Social security benefits: Federal old age, survivors, and disability insurance— Changes in retirement age,

[Federal Register: January 30, 2003 (Volume 68, Number 20)]

[Rules and Regulations]

[Page 4700-4712]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr30ja03-7]

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Reg. No. 4]

RIN 0960-AE03

Changes in the Retirement Age

AGENCY: Social Security Administration.

ACTION: Final rules.

SUMMARY: These final rules amend our regulations to reflect the changes in full retirement age and in monthly benefit reduction for early retirement as established by section 201 of the Social Security Amendments of 1983 (the 1983 Amendments), and the change in delayed retirement credits (DRCs) as established by section 4 of the Senior Citizens' Freedom to Work Act of 2000 (the Freedom to Work Act). Section 201 of the 1983 Amendments gradually increases the full retirement age for unreduced old-age, wife's or husband's, and widow's or widower's benefits from age 65 to age 67. Section 201 provides for an additional reduction in old-age and wife's or husband's benefits when early retirement is elected more than 36 months prior to full retirement age. It also requires a different method of computing the amount of reduction for early retirement for widow's or widower's benefits. Section 4 of the Freedom to Work Act allows a beneficiary who has attained full retirement age to voluntarily suspend retirement benefits to earn DRCs.

EFFECTIVE DATE: These rules are effective January 30, 2003.

FOR FURTHER INFORMATION CONTACT: Bill Hilton, Social Insurance Specialist, Office of Program Benefits, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-2468 or TTY (410) 966-5609. For information on eligibility, filing for benefits, or coverage of earnings, call our national toll-free number, 1-800-772-1213 or TTY at 1-800-325-0778.

SUPPLEMENTARY INFORMATION: Section 201 of the 1983 Amendments changed the age at which unreduced old-age benefits, wife's or husband's benefits, and widow's or widower's benefits are payable from age 65 to age 67. The change is phased in over a period of 22 years. This increase affects those born after January 1, 1938.

Section 201 also changed the way reduced monthly benefits are computed for early retirement. The reduction factor for early retirement of the worker and wife or husband will remain the same as under the pre-amendment law for the first 36 months of the reduction period. For each month in excess of 36 months there will be an additional reduction of \5/12\ of one percent. The maximum reduction increases to 30 percent for old-age benefits and 35 percent for wife's or husband's benefits.

The maximum reduction for widow's or widower's benefits will continue to be 28\1/2\ percent, but that reduction is prorated over a period of months equal to the total possible months of early retirement. That total is now 60 months for those with a full retirement age of 65 but will increase incrementally to 84 months for those with a full retirement age of 67.

Section 4 of the Freedom to Work Act allows people who have attained full retirement age and are receiving retirement benefits to voluntarily suspend those benefits in order to earn DRCs.

Explanation of Changes

We are adding new Sec. 404.409 to our regulations to explain the effect of section 201 of the 1983 Amendments. This new section shows the full range of dates of birth and the corresponding full retirement ages (the age at which a person can retire and receive unreduced old- age, wife's, husband's, widow's or widower's benefits).

We are revising Sec. Sec. 404.315, 404.316 and 404.321 to reflect the change in full retirement age mandated by section 201 of the 1983 Amendments.

We are revising Sec. 404.277 to reflect the change in full retirement age as mandated by section 201 of the 1983 Amendments. We are rewriting this section in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258. We are correcting this section to show that automatic cost-of- living adjustments now occur in December.

We are revising Sec. 404.304 to reflect the change in full retirement age as mandated by section 201 of the 1983 Amendments. We are rewriting this section in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258. We are correcting language in this section to say that benefits may be reduced because of the receipt of a government pension instead of saying that benefits will be reduced. This allows for the exceptions that sometimes occur. We are removing the incorrect language that indicated the benefit will be reduced by the amount of the pension.

We are revising Sec. 404.313 to reflect the change in full retirement age mandated by section 201 of the 1983 Amendments. We are including a section to explain that delayed retirement credits may now be earned by a voluntary suspension of benefits as provided for in section 4 of the Freedom To Work Act. We are rewriting the section in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258.

We are revising Sec. 404.317 to reflect the change in full retirement age as mandated by section 201 of the 1983 Amendments. We are rewriting this section in plain language format to

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comply with the provisions of Executive Order 12866, as amended by Executive Order 13258. We are correcting the age at which the receipt of workers' compensation or public disability benefits no longer affect the disability benefit from age 62 to age 65.

We are revising Sec. 404.352 to reflect the change in full retirement age as mandated by section 201 of the 1983 Amendments. We are rewriting this section in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258. We are expanding the explanation of when benefits end.

We are revising Sec. 404.410 to reflect the change in full retirement age as mandated by section 201 of the 1983 Amendments. We are rewriting this section in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258. We are adding an explanation that benefits to a widow or widower based on disability before age 60 are reduced only for months before full retirement age because the disabled widow or widower is deemed to be age 60.

We are revising Sec. Sec. 404.201, 404.310, 404.311, 404.312, 404.335, 404.336, 404.337, 404.338, 404.411, 404.412, 404.413, 404.421, 404.621 and 404.623 to reflect the change in full retirement age mandated by section 201 of the 1983 Amendments. We are rewriting these entire sections in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258.

Regulatory Procedure

Pursuant to section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5), we follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 when developing our regulations. The APA provides exceptions to its notice and comment procedures when an agency finds there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. We have determined that under 5 U.S.C. 553(b)(B), good cause exists for dispensing with the notice and public comment procedures for these rules. Good cause exists because these regulations simply reflect statutory changes and do not involve the making of any discretionary policy. Therefore, we have determined that opportunity for prior comment is unnecessary and we are issuing these changes to our regulations as final rules.

In addition, we find good cause for dispensing with the 30-day delay in the effective date of a substantive rule, provided by 5 U.S.C. 553(d). As explained above, these regulations merely reflect self- executing statutory changes that have their own effective dates. We believe it would be misleading and contrary to the public interest for the regulations to show a later effective date, because we must compute benefits as directed by the statute in all cases.

Executive Order 12866, as Amended by Executive Order 13258

We have consulted with the Office of Management and Budget (OMB) and determined that these final rules do not meet the criteria for a significant regulatory action under Executive Order 12866, as amended by Executive Order 13258. Thus, they were not subject to OMB review.

Paperwork Reduction Act

These final regulations impose no additional reporting or recordkeeping requirements requiring OMB clearance.

Regulatory Flexibility Act

We certify that these final regulations will not have a significant economic impact on a substantial number of small entities because they affect only individuals. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security--Disability Insurance; 96.002, Social Security--Retirement Insurance; and 96.004, Social Security-Survivors Insurance)

List of Subjects in 20 CFR Part 404

Administrative practice and procedure, Blind, Disability benefits, Old-age, Survivors and disability insurance, Reporting and recordkeeping requirements, Social Security.

Dated: January 21, 2003. Jo Anne B. Barnhart, Commissioner of Social Security.

For the reasons set out in the preamble, we are amending subparts C, D, E, and G of part 404 of chapter III of title 20 of the Code of Federal Regulations as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

Subpart C--[Amended]

1. The authority citation for subpart C of part 404 continues to read as follows:

   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)).

2. Section 404.201 is revised to read as follows:

   Sec. 404.201 What is included in this subpart?

   In this subpart we describe how we compute your primary insurance amount (PIA), how and when we will recalculate or recompute your PIA to include credit for additional earnings, and how we automatically adjust your PIA to reflect changes in the cost of living.

   (a) What is my primary insurance amount? Your primary insurance amount (PIA) is the basic figure we use to determine the monthly benefit amount payable to you and your family. For example, if you retire in the month you attain full retirement age (as defined in Sec. 404.409) or if you become disabled, you will be entitled to a monthly benefit equal to your PIA. If you retire prior to full retirement age your monthly benefit will be reduced as explained in Sec. Sec. 404.410--404.413. Benefits to other members of your family are a specified percentage of your PIA as explained in subpart D. Total benefits to your family are subject to a maximum as explained in Sec. 404.403.

   (b) How is this subpart organized? (1) In Sec. Sec. 404.201 through 404.204, we explain some introductory matters.

   (2) In Sec. Sec. 404.210 through 404.213, we describe the average- indexed-monthly-earnings method we use to compute the primary insurance amount (PIA) for workers who attain age 62 (or become disabled or die before age 62) after 1978.

   (3) In Sec. Sec. 404.220 through 404.222, we describe the average- monthly-wage method we use to compute the PIA for workers who attain age 62 (or become disabled or die before age 62) before 1979.

   (4) In Sec. Sec. 404.230 through 404.233, we describe the guaranteed alternative method we use to compute the PIA for people who attain age 62 after 1978 but before 1984.

   (5) In Sec. Sec. 404.240 through 404.243, we describe the old- start method we use to compute the PIA for those who had all or substantially all of their social security covered earnings before 1951.

   (6) In Sec. Sec. 404.250 through 404.252, we describe special rules we use to compute the PIA for a worker who previously had a period of disability.

   (7) In Sec. Sec. 404.260 through 404.261, we describe how we compute the special minimum PIA for long-term, low-paid workers.

   (8) In Sec. Sec. 404.270 through 404.278, we describe how we automatically increase your PIA because of increases in the cost of living.

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   (9) In Sec. Sec. 404.280 through 404.288, we describe how and when we will recompute your PIA to include additional earnings which were not used in the original computation.

   (10) In Sec. 404.290 we describe how and when we will recalculate your PIA.

   (11) Appendices I-VII contain material such as figures and formulas that we use to compute PIAs.

3. Section 404.277 is revised to read as follows:

   Sec. 404.277 When does the frozen minimum primary insurance amount increase because of cost-of-living adjustments?

   (a) What is the frozen minimum primary insurance amount (PIA)? The frozen minimum is a minimum PIA for certain workers whose benefits are computed under the average-indexed-monthly-earnings method. Section 404.210(a) with Sec. 404.212(e) explains when the frozen minimum applies.

   (b) When does the frozen minimum primary insurance amount (PIA) increase automatically? The frozen minimum PIA increases automatically in every year in which you or your dependents or survivors are entitled to benefits and a cost-of-living increase applies.

   (c) When are automatic increases effective for old-age or disability benefits based on a frozen minimum primary insurance amount (PIA)? Automatic cost-of-living increases apply to your frozen minimum PIA beginning with the earliest of:

   (1) December of the year you become entitled to benefits and receive at least a partial benefit;

   (2) December of the year you reach full retirement age (as defined in Sec. 404.409) if you are entitled to benefits in or before the month you attain full retirement age, regardless of whether you receive at least a partial benefit; or

   (3) December of the year you become entitled to benefits if that is after you attain full retirement age.

   (d) When are automatic increases effective for survivor benefits based on a frozen minimum primary insurance amount (PIA)? (1) Automatic cost-of-living increases apply to the frozen minimum PIA used to determine survivor benefits in December of any year in which your child(ren), your surviving spouse caring for your child(ren), or your parent(s), are entitled to survivor benefits for at least one month.

   (2) Automatic cost-of-living increases apply beginning with December of the earlier of:

   (i) The year in which your surviving spouse or surviving divorced spouse (as defined in Sec. Sec. 404.335 and 404.336) has attained full retirement age (as defined in Sec. 404.409) and receives at least a partial benefit, or

   (ii) The year in which your surviving spouse or surviving disabled spouse becomes entitled to benefits and receives at least a partial benefit.

   (3) Automatic cost-of-living increases are not applied to the frozen minimum PIA in any year in which no survivor of yours is entitled to benefits on your social security record.

   Subpart D--[Amended]

4. The authority citation for subpart D of part 404 continues to read as follows:

   Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 225, 228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 403(a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).

5. Section 404.304 is revised to read as follows:

   Sec. 404.304 What are the general rules on benefit amounts?

   This subpart describes how we determine the highest monthly benefit amount you ordinarily could qualify for under each type of benefit. However, the highest monthly benefit amount you could qualify for may not be the amount you will be paid. In a particular month, your benefit amount may be reduced or not paid at all. Under some circumstances, your benefit amount may be increased. The most common reasons for a change in your benefit amount are listed below.

   (a) Age. Sections 404.410 through 404.413 explain how your old-age, wife's or husband's, or widow's or widower's benefits may be reduced if you choose to receive them before you attain full retirement age (as defined in Sec. 404.409).

   (b) Earnings. Sections 404.415 through 404.418 explain how deductions will be made from your benefits if your earnings or the insured person's earnings go over certain limits.

   (c) Overpayments and Underpayments. Your benefits may be increased or decreased to make up for any previous overpayment or underpayment made on the insured person's record. For more information about this, see subpart F of this part.

   (d) Family Maximum. Sections 404.403 through 404.406 explain that there is a maximum amount payable on each insured person's earnings record. If you are entitled to benefits as the insured's dependent or survivor, your benefits may be reduced to keep total benefits payable to the insured's family within these limits.

   (e) Government Pension Offset. If you are entitled to wife's, husband's, widow's, widower's, mother's or father's benefits and receive a Government pension for work that was not covered under social security, your monthly benefits may be reduced because of that pension. Special age 72 payments may also be reduced because of a Government pension. For more information about this, see Sec. 404.408a which covers reductions for Government pensions and Sec. 404.384(c) which covers special age 72 payments.

   (f) Rounding. After all other deductions or reductions, we reduce any monthly benefit that is not a multiple of $1 to the next lower multiple of $1.

6. 404.310 is revised to read as follows:

   Sec. 404.310 When am I entitled to old-age benefits?

   We will find you entitled to old-age benefits if you meet the following three conditions:

   (a) You are at least 62 years old;

   (b) You have enough social security earnings to be fully insured as defined in Sec. Sec. 404.110 through 404.115; and

   (c) You apply; or you are entitled to disability benefits up to the month you attain full retirement age (as defined in Sec. 404.409). When you attain full retirement age, your disability benefits automatically become old-age benefits.

7. Section 404.311 is revised to read as follows:

   Sec. 404.311 When does my entitlement to old-age benefits begin and end?

   (a) We will find you entitled to old-age benefits beginning with:

   (1) If you have attained full retirement age (as defined in Sec. 404.409), the first month covered by your application in which you meet all requirements for entitlement; or

   (2) If you have attained age 62, but have not attained full retirement age (as defined in Sec. 404.409), the first month covered by your application throughout which you meet all requirements for entitlement.

   (b) We will find your entitlement to old-age benefits ends with the month before the month you die.

8. Section 404.312 is revised to read as follows:

   Sec. 404.312 How is my old-age benefit amount calculated?

   (a) If your old-age benefits begin in the month you attain full retirement age (as defined in Sec. 404.409), your monthly benefit is equal to the primary insurance amount (as explained in subpart C of this part).

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   (b) If your old-age benefits begin after the month you attain full retirement age, your monthly benefit is your primary insurance amount plus an increase for retiring after full retirement age. See Sec. 404.313 for a description of these increases.

   (c) If your old-age benefits begin before the month you attain full retirement age, your monthly benefit amount is the primary insurance amount minus a reduction for each month you are entitled before you attain full retirement age. These reductions are described in Sec. Sec. 404.410 through 404.413.

9. Section 404.313 is revised to read as follows:

   Sec. 404.313 What are delayed retirement credits and how do they increase my old-age benefit amount?

   (a) What are delayed retirement credits and how do I earn them? Delayed retirement credits (DRCs) are credits we use to increase the amount of your old-age benefit amount. You may earn a credit for each month during the period beginning with the month you attain full retirement age (as defined in Sec. 404.409) and ending with the month you attain age 70 (72 before 1984). You earn a credit for each month for which you are fully insured and eligible but do not receive an old- age benefit either because you do not apply for benefits or because you elect to voluntarily suspend your benefits to earn DRCs. Even if you were entitled to old-age benefits before full retirement age you may still earn DRCs for months during the period from full retirement age to age 70, if you voluntarily elect to suspend those benefits.

   (b) How is the amount of the increase because of delayed retirement credits computed? (1) Computation of the increase amount. The amount of the increase depends on your date of birth and the number of credits you earn. We total the number of credits (which need not be consecutive) and multiply that number by the applicable percentage from paragraph (b)(2) of this section. We then multiply the result by your benefit amount and round the answer to the next lower multiple of 10 cents (if the answer is not already a multiple of 10 cents). We add the result to your benefit amount. If a supplementary medical insurance premium is involved it is then deducted. The result is rounded to the next lower multiple of $1 (if the answer is not already a multiple of $1).

   (2) Credit Percentages. The applicable credit amount for each month of delayed retirement can be found in the table below.

   The credit for each month If your date of birth is:

   you delay retirement is:

   Before 1/2/1917........................... \1/12\ of 1% 1/2/1917--1/1/1925........................ \1/4\ of 1% 1/2/1925--1/1/1927........................ \7/24\ of 1% 1/2/1927--1/1/1929........................ \1/3\ of 1% 1/2/1929--1/1/1931........................ \3/8\ of 1% 1/2/1931--1/1/1933........................ \5/12\ of 1% 1/2/1933--1/1/1935........................ \11/24\ of 1% 1/2/1935--1/1/1937........................ \1/2\ of 1% 1/2/1937--1/1/1939........................ \13/24\ of 1% 1/2/1939--1/1/1941........................ \7/12\ of 1% 1/2/1941--1/1/1943........................ \5/8\ of 1% After 1/1/1943............................ \2/3\ of 1%

   Example: Alan was qualified for old-age benefits when he reached age 65 on January 15, 1998. He decided not to apply for old-age benefits immediately because he was still working. When he became age 66 in January 1999, he stopped working and applied for benefits beginning with that month. Based on his earnings, his primary insurance amount was $782.60. However, because he did not receive benefits immediately upon attainment of full retirement age (65), he is due an increase based on his delayed retirement credits. He earned 12 credits, one for each month from January 1998 through December 1998. Based on his date of birth of 1/15/1933 he is entitled to a credit of 11/24 of one percent for each month of delayed retirement. 12 credits multiplied by 11/24 of one percent equals a credit of 5.5 percent. 5.5% of the primary insurance amount of $782.60 is $43.04 which is rounded to $43.00, the next lower multiple of 10 cents. $43.00 is added to the primary insurance amount, $782.60. The result, $825.60 is the monthly benefit amount. If a supplementary medical insurance premium is involved it is then deducted. The result is rounded to the next lower multiple of $1 (if the answer is not already a multiple of $1).

   (c) When is the increase because of delayed retirement credits effective?--(1) Credits earned after entitlement and before the year of attainment of age 70. If you are entitled to benefits, we examine our records after the end of each calendar year to determine whether you have earned delayed retirement credits during the previous year for months when you were at or over full retirement age and you were fully insured and eligible for benefits but did not receive them. Any increase in your benefit amount is effective beginning with January of the year after the year the credits were earned.

   (2) Credits earned after entitlement in the year of attainment of age 70. If you are entitled to benefits in the month you attain age 70, we examine our records to determine if you earned any additional delayed retirement credits during the calendar year in which you attained age 70. Any increase in your benefit amount is effective beginning with the month you attained age 70.

   (3) Credits earned prior to entitlement. If you are full retirement age or older and eligible for old-age benefits but do not apply for benefits, your delayed retirement credits for months from the month of attainment of full retirement age through the end of the year prior to the year of filing will be included in the computation of your initial benefit amount. Credits earned in the year you attain age 70 will be added in the month you attain age 70.

   (d) How do delayed retirement credits affect the special minimum primary insurance amount? We do not add delayed retirement credits to your old-age benefit if your benefit is based on the special minimum primary insurance amount described in Sec. 404.260. We add the delayed retirement credits only to your old-age benefit based on your regular primary insurance amount, i.e. as computed under one of the other provisions of subpart C of this part. If your benefit based on the regular primary insurance amount plus your delayed retirement credits is higher than the benefit based on your special minimum primary insurance amount, we will pay the higher amount to you. However, if the special minimum primary insurance amount is higher than the regular primary insurance amount without the delayed retirement credits, we will use the special minimum primary insurance amount to determine the family maximum and the benefits of others entitled on your earnings record.

   (e) What is the effect of my delayed retirement credits on the benefit amount of others entitled on my earnings record?

   (1) Surviving Spouse or Surviving Divorced Spouse. If you earn delayed retirement credits during your lifetime, we will compute benefits for your surviving spouse or surviving divorced spouse based on your regular primary insurance amount plus the amount of those delayed retirement credits. All delayed retirement credits, including any earned during the year of death, can be used in computing the benefit amount for your surviving spouse or surviving divorced spouse beginning with the month of your death. We compute delayed retirement credits up to but not including the month of death.

   (2) Other Family Member. We do not use your delayed retirement credits to increase the benefits of other family members entitled on your earnings record.

   (3) Family Maximum. We add delayed retirement credits to your benefit after we compute the family maximum. However, we add delayed retirement credits to your surviving spouse's or

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   surviving divorced spouse's benefit before we reduce for the family maximum.

10. Section 404.315 is amended by revising the section heading, and paragraph (a), introductory text, to read as follows:

    Sec. 404.315 Who is entitled to disability benefits?

    (a) General. You are entitled to disability benefits while disabled before attaining full retirement age as defined in Sec. 404.409 if * * * * * * * *

11. Section 404.316 is amended by revising paragraph (b)(2) to read as follows:

    Sec. 404.316 When entitlement to disability benefits begins and ends.

    * * * * *

    (b)* * *

    (2) The month before the month you attain full retirement age as defined in Sec. 404.409 (at full retirement age your disability benefits will be automatically changed to old-age benefits); * * * * *

12. Section 404.317 is revised to read as follows:

    Sec. 404.317 How is the amount of my disability benefit calculated?

    Your monthly benefit is equal to the primary insurance amount (PIA). This amount is computed under the rules in subpart C of this part as if it was an old-age benefit, and as if you were 62 years of age at the beginning of the 5-month waiting period mentioned in Sec. 404.315(a). If the 5-month waiting period is not required because of your previous entitlement, your PIA is figured as if you were 62 years old when you become entitled to benefits this time. Your monthly benefit amount may be reduced if you receive worker's compensation or public disability payments before you become 65 years old as described in Sec. 404.408. Your benefits may also be reduced if you were entitled to other retirement-age benefits before you attained full retirement age (as defined in Sec. 404.409).

13. Section 404.321 is amended by revising paragraph (a) and paragraph (c)(1) to read as follows:

    Sec. 404.321 When a period of disability begins and ends.

    (a) When a period of disability begins. Your period of disability begins on the day your disability begins if you are insured for disability on that day. If you are not insured for disability on that day, your period of disability will begin on the first day of the first calendar quarter after your disability began in which you become insured for disability. Your period of disability may not begin after you have attained full retirement age as defined in Sec. 404.409. * * * * *

    (c) * * *

    (1) The month before the month in which you attain full retirement age as defined in Sec. 404.409. * * * * *

14. Section 404.335 is revised to read as follows:

    Sec. 404.335 How do I become entitled to widow's or widower's benefits?

    We will find you entitled to benefits as the widow or widower of a person who died fully insured if you meet the requirements in paragraphs (a) through (e) of this section:

    (a) You are the insured's widow or widower based upon a relationship described in Sec. Sec. 404.345 through 404.346, and you meet one of the conditions in paragraphs (a)(1) through (4) of this section:

    (1) Your relationship to the insured as a wife or husband lasted for at least 9 months immediately before the insured died.

    (2) Your relationship to the insured as a wife or husband did not last 9 months before the insured died, but at the time of your marriage the insured was reasonably expected to live for 9 months, and you meet one of the conditions in paragraphs (a)(2)(i) through (iii) of this section:

    (i) The death of the insured was accidental. The death is accidental if it was caused by an event that the insured did not expect; it was the result of bodily injuries received from violent and external causes; and 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) The death of the insured occurred in the line of duty while he or she was serving on active duty as a member of the uniformed services as defined in Sec. 404.1019.

    (iii) You had been previously married to the insured for at least 9 months.

    (3) You and the insured were the natural parents of a child; or you were married to the insured when either of you adopted the other's child or when both of you adopted a child who was then under 18 years old.

    (4) In the month before you married the insured, you were entitled to or, if you had applied and had been old enough, could have been entitled to any of these benefits or payments: widow's, widower's, father's (based on the record of a fully insured individual), mother's (based on the record of a fully insured individual), wife's, husband's, parent's, or disabled child's benefits; or annuity payments under the Railroad Retirement Act for widows, widowers, parents, or children age 18 or older.

    (b) You apply, except that you need not apply again if you meet one of the conditions in paragraphs (b)(1) through (4) of this section:

    (1) You are entitled to wife's or husband's benefits for the month before the month in which the insured dies and you have attained full retirement age (as defined in Sec. 404.409) or you are not entitled to either old-age or disability benefits.

    (2) You are entitled to mother's or father's benefits for the month before the month in which you attained full retirement age (as defined in Sec. 404.409).

    (3) You are entitled to wife's or husband's benefits and to either old-age or disability benefits in the month before the month of the insured's death, you are under full retirement age (as defined in Sec. 404.409) in the month of death, and you have filed a Certificate of Election in which you elect to receive reduced widow's or widower's benefits.

    (4) You applied in 1990 for widow's or widower's benefits based on disability and you meet both of the conditions in paragraphs (b)(4)(i) and (ii) of this section:

    (i) You were entitled to disability insurance benefits for December 1990, or eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, for January 1991.

    (ii) You were found not disabled for any month based on the definition of disability in Sec. Sec. 404.1577 and 404.1578, as in effect prior to January 1991, but would have been entitled if the standard in Sec. 404.1505(a) had applied. (This exception to the requirement for filing an application is effective only with respect to benefits payable for months after December 1990.)

    (c) You are at least 60 years old; or you are at least 50 years old and have a disability as defined in Sec. 404.1505 and you meet all of the conditions in paragraphs (c)(1) through (4) of this section:

    (1) Your disability started not later than 7 years after the insured died or 7 years after you were last entitled to mother's or father's benefits or to widow's or widower's benefits based upon a disability, whichever occurred last.

    (2) Your disability continued during a waiting period of 5 full consecutive

    [[Page 4705]]

    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.

    (4) You have not previously received 36 months of payments based on disability when drug addiction or alcoholism was a contributing factor material to the determination of disability (as described in Sec. 404.1535), regardless of the number of entitlement periods you may have had, or your current application for widow's or widower's benefits is not based on a disability where drug addiction or alcoholism is a contributing factor material to the determination of disability.

    (d) You are not entitled to an old-age benefit that is equal to or larger than the insured person's primary insurance amount.

    (e) You are unmarried, unless for benefits for months after 1983 you meet one of the conditions in paragraphs (e)(1) through (3) of this section:

    (1) You remarried after you became 60 years old.

    (2) You are now age 60 or older and you meet both of the conditions in paragraphs (e)(2)(i) and (ii) of this section:

    (i) You remarried after attaining age 50 but before attaining age 60.

    (ii) At the time of the remarriage, you were entitled to widow's or widower's benefits as a disabled widow or widower.

    (3) You are now at least age 50, but not yet age 60 and you meet both of the conditions in paragraphs (e)(3)(i) and (ii) of this section:

    (i) You remarried after attaining age 50.

    (ii) You met the disability requirements in paragraph (c) of this section at the time of your remarriage (i.e., your disability began within the specified time and before your remarriage).

15. Section 404.336 is revised to read as follows:

    Sec. 404.336 How do I become entitled to widow's or widower's benefits as a surviving divorced spouse?

    We will find you entitled to widow's or widower's benefits as the surviving divorced wife or the surviving divorced husband of a person who died fully insured if you meet the requirements in paragraphs (a) through (e) of this section:

    (a) You are the insured's surviving divorced wife or surviving divorced husband and you meet both of the conditions in paragraphs (a)(1) and (2) of this section:

    (1) You were validly married to the insured under State law as described in Sec. 404.345 or are deemed to have been validly married as described in Sec. 404.346.

    (2) You were married to the insured for at least 10 years immediately before your divorce became final.

    (b) You apply, except that you need not apply again if you meet one of the conditions in paragraphs (b)(1) through (4) of this section:

    (1) You are entitled to wife's or husband's benefits for the month before the month in which the insured dies and you have attained full retirement age (as defined in Sec. 404.409) or you are not entitled to old-age or disability benefits.

    (2) You are entitled to mother's or father's benefits for the month before the month in which you attain full retirement age (as defined in Sec. 404.409).

    (3) You are entitled to wife's or husband's benefits and to either old-age or disability benefits in the month before the month of the insured's death, you have not attained full retirement age (as defined in Sec. 404.409) in the month of death, and you have filed a Certificate of Election in which you elect to receive reduced widow's or widower's benefits.

    (4) You applied in 1990 for widow's or widower's benefits based on disability, and you meet the requirements in both paragraphs (b)(4)(i) and (ii) of this section:

    (i) You were entitled to disability insurance benefits for December 1990 or eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, for January 1991.

    (ii) You were found not disabled for any month based on the definition of disability in Sec. Sec. 404.1577 and 404.1578, as in effect prior to January 1991, but would have been entitled if the standard in Sec. 404.1505(a) had applied. (This exception to the requirement for filing an application is effective only with respect to benefits payable for months after December 1990.)

    (c) You are at least 60 years old; or you are at least 50 years old and have a disability as defined in Sec. 404.1505 and you meet all of the conditions in paragraphs (c)(1) through (4) of this section:

    (1) Your disability started not later than 7 years after the insured died or 7 years after you were last entitled to mother's or father's benefits or to widow's or widower's benefits based upon a disability, whichever occurred last.

    (2) Your disability continued during a waiting period of 5 full consecutive months, unless months beginning with the first month of eligibility for supplemental security income or federally administered State supplementary payments are counted, as explained in the Exception in paragraph (c)(3) of this section. This waiting period may begin no earlier than the 17th month before you applied; the fifth month before the insured died; or if you were previously entitled to mother's, father's, widow's, or widower's benefits, the 5th month before your previous entitlement to benefits ended. If you were previously entitled to widow's or widower's benefits based upon a disability, no waiting period is required.

    (3) Exception: For monthly benefits payable for months after December 1990, if you were or have been eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this

    [[Page 4706]]

    chapter, respectively, your disability does not have to have continued through a separate, full 5-month waiting period before you may begin receiving benefits. We will include as months of the 5-month waiting period the months in a period beginning with the first month you received supplemental security income or a federally administered State supplementary payment and continuing through all succeeding months, regardless of whether the months in the period coincide with the months in which your waiting period would have occurred, or whether you continued to be eligible for supplemental security income or a federally administered State supplementary payment after the period began, or whether you met the nondisability requirements for entitlement to widow's or widower's benefits. However, we will not pay you benefits under this provision for any month prior to January 1991.

    (4) You have not previously received 36 months of payments based on disability when drug addiction or alcoholism was a contributing factor material to the determination of disability (as described in Sec. 404.1535), regardless of the number of entitlement periods you may have had, or your current application for widow's or widower's benefits is not based on a disability where drug addiction or alcoholism is a contributing factor material to the determination of disability.

    (d) You are not entitled to an old-age benefit that is equal to or larger than the insured person's primary insurance amount.

    (e) You are unmarried, unless for benefits for months after 1983 you meet one of the conditions in paragraphs (e)(1) through (3) of this section:

    (1) You remarried after you became 60 years old.

    (2) You are now age 60 or older and you meet both of the conditions in paragraphs (e)(2)(i) and (ii) of this section:

    (i) You remarried after attaining age 50 but before attaining age 60.

    (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 one of the conditions in paragraphs (e)(3)(i) and (ii) of this section:

    (i) You remarried after attaining age 50.

    (ii) You met the disability requirements in paragraph (c) of this section at the time of your remarriage (i.e., your disability began within the specified time and before your remarriage).

16. Section 404.337 is revised to read as follows:

    Sec. 404.337 When does my entitlement to widow's and widower's benefits start and end?

    (a) We will find you entitled to widow's or widower's benefits under Sec. 404.335 or Sec. 404.336 beginning with the first month covered by your application in which you meet all other requirements for entitlement.

    (b) We will end your entitlement to widow's or widower's benefits at the earliest of the following times:

    (1) The month before the month in which you become entitled to an old-age benefit that is equal to or larger than the insured's primary insurance amount.

    (2) The second month after the month your disability ends or, where disability ends on or after December 1, 1980, the month before your termination month (Sec. 404.325). However your payments are subject to the provisions of paragraphs (c) and (d) of this section. Note: You may remain eligible for payment of benefits if you attained full retirement age (as defined in Sec. 404.409) before your termination month and you meet the other requirements for widow's or widower's benefits.

    (3) If drug addiction or alcoholism is a contributing factor material to the determination of disability as described in Sec. 404.1535, the month after the 12th consecutive month of suspension for noncompliance with treatment or after 36 months of benefits on that basis when treatment is available regardless of the number of entitlement periods you may have had, unless you are otherwise disabled without regard to drug addiction or alcoholism.

    (4) The month before the month in which you die.

    (c)(1) If you are entitled to widow's or widower's benefits based on a disability and your impairment is no longer disabling, generally, we will continue your benefits if you meet all the conditions in paragraphs (c)(1)(i) through (iv) of this section:

    (i) Your disability did not end before December 1980, the effective date of this provision of the law.

    (ii) You are participating in an appropriate program of vocational rehabilitation as described in Sec. 404.316(c)(1)(ii).

    (iii) You began the program before your disability ended.

    (iv) We determined that your completion of the program, or your continuation in the program for a specified period of time, would significantly increase the likelihood that you will not have to return to the disability benefit rolls.

    (2) Generally, we will stop your benefits with the month you meet one of the conditions in paragraphs (c)(2)(i) through (iii) of this section:

    (i) You complete the program.

    (ii) You stop participating in the program for any reason.

    (iii) We determined that your continuing participation in the program would no longer significantly increase the likelihood that you will be permanently removed from the disability benefit rolls.

    (iv) Exception: In no case will we stop your benefits with a month earlier than the second month after the month your disability ends.

    (d) If, after November 1980, you have a disabling impairment (Sec. 404.1511), we will pay you benefits for all months in which you do not do substantial gainful activity during the reentitlement period (Sec. 404.1592a) following the end of your trial work period (Sec. 404.1592). If you are unable to do substantial gainful activity in the first month following the reentitlement period, we will pay you benefits until you are able to do substantial gainful activity. (Earnings during your trial work period do not affect the payment of your benefits.) We will also pay you benefits for the first month after the trial work 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.

17. Section 404.338 is revised to read as follows:

    Sec. 404.338 How is the amount of my widow's or widower's benefit calculated?

    Your widow's or widower's monthly benefit is equal to the insured person's primary insurance amount. If the insured person died before reaching age 62 and you are first eligible after 1984, we may compute a special primary insurance amount to determine the amount of your monthly benefit (see Sec. 404.212(b)). We may increase your monthly benefit amount if the insured person earned delayed retirement credit after full retirement age (as defined in Sec. 404.409) by working or by delaying filing for benefits (see Sec. 404.313). The amount of your monthly benefit may change as explained generally in Sec. 404.304. In addition, your monthly benefit will be reduced if the insured person was entitled to old-age benefits that were reduced for age because he or she chose to receive them before

    [[Page 4707]]

    attaining full retirement age. In this instance, your benefit is reduced, if it would otherwise be higher, to either the amount the insured would have been entitled to if still alive or 82\1/2\ percent of his or her primary insurance amount, whichever is larger.

18. Section 404.352 is revised to read as follows:

    Sec. 404.352 When does my entitlement to child's benefits begin and end?

    (a) We will find your entitlement to child's benefits begins at the following times:

    (1) If the insured is deceased, with the first month covered by your application in which you meet all other requirements for entitlement.

    (2) If the insured is living and your first month of entitlement is September 1981 or later, with the first month covered by your application throughout which you meet all other requirements for entitlement.

    (3) If the insured is living and your first month of entitlement is before September 1981, with the first month covered by your application in which you meet all other requirements for entitlement.

    (b) We will find your entitlement to child's benefits ends at the earliest of the following times:

    (1) With the month before the month in which you become 18 years old, if you are not disabled or a full-time student.

    (2) With the second month following the month in which your disability ends, if you become 18 years old and you are disabled. If your disability ends on or after December 1, 1980, your entitlement to child's benefits continues, subject to the provisions of paragraphs (c) and (d) of this section, until the month before your termination month (Sec. 404.325).

    (3) With the last month you are a full-time student or, if earlier, with the month before the month you become age 19, if you become 18 years old and you qualify as a full-time student who is not disabled. If you become age 19 in a month in which you have not completed the requirements for, or received, a diploma or equivalent certificate from an elementary or secondary school and you are required to enroll for each quarter or semester, we will find your entitlement ended with the month in which the quarter or semester in which you are enrolled ends. If the school you are attending does not have a quarter or semester system which requires reenrollment, we will find your entitlement to benefits ended with the month you complete the course or, if earlier, the first day of the third month following the month in which you become 19 years old.

    (4) With the month before the month you marry. We will not find your benefits ended, however, if you are age 18 or older, disabled, and you marry a person entitled to child's benefits based on disability or person entitled to old-age, divorced wife's, divorced husband's, widow's, widower's, mother's, father's, parent's, or disability benefits.

    (5) With the month before the month the insured's entitlement to old-age or disability benefits ends for a reason other than death or the attainment of full retirement age (as defined in Sec. 404.409). Exception: We will continue your benefits if the insured person was entitled to disability benefits based on a finding that drug addiction or alcoholism was a contributing factor material to the determination of his or her disability (as described in Sec. 404.1535), the insured person's benefits ended after 36 months of payment (see Sec. 404.316(e)) or 12 consecutive months of suspension for noncompliance with treatment (see Sec. 404.316(f)), and the insured person remains disabled.

    (6) With the month before the month you die.

    (c) If you are entitled to benefits as a disabled child age 18 or over and your disability is based on a finding that drug addiction or alcoholism was a contributing factor material to the determination of disability (as described in Sec. 404.1535), we will find your entitlement to benefits ended under the following conditions:

    (1) If your benefits have been suspended for a period of 12 consecutive months for failure to comply with treatment, with the month following the 12 months unless you are otherwise disabled without regard to drug addiction or alcoholism (see Sec. 404.470(c)).

    (2) If you have received 36 months of benefits on that basis when treatment is available, regardless of the number of entitlement periods you may have had, with the month following such 36-month payment period unless you are otherwise disabled without regard to drug addiction or alcoholism.

    (d)(1) Generally, we will continue your benefits after your impairment is no longer disabling if you meet all the following conditions:

    (i) Your disability did not end before December 1980, the effective date of this provision of the law.

    (ii) You are participating in an appropriate program of vocational rehabilitation as described in Sec. 404.316(c)(1)(ii).

    (iii) You began the program before your disability ended.

    (iv) We have determined that your completion of the program, or your continuation in the program for a specified period of time, will significantly increase the likelihood that you will not have to return to the disability benefit rolls.

    (2) Generally, we will end your entitlement to benefits with the month you meet one of the following conditions:

    (i) You complete the program.

    (ii) You stop participating in the program for any reason.

    (iii) We determine that your continuing participation in the program will no longer significantly increase the likelihood that you will be permanently removed from the disability benefit rolls.

    (iv) Exception: In no case will we stop your benefits with a month earlier than the second month after the month your disability ends.

    (e) If, after November 1980, you have a disabling impairment (Sec. 404.1511), we will pay you benefits for all months in which you do not do substantial gainful activity during the reentitlement period (Sec. 404.1592a) following the end of your trial work period (Sec. 404.1592). If you are unable to do substantial gainful activity in the first month following the reentitlement period, we will pay you benefits until you are able to do substantial gainful activity. (Earnings during your trial work period do not affect the payment of your benefits during that period.) We will also pay you benefits for the first month after the trial work period in which you do substantial gainful activity and the two succeeding months, whether or not you do substantial gainful activity during those succeeding months. After those three months, we cannot pay you benefits for any months in which you do substantial gainful activity.

    Subpart E--[Amended]

19. The authority citation for subpart E of part 404 is revised to read as follows:

    Authority: Secs. 202, 203, 204(a) and (e), 205(a) and (c), 216(l), 222(b), 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(b), 423(e), 424a, 425, 902(a)(5) and 1320a-8a).

20. Section 404.409 is added to read as follows:

    Sec. 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

    [[Page 4708]]

    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 Sec. 404.102 regarding determination of age.

    (a) What is my full retirement age for old-age benefits or wife's or husband's benefits? You may receive unreduced old-age, wife's, or husband's benefits beginning with the month you attain the age shown.

    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? You may receive unreduced widow's or widower's benefits beginning with the month you attain the age shown.

    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? You may still elect early retirement. You may receive old-age, wife's or husband's benefits at age 62. You may receive widow's or widower's benefits at age 60. Those benefits will be reduced as explained in Sec. 404.410.

21. Section 404.410 is revised to read as follows:

    Sec. 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 Sec. 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 Sec. Sec. 404.411 through 404.413, reductions in benefits are made in the amounts described.

    (a) How does SSA reduce my old-age benefits? The reduction in your primary insurance amount is based on the number of months of entitlement prior to the month you attain full retirement age. The reduction is \5/9\ of 1 percent for each of the first 36 months and \5/ 12\ of 1 percent for each month in excess of 36.

    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\ of 1 percent and 8 months at \5/12\ of 1 percent.

    980.50 x 36 x \5/9\ x .01 = $196.10 980.50 x 8 x \5/12\ x .01 = $ 32.68

    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? Your wife's or husband's benefits before any reduction (see Sec. Sec. 404.304 and 404.333) are reduced first (if necessary) for the family maximum under Sec. 404.403. They are then reduced based on the number of months of entitlement prior to the month you attain full retirement age. This does not include any month in which you have a child of the worker on whose earnings record you are entitled in your care. The child must be entitled to child benefits. The reduction is \25/36\ of 1 percent for each of the first 36 months and \5/12\ of 1 percent for each month in excess of 36.

    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 x 28 x \25/36\ x .01. The resulting $80.18 is rounded to $80.20 (the next higher multiple of 10 cents) and subtracted from $412.40 to determine the monthly benefit amount of $332.20.

    (c) How does SSA reduce my widow's or widower's benefits?

    Your entitlement to widow's or widower's benefits may begin at age 60 based on age or at age 50 based on disability. Refer to Sec. 404.335 for more information on the requirements for entitlement. Both types are reduced if entitlement begins prior to attainment of full retirement age (as defined in Sec. 404.409).

    (1) Widow's or widower's benefits based on age. Your widow's or widower's unreduced benefit amount (the worker's primary insurance amount after any reduction for the family maximum under Sec. 404.403), is reduced or further reduced based on the number of months of entitlement prior to the month you attain full retirement age. This does not include 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. The number of months of entitlement prior to full retirement age is multiplied by .285 and then divided by the number of months in the period beginning with the month of attainment of age 60 and ending with the month immediately before the month of attainment of full retirement 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 x 16 x .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. (i) For months after December 1983, your widow's or widower's benefits are not reduced for months of entitlement prior to age 60. You are deemed to be age 60 in your

    [[Page 4709]]

    month of entitlement to disabled widow's or widower's benefits and your benefits are reduced only under paragraph (c)(1) of this section.

    (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\ of one percent for each month of entitlement prior to age 60 based on disability.

    (3) Widow's or widower's benefits prior to 1973. For months prior to January 1973 benefits as a widow or widower were reduced only for months of entitlement prior to age 62. The reduction was \5/9\ of one percent for each month of entitlement from the month of attainment of age 60 through the month prior to the month of attainment of age 62. There was an additional reduction of \43/198\ of one percent for each month of entitlement prior to age 60 based on disability.

    (d) If my benefits are reduced under this section does SSA ever change the reduction? The reduction computed under paragraphs (a), (b) or (c) of this section may later be adjusted to eliminate reduction for certain months of entitlement prior to full retirement age as provided in Sec. 404.412. For special provisions on reducing benefits for months prior to full retirement age involving entitlement to two or more benefits, see Sec. 404.411.

    (e) Are my widow's or widower's benefits affected if the deceased worker was entitled to old-age benefits? If the deceased individual was entitled to old-age benefits, see Sec. 404.338 for special rules that may affect your reduced widow's or widower's benefits.

22. Section 404.411 is revised to read as follows:

    Sec. 404.411 How are benefits reduced for age when a person is entitled to two or more benefits?

    (a) What is the general rule? Except as specifically provided in this section, benefits of an individual entitled to more than one benefit will be reduced for months of entitlement before full retirement age (as defined in Sec. 404.409) according to the provisions of Sec. 404.410. Such age reductions are made before any reduction under the provisions of Sec. 404.407.

    (b) How is my disability benefit reduced after entitlement to an old-age benefit or widow's or widower's benefit? A person's disability benefit is reduced following entitlement to an old-age or widow's or widower's benefit (or following the month in which all conditions for entitlement to the widow's or widower's benefit are met except that the individual is entitled to an old-age benefit which equals or exceeds the primary insurance amount on which the widow's or widower's benefit is based) in accordance with the following provisions:

    (1) Individuals born January 2, 1928, or later whose disability began January 1, 1990, or later. When an individual is entitled to a disability benefit for a month after the month in which she or he becomes entitled to an old-age benefit which is reduced for age under Sec. 404.410, the disability benefit is reduced by the amount by which the old-age benefit would be reduced under Sec. 404.410 if she or he attained full retirement age in the first month of the most recent period of entitlement to the disability benefit.

    (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.

    (i) First entitled to disability in or after the month of attainment of age 62. When an individual is first entitled to a disability benefit in or after the month in which she or he attains age 62 and for which she or he is first entitled to a widow's or widower's benefit (or would be so entitled except for entitlement to an equal or higher old-age benefit) before full retirement age, the disability benefit is reduced by the larger of:

    (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 Sec. 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. When a person is first entitled to a disability benefit for a month before the month in which she or he attains age 62 and she or he is also entitled to a widow's or widower's benefit (or would be so entitled except for entitlement to an equal or higher old-age benefit), the disability benefit is reduced as if the widow or widower attained full retirement age in the first month of her or his most recent period of entitlement to the disability benefits.

    (c) How is my old-age benefit reduced after entitlement to a widow's or widower's benefit?

    (1) Individual born after January 1, 1928. The old-age benefit is reduced in accordance with Sec. 404.410(a). There is no further reduction.

    (2) Individual born before January 2, 1928. The old-age benefit is reduced if, in the first month of entitlement, she or he is also entitled to a widow's or widower's benefit to which she or he was first entitled for a month before attainment of full retirement age or if, before attainment of full retirement age, she or he met all conditions for entitlement to widow's or widower's benefits in or before the first month for which she or he was entitled to old-age benefits except that the old-age benefit equals or exceeds the primary insurance amount on which the widow's or widower's benefit would be based. Under these circumstances, the old-age benefit is reduced by the larger of the following:

    (i) The amount by which the old-age benefit would be reduced under the regular age reduction provisions of Sec. 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 Sec. 404.410 for months prior to age 62; and

    (B) The amount by which the old-age benefit would be reduced under Sec. 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 Sec. 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? When a person is first entitled to a wife's or husband's benefit in or after the month of attainment of age 62, that benefit is reduced if, in the first month of entitlement, she or he is also entitled to an old-age benefit (but is not entitled to a disability benefit) to which she or he was first entitled before attainment of full retirement age. Under these circumstances, the wife's or husband's benefit is reduced by the sum of:

    (1) The amount by which the old-age benefit would be reduced under the provisions of Sec. 404.410; and

    (2) The amount by which the spouse benefit would be reduced under the provisions of Sec. 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 Sec. 404.403) over the individual's own primary insurance amount.

    [[Page 4710]]

    (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? When a person is first entitled to a spouse or widow's or widower's benefit in or after the month of attainment of age 62 (or in the case of widow's or widower's benefits, age 50) that benefit is reduced if, in the first month of entitlement to that benefit, he or she is also entitled to a reduced disability benefit. Under these circumstances, the wife's or husband's or widow's or widower's benefit is reduced by the sum of:

    (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 Sec. 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 Sec. 404.403) over the disability benefit (before any reduction under paragraph (b) of this section).

23. Section 404.412 is revised to read as follows:

    Sec. 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? The following months are not counted for purposes of reducing benefits in accordance with Sec. 404.410;

    (1) Months subject to deduction under Sec. 404.415, Sec. 404.417, or Sec. 404.422;

    (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? We make automatic adjustments in benefits to exclude the months of entitlement described in paragraphs (a)(1) through (6) of this section from consideration when determining the amount by which such benefits are reduced. Each year we examine beneficiary records to identify when an individual has attained full retirement age and one or more months described in paragraphs (a)(1) through (6) of this section occurred prior to such age during the period of entitlement to benefits reduced for age. Increases in benefit amounts based upon this adjustment are effective with the month of attainment of full retirement age. In the case of widow's or widower's benefits, this adjustment is made in the month of attainment of age 62 as well as the month of attainment of full retirement age.

24. Section 404.413 is revised to read as follows:

    Sec. 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? After an individual's benefits are reduced for age under Sec. Sec. 404.410 through 404.411, the primary insurance amount on which such benefits are based may subsequently be increased because of a recomputation, a general benefit increase pursuant to an amendment of the Act, or increases based upon a rise in the cost-of-living under section 215(i) of the Social Security Act. When the primary insurance amount increases the monthly benefit amount also increases.

    (b) How are subsequent increases in the primary insurance amount reduced after 1977? After 1977, when an individual's benefits have been reduced for age and the benefit is increased due to an increase in the primary insurance amount, the amount of the increase to which the individual is entitled is proportionately reduced as provided in paragraph (c) of this section. The method of reduction is determined by whether entitlement to reduced benefits began before 1978 or after 1977. When an individual is entitled to more than one benefit which is reduced for age, the rules for reducing the benefit increases apply to each reduced benefit.

    (c) How is the reduction computed for increases after 1977?

    (1) Entitlement to reduced benefits after 1977. If an individual becomes entitled after 1977 to a benefit reduced for age, and the primary insurance amount on which the reduced benefit is based is increased, the amount of the increase payable to the individual is reduced by the same percentage as we use to reduce the benefit in the month of initial entitlement. Where the reduced benefit of an individual has been adjusted at full retirement age (age 62 and full retirement age for widows or widowers), any increase to which the individual becomes entitled thereafter is reduced by the adjusted percentage.

    (2) Entitlement to reduced benefits before 1978. For an individual, who became entitled to a benefit reduced for age before 1978, whose benefit may be increased as a result of an increase in the primary insurance amount after 1977, we increase the amount of the benefit by the same percentage as the increase in the primary insurance amount.

    (d) How was the reduction computed for increases prior to 1978? When the individual's primary insurance amount increased, the amount of the increase was reduced separately under Sec. Sec. 404.410 and 404.411. The separate reduction was based on the number of months from the effective date of the increase through the month of attainment of age 65. This reduced increase amount was then added to the reduced benefit that was in effect in the month before the effective date of the increase. The result was the new monthly benefit amount.

25. Section 404.421 is revised to read as follows:

    Sec. 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. A deduction is made from the wife's or husband's benefits to which he or she is entitled for any month if he or she is under full retirement age and does not have in his or her care a child of the insured entitled to child's benefits. However, a deduction is not made for any month in which he or she is age 62 or over, but under full retirement age, and there is in effect a certificate of election for him or her to receive actuarially reduced wife's or husband's benefits for such month (see subpart D of this part).

    (b) Mother's or father's benefits.--(1) Widow or widower. A deduction is made from the mother's or father's benefits to which he or she is entitled as the widow or widower (see subpart D of this part) of the deceased individual upon whose earnings such benefit is based, for any month in which he or she does not have in his or her care a child who is entitled to child's benefits based on the earnings of the deceased insured individual.

    (2) Surviving divorced mother or father. A deduction is made from the mother's or father's benefits to which he or she is entitled as the surviving

    [[Page 4711]]

    divorced mother or father (see subpart D of this part) of the deceased individual upon whose earnings record such benefit is based, for any month in which she or he does not have in care a child of the deceased individual who is her or his son, daughter, or legally adopted child and who is entitled to child's benefits based on the earnings of the deceased insured individual.

    (c) Amount to be deducted. The amount deducted from the benefits, as described in paragraphs (a) and (b) of this section, is equal to the amount of the benefits which is otherwise payable for the month in which she or he does not have a child in his or her care.

    (d) When a child is considered not entitled to benefits. For purposes of paragraphs (a) and (b) of this section a person is considered not entitled to child's benefits for any month in which she or he is age 18 or over, and:

    (1) Is entitled to child's benefits based on her or his own disability and a deduction is made from the child's benefits because of her or his refusal of rehabilitation services as described in Sec. 404.422(b); or

    (2) Is entitled to child's benefits because she or he is a full- time student at an educational institution. This paragraph applies to benefits for months after December 1964.

    Subpart G--[Amended]

26. The authority citation for subpart G of part 404 continues to read as follows:

    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)).

27. Section 404.621 is revised to read as follows:

    Sec. 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. (1) If you file an application for disability benefits, widow's or widower's benefits based on disability, or wife's, husband's, or child's benefits based on the earnings record of a person entitled to disability benefits, after the first month you could have been entitled to them, you may receive benefits for up to 12 months immediately before the month in which your application is filed. Your benefits may begin with the first month in this 12-month period in which you meet all the requirements for entitlement. Your entitlement, however, to wife's or husband's benefits under this rule is limited by paragraph (a)(3) of this section.

    (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 Sec. 404.409, is in Sec. 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. An application for a lump- sum death payment must be filed within 2 years after the death of the person on whose earnings record the claim is filed. There are two exceptions to the 2-year filing requirement:

    (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 special age 72 payments. An application for special age 72 payments is not effective as a claim for benefits for any month before you actually file.

    (d) Filing for a period of disability. You must file an application for a period of disability while you are 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 time period because of a physical or mental condition, you may apply not more than 36 months after your disability ended. The general rule we use to decide whether your failure to file was due to a physical or mental condition is stated in Sec. 404.322.

    (e) Filing after death of person eligible for disability benefits or period of disability. If you file for disability benefits or a period of disability for

    [[Page 4712]]

    another person who died before filing an application and you would qualify under Sec. 404.503(b) to receive any benefits due the deceased, you must file an application no later than the end of the third month following the month in which the disabled person died.

28. Section 404.623 is revised to read as follows:

    Sec. 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. If you file an application for old-age benefits, you are presumed to have filed an application for husband's or wife's benefits in the first month of your entitlement to old-age benefits, if--

    (1) Your old-age benefits are reduced for age because you choose to receive them before you reach full retirement age (as defined in Sec. 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. If you file an application for a husband's or a wife's benefit, you are presumed to have filed an application for old-age benefits in the first month of your entitlement to husband's or wife's benefits if--

    (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 Sec. 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. Paragraph (b) of this section does not apply if you are also entitled to disability benefits in the first month of your entitlement to husband's or wife's benefits. In this event, you are presumed to have filed for old-age benefits only if your disability benefits end before you reach full retirement age (as defined in Sec. 404.409).

    [FR Doc. 03-1949 Filed 1-29-03; 8:45 am]

    BILLING CODE 4191-02-P