will also be given an opportunity to comment before changes are made in written guidelines unless delay in issuing a change may impair service to the public. [46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991] Performance Standards § 404.1640 General. The following sections provide the procedures and guidelines we use to determine whether the State agency is substantially complying with our regulations and other written guidelines, including meeting established national performance standards. We use performance standards to help assure effective and uniform administration of our disability programs and to measure whether the performance of the disability determination function by each State agency is acceptable. Also, the standards are designed to improve overall State agency performance in the disability determination process and to ensure that benefits are made available to all eligible persons in an accurate and efficient manner. We measure the performance of a State agency in two areas—processing time and quality of documentation and decisions on claims. State agency compliance is also judged by State agency adherence to other program requirements. [56 FR 11020, Mar. 14, 1991] § 404.1641 Standards of performance. (a) General. (b) The target level. (c) The threshold level. (d) Intermediate goals. [46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991; 62 FR 38452, July 18, 1997] § 404.1642 Processing time standards. (a) General. (b) Target levels. (1) 37 days for title II initial claims. (2) 43 days for title XVI initial claims. (c) Threshold levels. (1) 49.5 days for title II initial claims. (2) 57.9 days for title XVI initial claims. [46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991] § 404.1643 Performance accuracy standard. (a) General. (b) Target level. (c) Intermediate goals. (d) Threshold levels. § 404.1644 How and when we determine whether the processing time standards are met. (a) How we determine processing times. (b) Frequency of review. [46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991] § 404.1645 How and when we determine whether the performance accuracy standard is met. (a) How we determine performance accuracy. (b) Frequency of review. § 404.1650 Action we will take if a State agency does not meet the standards. If a State agency does not meet two of the three established threshold levels (one of which must be performance accuracy) for two or more consecutive calendar quarters, we will notify the State agency in writing that it is not meeting the standards. Following our notification, we will provide the State agency appropriate performance support described in §§ 404.1660, 404.1661 and 404.1662 for a period of up to 12 months. [56 FR 11020, Mar. 14, 1991] Performance Monitoring and Support § 404.1660 How we will monitor. We will regularly analyze State agency combined title II and title XVI initial performance accuracy rate, title II initial processing time, and title XVI initial processing time. Within budgeted resources, we will also routinely conduct fiscal and administrative management reviews and special onsite reviews. A fiscal and administrative management review is a fact-finding mission to review particular aspects of State agency operations. During these reviews we will also review the quality assurance function. This regular monitoring and review program will allow us to determine the progress each State is making and the type and extent of performance support we will provide to help the State progress toward threshold, intermediate, and/or target levels. [56 FR 11020, Mar. 14, 1991] § 404.1661 When we will provide performance support. (a) Optional support. (b) Mandatory support. (2) We may also decide to provide a State agency with mandatory performance support if regular monitoring and review reveal that any one of the three threshold levels is not met for two consecutive calendar quarters. Support will be provided based on available resources. (3) The threshold levels are: (i) Combined title II and title XVI initial performance accuracy rate—90.6 percent, (ii) Title II initial processing time—49.5 days, and (iii) Title XVI initial processing time—57.9 days. [56 FR 11020, Mar. 14, 1991] § 404.1662 What support we will provide. Performance support may include, but is not limited to, any or all of the following: (a) An onsite review of cases processed by the State agency emphasizing adherence to written guidelines. (b) A request that necessary administrative measures be implemented (e.g., filling staffing vacancies, using overtime, assisting with training activities, etc.). (c) Provisions for Federal personnel to perform onsite reviews, conduct training, or perform other functions needed to improve performance. (d) Provisions for fiscal aid to allow for overtime, temporary hiring of additional staff, etc., above the authorized budget. [56 FR 11020, Mar. 14, 1991] Substantial Failure § 404.1670 General. After a State agency falls below two of three established threshold levels, one being performance accuracy, for two consecutive quarters, and after the mandatory performance support period, we will give the State agency a 3-month adjustment period. During this 3-month period we will not require the State agency to meet the threshold levels. Following the adjustment period, if the State agency again falls below two of three threshold levels, one being performance accuracy, in two consecutive quarters during the next 12 months, we will notify the State that we propose to find that the State agency has substantially failed to comply with our standards and advise it that it may request a hearing on that issue. After giving the State notice and an opportunity for a hearing, if it is found that a State agency has substantially failed to make disability determinations consistent with the Act, our regulations or other written guidelines, we will assume partial or complete responsibility for performing the disability determination function after we have complied with §§ 404.1690 and 404.1692. [56 FR 11021, Mar. 14, 1991] § 404.1671 Good cause for not following the Act, our regulations, or other written guidelines. If a State has good cause for not following the Act, our regulations, or other written guidelines, we will not find that the State agency has substantially failed to meet our standards. We will determine if good cause exists. Some of the factors relevant to good cause are: (a) Disasters such as fire, flood, or civil disorder, that— (1) Require the diversion of significant personnel normally assigned to the disability determination function, or (2) Destroyed or delayed access to significant records needed to make accurate disability determinations; (b) Strikes of State agency staff or other government or private personnel necessary to the performance of the disability determination function; (c) Sudden and unanticipated workload changes which result from changes in Federal law, regulations, or written guidelines, systems modification or systems malfunctions, or rapid, unpredictable caseload growth for a 6-month period or longer. [56 FR 11021, Mar. 14, 1991] § 404.1675 Finding of substantial failure. A finding of substantial failure with respect to a State may not be made unless and until the State is afforded an opportunity for a hearing. Hearings and Appeals § 404.1680 Notice of right to hearing on proposed finding of substantial failure. If, following the mandatory performance support period and the 3-month adjustment period, a State agency again falls below two of three threshold levels (one being performance accuracy) in two consecutive quarters in the succeeding 12 months, we will notify the State in writing that we will find that the State agency has substantially failed to meet our standards unless the State submits a written request for a hearing with the Department of Health and Human Services' Departmental Appeals Board within 30 days after receiving the notice. The notice will identify the threshold levels that were not met by the State agency, the period during which the thresholds were not met and the accuracy and processing time levels attained by the State agency during this period. If a hearing is not requested, the State agency will be found to have substantially failed to meet our standards, and we will implement our plans to assume the disability determination function. [56 FR 11021, Mar. 14, 1991] § 404.1681 Disputes on matters other than substantial failure. Disputes concerning monetary disallowances will be resolved in proceedings before the Department of Health and Human Services' Departmental Appeals Board if the issue cannot be resolved between us and the State. Disputes other than monetary disallowances will be resolved through an appeal to the Commissioner of Social Security, who will make the final decision. (See § 404.1627.) [56 FR 11021, Mar. 14, 1991] § 404.1682 Who conducts the hearings. If a hearing is required, it will be conducted by the Department of Health and Human Services' Grant Appeals Board (the Board). [46 FR 29204, May 29, 1981, as amended at 62 FR 38452, July 18, 1997] § 404.1683 Hearings and appeals process. The rules for hearings and appeals before the Board are provided in 45 CFR part 16. A notice under § 404.1680 of this subpart will be considered a “final written decision” for purposes of Board review. Assumption of Disability Determination Function § 404.1690 Assumption when we make a finding of substantial failure. (a) Notice to State. (b) Effective date of assumption. § 404.1691 Assumption when State no longer wishes to perform the disability determination function. (a) Notice to the Commissioner. (b) Effective date of assumption. [46 FR 29204, May 29, 1981, as amended at 62 FR 38452, July 18, 1997] § 404.1692 Protection of State employees. (a) Hiring preference. (b) Determination by Secretary of Labor. § 404.1693 Limitation on State expenditures after notice. The State agency may not, after it receives the notice referred to in § 404.1690, or gives the notice referred to in § 404.1691, make any new commitments to spend funds allocated to it for performing the disability determination function without the approval of the appropriate SSA regional commissioner. The State will make every effort to close out as soon as possible all existing commitments that relate to performing the disability determination function. § 404.1694 Final accounting by the State. The State will submit its final claims to us as soon as possible, but in no event later than 1 year from the effective date of our assumption of the disability determination function unless we grant an extension of time. When the final claim(s) is submitted, a final accounting will be made by the State of any funds paid to the State under § 404.1626 which have not been spent or committed prior to the effective date of our assumption of the disability determination function. Disputes concerning final accounting issues which cannot be resolved between the State and us will be resolved in proceedings before the Departmental Appeals Board as described in 45 CFR part 16. [46 FR 29204, May 29, 1981, as amended at 62 FR 38452, July 18, 1997] Subpart R—Representation of Parties Authority: 42 U.S.C. 405(a), 406, 902(a)(5), and 1320a-6. Source: 45 FR 52090, Aug. 5, 1980, unless otherwise noted. § 404.1700 Introduction. You may appoint someone to represent you in any of your dealings with us. This subpart explains, among other things— (a) Who may be your representative and what his or her qualifications must be; (b) How you appoint a representative; (c) The payment of fees to a representative; (d) Our rules that representatives must follow; and (e) What happens to a representative who breaks the rules. § 404.1703 Definitions. As used in this subpart— Affiliate Assignment Date we notify him or her Eligible non-attorney Entity Federal agency Federal program Legal guardian or court-appointed representative Past-due benefits (1) Continued benefits paid pursuant to § 404.1597a of this part; or (2) Interim benefits paid pursuant to section 223(h) of the Act. Point of Contact Registration Representational services Representative We, our, us You your [45 FR 52090, Aug. 5, 1980, as amended at 72 FR 16724, Apr. 5, 2007; 74 FR 48384, Sept. 23, 2009; 76 FR 45192, July 28, 2011; 76 FR 80245, Dec. 23, 2011; 89 FR 67554, Aug. 21, 2024] § 404.1705 Who may be your representative. (a) You may appoint as your representative in dealings with us, any attorney in good standing who— (1) Has the right to practice law before a court of a State, Territory, District, or island possession of the United States, or before the Supreme Court or a lower Federal court of the United States; (2) Is not disqualified or suspended from acting as a representative in dealings with us; and (3) Is not prohibited by any law from acting as a representative. (b) You may appoint any person who is not an attorney to be your representative in dealings with us if the person— (1) Is capable of giving valuable help to you in connection with your claim; (2) Is not disqualified or suspended from acting as a representative in dealings with us; (3) Is not prohibited by any law from acting as a representative; and (4) Is generally known to have a good character and reputation. Persons lacking good character and reputation, include, but are not limited to, persons who have a final conviction of a felony (as defined by § 404.1506(c)) or any crime involving moral turpitude, dishonesty, false statements, misrepresentation, deceit, or theft. (c) Your representative(s) must be registered with us in the manner we prescribe. (d) We may refuse to recognize your chosen representative if the person does not meet the requirements in this section. We will notify you and the proposed representative if we do not recognize the person as your representative. [45 FR 52090, Aug. 5, 1980, as amended at 76 FR 80245, Dec. 23, 2011; 83 FR 30854, July 2, 2018; 89 FR 67554, Aug. 21, 2024] § 404.1706 Notification of options for obtaining attorney representation. If you are not represented by an attorney and we make a determination or decision that is subject to the administrative review process provided under subpart J of this part and it does not grant all of the benefits or other relief you requested or it adversely affects any entitlement to benefits that we have established or may establish for you, we will include with the notice of that determination or decision information about your options for obtaining an attorney to represent you in dealing with us. We will also tell you that a legal services organization may provide you with legal representation free of charge if you satisfy the qualifying requirements applicable to that organization. [58 FR 64886, Dec. 10, 1993] § 404.1707 Appointing a representative. We will recognize a person as your representative if: (a) You and your representative complete and sign our prescribed appointment form; and (b) You or your representative file our prescribed appointment form in the manner we designate. [89 FR 67554, Aug. 21, 2024] § 404.1710 Authority of a representative. (a) What a representative may do. (1) Obtain information about your claim to the same extent that you are able to do; (2) Submit evidence; (3) Make statements about facts and law; and (4) Make any request or give any notice about the proceedings before us. (b) What a representative may not do. § 404.1713 Mandatory use of electronic services. A representative must conduct business with us electronically at the times and in the manner we prescribe on matters for which the representative requests direct fee payment. ( See [76 FR 56109, Sept. 12, 2011] § 404.1715 Notice or request to a representative. (a) We shall send your representative— (1) Notice and a copy of any administrative action, determination, or decision; and (2) Requests for information or evidence. (b) A notice or request sent to your representative, will have the same force and effect as if it had been sent to you. § 404.1717 Direct payment of fees to eligible non-attorney representatives. (a) Criteria for eligibility. (1) Completes and submits to us an application as described in paragraph (b) of this section; (2) Pays the application fee as described in paragraph (c) of this section; (3) Demonstrates that he or she possesses: (i) A bachelor's degree from an accredited institution of higher learning; or (ii) At least four years of relevant professional experience and either a high school diploma or a General Educational Development certificate; (4) Passes our criminal background investigation (including checks of our administrative records), and attests under penalty of perjury that he or she: (i) Has not been suspended or disqualified from practice before us and is not suspended or disbarred from the practice of law in any jurisdiction; (ii) Has not had a judgment or lien assessed against him or her by a civil court for malpractice or fraud; (iii) Has not had a felony conviction; and (iv) Has not misrepresented information provided on his or her application or supporting materials for the application; (5) Takes and passes a written examination we administer; (6) Provides proof of and maintains continuous liability insurance coverage that is underwritten by an entity that is legally permitted to provide professional liability insurance in the States in which the representative conducts business. The policy must include coverage for malpractice claims against the representative and be in an amount we prescribe; and (7) Completes and provides proof that he or she has completed all continuing education courses that we prescribe by the deadline we prescribe. (b) Application. (c) Application fee. (1) We will refund the fee if: (i) We do not administer an examination, and an applicant was unable to take the rescheduled examination; or (ii) Circumstances beyond the applicant's control that could not have been reasonably anticipated and planned for prevent an applicant from taking a scheduled examination. (2) We will not refund the fee if: (i) An applicant took and failed the examination; or (ii) An applicant failed to arrive on time for the examination because of circumstances within the applicant's control that could have been anticipated and planned for. (d) Protest procedures. (i) Attest on the application or provide sufficient documentation that he or she possesses the required education or equivalent qualifications, as described in paragraph (a)(3) of this section; (ii) Meet at all times the criminal background investigation criteria, as described in paragraph (a)(4) of this section; (iii) Provide proof that he or she has maintained continuous liability insurance coverage, as described in paragraph (a)(6) of this section, after we previously determined the representative was eligible to receive direct fee payment; or (iv) Complete continuing education courses or provide documentation of the required continuing education courses, as described in paragraph (a)(7) of this section. (2) A non-attorney representative who wants to protest our finding under paragraph (d)(1) of this section must file a protest in writing and provide all relevant supporting documentation to us within 10 calendar days after the date we notify him or her of our finding. (3) A representative may not file a protest for reasons other than those listed in paragraph (d)(1) of this section. If a representative files a protest for reasons other than those listed in paragraph (d)(1) of this section, we will not process the protest and will implement our finding as if no protest had been filed. Our finding in response to the protest is final and not subject to further review. (e) Ineligibility and suspension. (2) If an eligible non-attorney representative does not protest, in accordance with paragraph (d)(2) of this section, our finding about the criteria in paragraphs (a)(3) or (a)(4) of this section, the non-attorney representative will be ineligible to receive direct fee payment beginning with the month after the month the protest period ends. If the eligible non-attorney representative protests in accordance with paragraph (d)(2) of this section and we uphold our finding, the non-attorney representative will be ineligible to receive direct fee payment beginning with the month after the month we uphold our finding. (3) If an eligible non-attorney representative does not protest, in accordance with paragraph (d)(2) of this section, our finding about the criteria in paragraph (a)(6) of this section, the non-attorney representative will be ineligible to receive direct fee payment for 6 full calendar months beginning with the month after the month the protest period ends. If the eligible non-attorney representative protests in accordance with paragraph (d)(2) of this section and we uphold our finding, the non-attorney representative will be ineligible to receive direct fee payment for 6 full calendar months beginning with the month after the month we uphold our finding. In either case, the non-attorney representative may provide us with documentation that he or she has acquired and maintains the required liability insurance coverage described in paragraph (a)(6) of this section, no earlier than the sixth month of the ineligibility. The non-attorney representative will again be eligible to receive direct fee payment beginning in the first month after the month we find that we have received sufficient documentation that the non-attorney representative meets the requirements of paragraph (a)(6) of this section. (4) If an eligible non-attorney representative does not protest, in accordance with paragraph (d)(2) of this section, our finding about the criteria in paragraph (a)(7) of this section, the non-attorney representative will be ineligible to receive direct fee payment for 6 full calendar months beginning with the month after the month the protest period ends. If the eligible non-attorney representative protests in accordance with paragraph (d)(2) of this section and we uphold our finding, the non-attorney will be ineligible to receive direct fee payment for 6 full calendar months beginning with the month after the month we uphold our finding. In either case, the non-attorney representative may provide us with documentation that he or she has satisfied the criteria in paragraph (a)(7) of this section at any time. The non-attorney representative will again be eligible to receive direct fee payment beginning in the first month after the month we find that we have received sufficient documentation, but not earlier than the month following the end of the 6 month ineligibility period. (f) Reapplying. (1) Did not meet the initial criteria for eligibility in paragraphs (a)(1), (a)(2), (a)(3), or (a)(5) of this section in a prior application period; or (2) Failed to timely correct a defective application in a prior application period, as described in paragraph (b) of this section. [76 FR 45192, July 28, 2011, as amended at 80 FR 400, Jan. 6, 2015] § 404.1720 Fee for a representative's services. (a) General. (b) Charging and receiving a fee. (2) We decide the amount of the fee, if any, a representative may charge or receive. (3) Subject to paragraph (e) of this section, a representative must not charge or receive any fee unless we have authorized it, and a representative must not charge or receive any fee that is more than the amount we authorize. (4) If your representative is an attorney or an eligible non-attorney, and you are entitled to past-due benefits, we will pay the authorized fee, or a part of the authorized fee, directly to the attorney or eligible non-attorney out of the past-due benefits, subject to the limitations described in § 404.1730(b)(1). If the representative is a non-attorney who is ineligible to receive direct fee payment, we assume no responsibility for the payment of any fee that we have authorized. (c) Notice of fee determination. (1) The amount of the fee that is authorized; (2) How we made that decision; (3) Whether we are responsible for paying the fee from past-due benefits; and (4) That within 30 days of the date of the notice, either you or your representative may request us to review the fee determination. (d) Review of fee determination Request filed on time. (2) Request not filed on time. (ii) Some examples of good cause follow: (A) Either you or your representative was seriously ill and the illness prevented you or your representative from contacting us in person or in writing. (B) There was a death or serious illness in your family or in the family of your representative. (C) Material records were destroyed by fire or other accidental cause. (D) We gave you or your representative incorrect or incomplete information about the right to request review. (E) You or your representative did not timely receive notice of the fee determination. (F) You or your representative sent the request to another government agency in good faith within the 30-day period, and the request did not reach us until after the period had ended. (3) Payment of fees. (e) When we do not need to authorize a fee. (1) An entity or a Federal, State, county, or city government agency pays from its funds the representative fees and expenses and both of the following conditions apply: (i) You and your auxiliary beneficiaries, if any, are not liable to pay a fee or any expenses, or any part thereof, directly or indirectly, to the representative or someone else; and (ii) The representative submits to us a writing in the form and manner that we prescribe waiving the right to charge and collect a fee and any expenses from you and your auxiliary beneficiaries, if any, directly or indirectly, in whole or in part; or (2) A court authorizes a fee for your representative based on the representative's actions as your legal guardian or a court-appointed representative. (f) Assignment of direct payment of fees. [45 FR 52090, Aug. 5, 1980, as amended at 72 FR 16724, Apr. 5, 2007; 74 FR 48384, Sept. 23, 2009; 76 FR 45193, July 28, 2011; 89 FR 67554, Aug. 21, 2024] § 404.1725 Request for approval of a fee. (a) Filing a request. (1) The dates the representative's services began and ended; (2) A list of the services he or she gave and the amount of time he or she spent on each type of service; (3) The amount of the fee he or she wants to charge for the services; (4) The amount of fee the representative wants to request or charge for his or her services in the same matter before any State or Federal court; (5) The amount of and a list of any expenses the representative incurred for which he or she has been paid or expects to be paid; (6) A description of the special qualifications which enabled the representative, if he or she is not an attorney, to give valuable help in connection with your claim; and (7) A statement showing that the representative sent a copy of the request for approval of a fee to you. (b) Evaluating a request for approval of a fee. (i) The extent and type of services the representative performed; (ii) The complexity of the case; (iii) The level of skill and competence required of the representative in giving the services; (iv) The amount of time the representative spent on the case; (v) The results the representative achieved; (vi) The level of review to which the claim was taken and the level of the review at which the representative became your representative; and (vii) The amount of fee the representative requests for his or her services, including any amount authorized or requested before, but not including the amount of any expenses he or she incurred. (2) Although we consider the amount of benefits, if any, that are payable, we do not base the amount of fee we authorize on the amount of the benefit alone, but on a consideration of all the factors listed in this section. The benefits payable in any claim are determined by specific provisions of law and are unrelated to the efforts of the representative. We may authorize a fee even if no benefits are payable. § 404.1728 Proceedings before a State or Federal court. (a) Representation of a party in court proceedings. (b) Attorney fee allowed by a Federal court. § 404.1730 Payment of fees. (a) Fees allowed by a Federal court. (b) Fees we may pay Attorneys and eligible non-attorneys. (i) We will pay your representative out of the past-due benefits the lesser of the amounts in paragraph (b)(1)(iii) or (iv) of this section, less the amount of the assessment described in paragraph (d) of this section, unless the representative files a waiver of the fee or direct payment of the fee; and (ii) If there is a valid assignment (see paragraph (e) of this section), we will pay the representative's fee (see paragraph (b)(1)(i) of this section) to an entity. (iii) Twenty-five percent of the total of the past-due benefits; or (iv) The amount of the fee that we set. (2) Non-attorneys ineligible for direct payment. (c) Time limit for filing request for approval of fee to obtain direct payment. (2)(i) If no request is filed within 60 days of the date the notice of the favorable determination is mailed, we will mail a written notice to you and your representative at your last known addresses. The notice will inform you and the representative that unless the representative files, within 20 days from the date of the notice, a written request for approval of a fee under § 404.1725, or a written request for an extension of time, we will pay all the past-due benefits to you. (ii) The representative must send you a copy of any request made to us for an extension of time. If the request is not filed within 20 days of the date of the notice, or by the last day of any extension we approved, we will pay all past-due benefits to you. We must approve any fee the representative charges after that time, but the collection of any approved fee is a matter between you and the representative. (d) Assessment when we pay a fee directly to a representative. (2) The amount of the assessment is equal to the lesser of: (i) The product we obtain by multiplying the amount of the fee we are paying to the representative by the percentage rate the Commissioner of Social Security determines is necessary to achieve full recovery of the costs of determining and paying fees directly to representatives, but not in excess of 6.3 percent; and (ii) The maximum assessment amount. The maximum assessment amount was initially set at $75, but by law is adjusted annually to reflect the increase in the cost of living. (See §§ 404.270 through 404.277 for an explanation of how the cost-of-living adjustment is computed.) If the adjusted amount is not a multiple of $1, we round down the amount to the next lower $1, but the amount will not be less than $75. We will announce any increase in the maximum assessment amount and explain how the increase was determined in the Federal Register. (3) We collect the assessment by subtracting it from the amount of the fee to be paid to the representative. The representative who is subject to an assessment may not, directly or indirectly, request or otherwise obtain reimbursement of the assessment from you. (e) Assignment of direct payment of a fee to designated entity. (i) Is eligible for direct payment; (ii) Has not waived the fee or direct payment; (iii) Assigns direct payment of the entire fee we authorize to one entity in the manner we prescribe; (iv) Makes the assignment before the date on which we notify you of our first favorable determination or decision; and (v) Affiliates with the entity through registration. (2) A representative may rescind an assignment in the manner we prescribe before the date on which we notify you of our first favorable determination or decision. (3) A representative may not assign direct payment of a fee to an entity that is ineligible to receive direct payment. (4) A representative may not waive a fee or direct payment of a fee if the representative previously assigned direct payment of a fee in accordance with paragraph (e)(1) of this section and did not timely rescind that assignment in accordance with paragraph (e)(2) of this section. [72 FR 16724, Apr. 5, 2007, as amended at 76 FR 45193, July 28, 2011; 89 FR 67554, Aug. 21, 2024] § 404.1735 Entity eligible for direct payment of fees. An entity is eligible for direct payment of an authorized fee if the entity: (a) Has an Employer Identification Number; (b) Has registered with us in the manner we prescribe; (c) Has not been found ineligible for direct payment; (d) Designates and maintains an employee who is registered as a representative in the manner we prescribe as a point of contact to speak and act on the entity's behalf; (e) Accepts payment via electronic funds transfer; and (f) Conforms to our rules. [89 FR 67555, Aug. 21, 2024] § 404.1740 Rules of conduct and standards of responsibility for representatives. (a) Purpose and scope. (2) All representatives must be forthright in their dealings with us and with the claimant and must comport themselves with due regard for the nonadversarial nature of the proceedings by complying with our rules and standards, which are intended to ensure orderly and fair presentation of evidence and argument. (b) Affirmative duties. (1) Act with reasonable promptness to help obtain the information or evidence that the claimant must submit under our regulations, and forward the information or evidence to us for consideration as soon as practicable. (2) Assist the claimant in complying, as soon as practicable, with our requests for information or evidence at any stage of the administrative decisionmaking process in his or her claim. In disability and blindness claims, this includes the obligation pursuant to § 404.1512(c) to assist the claimant in providing, upon our request, evidence about: (i) The claimant's medical source(s); (ii) The claimant's age; (iii) The claimant's education and training; (iv) The claimant's work experience; (v) The claimant's daily activities both before and after the date the claimant alleges that he or she became disabled; (vi) The claimant's efforts to work; and (vii) Any other factors showing how the claimant's impairment(s) affects his or her ability to work. In §§ 404.1560 through 404.1569a, we discuss in more detail the evidence we need when we consider vocational factors. (3) Conduct his or her dealings in a manner that furthers the efficient, fair, and orderly conduct of the administrative decision-making process, including duties to: (i) Provide competent representation to a claimant. Competent representation requires the knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A representative must know the significant issue(s) in a claim, have reasonable and adequate familiarity with the evidence in the case, and have a working knowledge of the applicable provisions of the Social Security Act, as amended, the regulations, the Social Security Rulings, and any other applicable provisions of law. (ii) Act with reasonable diligence and promptness in representing a claimant. This includes providing prompt and responsive answers to our requests for information pertinent to processing of the claim. (iii) When requested, provide us, in a manner we specify, potential dates and times that the representative will be available for a hearing. We will inform the representative how many potential dates and times we require to coordinate the hearing schedule. (iv) Only withdraw representation at a time and in a manner that does not disrupt the processing or adjudication of a claim and that provides the claimant adequate time to find new representation, if desired. A representative should not withdraw after we set the time and place for the hearing (see § 404.936) unless the representative can show that a withdrawal is necessary due to extraordinary circumstances, as we determine on a case-by-case basis. (v) Maintain prompt and timely communication with the claimant, which includes, but is not limited to, reasonably informing the claimant of all matters concerning the representation, consulting with the claimant on an ongoing basis during the entire representational period, and promptly responding to a claimant's reasonable requests for information. When we evaluate whether a representative has maintained prompt and timely communication with the claimant, we will consider the difficulty the representative has in locating a particular claimant (e.g., because the claimant is homeless) and the representative's efforts to keep that claimant informed. (4) Conduct business with us electronically at the times and in the manner we prescribe on matters for which the representative requests direct fee payment. ( See (5) Disclose in writing, at the time a medical or vocational opinion is submitted to us or as soon as the representative is aware of the submission to us, if: (i) The representative's employee or any individual contracting with the representative drafted, prepared, or issued the medical or vocational opinion; or (ii) The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing opinion evidence. (6) Disclose to us immediately if the representative discovers that his or her services are or were used by the claimant to commit fraud against us. (7) Disclose to us whether the representative is or has been disbarred or suspended from any bar or court to which he or she was previously admitted to practice, including instances in which a bar or court took administrative action to disbar or suspend the representative in lieu of disciplinary proceedings (e.g., acceptance of voluntary resignation pending disciplinary action). If the disbarment or suspension occurs after the appointment of the representative, the representative will immediately disclose the disbarment or suspension to us. (8) Disclose to us whether the representative is or has been disqualified from participating in or appearing before any Federal program or agency, including instances in which a Federal program or agency took administrative action to disqualify the representative in lieu of disciplinary proceedings (e.g., acceptance of voluntary resignation pending disciplinary action). If the disqualification occurs after the appointment of the representative, the representative will immediately disclose the disqualification to us. (9) Disclose to us whether the representative has been removed from practice or suspended by a professional licensing authority for reasons that reflect on the person's character, integrity, judgment, reliability, or fitness to serve as a fiduciary. If the removal or suspension occurs after the appointment of the representative, the representative will immediately disclose the removal or suspension to us. (10) Ensure that all of the representative's employees, assistants, partners, contractors, or any person assisting the representative on claims for which the representative has been appointed, comply with these rules of conduct and standards of responsibility for representatives, when the representative has managerial or supervisory authority over these individuals or otherwise has responsibility to oversee their work. This includes a duty to take remedial action when: (i) The representative's employees, assistants, partners, contractors or other individuals' conduct violates these rules of conduct and standards of responsibility; and (ii) The representative has reason to believe a violation of these rules of conduct and standards of responsibility occurred or will occur. (c) Prohibited actions. (1) In any manner or by any means threaten, coerce, intimidate, deceive or knowingly mislead a claimant, or prospective claimant or beneficiary, regarding benefits or other rights under the Act. This prohibition includes misleading a claimant, or prospective claimant or beneficiary, about the representative's services and qualifications. (2) Knowingly charge, collect or retain, or make any arrangement to charge, collect or retain, from any source, directly or indirectly, any fee for representational services in violation of applicable law or regulation. This prohibition includes soliciting any gift or any other item of value, other than what is authorized by law. (3) Make or present, or participate in the making or presentation of, false or misleading oral or written statements, evidence, assertions, or representations about a material fact or law concerning a matter within our jurisdiction, in matters where the representative knows or should have known that those statements, evidence, assertions, or representations are false or misleading. (4) Through his or her own actions or omissions, unreasonably delay or cause to be delayed, without good cause (see § 404.911(b)), the processing of a claim at any stage of the administrative decision-making process. (5) Divulge, without the claimant's consent, except as may be authorized by regulations prescribed by us or as otherwise provided by Federal law, any information we furnish or disclose about a claim or prospective claim. (6) Attempt to influence, directly or indirectly, the outcome of a decision, determination, or other administrative action by any means prohibited by law, or by offering or granting a loan, gift, entertainment, or anything of value to a presiding official, agency employee, or witness who is or may reasonably be expected to be involved in the administrative decision-making process, except as reimbursement for legitimately incurred expenses or lawful compensation for the services of an expert witness retained on a non-contingency basis to provide evidence. (7) Engage in actions or behavior prejudicial to the fair and orderly conduct of administrative proceedings, including but not limited to: (i) Repeated absences from or persistent tardiness at scheduled proceedings without good cause (see § 404.911(b)); (ii) Behavior that has the effect of improperly disrupting proceedings or obstructing the adjudicative process, including but not limited to: (A) Directing threatening or intimidating language, gestures, or actions at a presiding official, witness, contractor, or agency employee; (B) Providing misleading information or misrepresenting facts that affect how we process a claim, including, but not limited to, information relating to the claimant's work activity or the claimant's place of residence or mailing address in matters where the representative knows or should have known that the information was misleading and the facts would constitute a misrepresentation; and (C) Communicating with agency staff or adjudicators outside the normal course of business or other prescribed procedures in an attempt to inappropriately influence the processing or outcome of a claim(s). (8) Violate any section of the Act for which a criminal or civil monetary penalty is prescribed. (9) Refuse to comply with any of our rules or regulations. (10) Suggest, assist, or direct another person to violate our rules or regulations. (11) Advise any claimant or beneficiary not to comply with any of our rules or regulations. (12) Knowingly assist a person whom we suspended or disqualified to provide representational services in a proceeding under title II of the Act, or to exercise the authority of a representative described in § 404.1710. (13) Fail to comply with our sanction(s) decision. (14) Fail to oversee the representative's employees, assistants, partners, contractors, or any other person assisting the representative on claims for which the representative has been appointed when the representative has managerial or supervisory authority over these individuals or otherwise has responsibility to oversee their work. (15) While serving as a point of contact for an entity, violate applicable affirmative duties, engage in prohibited actions, or conduct dealings with us in a manner that is untruthful or does not further the efficient and prompt correction of a fee error. [63 FR 41416, Aug. 4, 1998, as amended at 76 FR 56109, Sept. 12, 2011; 76 FR 80245, Dec. 23, 2011; 80 FR 14837, Mar. 20, 2015; 83 FR 30854, July 2, 2018; 89 FR 67555, Aug. 21, 2024] § 404.1745 Violations of our requirements, rules, or standards. When we have evidence that a representative fails to meet our qualification requirements or has violated the rules governing dealings with us, we may begin proceedings to suspend or disqualify that individual from acting in a representational capacity before us. We may file charges seeking such sanctions when we have evidence that a representative: (a) Does not meet the qualifying requirements described in § 404.1705; (b) Has violated the affirmative duties or engaged in the prohibited actions set forth in § 404.1740; (c) Has been convicted of a violation under section 206 of the Act; (d) Has been, by reason of misconduct, disbarred or suspended from any bar or court to which he or she was previously admitted to practice (see § 404.1770(a)); (e) Has been, by reason of misconduct, disqualified from participating in or appearing before any Federal program or agency (see § 404.1770(a)); or (f) Who, as a non-attorney, has been removed from practice or suspended by a professional licensing authority for reasons that reflect on the person's character, integrity, judgment, reliability, or fitness to serve as a fiduciary. [63 FR 41416, Aug. 4, 1998, as amended at 71 FR 2876, Jan. 18, 2006; 83 FR 30855, July 2, 2018] § 404.1750 Notice of charges against a representative. (a) The General Counsel or other delegated official will prepare a notice containing a statement of charges that constitutes the basis for the proceeding against the representative. (b) We will send this notice to the representative either by certified or registered mail, to his or her last known address, or by personal delivery. (c) We will advise the representative to file an answer, within 14 business days from the date of the notice, or from the date the notice was delivered personally, stating why he or she should not be suspended or disqualified from acting as a representative in dealings with us. (d) The General Counsel or other delegated official may extend the 14-day period specified in paragraph (c) of this section for good cause, in accordance with § 404.911. (e) The representative must— (1) Answer the notice in writing under oath (or affirmation); and (2) File the answer with the Social Security Administration, at the address specified on the notice, within the 14-day time period specified in paragraph (c) of this section. (f) If the representative does not file an answer within the 14-day time period specified in paragraph (c) of this section (or the period extended in accordance with paragraph (d) of this section), he or she does not have the right to present evidence, except as may be provided in § 404.1765(g). [45 FR 52090, Aug. 5, 1980, as amended at 56 FR 24131, May 29, 1991; 62 FR 38452, July 18, 1997; 63 FR 41417, Aug. 4, 1998; 71 FR 2876, Jan. 18, 2006; 76 FR 80246, Dec. 23, 2011; 83 FR 30855, July 2, 2018] § 404.1755 Withdrawing charges against a representative. The General Counsel or other delegated official may withdraw charges against a representative. We will withdraw charges if the representative files an answer, or we obtain evidence, that satisfies us that we should not suspend or disqualify the representative from acting as a representative. When we consider withdrawing charges brought under § 404.1745(d) through (f) based on the representative's assertion that, before or after our filing of charges, the representative has been reinstated to practice by the court, bar, or Federal program or Federal agency that suspended, disbarred, or disqualified the representative, the General Counsel or other delegated official will determine whether such reinstatement occurred, whether it remains in effect, and whether he or she is reasonably satisfied that the representative will in the future act in accordance with the provisions of section 206(a) of the Act and our rules and regulations. If the representative proves that reinstatement occurred and remains in effect and the General Counsel or other delegated official is so satisfied, the General Counsel or other delegated official will withdraw those charges. The action of the General Counsel or other delegated official regarding withdrawal of charges is solely that of the General Counsel or other delegated official and is not reviewable, or subject to consideration in decisions made under §§ 404.1770 and 404.1790. If we withdraw the charges, we will notify the representative by mail at the representative's last known address. [83 FR 30855, July 2, 2018] § 404.1765 Hearing on charges. (a) Holding the hearing. (b) Hearing officer. (2) No hearing officer shall hold a hearing in a case in which he or she is prejudiced or partial about any party, or has any interest in the matter. (3) If the representative or any party to the hearing objects to the hearing officer who has been named to hold the hearing, we must be notified at the earliest opportunity. The hearing officer shall consider the objection(s) and either proceed with the hearing or withdraw from it. (4) If the hearing officer withdraws from the hearing, another one will be named. (5) If the hearing officer does not withdraw, the representative or any other person objecting may, after the hearing, present his or her objections to the Appeals Council explaining why he or she believes the hearing officer's decision should be revised or a new hearing held by another administrative law judge designated to act as a hearing officer. (c) Time and place of hearing. (d) Change of time and place for hearing. (2) The hearing officer may adjourn or postpone the hearing. (3) Subject to the limitations in paragraph (g)(2) of this section, the hearing officer may reopen the hearing for the receipt of additional evidence at any time before mailing notice of the decision. (4) The hearing officer shall give the representative and the other party to the hearing reasonable notice of any change in the time or place for the hearing, or of an adjournment or reopening of the hearing. (e) Parties. (f) Subpoenas. (2) The representative or the other party who wants a subpoena issued shall file a written request with the hearing officer. This must be done at least 5 days before the date set for the hearing. The request must name the documents to be produced, and describe the address or location in enough detail to permit the witnesses or documents to be found. (3) The representative or the other party who wants a subpoena issued shall state in the request for a subpoena the material facts that he or she expects to establish by the witness or document, and why the facts could not be established by the use of other evidence which could be obtained without use of a subpoena. (4) We will pay the cost of the issuance and the fees and mileage of any witness subpoenaed, as provided in section 205(d) of the Act. (g) Conduct of the hearing. (2) If the representative did not file an answer to the charges, he or she has no right to present evidence at the hearing. The hearing officer may make or recommend a decision on the basis of the record, or permit the representative to present a statement about the sufficiency of the evidence or the validity of the proceedings upon which the suspension or disqualification, if it occurred, would be based. (3) The hearing officer will make the hearing open to the representative, to the other party, and to any persons the hearing officer or the parties consider necessary or proper. The hearing officer will inquire fully into the matters being considered, hear the testimony of witnesses, and accept any documents that are material. (4) The hearing officer has the right to decide the order in which the evidence and the allegations will be presented and the conduct of the hearing. (h) Evidence. (i) Witnesses. (j) Oral and written summation. (2) The party that files briefs or other written statements shall provide enough copies so that they may be made available to any other party to the hearing who requests a copy. (k) Record of hearing. (l) Representation. (m) Failure to appear. (n) Dismissal of charges. (o) Cost of transcript. [45 FR 52090, Aug. 5, 1980, as amended at 56 FR 24131, 24132, May 29, 1991; 62 FR 38452, July 18, 1997; 63 FR 41417, Aug. 4, 1998; 71 FR 2877, Jan. 18, 2006; 76 FR 80246, Dec. 23, 2011; 83 FR 30856, July 2, 2018] § 404.1770 Decision by hearing officer. (a) General. (2) In deciding whether a person has been, by reason of misconduct, disbarred or suspended by a court or bar, or disqualified from participating in or appearing before any Federal program or Federal agency, the hearing officer will consider the reasons for the disbarment, suspension, or disqualification action. If the action was taken for solely administrative reasons (e.g., failure to pay dues or to complete continuing legal education requirements), that will not disqualify the person from acting as a representative before us. However, this exception to disqualification does not apply if the administrative action was taken in lieu of disciplinary proceedings (e.g., acceptance of a voluntary resignation pending disciplinary action). Although the hearing officer will consider whether the disbarment, suspension, or disqualification action is based on misconduct when deciding whether a person should be disqualified from acting as a representative before us, the hearing officer will not re-examine or revise the factual or legal conclusions that led to the disbarment, suspension, or disqualification. For purposes of determining whether a person has been, by reason of misconduct, disqualified from participating in or appearing before any Federal program or Federal agency, disqualified refers to any action that prohibits a person from participating in or appearing before any Federal program or Federal agency, regardless of how long the prohibition lasts or the specific terminology used. (3) If the hearing officer finds that the charges against the representative have been sustained, he or she will either— (i) Suspend the representative for a specified period of not less than 1 year, nor more than 5 years, from the date of the decision; or (ii) Disqualify the representative from acting as a representative in dealings with us until he or she may be reinstated under § 404.1799. Disqualification is the sole sanction available if the charges have been sustained because the representative has been disbarred or suspended from any court or bar to which the representative was previously admitted to practice or disqualified from participating in or appearing before any Federal program or Federal agency, or because the representative has collected or received, and retains, a fee for representational services in excess of the amount authorized. (4) The hearing officer shall mail a copy of the decision to the parties at their last known addresses. The notice will inform the parties of the right to request the Appeals Council to review the decision. (b) Effect of hearing officer's decision. (2) If the final decision is that a person is disqualified from being a representative in dealings with us, he or she will not be permitted to represent anyone in dealings with us until authorized to do so under the provisions of § 404.1799. (3) If the final decision is that a person is suspended for a specified period of time from being a representative in dealings with us, he or she will not be permitted to represent anyone in dealings with us during the period of suspension unless authorized to do so under the provisions of § 404.1799. [45 FR 52090, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991; 63 FR 41417, Aug. 4, 1998; 71 FR 2877, Jan. 18, 2006; 76 FR 80246, Dec. 23, 2011] § 404.1775 Requesting review of the hearing officer's decision. (a) General. (b) Time and place of filing request for review. [45 FR 52090, Aug. 5, 1980, as amended at 83 FR 30856, July 2, 2018] § 404.1776 Assignment of request for review of the hearing officer's decision. Upon receipt of a request for review of the hearing officer's decision, the matter will be assigned to a panel consisting of three members of the Appeals Council none of whom shall be the Chair of the Appeals Council. The panel shall jointly consider and rule by majority opinion on the request for review of the hearing officer's decision, including a determination to dismiss the request for review. Matters other than a final disposition of the request for review may be disposed of by the member designated chair of the panel. [56 FR 24132, May 29, 1991] § 404.1780 Appeals Council's review of hearing officer's decision. (a) Upon request, the Appeals Council will give the parties a reasonable time to file briefs or other written statements as to fact and law, and to request to appear before the Appeals Council to present oral argument. When oral argument is requested within the time designated by the Appeals Council, the Appeals Council will grant the request for oral argument and determine whether the parties will appear at the oral argument in person, by video teleconferencing, or by telephone. If oral argument is not requested within the time designated by the Appeals Council, the Appeals Council may deny the request. (b) If a party files a brief or other written statement with the Appeals Council, he or she shall send a copy to the opposing party and certify that the copy has been sent. [45 FR 52090, Aug. 5, 1980, as amended at 83 FR 30856, July 2, 2018] § 404.1785 Evidence permitted on review. (a) General. (b) Individual charged filed an answer. (2) Before the Appeals Council admits additional evidence into the record, it will mail a notice to the parties, informing them that evidence about certain issues was submitted. The Appeals Council will give each party a reasonable opportunity to comment on the evidence and to present other evidence that is material to an issue it is considering. (3) The Appeals Council will determine whether the additional evidence warrants a new review by a hearing officer or whether the Appeals Council will consider the additional evidence as part of its review of the case. (c) Individual charged did not file an answer. [83 FR 30856, July 2, 2018] § 404.1790 Appeals Council's decision. (a) The Appeals Council will base its decision upon the evidence in the hearing record and any other evidence it may permit on review. The Appeals Council will affirm the hearing officer's decision if the action, findings, and conclusions are supported by substantial evidence. If the hearing officer's decision is not supported by substantial evidence, the Appeals Council will either: (1) Reverse or modify the hearing officer's decision; or (2) Return the case to the hearing officer for further proceedings. (b) The Appeals Council, in changing a hearing officer's decision to suspend a representative for a specified period, shall in no event reduce the period of suspension to less than 1 year. In modifying a hearing officer's decision to disqualify a representative, the Appeals Council shall in no event impose a period of suspension of less than 1 year. Further, the Appeals Council shall in no event impose a suspension when disqualification is the sole sanction available in accordance with § 404.1770(a)(3)(ii). (c) If the Appeals Council affirms or changes a hearing officer's decision, the period of suspension or the disqualification is effective from the date of the Appeals Council's decision. (d) If the hearing officer did not impose a period of suspension or a disqualification, and the Appeals Council decides to impose one or the other, the suspension or disqualification is effective from the date of the Appeals Council's decision. (e) The Appeals Council shall make its decision in writing and shall mail a copy of the decision to the parties at their last known addresses. (f) The Appeals Council may designate and publish certain final decisions as precedent for other actions brought under its representative conduct provisions. Prior to making a decision public, we will remove or redact personally identifiable information from the decision. [45 FR 52090, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991; 71 FR 2877, Jan. 18, 2006; 83 FR 30856, July 2, 2018] § 404.1795 When the Appeals Council will dismiss a request for review. The Appeals Council may dismiss a request for the review of any proceeding to suspend or disqualify a representative in any of the following circumstances: (a) Upon request of party. (b) Death of party. (c) Request for review not timely filed. [45 FR 52090, Aug. 5, 1980, as amended at 84 FR 51367, Sept. 30, 2019] § 404.1797 Reinstatement after suspension—period of suspension expired. We shall automatically allow a person to serve again as a representative in dealings with us at the end of any suspension. § 404.1799 Reinstatement after suspension or disqualification—period of suspension not expired. (a) After more than one year has passed, a person who has been suspended or disqualified may ask the Appeals Council for permission to serve as a representative again. The Appeals Council will assign and process a request for reinstatement using the same general procedures described in § 404.1776. (b) The suspended or disqualified person must submit any evidence the person wishes to have considered along with the request to be allowed to serve as a representative again. (c) The General Counsel or other delegated official, upon notification of receipt of the request, will have 30 days in which to present a written report of any experiences with the suspended or disqualified person subsequent to that person's suspension or disqualification. The Appeals Council will make available to the suspended or disqualified person a copy of the report. (d)(1) The Appeals Council shall not grant the request unless it is reasonably satisfied that the person will in the future act according to the provisions of section 206(a) of the Act, and to our rules and regulations. (2) If a person was disqualified because he or she had been disbarred, suspended, or removed from practice for the reasons described in § 404.1745(d) through (f), the Appeals Council will grant a request for reinstatement as a representative only if the criterion in paragraph (d)(1) of this section is met and the disqualified person shows that he or she has been admitted (or readmitted) to and is in good standing with the court, bar, Federal program or agency, or other governmental or professional licensing authority from which he or she had been disbarred, suspended, or removed from practice. (3) If a person was disqualified because the person had been disqualified from participating in or appearing before a Federal program or Federal agency, the Appeals Council will grant the request for reinstatement only if the criterion in paragraph (d)(1) of this section is met and the disqualified person shows that the person is now qualified to participate in or appear before that Federal program or Federal agency. (4) If the person was disqualified as a result of collecting or receiving, and retaining, a fee for representational services in excess of the amount authorized, the Appeals Council will grant the request only if the criterion in paragraph (d)(1) of this section is met and the disqualified person shows that full restitution has been made. (e) The Appeals Council will mail a notice of its decision on the request for reinstatement to the suspended or disqualified person. It will also mail a copy to the General Counsel or other delegated official. (f) If the Appeals Council decides not to grant the request, it will not consider another request before the end of 3 years from the date of the notice of the previous denial. [45 FR 52090, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991; 62 FR 38452, July 18, 1997; 63 FR 41417, Aug. 4, 1998; 71 FR 2877, Jan. 18, 2006; 76 FR 80246, Dec. 23, 2011; 83 FR 30857, July 2, 2018] Subpart S—Payment Procedures Authority: Secs. 205 (a) and (n), 207, 702(a)(5), and 708(a) of the Social Security Act (42 U.S.C. 405 (a) and (n), 407, 902(a)(5) and 909(a)). Source: 45 FR 52095, Aug. 5, 1980, unless otherwise noted. § 404.1800 Introduction. After we have made a determination or decision that you are entitled to benefits under title II of the Act, we begin paying those benefits to you as soon as possible. This subpart explains— (a) What we must do so that your benefits begin promptly; (b) When and how you may request that payment of benefits be expedited; (c) When we may cause your benefits to be withheld; (d) Our obligation not to assign or transfer your benefits to someone; and (e) When we will use one check to pay benefits to two or more persons in a family. § 404.1805 Paying benefits. (a) As soon as possible after we have made a determination or decision that you are entitled to benefits, we certify to the Secretary of the Treasury, who is the Managing Trustee of the Trust Funds— (1) Your name and address, or the name and address of the person to be paid if someone receives your benefits on your behalf as a representative payee; (2) The amount of the payment or payments to be made from the appropriate Trust Fund; and (3) The time at which the payment or payments should be made in accordance with § 404.1807. (b) Under certain circumstances when you have had railroad employment, we will certify the information to the Railroad Retirement Board. [45 FR 52095, Aug. 5, 1980, as amended at 62 FR 6120, Feb. 11, 1997] § 404.1807 Monthly payment day. (a) General. (b) Assignment of payment day. (2) The payment day will be selected based on the day of the month on which the insured individual was born. Insured individuals born on the 1st through the 10th of the month will be paid on the second Wednesday of each month. Insured individuals born on the 11th through the 20th of the month will be paid on the third Wednesday of each month. Insured individuals born after the 20th of the month will be paid on the fourth Wednesday of each month. See paragraph (c) of this section for exceptions. (3) We will notify you in writing of the particular monthly payment day that is assigned to you. (c) Exceptions. (2) If you or any other person become entitled to benefits on the earnings record of the insured individual based on an application filed after April 30, 1997, and also become entitled to Supplemental Security Income (SSI) benefits or have income which is deemed to an SSI beneficiary (per § 416.1160), all persons who are or become entitled to benefits on that earnings record will be assigned to the 3rd day of the month as the monthly payment day. We will notify you in writing if your monthly payment day is being changed to the 3rd of the month due to this provision. (3) If you or any other person become entitled to benefits on the earnings record of the insured individual based on an application filed after April 30, 1997, and also reside in a foreign country, all persons who are or become entitled to benefits on that earnings record will be assigned to the 3rd day of the month as the monthly payment day. We will notify you in writing if your monthly payment day is being changed to the 3rd of the month due to this provision. (4) If you or any other person become entitled on the earnings record of the insured individual based on an application filed after April 30, 1997, and are not entitled to SSI but are or become eligible for the State where you live to pay your Medicare premium under the provisions of section 1843 of the Act, all persons who are or become entitled to benefits on that earnings record will be assigned to the 3rd day of the month as the monthly payment day. We will notify you in writing if your monthly payment day is being changed to the 3rd of the month due to this provision. (5) After April 30, 1997, all individuals who become entitled on one record and later entitled on another record, without a break in entitlement, will be paid all benefits to which they are entitled no later than their current payment day. Individuals who are being paid benefits on one record on the 3rd of the month, and who become entitled on another record without a break in entitlement, will continue to receive all benefits on the 3rd of the month. (6) If the day regularly scheduled for the delivery of your benefit payment falls on a Saturday, Sunday, or Federal legal holiday, you will be paid on the first preceding day that is not a Saturday, Sunday, or Federal legal holiday. [62 FR 6120, Feb. 11, 1997] § 404.1810 Expediting benefit payments. (a) General. (b) Applicability of section. (2) This section does not apply— (i) If an initial determination has been made and a request for a reconsideration, a hearing, a review by the Appeals Council, or review by a Federal court is pending on any issue of entitlement to or payment of a benefit; (ii) To any benefit for which a check has been cashed; or (iii) To any benefit based on an alleged disability. (c) Request for payment. (2) If you received a regular monthly benefit in the month before the month in which a payment was allegedly due, you may make a written request for payment any time 30 days after the 15th day of the month in which the payment was allegedly due. If you request is made before the end of the 30-day period, we will consider it to have been made at the end of the period. (3)(i) If you did not receive a regular monthly benefit in the month before the month in which a payment was allegedly due, you may make a written request for payment any time 90 days after the later of— (A) The date on which the benefit is alleged to have been due; or (B) The date on which you furnished us the last information we requested from you. (ii) If your request is made before the end of the 90-day period we will consider it to have been made at the end of the period. (d) Certification for payment. (e) Preliminary certification for payment. § 404.1815 Withholding certification or payments. (a) When certification may be withheld. (1) A reconsideration (whether at the request of a claimant or on our own motion), hearing, or review is being conducted, or a civil action has been filed in a Federal district court concerning the determination or decision. (2) An application or request is pending concerning the payment of benefits or a lump sum to another person, and the application or request is inconsistent, in whole or in part, with the payment or payments under the determination or decision. (b) When certification will not be withheld. § 404.1820 Transfer or assignment of payments. (a) General. (1) Any person designated as your assignee or transferee; or (2) Any person claiming payment because of an execution, levy, attachment, garnishment, or other legal process, or because of any bankruptcy or insolvency proceeding against or affecting you. (b) Enforcement of a child support or alimony obligation. § 404.1821 Garnishment of payments after disbursement. (a) Payments that are covered by section 207 of the Social Security Act and made by direct deposit are subject to 31 CFR part 212, Garnishment of Accounts Containing Federal Benefit Payments. (b) This section may be amended only by a rulemaking issued jointly by the Department of Treasury and the agencies defined as a “benefit agency” in 31 CFR 212.3. [76 FR 9960, Feb. 23, 2011] § 404.1825 Joint payments to a family. (a) Two or more beneficiaries in same family. (b) Joint payee dies before cashing a check. (2) If the uncashed check represents benefits for a month after the month of death, we will not authorize the surviving payee to cash the check unless the proceeds of the check are necessary to meet the ordinary and necessary living expenses of the surviving payee. (c) Adjustment or recovery of overpayment. Subpart T—Totalization Agreements Authority: Secs. 205(a), 233, and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a), 433, and 902(a)(5)). Source: 44 FR 42964, July 23, 1979, unless otherwise noted. General Provisions § 404.1901 Introduction. (a) Under section 233 of the Social Security Act, the President may enter into an agreement establishing a totalization arrangement between the social security system of the United States and the social security system of a foreign country. An agreement permits entitlement to and the amount of old-age, survivors, disability, or derivative benefits to be based on a combination of a person's periods of coverage under the social security system of the United States and the social security system of the foreign country. An agreement also provides for the precluding of dual coverage and dual social security taxation for work covered under both systems. An agreement may provide that the provisions of the social security system of each country will apply equally to the nationals of both countries (regardless of where they reside). For this purpose, refugees, stateless persons, and other nonnationals who derive benefit rights from nationals, refugees, or stateless persons may be treated as nationals if they reside within one of the countries. (b) The regulations in this subpart provide definitions and principles for the negotiation and administration of totalization agreements. Where necessary to accomplish the purposes of totalization, we will apply these definitions and principles, as appropriate and within the limits of the law, to accommodate the widely diverse characteristics of foreign social security systems. § 404.1902 Definitions. For purposes of this subpart— Act et seq. Agency agency Agreement Competent authority competent authority Period of coverage Residence ordinarily resides, Residence ordinarily resides Social security system [44 FR 42964, July 23, 1979, as amended at 62 FR 38452, July 18, 1997] § 404.1903 Negotiating totalization agreements. An agreement shall be negotiated with the national government of the foreign country for the entire country. However, agreements may only be negotiated with foreign countries that have a social security system of general application in effect. The system shall be considered to be in effect if it is collecting social security taxes or paying social security benefits. § 404.1904 Effective date of a totalization agreement. Section 233 of the Social Security Act provides that a totalization agreement shall become effective on any date provided in the agreement if— (a) The date occurs after the expiration of a period during which at least one House of Congress has been in session on each of 60 days following the date on which the agreement is transmitted to Congress by the President; and (b) Neither House of Congress adopts a resolution of disapproval of the agreement within the 60-day period described in paragraph (a) of this section. [49 FR 29775, July 24, 1984] § 404.1905 Termination of agreements. Each agreement shall contain provisions for its possible termination. If an agreement is terminated, entitlement to benefits and coverage acquired by an individual before termination shall be retained. The agreement shall provide for notification of termination to the other party and the effective date of termination. Benefit Provisions § 404.1908 Crediting foreign periods of coverage. (a) General. (b) For quarters of coverage purposes. (2) If an individual fails to meet the requirements for currently insured status or the insured status needed for establishing a period of disability solely because of the assignment of QCs based on foreign coverage to calendar quarters chronologically, the QCs based on foreign coverage may be assigned to different calendar quarters within the beginning and ending dates of the reporting period certified by the foreign country, but only as permitted under paragraph (b)(1) of this section. § 404.1910 Person qualifies under more than one totalization agreement. (a) An agreement may not provide for combining periods of coverage under more than two social security systems. (b) If a person qualifies under more than one agreement, the person will receive benefits from the U.S. only under the agreement affording the most favorable treatment. (c) In the absence of evidence to the contrary, the agreement that affords the most favorable treatment for purposes of paragraph (b) of this section will be determined as follows: (1) If benefit amounts are the same under all such agreements, benefits will be paid only under the agreement which affords the earliest month of entitlement. (2) If benefit amounts and the month of entitlement are the same under all such agreements, benefits will be paid only under the agreement under which all information necessary to pay such benefits is first available. (3) If benefit amounts under all such agreements are not the same, benefits will be paid only under the agreement under which the highest benefit is payable. However, benefits may be paid under an agreement under which a lower benefit is payable for months prior to the month of first entitlement to such higher benefit. [44 FR 42964, July 23, 1979, as amended at 49 FR 29775, July 24, 1984] § 404.1911 Effects of a totalization agreement on entitlement to hospital insurance benefits. A person may not become entitled to hospital insurance benefits under section 226 or section 226A of the Act by combining the person's periods of coverage under the social security system of the United States with the person's periods of coverage under the social security system of the foreign country. Entitlement to hospital insurance benefits is not precluded if the person otherwise meets the requirements. Coverage Provisions § 404.1913 Precluding dual coverage. (a) General. (b) Principles for precluding dual coverage. (2) If the work would otherwise be covered by both countries, an agreement will exempt it from coverage by one of the countries. (3) Generally, an agreement will provide that a worker will be covered by the country in which he or she is employed and will be exempt from coverage by the other country. Example: A U.S. national employed in XYZ country by an employer located in the United States will be covered by XYZ country and exempt from U.S. coverage. (4) An agreement may provide exceptions to the principle stated in paragraph (b)(3) of this section so that a worker will be covered by the country to which he or she has the greater attachment. Example: A U.S. national sent by his employer located in the United States to work temporarily for that employer in XYZ country will be covered by the United States and will be exempt from coverage by XYZ country. (5) Generally, if a national of either country resides in one country and has self employment income that is covered by both countries, an agreement will provide that the person will be covered by the country in which he or she resides and will be exempt from coverage by the other country. (6) Agreements may provide for variations from the general principles for precluding dual coverage to avoid inequitable or anomalous coverage situations for certain workers. However, in all cases coverage must be provided by one of the countries. [44 FR 42964, July 23, 1979, as amended at 50 FR 36575, Sept. 9, 1985] § 404.1914 Certificate of coverage. Under some agreements, proof of coverage under one social security system may be required before the individual may be exempt from coverage under the other system. Requests for certificates of coverage under the U.S. system may be submitted by the employer, employee, or self-employed individual to SSA. § 404.1915 Payment of contributions. On or after the effective date of the agreement, to the extent that employment or self-employment (or service recognized as equivalent) under the U.S. social security system or foreign system is covered under the agreement, the agreement shall provide that the work or equivalent service be subject to payment of contributions or taxes under only one system (see sections 1401(c), 3101(c), and 3111(c) of the Internal Revenue Code of 1954). The system under which contributions or taxes are to be paid is the system under which there is coverage pursuant to the agreement. Computation Provisions § 404.1918 How benefits are computed. (a) General. (1) We establish a theoretical earnings record for a worker which attributes to all computation base years (see §§ 404.211(b) and 404.241(c)) the same relative earnings position (REP) as he or she has in the years of his or her actual U.S. covered work. As explained in paragraph (b)(3) of this section, the REP is derived by determining the ratio of the worker's actual U.S. covered earnings in each year to the average of the total U.S. covered wages of all workers for that year, and then averaging the ratios for all such years. This average is the REP and is expressed as a percentage. (2) We compute a theoretical PIA as prescribed in § 404.1918(c) based on the theoretical earnings record and the provisions of subpart C of this part. (3) We multiply the theoretical PIA by a fraction equal to the number of quarters of coverage (QC's) which the worker completed under the U.S. Social Security system over the number of calendar quarters in the worker's coverage lifetime (see paragraph (d)(2) of this section). See § 404.140 for the definition of QC. (4) If the pro rata PIA is higher than the PIA which would be computed if the worker were insured under the U.S. system without totalization, the pro rata PIA will be reduced to the later PIA. (b) Establishing a theoretical earnings record. Year Average of the total wages of all workers 1937 $1,137.96 1938 1,053.24 1939 1,142.36 1940 1,195.00 1941 1,276.04 1942 1,454.28 1943 1,713.52 1944 1,936.32 1945 2,021.40 1946 1,891.76 1947 2,175.32 1948 2,361.64 1949 2,483.20 1950 2,543.96 (2) For years after 1950, the average of the total wages is as prescribed in § 404.211(c). If a worker has earnings in the year preceding the year of eligibility or death, or in a later year, we may not have been able to establish the average of the total wages of all workers for that year. Therefore, we will divide a worker's actual earnings in these years by the average of the total wages for the latest year for which that information is available. Average wage information is considered available on January 1 of the year following the year in which it is published in the Federal Register. (3) The percentages for all years of actual covered earnings are then averaged to give the worker's REP for the entire period of work in the U.S. In determining the percentages for all years of covered earnings and the REP, we make adjustments as necessary to take account of the fact that the covered earnings for some years may have involved less than four U.S. QC's. The actual earnings that are taken into account in determining the percentage for any year with 1, 2, or 3 QC's cannot exceed 1/4 1/2 3/4 (4) For each of the worker's computation base years (see §§ 404.211(b), 404.221(b) and 404.241(c)), we multiply the average of the total wages of all workers for that year by the worker's REP. The product is the amount of earnings attributed to the worker for that year, subject to the annual wage limitation (see § 404.1047). The worker's theoretical earnings record consists of his or her attributed earnings based on his or her REP for all computation base years. However, we do not attribute earnings to computation base years before the year of attainment of age 22 or to computation base years beginning with the year of attainment of retirement age (or the year in which a period of disability begins), unless the worker is actually credited with U.S. earnings in those years. In death cases, earnings for the year of death will be attributed only through the quarter of death, on a proportional basis. (c) Determining the theoretical PIA. (d) Determining the pro rata PIA. (1) The theoretical PIA; and (2) The ratio of the worker's actual number of U.S. QC's to the number of calendar quarters in the worker's coverage lifetime. A coverage lifetime means the worker's benefit computation years as determined under § 404.211(e), § 404.221(c), or § 404.241(d). Example 1: C attains age 62 in 1982 and needs 31 QC's to be insured. C worked under the U.S. system from July 1, 1974 to December 31, 1980 and therefore has only 6 1/2 Step 1: The following table shows: (1) C's actual U.S. covered earnings for each year, (2) the average of the total wages of all workers for that year and (3) the ratio of (1) to (2): Year QC's C's actual U.S. covered earnings National average wage Percentage ratio of (1) to (2) (1) (2) (3) 1974 2 $2,045.08 $8,030.76 25.46558 1975 4 7,542.00 8,630.92 87.38350 1976 4 9,016.00 9,226.48 97.71874 1977 4 9,952.00 9,779.44 101.76452 1978 4 10,924.00 10,556.03 103.48587 1979 4 12,851.00 11,479.46 111.94777 1980 4 11,924.00 12,513.46 95.28939 C's REP is the average of the ratios in column 3, adjusted to take account of the fact that C had only 2 QC's in 1974. Thus, the REP equals the sum of the figures in column 3 (623.05537), divided by the total number of C's QC's (26) and multiplied by 4, or 95.85467 percent. Since C attained age 62 in 1982, his computation base years are 1951 through 1981. To establish his theoretical earnings record we use 95.85467 percent of the national average wage for each of the years 1951 through 1981. Since national average wage data is not available for 1981, for that year we attribute 95.85467 percent of the national average wage for 1980 or $11,994.74. His theoretical earnings record would look like this: 1951 $2,683.13 1952 2,850.07 1953 3,009.30 1954 3,024.83 1955 3,164.58 1956 3,385.93 1957 3,490.76 1958 3,521.51 1959 3,695.96 1960 3,841.01 1961 3,917.35 1962 4,113.51 1963 4,214.38 1964 4,386.62 1965 4,465.60 1966 4,733.65 1967 4,997.33 1968 5,340.79 1969 5,649.44 1970 5,929.80 1971 6,227.75 1972 6,838.08 1973 7,265.94 1974 7,697.86 1975 8,273.14 1976 8,844.01 1977 9,374.05 1978 10,118.45 1979 11,003.60 1980 11,994.74 1981 11,994.74 Step 2: Step 3: Theoretical PIA − Actual U.S. QC's calendar quarters in benefit computation years $453 − 26 QC's (6 1 2 104 quarters (26 years) = $113.20 pro rata PIA Example 2: M needs 27 QC's to be insured, but she has only 3 years of work (12 QC's) under the U.S. system. M has enough foreign work, however, to be insured. She attained age 62 in 1978, and her U.S. covered earnings were in 1947, 1948 and 1949. Based on M's date of birth, her theoretical PIA can be computed, in accordance with § 404.220, under a new start method. If M's earnings in 1947, 1948, and 1949 were 50 percent, 60 percent and 70 percent, respectively, of the average wage for each year, her REP would be 60 percent. For each year in the computation period, 60 percent of the average wage for that year will be attributed as M's assumed earnings. The theoretical PIA will then be computed as described in §§ 404.220 through 404.222. To determine M's pro rata PIA, the theoretical PIA will be multiplied by the ratio of the actual number of U.S. QC's to the number of calendar quarters in the benefit computation years. There are 22 benefit computation years, or 88 quarters. The pro rata PIA would, therefore, be 12/88 (e) Rounding of benefits. (2) If the effective date of the pro rata PIA is June 1982 or later, we will round to the next lower multiple of 10 cents if it is not already a multiple of 10 cents. (f) Auxiliary and survivors benefits; reductions; family maximum. 1/2 [49 FR 29775, July 24, 1984] § 404.1919 How benefits are recomputed. Unless otherwise provided in an agreement, we will recompute benefits in accordance with this section. We will recompute the pro rata PIA only if the inclusion of the additional earnings results in an increase in the benefits payable by the U.S. to all persons receiving benefits on the basis of the worker's earnings. Subject to this limitation, the pro rata PIA will be automatically recomputed (see § 404.285) to include additional earnings under the U.S. system. In so doing, a new REP will be established for the worker, taking the additional earnings into account, and assumed earnings in the computation base years used in the original computation will be refigured using the new REP. Assumed earnings will also be determined for the year of additional earnings using the new REP. The additional U.S. earnings will also be used in refiguring the ratio described in § 404.1918(d)(2). [49 FR 29777, July 24, 1984] § 404.1920 Supplementing the U.S. benefit if the total amount of the combined benefits is less than the U.S. minimum benefit. If a resident of the U.S. receives benefits under an agreement from both the U.S. and from the foreign country, the total amount of the two benefits may be less than the amount for which the resident would qualify under the U.S. system based on the minimum PIA as in effect for persons first becoming eligible for benefits before January 1982. An agreement may provide that in the case of an individual who first becomes eligible for benefits before January 1982, the U.S. will supplement the total amount to raise it to the amount for which the resident would have qualified under the U.S. system based on the minimum PIA. (The minimum benefit will be based on the first figure in column IV in the table in section 215(a) of the Act for a person becoming eligible for the benefit before January 1, 1979, or the PIA determined under section 215(a)(1)(C)(i)(I) of the Act (as in effect in December 1981) for a person becoming eligible for the benefit after December 31, 1978.) [49 FR 29777, July 24, 1984] § 404.1921 Benefits of less than $1 due. If the monthly benefit amount due an individual (or several individuals, e.g., children, where several benefits are combined in one check) as a result of a claim filed under an agreement is less than $1, the benefits may be accumulated until they equal or exceed $5. Other Provisions § 404.1925 Applications. (a)(1) An application, or written statement requesting benefits, filed with the competent authority or agency of a country with which the U.S. has concluded an agreement shall be considered an application for benefits under title II of the Act as of the date it is filed with the competent authority or agency if— (i) An applicant expresses or implies an intent to claim benefits from the U.S. under an agreement; and (ii) The applicant files an application that meets the requirements in subpart G of this part. (2) The application described in paragraph (a)(1)(ii) of this section must be filed, even if it is not specifically provided for in the agreement. (b) Benefits under an agreement may not be paid on the basis of an application filed before the effective date of the agreement. § 404.1926 Evidence. (a) An applicant for benefits under an agreement shall submit the evidence needed to establish entitlement, as provided in subpart H of this part. Special evidence requirements for disability benefits are in subpart P of this part. (b) Evidence submitted to the competent authority or agency of a country with which the U.S. has concluded an agreement shall be considered as evidence submitted to SSA. SSA shall use the rules in §§ 404.708 and 404.709 to determine if the evidence submitted is sufficient, or if additional evidence is needed to prove initial or continuing entitlement to benefits. (c) If an application is filed for disability benefits, SSA shall consider medical evidence submitted to a competent authority or agency, as described in paragraph (b) of this section, and use the rules of subpart P of this part for making a disability determination. § 404.1927 Appeals. (a) A request for reconsideration, hearing, or Appeals Council review of a determination that is filed with the competent authority or agency of a country with which the U.S. has concluded an agreement, shall be considered to have been timely filed with SSA if it is filed within the 60-day time period provided in §§ 404.911, 404.918, and 404.946. (b) A request for reconsideration, hearing, or Appeals Council review of a determination made by SSA resulting from a claim filed under an agreement shall be subject to the provisions in subpart J of this part. The rules governing administrative finality in subpart J of this part shall also apply. § 404.1928 Effect of the alien non-payment provision. An agreement may provide that a person entitled to benefits under title II of the Social Security Act may receive those benefits while residing in the foreign country party to the agreement, regardless of the alien non-payment provision (see § 404.460). § 404.1929 Overpayments. An agreement may not authorize the adjustment of title II benefits to recover an overpayment made under the social security system of a foreign country (see § 404.501). Where an overpayment is made under the U.S. system, the provisions in subpart F of this part will apply. § 404.1930 Disclosure of information. The use of information furnished under an agreement generally shall be governed by the national statutes on confidentiality and disclosure of information of the country that has been furnished the information. (The U.S. will be governed by pertinent provisions of the Social Security Act, the Freedom of Information Act, the Privacy Act, the Tax Reform Act, and other related statutes.) In negotiating an agreement, consideration, should be given to the compatibility of the other country's laws on confidentiality and disclosure to those of the U.S. To the extent possible, information exchanged between the U.S. and the foreign country should be used exclusively for purposes of implementing the agreement and the laws to which the agreement pertains. Subpart U—Representative Payment Authority: Secs. 205(a), (j), and (k), and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a), (j), and (k), and 902(a)(5)). Source: 47 FR 30472, July 14, 1982, unless otherwise noted. § 404.2001 Introduction. (a) Explanation of representative payment. (b) Policy used to determine whether to make representative payment. (2) If we determine that representative payment is in the interest of a beneficiary, we will appoint a representative payee. We may appoint a representative payee even if the beneficiary is a legally competent individual. If the beneficiary is a legally incompetent individual, we may appoint the legal guardian or some other person as a representative payee. (3) If payment is being made directly to a beneficiary and a question arises concerning his or her ability to manage or direct the management of benefit payments, we will, if the beneficiary is 18 years old or older and has not been adjudged legally incompetent, continue to pay the beneficiary until we make a determination about his or her ability to manage or direct the management of benefit payments and the selection of a representative payee. § 404.2010 When payment will be made to a representative payee. (a) We pay benefits to a representative payee on behalf of a beneficiary 18 years old or older when it appears to us that this method of payment will be in the interest of the beneficiary. We do this if we have information that the beneficiary is— (1) Legally incompetent or mentally incapable of managing benefit payments; or (2) Physically incapable of managing or directing the management of his or her benefit payments. (b) Generally, if a beneficiary is under age 18, we will pay benefits to a representative payee. However, in certain situations, we will make direct payments to a beneficiary under age 18 who shows the ability to manage the benefits. For example, we make direct payments to a beneficiary under age 18 if the beneficiary is— (1) Receiving disability insurance benefits on his or her own Social Security earnings record; or (2) Serving in the military services; or (3) Living alone and supporting himself or herself; or (4) A parent and files for himself or herself and/or his or her child and he or she has experience in handling his or her own finances; or (5) Capable of using the benefits to provide for his or her current needs and no qualified payee is available; or (6) Within 7 months of attaining age 18 and is initially filing an application for benefits. [47 FR 30472, July 14, 1982, as amended at 54 FR 35483, Aug. 28, 1989] § 404.2011 What happens to your monthly benefits while we are finding a suitable representative payee for you? (a) We may pay you directly. (1) If you are receiving disability payments and we have determined that you have a drug addiction or alcoholism condition, or you are legally incompetent, or you are under age 15, we will presume that substantial harm exists. However, we will allow you to rebut this presumption by presenting evidence that direct payment would not cause you substantial harm. (2) If you do not fit any of these categories, we make findings of substantial harm on a case-by-case basis. We consider all matters that may affect your ability to manage your benefits in your own best interest. We decide that substantial harm exists if both of the following conditions exist: (i) Directly receiving benefits can be expected to cause you serious physical or mental injury. (ii) The possible effect of the injury would outweigh the effect of having no income to meet your basic needs. (b) We may delay or suspend your payments. Example 1: Substantial Harm Exists. We are unable to find a representative payee for Mr. X, a 67 year old retirement beneficiary who is an alcoholic. Based on contacts with the doctor and beneficiary, we determine that Mr. X was hospitalized recently for his drinking. Paying him directly will cause serious injury, so we may delay payment for as long as one month based on substantial harm while we locate a suitable representative payee. Example 2: Substantial Harm Does Not Exist. We approve a claim for Mr. Y, a title II claimant who suffers from a combination of mental impairments but who is not legally incompetent. We determine that Mr. Y needs assistance in managing his benefits, but we have not found a representative payee. Although we believe that Mr. Y may not use the money wisely, there is no indication that receiving funds directly would cause him substantial harm ( i.e. (c) How we pay delayed or suspended benefits. [69 FR 60232, Oct. 7, 2004] § 404.2015 Information considered in determining whether to make representative payments. In determining whether to make representative payment we consider the following information: (a) Court determinations. (b) Medical evidence. (c) Other evidence. § 404.2018 Advance designation of representative payees. (a) General. (1) Is entitled to or an applicant for a benefit and; (2) Has attained 18 years of age or is an emancipated minor, may designate in advance one or more individuals to possibly serve as a representative payee for the individual if we determine that payment will be made to a representative payee (see § 404.2010(a)). An individual may not designate in advance possible representative payees if we have information that the individual is either-legally incompetent or mentally incapable of managing his or her benefit payments; or physically incapable of managing or directing the management of his or her benefit payments. (b) How to designate possible representative payees in advance. (1) The name of the advance designee, (2) A telephone number of the advance designee, and (3) The order of priority in which the individual would like us to consider the advance designees, if he or she designates more than one advance designee. (c) How to make changes to advance designation. (d) How we consider advance designation when we select a representative payee. (i) The advance designee must be willing and able to serve as a representative payee, (ii) Appointment of the advance designee must comply with the requirements in section 205(j)(2) of the Social Security Act, and (iii) There must be no other good cause (see §§ 404.2020 and 404.2021) to prevent us from selecting the advance designee. (2) If none of the advance designees meet the criteria for selection, we will use our list of categories of preferred payees (see § 404.2021), along with our other regulations in subpart U of this part, as a guide to select a suitable representative payee. (e) How we consider advance designation when we select a subsequent representative payee. (f) Organizations. [85 FR 7664, Feb. 11, 2020] § 404.2020 Information considered in selecting a representative payee. In selecting a payee we try to select the person, agency, organization or institution that will best serve the interest of the beneficiary. In making our selection we consider— (a) The relationship of the person to the beneficiary; (b) The amount of interest that the person shows in the beneficiary; (c) Any legal authority the person, agency, organization or institution has to act on behalf of the beneficiary; (d) Whether the potential payee has custody of the beneficiary; (e) Whether the potential payee is in a position to know of and look after the needs of the beneficiary; (f) The potential payee's criminal history; and (g) Whether the beneficiary made an advance designation (see § 404.2018). [47 FR 30472, July 14, 1982, as amended at 84 FR 4325, Feb. 15, 2019; 85 FR 7664, Feb. 11, 2020] § 404.2021 What is our order of preference in selecting a representative payee for you? As a guide in selecting a representative payee, we have established categories of preferred payees. These preferences are flexible. We will consider an individual's advance designee(s) (see § 404.2018) before we consider other potential representative payees in the categories of preferred payees listed in this section. When we select a representative payee, we will choose the designee of the beneficiary's highest priority, provided that the designee is willing and able to serve, is not prohibited from serving (see § 404.2022), and supports the best interest of the beneficiary (see § 404.2020). The preferences are: (a) For beneficiaries 18 years old or older (except those described in paragraph (b) of this section), our preference is— (1) A legal guardian, spouse (or other relative) who has custody of the beneficiary or who demonstrates strong concern for the personal welfare of the beneficiary; (2) A friend who has custody of the beneficiary or demonstrates strong concern for the personal welfare of the beneficiary; (3) A public or nonprofit agency or institution having custody of the beneficiary; (4) A private institution operated for profit and licensed under State law, which has custody of the beneficiary; and (5) Persons other than above who are qualified to carry out the responsibilities of a payee and who are able and willing to serve as a payee for a beneficiary; e.g., members of community groups or organizations who volunteer to serve as payee for a beneficiary. (b) For individuals who are disabled and who have a drug addiction or alcoholism condition our preference is— (1) A community-based nonprofit social service agency which is licensed by the State, or bonded; (2) A Federal, State, or local government agency whose mission is to carry out income maintenance, social service, or health care-related activities; (3) A State or local government agency with fiduciary responsibilities; (4) A designee of an agency (other than a Federal agency) referred to in paragraphs (b)(1), (2), and (3) of this section, if appropriate; or (5) A family member. (c) For beneficiaries under age 18, our preference is— (1) A natural or adoptive parent who has custody of the beneficiary, or a guardian; (2) A natural or adoptive parent who does not have custody of the beneficiary, but is contributing toward the beneficiary's support and is demonstrating strong concern for the beneficiary's well being; (3) A natural or adoptive parent who does not have custody of the beneficiary and is not contributing toward his or her support but is demonstrating strong concern for the beneficiary's well being; (4) A relative or stepparent who has custody of the beneficiary; (5) A relative who does not have custody of the beneficiary but is contributing toward the beneficiary's support and is demonstrating concern for the beneficiary's well being; (6) A relative or close friend who does not have custody of the beneficiary but is demonstrating concern for the beneficiary's well being; and (7) An authorized social agency or custodial institution. [47 FR 30472, July 14, 1982; 47 FR 32936, July 30, 1982, as amended at 69 FR 60232, Oct. 7, 2004; 85 FR 7664, Feb. 11, 2020] § 404.2022 Who may not serve as a representative payee? A representative payee applicant may not serve if he/she: (a) Has been convicted of a violation under section 208, 811 or 1632 of the Social Security Act. (b) Has been convicted of an offense resulting in imprisonment for more than 1 year. However, we may make an exception to this prohibition, if the nature of the conviction is such that selection of the applicant poses no risk to the beneficiary and the exception is in the beneficiary's best interest. (c) Receives title II, VIII, or XVI benefits through a representative payee. (d) Previously served as a representative payee and was found by us, or a court of competent jurisdiction, to have misused title II, VIII or XVI benefits. However, if we decide to make an exception to this prohibition, we must evaluate the payee's performance at least every 3 months until we are satisfied that the payee poses no risk to the beneficiary's best interest. Exceptions are made on a case-by-case basis if all of the following are true: (1) Direct payment of benefits to the beneficiary is not in the beneficiary's best interest. (2) No suitable alternative payee is available. (3) Selecting the payee applicant as representative payee would be in the best interest of the beneficiary. (4) The information we have indicates the applicant is now suitable to serve as a representative payee. (5) The payee applicant has repaid the misused benefits or has a plan to repay them. (e) Is a creditor. A creditor is someone who provides you with goods or services for consideration. This restriction does not apply to the creditor who poses no risk to you and whose financial relationship with you presents no substantial conflict of interest, and who is any of the following: (1) A relative living in the same household as you do. (2) Your legal guardian or legal representative. (3) A facility that is licensed or certified as a care facility under the law of a State or a political subdivision of a State. (4) A qualified organization authorized to collect a monthly fee from you for expenses incurred in providing representative payee services for you, under § 404.2040a. (5) An administrator, owner, or employee of the facility in which you live, and we are unable to locate an alternative representative payee. (6) Any other individual we deem appropriate based on a written determination. Example 1: Sharon applies to be representative payee for Ron who we have determined cannot manage his benefits. Sharon has been renting a room to Ron for several years and assists Ron in handling his other financial obligations, as needed. She charges Ron a reasonable amount of rent. Ron has no other family or friends willing to help manage his benefits or to act as representative payee. Sharon has demonstrated that her interest in and concern for Ron goes beyond her desire to collect the rent each month. In this instance, we may select Sharon as Ron's representative payee because a more suitable payee is not available, she appears to pose no risk to Ron and there is minimal conflict of interest. We will document this decision. Example 2: In a situation similar to the one above, Ron's landlord indicates that she is applying to be payee only to ensure receipt of her rent. If there is money left after payment of the rent, she will give it directly to Ron to manage on his own. In this situation, we would not select the landlord as Ron's representative payee because of the substantial conflict of interest and lack of interest in his well being. (f) Was convicted under Federal or State law of a felony for: Human trafficking, false imprisonment, kidnapping, rape or sexual assault, first-degree homicide, robbery, fraud to obtain access to government assistance, fraud by scheme, theft of government funds or property, abuse or neglect, forgery, or identity theft or identity fraud. We will also apply this provision to a representative payee applicant with a felony conviction of an attempt to commit any of these crimes or conspiracy to commit any of these crimes. (1) If the representative payee applicant is the custodial parent of a minor child beneficiary, custodial parent of a beneficiary who is under a disability which began before the beneficiary attained the age of 22, custodial spouse of a beneficiary, custodial court-appointed guardian of a beneficiary, or custodial grandparent of the minor child beneficiary for whom the applicant is applying to serve as representative payee, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph (f), by itself, to prohibit the applicant from serving as a representative payee. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee. (2) If the representative payee applicant is the parent who was previously the representative payee for his or her minor child who has since turned age 18 and continues to be eligible for benefits, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph (f), by itself, to prohibit the applicant from serving as a representative payee for that beneficiary. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee. (3) If the representative payee applicant received a Presidential or gubernatorial pardon for the relevant conviction, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph (f), by itself, to prohibit the applicant from serving as a representative payee. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee. [69 FR 60232, Oct. 7, 2004, as amended at 71 FR 61407, Oct. 18, 2006; 84 FR 4325, Feb. 15, 2019] § 404.2024 How do we investigate a representative payee applicant? Before selecting an individual or organization to act as your representative payee, we will perform an investigation. (a) Nature of the investigation. (1) Conduct a face-to-face interview with the payee applicant unless it is impracticable as explained in paragraph (c) of this section. (2) Require the payee applicant to submit documented proof of identity, unless information establishing identity has recently been submitted with an application for title II, VIII or XVI benefits. (3) Verify the payee applicant's Social Security account number or employer identification number. (4) Determine whether the payee applicant has been convicted of a violation of section 208, 811 or 1632 of the Social Security Act. (5) Determine whether the payee applicant has previously served as a representative payee and if any previous appointment as payee was revoked or terminated for misusing title II, VIII or XVI benefits. (6) Use our records to verify the payee applicant's employment and/or direct receipt of title II, VIII, or XVI benefits. (7) Verify the payee applicant's concern for the beneficiary with the beneficiary's custodian or other interested person. (8) Require the payee applicant to provide adequate information showing his or her relationship to the beneficiary and to describe his or her responsibility for the care of the beneficiary. (9) Determine whether the payee applicant is a creditor of the beneficiary (see § 404.2022(e)). (10) Conduct a criminal background check on the individual payee applicant. (b) Subsequent face-to-face interviews. (c) Impracticable. [69 FR 60233, Oct. 7, 2004, as amended at 73 FR 66521, Nov. 10, 2008; 84 FR 4325, Feb. 15, 2019; 84 FR 57319, Oct. 25, 2019] § 404.2025 What information must a representative payee report to us? Anytime after we select a representative payee for you, we may ask your payee to give us information showing a continuing relationship with you, a continuing responsibility for your care, and how he/she used the payments on your behalf. If your representative payee does not give us the requested information within a reasonable period of time, we may stop sending your benefit payment to him/her—unless we determine that he/she had a satisfactory reason for not meeting our request and we subsequently receive the requested information. If we decide to stop sending your payment to your representative payee, we will consider paying you directly (in accordance with § 404.2011) while we look for a new payee. [69 FR 60233, Oct. 7, 2004] § 404.2026 How do we investigate an appointed representative payee? After we select an individual to act as your representative payee, we will conduct a criminal background check on the appointed representative payee at least once every 5 years. [84 FR 4325, Feb. 15, 2019, as amended at 84 FR 57319, Oct. 25, 2019] § 404.2030 How will we notify you when we decide you need a representative payee? (a) We notify you in writing of our determination to make representative payment. This advance notice explains that we have determined that representative payment is in your interest, and it provides the name of the representative payee we have selected. We provide this notice before we actually appoint the payee. If you are under age 15, an unemancipated minor under the age of 18, or legally incompetent, our written notice goes to your legal guardian or legal representative. The advance notice: (1) Contains language that is easily understandable to the reader. (2) Identifies the person designated as your representative payee. (3) Explains that you, your legal guardian, or your legal representative can appeal our determination that you need a representative payee. (4) Explains that you, your legal guardian, or your legal representative can appeal our designation of a particular person or organization to serve as your representative payee. (5) Explains that you, your legal guardian, or your legal representative can review the evidence upon which our designation of a particular representative payee is based and submit additional evidence. (b) If you, your legal guardian, or your legal representative objects to representative payment or to the designated payee, we will handle the objection as follows: (1) If you disagree with the decision and wish to file an appeal, we will process it under subpart J of this part. (2) If you received your advance notice by mail and you protest or file your appeal within 10 days after you receive this notice, we will delay the action until we make a decision on your protest or appeal. (If you received and signed your notice while you were in the local field office, our decision will be effective immediately.) [69 FR 60233, Oct. 7, 2004] § 404.2035 What are the responsibilities of your representative payee? A representative payee has a responsibility to— (a) Use the benefits received on your behalf only for your use and benefit in a manner and for the purposes he or she determines, under the guidelines in this subpart, to be in your best interests; (b) Keep any benefits received on your behalf separate from his or her own funds and show your ownership of these benefits unless he or she is your spouse or natural or adoptive parent or stepparent and lives in the same household with you or is a State or local government agency for whom we have granted an exception to this requirement; (c) Treat any interest earned on the benefits as your property; (d) Notify us of any event or change in your circumstances that will affect the amount of benefits you receive, your right to receive benefits, or how you receive them; (e) Submit to us, upon our request, a written report accounting for the benefits received on your behalf, and make all supporting records available for review if requested by us; and (f) Notify us of any change in his or her circumstances that would affect performance of his/her payee responsibilities. [71 FR 61407, Oct. 18, 2006] § 404.2040 Use of benefit payments. (a) Current maintenance. Example: An aged beneficiary is entitled to a monthly Social Security benefit of $400. Her son, who is her payee, disburses her benefits in the following manner: Rent and utilities $200 Medical 25 Food 60 Clothing (coat) 55 Savings 30 Miscellaneous 30 The above expenditures would represent proper disbursements on behalf of the beneficiary. (2) Notwithstanding the provisions of paragraph (a)(1) of this section, if a beneficiary is a member of an Aid to Families With Dependent Children (AFDC) assistance unit, we do not consider it inappropriate for a representative payee to make the benefit payments available to the AFDC assistance unit. (b) Institutional care. Example: An institutionalized beneficiary is entitled to a monthly Social Security benefit of $320. The institution charges $700 a month for room and board. The beneficiary's brother, who is the payee, learns the beneficiary needs new shoes and does not have any funds to purchase miscellaneous items at the institution's canteen. The payee takes his brother to town and buys him a pair of shoes for $29. He also takes the beneficiary to see a movie which costs $3. When they return to the institution, the payee gives his brother $3 to be used at the canteen. Although the payee normally withholds only $25 a month from Social Security benefit for the beneficiary's personal needs, this month the payee deducted the above expenditures and paid the institution $10 less than he usually pays. The above expenditures represent what we would consider to be proper expenditures for current maintenance. (c) Support of legal dependents. Example: A disabled beneficiary receives a Veterans Administration (VA) benefit of $325 and a Social Security benefit of $525. The beneficiary resides in a VA hospital and his VA benefits are sufficient to provide for all of his needs; i.e. Because the VA benefits are sufficient to meet the beneficiary's needs, it would be appropriate to use part of his Social Security benefits to support his dependents. (d) Claims of creditors. Example: A retroactive Social Security check in the amount of $1,640, representing benefits due for July 1980 through January 1981, was issued on behalf of the beneficiary to the beneficiary's aunt who is the representative payee. The check was certified in February 1981. The nursing home, where the beneficiary resides, submitted a bill for $1,139 to the payee for maintenance expenses the beneficiary incurred during the period from June 1980 through November 1980. (Maintenance charges for December 1980 through February 1981 had previously been paid.) Because the benefits were not required for the beneficiary's current maintenance, the payee had previously saved over $500 for the beneficiary and the beneficiary had no foreseeable needs which would require large disbursements, the expenditure for the maintenance charges would be consistent with our guidelines. [47 FR 30472, July 14, 1982, as amended at 54 FR 35483, Aug. 28, 1989] § 404.2040a Compensation for qualified organizations serving as representative payees. (a) Organizations that can request compensation. (1) Any State or local government agency with fiduciary responsibilities or whose mission is to carry out income maintenance, social service, or health care-related activities; or (2) Any community-based nonprofit social service organization founded for religious, charitable or social welfare purposes, which is tax exempt under section 501(c) of the Internal Revenue Code and which is bonded/insured to cover misuse and embezzlement by officers and employees and which is licensed in each State in which it serves as representative payee (if licensing is available in the State). The minimum amount of bonding or insurance coverage must equal the average monthly amount of social security payments received by the organization plus the amount of the beneficiaries' conserved funds ( i.e. (b) Requirements qualified organizations must meet. (1) A qualified organization must regularly provide representative payee services concurrently to at least five beneficiaries. An organization which has received our authorization to collect a fee for representative payee services, but is temporarily (not more than 6 months) not a payee for at least five beneficiaries, may request our approval to continue to collect fees. (2) A qualified organization must demonstrate that it is not a creditor of the beneficiary. See paragraph (c) of this section for exceptions to the requirement regarding creditors. (c) Creditor relationship. (1) The creditor services (e.g., providing housing) provided by the organization help to meet the current needs of the beneficiary; and (2) The amount the organization charges the beneficiary for these services is commensurate with the beneficiary's ability to pay. (d) Authorization process. before (2) An organization seeking authorization to collect a fee must also give us evidence to show that it is qualified, pursuant to paragraphs (a), (b), and (c) of this section, to collect a fee. (3) If the evidence provided to us by the organization shows that it meets the requirements of this section, and additional investigation by us proves it suitable to serve, we will notify the organization in writing that it is authorized to collect a fee. If we need more evidence, or if we are not able to authorize the collection of a fee, we will also notify the organization in writing that we have not authorized the collection of a fee. (e) Revocation and cancellation of the authorization. (2) An organization may cancel its authorization at any time upon written notice to us. (f) Notices. (g) Limitation on fees. (2) Any agreement providing for a fee in excess of the amount permitted shall be void and treated as misuse of your benefits by the organization under § 404.2041. (3) A fee may be collected for any month during which the organization— (i) Provides representative payee services; (ii) Receives a benefit payment for the beneficiary; and (iii) Is authorized to receive a fee for representative payee services. (4) Fees for services may not be taken from any funds conserved for the beneficiary by a payee in accordance with § 404.2045. (5) Generally, an organization may not collect a fee for months in which it does not receive a benefit payment. However, an organization will be allowed to collect a fee for months in which it did not receive a payment if we later issue payment for these months and the organization: (i) Received our approval to collect a fee for the months for which payment is made; (ii) Provided payee services in the months for which payment is made; and (iii) Was the payee when the retroactive payment was paid by us. (6) Fees for services may not be taken from beneficiary benefits for the months for which we or a court of competent jurisdiction determine(s) that the representative payee misused benefits. Any fees collected for such months will be treated as a part of the beneficiary's misused benefits. (7) An authorized organization can collect a fee for providing representative payee services from another source if the total amount of the fee collected from both the beneficiary and the other source does not exceed the amount authorized by us. [69 FR 60234, Oct. 7, 2004, as amended at 71 FR 61407, Oct. 18, 2006] § 404.2041 Who is liable if your representative payee misuses your benefits? (a) A representative payee who misuses your benefits is responsible for paying back misused benefits. We will make every reasonable effort to obtain restitution of misused benefits so that we can repay these benefits to you. (b) Whether or not we have obtained restitution from the misuser, we will repay benefits in cases when we determine that a representative payee misused benefits and the representative payee is an organization or an individual payee serving 15 or more beneficiaries. When we make restitution, we will pay you or your alternative representative payee an amount equal to the misused benefits less any amount we collected from the misuser and repaid to you. (c) Whether or not we have obtained restitution from the misuser, we will repay benefits in cases when we determine that an individual representative payee serving 14 or fewer beneficiaries misused benefits and our negligent failure in the investigation or monitoring of that representative payee results in the misuse. When we make restitution, we will pay you or your alternative representative payee an amount equal to the misused benefits less any amount we collected from the misuser and repaid to you. (d) The term “negligent failure” used in this subpart means that we failed to investigate or monitor a representative payee or that we did investigate or monitor a representative payee but did not follow established procedures in our investigation or monitoring. Examples of our negligent failure include, but are not limited to, the following: (1) We did not follow our established procedures in this subpart when investigating, appointing, or monitoring a representative payee; (2) We did not timely investigate a reported allegation of misuse; or (3) We did not take the necessary steps to prevent the issuance of payments to the representative payee after it was determined that the payee misused benefits. (e) Our repayment of misused benefits under these provisions does not alter the representative payee's liability and responsibility as described in paragraph (a) of this section. (f) Any amounts that the representative payee misuses and does not refund will be treated as an overpayment to that representative payee. See subpart F of this part. [69 FR 60234, Oct. 7, 2004, as amended at 71 FR 61408, Oct. 18, 2006] § 404.2045 Conservation and investment of benefit payments. (a) General. Example: A State institution for children with intellectual disability, which is receiving Medicaid funds, is representative payee for several Social Security beneficiaries. The checks the payee receives are deposited into one account which shows that the benefits are held in trust for the beneficiaries. The institution has supporting records which show the share each individual has in the account. Funds from this account are disbursed fairly quickly after receipt for the current support and maintenance of the beneficiaries as well as for miscellaneous needs the beneficiaries may have. Several of the beneficiaries have significant accumulated resources in this account. For those beneficiaries whose benefits have accumulated over $150, the funds should be deposited in an interest-bearing account or invested relatively free of risk on behalf of the beneficiaries. (b) Preferred investments. (1) For U.S. Savings Bonds— ______ (Name of beneficiary) ______ (Social Security Number), for whom ___ (Name of payee) is representative payee for Social Security benefits; (2) For interest or dividend paying accounts— ______ (Name of beneficiary) by ______ (Name of payee), representative payee. (c) Interest and dividend payments. [47 FR 30472, July 14, 1982, as amended at 54 FR 35483, Aug. 28, 1989; 78 FR 46501, Aug. 1, 2013] § 404.2050 When will we select a new representative payee for you? When we learn that your interest is not served by sending your benefit payment to your present representative payee or that your present payee is no longer able or willing to carry out payee responsibilities, we will promptly stop sending your payment to the payee. We will then send your benefit payment to an alternative payee or directly to you, until we find a suitable payee. We may suspend payment as explained in § 404.2011(c) if we find that paying you directly would cause substantial harm and we cannot find a suitable alternative representative payee before your next payment is due. We will terminate payment of benefits to your representative payee and find a new payee or pay you directly if the present payee: (a) Has been found by us or a court of competent jurisdiction to have misused your benefits; (b) Has not used the benefit payments on your behalf in accordance with the guidelines in this subpart; (c) Has not carried out the other responsibilities described in this subpart; (d) Dies; (e) No longer wishes to be your payee; (f) Is unable to manage your benefit payments; or (g) Fails to cooperate, within a reasonable time, in providing evidence, accounting, or other information we request. [69 FR 60235, Oct. 7, 2004] § 404.2055 When representative payment will be stopped. If a beneficiary receiving representative payment shows us that he or she is mentally and physically able to manage or direct the management of benefit payments, we will make direct payment. Information which the beneficiary may give us to support his or her request for direct payment include the following— (a) A physician's statement regarding the beneficiary's condition, or a statement by a medical officer of the institution where the beneficiary is or was confined, showing that the beneficiary is able to manage or direct the management of his or her funds; or (b) A certified copy of a court order restoring the beneficiary's rights in a case where a beneficiary was adjudged legally incompetent; or (c) Other evidence which establishes the beneficiary's ability to manage or direct the management of benefits. § 404.2060 Transfer of accumulated benefit payments. A representative payee who has conserved or invested benefit payments shall transfer these funds and the interest earned from the invested funds to either a successor payee, to the beneficiary, or to us, as we will specify. If the funds and the earned interest are returned to us, we will recertify them to a successor representative payee or to the beneficiary. [47 FR 30472, July 14, 1982; 47 FR 34781, Aug. 11, 1982, as amended at 75 FR 7552, Feb. 22, 2010] § 404.2065 How does your representative payee account for the use of benefits? (a) Your representative payee must account for the use of your benefits. We require written reports from your representative payee at least once a year (except as provided in paragraph (b) of this section and for certain State institutions that participate in a separate onsite review program). (b) Your representative payee is exempt from the accounting requirement when your representative payee is: (1) A natural or adoptive parent of a minor child entitled to title II benefits who primarily resides in the same household as the beneficiary; (2) A legal guardian of a minor child entitled to title II benefits who primarily resides in the same household as the beneficiary; (3) A natural or adoptive parent of a disabled individual (as defined in section 223(d) of the Act) entitled to title II benefits who primarily resides in the same household as the beneficiary; or (4) The spouse of an individual entitled to title II benefits. (c) We may verify how your representative payee used your benefits. Your representative payee should keep records of how benefits were used in order to make accounting reports and must make those records available upon our request. If your representative payee fails to provide an annual accounting of benefits or other required reports, we may require your payee to receive your benefits in person at the local Social Security field office or a United States Government facility that we designate serving the area in which you reside. The decision to have your representative payee receive your benefits in person may be based on a variety of reasons. Some of these reasons may include the payee's history of past performance or our past difficulty in contacting the payee. We may ask your representative payee to give us the following information: (1) Where you lived during the accounting period; (2) Who made the decisions on how your benefits were spent or saved; (3) How your benefit payments were used; and (4) How much of your benefit payments were saved and how the savings were invested. [87 FR 35653, June 13, 2022] Subpart V—Payments for Vocational Rehabilitation Services Authority: Secs. 205(a), 222, and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a), 422, and 902(a)(5)). Source: 48 FR 6293, Feb. 10, 1983, unless otherwise noted. General Provisions § 404.2101 General. Section 222(d) of the Social Security Act authorizes the transfer from the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund of such sums as may be necessary to pay for the reasonable and necessary costs of vocational rehabilitation (VR) services provided certain disabled individuals entitled under section 223, 225(b), 202(d), 202(e) or 202(f) of the Social Security Act. The purpose of this provision is to make VR services more readily available to disabled individuals and ensure that savings accrue to the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund. Payment will be made for VR services provided on behalf of such an individual in cases where— (a) The furnishing of the VR services results in the individual's completion of a continuous 9-month period of substantial gainful activity (SGA) as specified in §§ 404.2110 through 404.2111; or (b) The individual continues to receive disability payments from us, even though his or her disability has ceased, because of his or her continued participation in an approved VR program which we have determined will increase the likelihood that he or she will not return to the disability rolls ( see [68 FR 40123, July 7, 2003] § 404.2102 Purpose and scope. This subpart describes the rules under which the Commissioner will pay the State VR agencies for VR services. Payment will be provided for VR services provided on behalf of disabled individuals under one or more of the provisions discussed in § 404.2101. (a) Sections 404.2101 through 404.2103 describe the purpose of these regulations and the meaning of terms we frequently use in them. (b) Section 404.2104 explains how State VR agencies may participate in the payment program under this subpart. (c) [Reserved] (d) Sections 404.2108 through 404.2109 describe the requirements and conditions under which we will pay a State VR agency under this subpart. (e) Sections 404.2110 through 404.2111 describe when an individual has completed a continuous period of SGA and when VR services will be considered to have contributed to that period. (f) Section 404.2112 describes when payment will be made to a VR agency because an individual's disability benefits are continued based on his or her participation in a VR program which we have determined will increase the likelihood that he or she will not return to the disability rolls. (g) Sections 404.2114 through 404.2115 describe services for which payment will be made. (h) Section 404.2116 describes the filing deadlines for claims for payment for VR services. (i) Section 404.2117 describes the payment conditions. (j) [Reserved] (k) Section 404.2119 describes how we will make payment to State VR agencies for rehabilitation services. (l) Sections 404.2120 and 404.2121 describe the audits and the prepayment and postpayment validation reviews we will conduct. (m) Section 404.2122 discusses confidentiality of information and records. (n) Section 404.2123 provides for the applicability of other Federal laws and regulations. (o) Section 404.2127 provides for the resolution of disputes. [48 FR 6293, Feb. 10, 1983, as amended at 55 FR 8454, Mar. 8, 1990; 59 FR 11912, Mar. 15, 1994; 62 FR 38452, July 18, 1997; 68 FR 40123, July 7, 2003; 83 FR 62456, Dec. 4, 2018] § 404.2103 Definitions. For purposes of this subpart: Accept the beneficiary as a client for VR services Act Commissioner Disability Disability beneficiary Medical recovery Place the beneficiary into an extended evaluation process SGA State Trust Funds Vocational rehabilitation services VR agency Waiting period We, us and our [48 FR 6293, Feb. 10, 1983, as amended at 55 FR 8454, Mar. 8, 1990; 59 FR 11912, Mar. 15, 1994; 62 FR 38452, July 18, 1997; 68 FR 40123, July 7, 2003; 83 FR 62456, Dec. 4, 2018] § 404.2104 Participation by State VR agencies. (a) General. (b) Participation by States. (2) A State with one or more approved VR agencies may choose to limit participation of those agencies to a certain class(es) of disability beneficiaries. For example, a State with separate VR agencies for the blind and disabled may choose to limit participation to the VR agency for the blind. In such a case, we would give the State, through its VR agency for the blind, the opportunity to participate with respect to blind disability beneficiaries in the State in accordance with paragraph (d) of this section. A State that chooses to limit participation of its VR agency(ies) must notify us in advance under paragraph (e)(1) of this section of its decision to limit such participation. (c) Opportunity for participation through State VR agencies. (2)(i) In order for the State to participate with respect to a disability beneficiary whom we referred to a State VR agency, the State VR agency must notify the appropriate Regional Commissioner (SSA) in writing or through electronic notification of its decision either to accept the beneficiary as a client for VR services or to place the beneficiary into an extended evaluation process. The notice must be received by the appropriate Regional Commissioner (SSA) no later than the close of the fourth month following the month in which we referred the beneficiary to the State VR agency. (ii) In any case in which a State VR agency notifies the appropriate Regional Commissioner (SSA) in writing within the stated time period under paragraph (c)(2)(i) of this section of its decision to place the beneficiary into an extended evaluation process, the State VR agency also must notify that Regional Commissioner in writing upon completion of the evaluation of its decision whether or not to accept the beneficiary as a client for VR services. If we receive a notice of a decision by the State VR agency to accept the beneficiary as a client for VR services following the completion of the extended evaluation, the State may continue to participate with respect to such beneficiary. (d) Opportunity for limited participation through State VR agencies. (e) Decision of a State not to participate or to limit participation. (2) [Reserved] (3) A State which has decided not to participate or to limit participation may participate later through its VR agency(ies) in accordance with paragraph (c) of this section. A State which decides to resume participation under paragraph (c) of this section must provide advance written notice of that decision to the appropriate Regional Commissioner (SSA). A decision of a State to resume participation under paragraph (c) of this section will be effective beginning with the third month following the month in which the notice of the decision is received by the appropriate Regional Commissioner (SSA) or, if later, with a month specified by the State. The notice of the State decision must be submitted by an official authorized to act for the State as explained in paragraph (e)(1) of this section. [59 FR 11912, Mar. 15, 1994, as amended at 83 FR 62456, Dec. 4, 2018] § 404.2106 [Reserved] Payment Provisions § 404.2108 Requirements for payment. (a) The State VR agency must file a claim for payment in each individual case within the time periods specified in § 404.2116; (b) The claim for payment must be in a form prescribed by us and contain the following information: (1) A description of each service provided; (2) When the service was provided; and (3) The cost of the service; (c) The VR services for which payment is being requested must have been provided during the period specified in § 404.2115; (d) The VR services for which payment is being requested must have been provided under a State plan for VR services approved under title I of the Rehabilitation Act of 1973, as amended, and must be services that are described in § 404.2114; (e) The individual must meet one of the VR payment provisions specified in § 404.2101; (f) The State VR agency must maintain, and provide as we may require, adequate documentation of all services and costs for all disability beneficiaries with respect to whom a State VR agency could potentially request payment for services and costs under this subpart; and (g) The amount to be paid must be reasonable and necessary and be in compliance with the cost guidelines specified in § 404.2117. [48 FR 6293, Feb. 10, 1983, as amended at 55 FR 8454, Mar. 8, 1990; 59 FR 11914, Mar. 15, 1994; 83 FR 62457, Dec. 4, 2018] § 404.2109 Responsibility for making payment decisions. The Commissioner will decide— (a) Whether a continuous period of 9 months of SGA has been completed; (b) Whether a disability beneficiary whose disability has ceased should continue to receive benefits under § 404.316(c), 404.337(c), or 404.352(c) for a month after October 1984, based on his or her continued participation in a VR program; (c) If and when medical recovery has occurred; (d) Whether documentation of VR services and expenditures is adequate; (e) If payment is to be based on completion of a continuous 9-month period of SGA, whether the VR services contributed to the continuous period of SGA; (f) Whether a VR service is a service described in § 404.2114; and (g) What VR costs were reasonable and necessary and will be paid. [55 FR 8454, Mar. 8, 1990, as amended at 59 FR 11914, Mar. 15, 1994; 68 FR 40123, July 7, 2003] § 404.2110 What we mean by “SGA” and by “a continuous period of 9 months”. (a) What we mean by “SGA”. (b) What we mean by “a continuous period of 9 months”. (1) The individual performs 9 months of SGA within 10 consecutive months and has monthly earnings that meet or exceed the guidelines in § 404.1574(b)(2), or § 404.1584(d) if the individual is statutorily blind; or (2) The individual performs at least 9 months of SGA within 12 consecutive months, and the reason for not performing SGA in 2 or 3 of those months was due to circumstances beyond his or her control and unrelated to the impairment (e.g., the employer closed down for 3 months). (c) What work we consider. [48 FR 6293, Feb. 10, 1983, as amended at 55 FR 8454, Mar. 8, 1990] § 404.2111 Criteria for determining when VR services will be considered to have contributed to a continuous period of 9 months. The State VR agency may be paid for VR services if such services contribute to the individual's performance of a continuous 9-month period of SGA. The following criteria apply to individuals who received more than just evaluation services. If a State VR agency claims payment for services to an individual who received only evaluation services, it must establish that the individual's continuous period or medical recovery (if medical recovery occurred before completion of a continuous period) would not have occurred without the services provided. In applying the criteria below, we will consider services described in § 404.2114 that were initiated, coordinated or provided, including services before October 1, 1981. (a) Continuous period without medical recovery. (1) One year or less. (2) More than one year. (ii) If the continuous period was not preceded by transitional work activity that began less than a year after VR services ended, VR services will be considered to have contributed to the continuous period only if it is reasonable to conclude that the work activity which constitutes a continuous period could not have occurred without the VR services (e.g., training). (b) Continuous period with medical recovery occurring before completion. (i) The individualized written rehabilitation program (IWRP) included medical services; and (ii) The medical recovery occurred, at least in part, because of these medical services. (For example, the individual's medical recovery was based on improvement in a back condition which, at least in part, stemmed from surgery initiated, coordinated or provided under an IWRP). (2) In some instances, the State VR agency will not have provided, initiated, or coordinated medical services. If this happens, payment for VR services may still be possible under paragraph (a) of this section if: (i) The medical recovery was not expected by us; and (ii) The individual's impairment is determined by us to be of such a nature that any medical services provided would not ordinarily have resulted in, or contributed to, the medical cessation. [48 FR 6293, Feb. 10, 1983, as amended at 59 FR 11914, Mar. 15, 1994; 83 FR 62457, Dec. 4, 2018] § 404.2112 Payment for VR services in a case where an individual continues to receive disability payments based on participation in an approved VR program. Sections 404.1586(g), 404.316(c), 404.337(c), and 404.352(c) explain the criteria we will use in determining if an individual whose disability has ceased should continue to receive disability benefits from us because of his or her continued participation in a VR program. A VR agency can be paid for the cost of VR services provided to an individual if the individual was receiving benefits in a month or months, after October 1984, based on § 404.316(c), § 404.337(c), or § 404.352(c). If this requirement is met, a VR agency can be paid for the costs of VR services provided within the period specified in § 404.2115, subject to the other payment and administrative provisions of this subpart. [83 FR 62457, Dec. 4, 2018] § 404.2114 Services for which payment may be made. (a) General. (1) Necessary to determine an individual's eligibility for VR services or the nature and scope of the services to be provided; or (2) Provided by a State VR agency under an IWRP, but only if the services could reasonably be expected to motivate or assist the individual in returning to, or continuing in, SGA. (b) Specific services. (1) An assessment for determining an individual's eligibility for VR services and vocational rehabilitation needs by qualified personnel, including, if appropriate, an assessment by personnel skilled in rehabilitation technology, and which includes determining— (i) The nature and extent of the physical or mental impairment(s) and the resultant impact on the individual's employability; (ii) The likelihood that an individual will benefit from vocational rehabilitation services in terms of employability; and (iii) An employment goal consistent with the capacities of the individual and employment opportunities; (2) Counseling and guidance, including personal adjustment counseling, and those referrals and other services necessary to help an individual secure needed services from other agencies; (3) Physical and mental restoration services necessary to correct or substantially modify a physical or mental condition which is stable or slowly progressive and which constitutes an impediment to suitable employment at or above the SGA level; (4) Vocational and other training services, including personal and vocational adjustment, books, tools, and other training materials, except that training or training services in institutions of higher education will be covered under this section only if maximum efforts have been made by the State VR agency to secure grant assistance in whole or in part from other sources; (5) Maintenance expenses that are extra living expenses over and above the individual's normal living expenses and that are incurred solely because of and while the individual is participating in the VR program and that are necessary in order for the individual to benefit from other necessary VR services; (6) Travel and related expenses necessary to transport an individual for purpose of enabling the individual's participation in other necessary VR services; (7) Services to family members of a disabled individual only if necessary to the successful vocational rehabilitation of that individual; (8) Interpreter services and note-taking services for an individual who is deaf and tactile interpreting for an individual who is deaf and blind; (9) Reader services, rehabilitation teaching services, note-taking services, and orientation and mobility services for an individual who is blind; (10) Telecommunications, sensory, and other technological aids and devices; (11) Work-related placement services to secure suitable employment; (12) Post-employment services necessary to maintain, regain or advance into suitable employment at or above the SGA level; (13) Occupational licenses, tools, equipment, initial stocks, and supplies; (14) Rehabilitation technology services; and (15) Other goods and services that can reasonably be expected to motivate or assist the individual in returning to, or continuing in, SGA. [59 FR 11915, Mar. 15, 1994, as amended by 83 FR 62457, Dec. 4, 2018] § 404.2115 When services must have been provided. (a) In order for the VR agency to be paid, the services must have been provided— (1) After September 30, 1981; (2) No earlier than the beginning of the waiting period or the first month of entitlement, if no waiting period is required; and (3) Before completion of a continuous 9-month period of SGA or termination of entitlement to disability benefits, whichever occurs first. (b) If an individual who is entitled to disability benefits under this part also is or has been receiving disability or blindness benefits under part 416 of this chapter, the determination as to when services must have been provided may be made under this section or § 416.2215 of this chapter, whichever is advantageous to the State VR agency that is participating in both VR programs. [55 FR 8455, Mar. 8, 1990, as amended at 61 FR 31025, June 19, 1996; 83 FR 62457, Dec. 4, 2018] § 404.2116 When claims for payment for VR services must be made (filing deadlines). The State VR agency must file a claim for payment in each individual case within the following time periods: (a) A claim for payment for VR services based on the individual's completion of a continuous 9-month period of SGA must be filed within 12 months after the month in which the continuous 9-month period of SGA is completed. (b) A claim for payment for VR services provided to an individual whose disability benefits were continued after disability has ceased because of that individual's continued participation in a VR program must be filed as follows: (1) If a written notice requesting that a claim be filed was sent to the State VR agency, a claim must be filed within 90 days following the month in which VR services end, or if later, within 90 days after receipt of the notice. (2) If no written notice was sent to the State VR agency, a claim must be filed within 12 months after the month in which VR services end. [55 FR 8455, Mar. 8, 1990, as amended at 61 FR 31025, June 19, 1996; 68 FR 40124, July 7, 2003; 83 FR 62457, Dec. 4, 2018] § 404.2117 What costs will be paid. In accordance with section 222(d) of the Social Security Act, the Commissioner will pay the State VR agency for the VR services described in § 404.2114 which were provided during the period described in § 404.2115 and which meet the criteria in § 404.2111 or § 404.2112, but subject to the following limitations: (a) The cost must have been incurred by the State VR agency; (b) The cost must not have been paid or be payable from some other source. For this purpose, State VR agencies will be required to seek payment or services from other sources in accordance with the “similar benefit” provisions under 34 CFR part 361, including making maximum efforts to secure grant assistance in whole or part from other sources for training or training services in institutions of higher education. (c)(1) The cost must be reasonable and necessary, in that it complies with the written cost-containment policies of the State VR agency. A cost which complies with these policies will be considered necessary only if the cost is for a VR service described in § 404.2114. The State VR agency must maintain and use these cost-containment policies, including any reasonable and appropriate fee schedules, to govern the costs incurred for all VR services, including the rates of payment for all purchased services, for which payment will be requested under this subpart. For the purpose of this subpart, the written cost-containment policies must provide guidelines designed to ensure— (i) The lowest reasonable cost for such services; and (ii) Sufficient flexibility so as to allow for an individual's needs. (2) The State VR agency shall submit to us before the end of the first calendar quarter of each year a written statement certifying that cost-containment policies are in effect and are adhered to in procuring and providing goods and services for which the State VR agency requests payment under this subpart. Such certification must be signed by the State's chief financial official or the head of the VR agency. Each certification must specify the basis upon which it is made, e.g., a recent audit by an authorized State, Federal or private auditor (or other independent compliance review) and the date of such audit (or compliance review). We may request the State VR agency to submit to us a copy(ies) of its specific written cost-containment policies and procedures (e.g., any guidelines and fee schedules for a given year) if we determine that such additional information is necessary to ensure compliance with the requirements of this subpart. The State VR agency must provide such information when requested by us. (d) The total payment in each case, including any prior payments related to earlier continuous 9-month periods of SGA made under this subpart, must not be so high as to preclude a “net saving” to the trust funds (a “net saving” is the difference between the estimated saving to the trust funds, if disability benefits eventually terminate, and the total amount we pay to the State VR agency); (e) Any payment to the State VR agency for either direct or indirect VR expenses must be consistent with the cost principles described in OMB Circular No. A-87, as revised; (f) Payment for VR services or costs may be made under more than one of the VR payment provisions described in §§ 404.2111 and 404.2112 of this subpart and similar provisions in §§ 416.2211 and 416.2212 of subpart V of part 416. However, payment will not be made more than once for the same VR service or cost; and (g) Payment will be made for administrative costs and for counseling and placement costs. This payment may be on a formula basis, or on an actual cost basis, whichever the State VR agency prefers. The formula will be negotiated. The payment will also be subject to the preceding limitations. [48 FR 6293, Feb. 10, 1983. Redesignated and amended at 55 FR 8454, 8455, Mar. 8, 1990; 59 FR 11915, Mar. 15, 1994; 62 FR 38452, July 18, 1997; 68 FR 40124, July 7, 2003; 83 FR 62457, Dec. 4, 2018] Administrative Provisions § 404.2118 [Reserved] § 404.2119 Method of payment. Payment to the State VR agencies pursuant to this subpart will be made either by advancement of funds or by payment for services provided (with necessary adjustments for any overpayments and underpayments), as decided by the Commissioner. [83 FR 62458, Dec. 4, 2018] § 404.2120 Audits. (a) General. (b) Audit basis. (c) Appeal of audit determinations. [83 FR 62458, Dec. 4, 2018] § 404.2121 Validation reviews. (a) General. (b) Purpose. (1) To ensure that the VR services and costs meet the requirements for payment under this subpart; (2) To assess the validity of our documentation requirements; and (3) To assess the need for additional validation reviews or additional documentation requirements for any State VR agency to ensure compliance with the requirements under this subpart. (c) Determinations. (d) Appeals. [59 FR 11916, Mar. 15, 1994, as amended at 83 FR 62458, Dec. 4, 2018] § 404.2122 Confidentiality of information and records. The State shall comply with the provisions for confidentiality of information, including the security of systems, and records requirements described in 20 CFR part 401 and pertinent written guidelines (see § 404.2123). [83 FR 62459, Dec. 4, 2018] § 404.2123 Other Federal laws and regulations. Each State VR agency shall comply with the provisions of other Federal laws and regulations that directly affect its responsibilities in carrying out the vocational rehabilitation function. [83 FR 62459, Dec. 4, 2018] § 404.2127 Resolution of disputes. (a) Disputes on the amount to be paid. (b) Disputes on whether there was a continuous period of SGA and whether VR services contributed to a continuous period of SGA. (c) Disputes on determinations made by the Commissioner which affect a disability beneficiary's rights to benefits. [48 FR 6293, Feb. 10, 1983, as amended at 55 FR 8456, Mar. 8, 1990; 62 FR 38452, July 18, 1997; 83 FR 62459, Dec. 4, 2018]