Martin on Social Security
Part 2 – Topics
General Issues of Coverage and Proof
§ A 100. The Need to File an Application – Social Security
Filing an application is a precondition to Social Security benefit entitlement and also to recognition of a period of disability which will later be considered in benefit calculations. There are only two situations in which the Act does not require an application. One is where a person who is receiving one type of Social Security benefits becomes eligible for another. A person who applied for and was receiving disability insurance benefits need not, when he or she reaches the Act’s “full retirement age,” apply again for old-age benefits; a person receiving spouse benefits on the account of a retired worker need not apply for widow or widower’s benefits if that worker dies.
The Act provides a second exception; it operates when misleading information received from the Social Security Administration causes a person not to apply. A later application by that person can be dated from the earlier contact. Previous law was to the contrary. In Schweiker v. Hansen, 450 U.S. 785 (1981), the Supreme Court held that the Agency was not estopped from denying benefits to a claimant who failed to file an application even though her failure to do so was the result of an erroneous statement by Agency staff.
An applicant for Social Security benefits of any kind must furnish satisfactory proof of an existing Social Security number or apply for one.
Eligible claimants can in many cases elect to have benefits paid for a period of months (6 months or 12 months depending on benefit type) prior to the month of application. Generally this election is not available when payment of benefits for the prior period would, because of the claimant’s age, give rise to a reduction in the monthly benefit amount.
Rev. 12/01
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 200. Insured Status – In General
All Social Security benefits, whether old-age, disability, or family benefits, require some person (either the claimant or the relative on whom benefits depend) to have sufficient covered wages or self-employment income to qualify for “insured status.” Different benefits require different types of insured status, but all require some type. The tests of insured status are expressed in terms of quarters of coverage, requiring a certain number of such quarters altogether or a certain number during a specified period of time. The three principal insured status tests are: fully insured, currently insured, and insured for disability benefits.
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 210. Insured Status – Fully Insured
Old-age or retirement benefits and family benefits for survivors require “fully insured” status. (In addition, the insured status test for disability insurance benefits is, in part, derived from the “fully insured” concept.) The test for fully insured status contains a sliding scale requiring more quarters of coverage of successive cohorts of beneficiaries. The sliding scale stretches between a minimum of 6 quarters of coverage and a maximum of 40. No one, except those in a few special classes dealt with specifically by Congress, can qualify for fully insured status without having 6 quarters of coverage (the equivalent of a year and a half of covered work). And anyone with 40 quarters of coverage (the equivalent of 10 years of covered work) has such insured status. Whether someone with fewer than 40 quarters meets the test depends on date of birth and the basis of their claim.
For all individuals reaching 62 in 1991 or thereafter and claiming old-age or retirement benefits, the full 40 quarters is required.
The sliding scale applies to those born prior to 1929, requiring one quarter of coverage for each year falling after 1950 (a year in which the program’s coverage was dramatically increased) but before the year the person becomes 62. This formula, for example, requires 37 quarters for individuals who turned 62 during 1988 (having been born in 1926), 38 quarters of coverage for those born in 1927 who turned 62 during 1989. In the case of a deceased individual on whose account survivors benefits are claimed the full 40 quarters is not required if the deceased has one quarter for each year after the age of 21 before the year of his or her death.
Rev. 12/01
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 220. Insured Status – Currently Insured
Currently insured status is based on recent work rather than a long period of covered work. A worker with 6 quarters of coverage out of the last 13 quarters prior to death, disability, or entitlement to old-age benefits is currently insured. Benefits available on the basis of currently insured, as distinguished from fully insured, status include survivors benefits for children, survivors benefits for a younger spouse caring for eligible children, and lump sum death benefits.
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 250. SSI – The Need to File an Application
Otherwise eligible individuals will not receive Supplemental Security Income (SSI) benefits without filing an application. For those who can qualify for benefits delays in filing an application, thus, translate directly into benefits lost.
Some written and even some oral contacts with the Agency can, if followed up promptly by an application, establish an earlier date for the application. The regulations provide detail on such “protective filing date” situations. Upon receipt of a written statement that can qualify, the Agency is supposed to send a notice of the need to file an application. To qualify for the earlier date, the claimant must file the application within 60 days of that notice.
As with Social Security benefits, a failure to file because of misleading information received from the Social Security Administration receives special treatment. A later application by the person misled can be dated from the earlier contact.
Rev. 9/95
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 260. SSI – Categorical Eligibility – In General
The Supplemental Security Income program (SSI) provides cash benefits to individuals whose income and assets fall below set national standards, but not all individuals. SSI’s “need-tested” benefits are provided in rough but not precise parallel to Social Security benefits being limited to three categories – the aged, blind and disabled. Those within the SSI categories must meet certain other eligibility tests and qualify by virtue of low income and limited assets. Individuals and families with insufficient income who fall outside the SSI categories must turn to other programs for assistance.
SSI, established in 1974, replaced state programs, supported in part by Federal funds. To ease the transition special eligibility rules and certain related provisions applied (and still apply) to individuals who were receiving benefits under the predecessor programs. These provisions, still part of the law, apply to relatively few recipients.
Rev. 12/01
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 270. SSI – Categorical Eligibility – 65 or Older
While Social Security old-age benefits can be begun at age 62 and widow or widower benefits at age 60, SSI benefits based on age require that the individual be 65 or older. Persons already eligible for SSI by virtue of blindness or disability may be subject to slightly different rules upon turning age 65.
Since establishing age can be critical to eligibility, proof of age is addressed in detail by the regulations. The regulations spell out the Agency’s preferred types of age evidence starting out with a public birth record. The regulations also provide for reliance on a state’s report of age, in the absence of evidence to the contrary, and for less rigorous documentary evidence when the individual claims an age of 68 or more.
Rev. 9/95
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 280. SSI – Categorical Eligibility – Blind or Disabled
An individual is eligible for SSI based upon blindness if (i) with a correcting lens, his or her vision in the better eye is 20/200 or less, or (ii) he or she has tunnel vision of 20 degrees or less. Under Social Security Disability Insurance, a claimant qualifies as disabled on the basis of blindness with vision falling below this same standard. The SSI disability category is also defined in terms largely identical to those governing Social Security Disability Insurance.
It should be noted that for SSI purposes blindness is set apart on its own, rather than being swallowed up by the disability category. Two important differences between Social Security and SSI blindness claims emerge as a result of this separation. First, SSI’s blindness test has no duration requirement. Under Disability Insurance, blindness, like any other form of disability, must last for at least 12 months. Secondly, under SSI, “Substantial Gainful Activity” is not at issue for those eligible by virtue of blindness, as it is in Social Security. After demonstrating categorical eligibility based upon blindness, an individual needs only to meet the SSI income and resource limits.
Rev. 9/95
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
Earnings from nearly all work performed within the U.S. are covered by Social Security. This includes work performed for others as an employee (wages) and also work done within an individual’s own business or partnership (net earnings from self-employment). In addition some work performed outside the U.S. by U.S. nationals is covered.
Work that is covered by Social Security is subject to a special Social Security tax (the F.I.C.A. tax if the work is done as an employee, the S.E.C.A. tax if it is self-employment). And earnings from work that is covered figure into the Act’s eligibility requirements and benefit calculations.
Work done within a family has raised special issues for Social Security which have been the subject of an evolving set of rules. Some work that would otherwise qualify for coverage will not if done for certain relatives.
The coverage of domestic work, including baby-sitting by teen-agers, long an area of significant non-compliance, received Congressional attention in 1994. Amendments to the Act increased the threshold amount for coverage based on domestic labor to $1,000 per employer per year (with that figure subject to subsequent annual adjustment) and excluded part-time domestic work by those under 18, altogether. The threshold for 2008 is $1,600.
For individuals who are receiving benefits, earnings from covered work (and other work as well) can lead to a reduction in benefits under the excess earnings test. If those benefits are based on disability, the earnings can lead to a conclusion that the person is engaged in substantial gainful activity and is, therefore, not disabled.
Rev. 11/07
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 310. What Counts as Wages or Self-Employment Income
Social Security employs a very expansive definition of wages. It provides that all remuneration for employment, no matter what it is called or how it is paid, must be and is counted as wages, up to an annual limit. Earnings from self-employment are defined as net income from work an individual does, not as an employee, but in pursuit of his or her own trade or business. Since the return on investment and income from savings as distinguished from income from work do not count toward Social Security entitlement, wages and earnings from self-employment for an individual may be significantly less than the individual’s taxable income.
There are numerous specific situations in which income that would otherwise be treated as wages from employment is instead counted as self-employment income. These situations parallel comparable provisions governing the Social Security tax.
In Social Security Bd. v. Nierotko, 327 U.S. 358 (1946), the Supreme Court construed “wages” under the Act as including “back pay” granted to an illegally discharged employee.
There are numerous Social Security Rulings covering particular issues of wage or self-employment income treatment. Prior to 1988, the Act required the Social Security Administration to accept the employing agency’s characterization and records of remuneration for Federal employees. It now specifically authorizes the Agency to determine whether particular remuneration constitutes wages from employment.
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 320. Coverage of State and Local Government Employees
The work of most state and local government employees is covered by Social Security. But with the exception of transportation workers for whom coverage is mandatory that coverage is a consequence of individual state decisions implemented by agreement. Having chosen to bring a sector of public employment under Social Security, however, a state cannot later withdraw coverage.
Public pensions based on uncovered state or local government work give rise to an offsetting reduction of certain Social Security benefits based on family relationship. They can also lead to a reduced Social Security benefit formula for old-age and disability benefits.
Rev. 12/03
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
The key element in all Social Security insured status tests is the “quarter of coverage.” A quarter of coverage represents a calendar quarter in which the individual’s earnings covered by Social Security exceed a specific threshold. For years prior to 1978, the determination for wages actually applied to the four separate quarters of the year (the 3 month periods ending March 31, June 30, September 30, and December 31). For 1978 and after, the number of quarters of coverage credited for a year (from 0 to 4) is calculated in terms of total covered earnings for the year. That is true of self-employment income both before and after 1978. Under this approach work during a single month, if well compensated, can give rise to the maximum four quarters of coverage for the year. During 2008 wages of $1,050 generate one quarter of coverage; $4,200, a full four. Under a 2004 amendment, quarters of coverage are not awarded for work performed in the U.S. by non-citizens who have neither been lawfully issued Social Security numbers nor granted B1 or D visas.
Rev. 11/07
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 450. SSI – Income and Resource Limits – In General
The Supplemental Security Income program (SSI) provides a minimum income for aged, blind or disabled persons. Because of that aim, SSI is available only to individuals whose income and assets fall below defined levels. The income and assets (“resources”) of the applicant, and sometimes the income and resources of other economically-related persons, are with certain exceptions held against those levels. The exceptions give rise to the terminology – “countable” income and resources. An individual’s countable resources must fall below a statutory maximum to be eligible for SSI. And the individual’s countable income must fall below the Federal Benefit Rate (FBR) plus the applicable state supplement, if any.
Because they are tied to the benefit level the income limits are automatically adjusted to reflected changes in the consumer price index. For 2008, they are $637 for an eligible individual, $956 for an eligible individual with an eligible spouse. For 2007, the corresponding figures were $623 and $934.
The resource limits are $2,000 for an eligible individual, $3,000 for an eligible individual with an eligible spouse.
Rev. 11/07
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 460. SSI – Income and Resource Limits – Deeming
In determining an SSI claimant’s countable income and resources, the income and resources of certain other persons – such as spouses, parents, sponsors or essential persons – may be included. In these situations, the income and resources of the others will be counted because it is “deemed” to be available to the applicant, whether or not it is actually available.
Deeming of income and/or resources can occur in one, or possibly more, of the following situations. (1) An SSI eligible individual who lives in the same household as his or her ineligible spouse will have that spouse’s income and resources deemed. (2) A child under 18 living in the same household with a parent, adoptive parent or stepparent will generally have that parent’s income and resources deemed. (3) An alien will generally have the income and resources of his or her sponsor, as well as the sponsor’s spouse, deemed for a period of several years after the alien was admitted to the U.S. for permanent residence. (4) If an individual is one of those transition recipients (carried into SSI in 1974) receiving an increased amount of SSI due to the presence of an essential person in the household (no longer a large population), the income and resources of that essential person are deemed.
The first two categories of relationships in which deeming applies, spouses and parent-child, are entitled to numerous allowances and exclusions. These will in most situations lower the amount of income and resources deemed by a significant amount. For instance, allowances are made for the living expenses of the spouse or parent whose income and resources are to be deemed, as well as any dependents living in the household.
The income and resources deemed from a sponsor or essential person are subject to far less numerous allowances and exclusions. While allowances are made for the living expenses of the sponsor whose income and resources are to be deemed, as well as any dependents living in the household, no such allowances are available for the essential person. In the case of an essential person, an applicant may chose to have the essential person increment left out of the SSI payment computation. While this practice does reduce the hypothetical maximum SSI payment, in some circumstances it can, because of deeming, result in a larger actual payment. However, once dropped from the calculation, the essential person cannot be reinstated.
Rev. 9/95
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 500. Earnings Record – In General
The Agency maintains a record of earnings for all individuals working in covered employment or self-employment. This earnings record is based principally on data furnished by the Internal Revenue Service. That means that it rests ultimately on tax returns filed by the individual or the individual’s employer.
This official record of earnings, including amounts and the period of time to which they relate, is the starting point for entitlement and benefit determinations. Individuals can review this record and request corrections in it. A failure to do so can lead to the record’s being conclusive or presumptive evidence on whether the individual had earnings during a particular period and, if so, how much.
The Act sets a time limit of 3 years, 3 months, and 15 days for requesting corrections after the year in question.
The Agency now sends an earnings record statement, together with a projection of benefits, annually to all individuals 25 or older for whom it has a current mailing address. In addition, statements can be requested via the Agency website or by calling 1-800-772-1213.
When a worker has been employed by an employer who did not pay the Social Security tax or report the employment, the worker’s claim to a subsequent benefit may require confronting the evidentiary weight of the official earnings record.
Occasionally, usually when the issue is application of the excess earnings test, an individual may argue that the Agency must accept the official record as evidence of the level of earnings. In those instances the Agency is in the position of attacking or seeking to change its own record, often after the expiration of the 3 years, 3 months, and 15 days time limit.
Rev. 11/07
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 510. Earnings Record – Self-Employment Income
Earnings records that reflect self-employment rest on the individual’s own tax returns. Consequently an absence of reported self-employment earnings for a period or an amount of such earnings above zero that was not the subject of a corrected tax return within the period of limitations of 3 years, 3 months, and 15 days, will in most cases be binding on the individual. Greater leeway to correct the records by establishing earnings not shown by them exists in the case of wages paid by an employer, especially when the official earnings records show no earnings from that employer (as distinguished from some amount, later asserted to be erroneous).
In KY, MI, OH, and TN an acquiescence ruling (AR 86-20) implements the Sixth Circuit’s decision in Grigg v. Finch, 418 F.2d 661 (6th Cir. 1969) that amendments of an earnings record to reflect self-employment income after the time limit may be appropriate where no income tax return was filed and certain other conditions are met.
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 520. Earnings Record – Military Service Credits
The earnings record for a member of the uniformed services includes more than the individual’s “basic pay,” even though that is the only portion of his or her compensation on which the Social Security tax is paid. The additional wage credit entered on top of that amount scales according to the individual’s basic pay. No credit is provided for an individual with less than $300 in basic pay for the year. Beyond that threshold, a credit of $100 is added for each $300 of basic pay, up to a maximum credit of $1,200 for the year. Congress has ended these credits for years after 2001.
Prior to 1957 the uniformed services were not covered on a contributory basis by Social Security; however, those who served during the period 1940-56 received certain noncontributory wage credits.
Rev. 12/02
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 530. Earnings Record – Other Credits
Special wage credits are provided for the U.S. citizens of Japanese ancestry of working age who were interned during World War II. These credits are calculated to approximate the earnings they were denied by virtue of their internment.
In addition, the Act still contains provisions authorizing benefits to generations of workers who had little chance for Social Security coverage. These dated provisions have no relevance for current generations reaching retirement age.
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 540. Earnings Record – Year of Earnings
In most Social Security settings it is important to know when earnings are counted, for the provisions are framed in terms of amount of earnings during some period. Although minor exceptions exist, wages from employment are generally counted when received by the worker or, if earlier, when credited to the worker and available, without restriction, for withdrawal. Earnings from self-employment are counted in the period to which they relate as they are treated under the Internal Revenue Code.
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 550. SSI – Countable Income
In the Supplemental Security Income program (SSI) “countable income” can have two related effects. When countable income exceeds the income eligibility figure it disqualifies an individual or couple from receiving benefits altogether. Smaller amounts of countable income reduce SSI benefits dollar for dollar. But since countable income may be less than actual income, the true net effect on the individual’s total revenue may be less severe.
The Agency computes countable income using a practice called Retrospective Monthly Accounting (RMA). This practice is based not on projections of income for the current month, but rather on amounts of income reported in the second month prior to the current month. When an individual first becomes eligible for SSI benefits, the Agency computes payments for the first and second month based upon the first month’s income. Under RMA, benefits for the third month are also calculated based upon the first month. Thus, in situations where a new SSI recipient has “non-recurring” income in the first month, that income will be counted for all of the first three months, even though not actually received in months two and three. This practice of “triple counting,” specifically disallowed under some other aid programs, has found a mixed reception in the courts.
Certain forms of revenue or economic benefit are not considered income at all by SSI. The most significant of these are other need-tested benefits intended to augment SSI. Money received from the sale of a resource or from a loan is not counted nor are income tax refunds. But income need not be cash; free shelter and other forms of “in-kind” income are counted. The basic test is whether what is received can be used as food, clothing, or shelter or to obtain them. An important item not on this defining list is medical care. The receipt of medical care or services directly or of cash restricted to or reimbursing for medical costs does not qualify as income.
Treatment of items that fall within the SSI definition of income varies depending on whether they are characterized as “earned income.” Earned income is subject to more generous exclusions in the calculation of countable income than apply to unearned income. Earned income, either wages or net earnings from self-employment, can be in the form of cash or it can be in-kind. Earned income that is received in-kind is valued at current market value. Wages and net earnings from self-employment are defined by SSI using the same standards as apply with Social Security.
Unearned income can essentially be described as any income recognized by SSI which is not classified as earned income. Unearned income can be in the form of cash or it may be in-kind. One significant exclusion applying to unearned income concerns some types of support and maintenance assistance, such as fuel, shelter or food, which are based solely on need and received from utilities, municipalities or private non-profit organizations.
Unearned income received in-kind is subject to one of several valuation rules, depending upon the nature of the income. In-kind income which is unearned and which is not in the form of food, shelter or clothing is valued at its current market value. In-kind income which is unearned and in the form of food, shelter or clothing, referred to as “in-kind support and maintenance,” is subject to one of two valuation rules. If an individual lives in the household of another for a full month and receives both food and shelter within that household, the actual value of that in-kind support and maintenance is not calculated. Rather, the SSI benefit is reduced by a fixed value equal to one third of the Federal Benefit Rate. If an individual is not receiving both food and shelter or while receiving them is not “in the household of another,” then the in-kind support is valued according to the “presumed maximum value rule.” Under this rule, support is presumed to be valued at an amount equal to one third of the Federal Benefit Rate plus $20. The presumed maximum is rebuttable. If an individual can show that the support is worth less than the full amount, a lower value will be used.
In most instances where an individual is paying less than fair market value for food or shelter, that individual is considered to be receiving in-kind support and maintenance. As noted above, the value of such support is normally calculated at one third the federal benefit rate plus $20. However, in IN, IL, and WI, regulations required by the Seventh Circuit’s decision in Jackson v. Schweiker, 683 F.2d 1076 (7th Cir. 1989), (see 20 CFR § 416.1130(b)) provide that no actual benefit will be found where the amount of rent actually paid equals or exceeds one-third of the Federal benefit rate plus $20. Under AR 90-2(2), following the Second Circuit’s decision in Ruppert v. Bowen, 871 F.2d 1172 (2d Cir. 1989), this rule also applies in CT, NY, and VT.
Rev. 12/01
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 580. SSI – Countable Resources
Unlike income, resources do not affect the dollar amount of the SSI payment, but bear only on the threshold issue of eligibility. Thus, if an individual has countable resources below the statutory resource limitation, that individual is eligible for SSI benefits, the actual benefit amount of course being dependent upon the individual’s countable income. If countable resources exceed the statutory limit, then the individual is generally not eligible for SSI.
Countable resources are computed in much the same way as countable income; allowed exclusions are subtracted from total resources. There are a number of specific exclusions, for instance for such items as an automobile, a home or business property. These exclusions, listed in the regulations, can dramatically reduce the amount of countable resources. It is possible for individuals or couples to become eligible for SSI by giving away a resource or selling a resource at less than fair market value.
There is also provision for SSI to be paid, under certain circumstances, to an individual possessing excess resources while those resources are being disposed of. Such payments are treated as overpayments to the extent they exceed what would have been received had the excess been disposed of when benefits began.
Rev. 9/95
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
Nearly all categories of benefits involve some age requirement. For example, to be entitled to old-age benefits an individual must be at least 62, widow(er)s benefits, 60, child benefits, under 18. There are a few exceptions. Lump sum death benefits and spouse benefits for spouses caring for an eligible child are two. Even with disability benefits, age can bear on the insured status test or factor into the disability determination itself.
Where proof of age is critical, the burden of proof lies on the claimant. The regulations spell out the Agency’s preferred types of age evidence starting out with a birth certificate or hospital birth record. They do, however, allow use of other “convincing evidence” and provide several examples.
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 700. Proof of Death – In General
Entitlement to survivors benefits rests upon the death of an insured worker. Proving the death, not only that it occurred but when, is normally a simple matter.
Where proof of death is required, the burden of proof lies on the claimant. The regulations spell out the Agency’s preferred types of evidence starting out with a death certificate or a statement by a funeral director or attending physician. They do, however, allow use of other “convincing evidence” when the claimant can explain why one of the preferred types is not available.
The cases that pose difficulties of proof are those in which those claiming survivors benefits were not with the worker at the time of the apparent death, including especially those in which the worker has simply disappeared.
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 710. Proof of Death – Presumed from Absence
Death can be established by a period of absence. The regulations provide that if another agency of the Federal Government has declared a missing person “presumed to be” dead that will be accepted for Social Security. They also provide for presuming death in cases where the person has been absent without apparent reason and has not been heard from for seven years.
The nature and location of the burden of proving that a seven year absence could not reasonably be explained by a cause other than death has been heavily litigated. Prior to a regulation revision issued in April 1995, the Agency took the position that the claimant had the burden to show that there was no apparent reason for the person’s disappearance, an interpretation rejected by all U.S. Court of Appeals circuits presented with the issue. The revised regulations provide that death can be presumed from absence alone and explain the grounds on which that presumption can be rebutted. Upon issuing the 1995 revision, the Agency rescinded a long list of acquiescence rulings reflecting the circuit court decisions that the new regulations, in effect, apply nationwide.
Rev. 6/95
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 720. Proof of Death – Date of Death
In most cases satisfactory proof of death will also include proof of date of death. This is not true, however, in cases where death is presumed from unexplained absence. When another Federal agency has found the individual “presumed to be” dead, the regulations provide that the date of death is taken to be the date the person was declared missing. When death is presumed from a seven year absence the regulations give the Agency wide discretion to set the most likely date of death.
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 800. Conviction of Felony or Fleeing to Avoid Prosecution and Benefits
Benefits are not paid to any individual convicted of a felony and confined in a jail, prison, or other penal institution or correctional facility. The bar is limited to the prisoner. Other family members can continue to receive benefits as though the prisoner were eligible. Benefits resume when the individual is released.
Amendments to the Act in 1994 extended benefit suspension to individuals confined for treatment who were not convicted of a criminal offense because of mental illness and also clarified the treatment of individuals living under supervision but outside an institution. The suspension was further expanded in 2004 to cover those fleeing to avoid prosecution for a felony or to avoid confinement following conviction as well as individuals violating parole or probation.
In CT, NY, and VT an acquiescence ruling (AR 06-1) implements the Second Circuit’s decision in Fowlkes v. Adamec, 432 F.3d 90 (2nd Cir. 2005), which held that the Agency could not conclude that an individual was fleeing to avoid prosecution, custody, or confinement from the mere fact that an outstanding felony arrest warrant or similar order exists. The decision requires some evidence that the individual knows he or she is being sought. The Agency's view is that the existence of an outstanding warrant is enough.
Under limited circumstances, prisoners receiving benefits due to disability can continue to receive benefits while participating in a court-approved program of vocational rehabilitation.
Rev. 12/04
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 850. SSI – Institutionalization and Eligibility
Stays in a public institution for more than 30 days can affect either eligibility for Supplemental Security Income (SSI) or the amount of benefits. As a general rule, such a stay throughout any month will make an individual ineligible for SSI during that month. Some important exceptions reduce the effect of that eligibility rule. Most significantly, residents of a medical treatment facility to which Medicaid is paying more than 50 percent of the cost of care remain eligible for SSI. However, monthly payments in such a case are reduced dramatically to a “personal needs benefit” of $30. Needless to say, there are exceptions to this $30 limit. Among others is one providing that normal SSI benefits may continue if a doctor certifies, within the first three months of an individual’s stay in an institution, that the stay is not likely to exceed three months and that normal SSI benefits are necessary for maintenance of a home to which the individual will return upon release.
Rev. 9/95
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 900. Foreign Nationality or Residence
Nationality and residence affect Social Security benefits in a variety of ways.
U.S. nationals are entitled to receive benefits whether or not they continue to reside in the U.S. Income they earn outside the U.S., including income that does not count toward Social Security coverage, may reduce benefits in a manner similar to earnings in the U.S.
Non-U.S. nationals, otherwise entitled to benefits, do not receive them after they have been outside the U.S. for 6 consecutive months. There are, however, several exceptions to this bar. One such exception exists for individuals whose benefits rest on 10 years of residence and work in the U.S. and who are outside the U.S. in a country with a Social Security system meeting certain requirements of comparability. Under provisions of the 1996 Welfare Reform Legislation (P.L. 104-193) dealing with aliens, codified to 8 U.S.C. §§ 1601-1614, the only non-citizens eligible for Social Security are those “lawfully present” in the U.S. and those covered by treaty or totalization agreements. These provisions apply to those applying for benefits on or after September 1, 1996. Under a 2004 amendment, quarters of coverage are not awarded for work performed in the U.S. by non-citizens who have neither been lawfully issued Social Security numbers nor granted B1 or D visas.
Finally, there are detailed provisions for combining coverage and benefits earned in the U.S. and certain foreign countries with comparable Social Security programs. Such combined calculations are carried out pursuant to “totalization agreements” authorized by 42 U.S.C. § 433.
Rev. 12/04
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]
§ A 950. SSI – Foreign Nationality or Residence
Only U.S. citizens and aliens lawfully admitted to the United States are eligible for Supplemental Security Income (SSI). In addition to this requirement the program carries a strict residency test.
If an individual is absent from the United States (the 50 states and the District of Columbia) for a full calendar month, that individual will become ineligible for SSI benefits. There are two important exceptions to this rule. Children who are U.S. citizens eligible for SSI benefits and who subsequently accompany parents on U.S. military assignments to foreign countries, Puerto Rico or other possessions of the U.S. continue to be eligible for SSI benefits. In addition, persons leaving the U.S. for certain educational programs are exempt from the 30 day rule.
The residency test is more narrowly defined than the requirement of citizenship. While the latter includes residents of Puerto Rico, Guam, and the Virgin Islands, for example, by virtue of the residency requirement they are eligible for SSI only while living in one of the 50 states, D.C., or the Northern Mariana Islands. In Califano v. Torres, 435 U.S. 1 (1978), the Supreme Court upheld SSI’s residency test as applied to individuals who lost benefits by moving to Puerto Rico from the continental U.S. The Court rejected the argument that the constitutional right to travel required otherwise.
Provisions of the 1996 Welfare Reform Legislation (P.L. 104-193) severely restrict welfare benefits, including SSI, for aliens. Under its provisions, codified to 8 U.S.C. §§ 1601 -1614, most non-citizens are no longer eligible for SSI.
Rev. 12/01
[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]