The BBA did not change the rules for deemed filing for claimants with a DOB prior to January 2, 1954. There are two separate sets of rules for deemed filing based on the claimant’s DOB.

Regardless of the claimant’s DOB, you must consider the following two exceptions before applying deemed filing:

When a claimant is simultaneously entitled to reduced RIB and DIB and is eligible or becomes eligible for AUXSPO benefits, you must consider the claimant’s DOB to determine if deemed filing applies to the AUXSPO benefits.

It does not matter whether it was apparent that eligibility for both RIB and AUXSPO benefits existed when the claimant filed, or that the claimant refuses to submit evidence to establish entitlement to the other benefit. The law does not define a time limit as to when the deemed filing provision may be invoked. Whenever we become aware of the claimant's eligibility for the other benefit, you must invoke the deemed filing provisions back to the first month the claimant became eligible for the other benefit.

The claimant must decide to file an application and submit essential evidence. The only sanction for failing to do either is non-entitlement to benefits. The same is true for deemed filing situations. Failure to submit evidence is the basis for denying a claim. Since the initial determination of non-entitlement was correct based upon the evidence in file at the time we made the determination, that determination is not reopened. However, the effect of invoking deemed filing is the same as reopening the earlier denial.

For example, a claimant entitled to RIB is deemed to have filed for AUXSPO benefits with a MOET of 02/2016. However, he or she refuses to submit evidence of current marital status, (for example provide a divorce certificate) so we deny the AUXSPO claim. Subsequently on 01/2017, the claimant files a new AUXSPO claim and submits the required evidence. The deemed filing rules are invoked retroactively to 02/2016, the first MOET to RIB.

When a claimant files for RIB or AUXSPO benefits and eligibility exists for both benefits:

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  Secure an application for both benefits;

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  Determine the month of election for the first benefit; and

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  Process the second benefit with a MOET equal to the first month the claimant becomes eligible for the second benefit.

NOTE: If the claimant filed for RIB or AUXSPO benefits online, you must determine if another application is required per GN 00204.055E.2.

When a claimant entitled to RIB files for WIB and you determine that deemed filing applies to past due AUXSPO benefits:

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  Use the WIB application to award the past due AUXSPO benefits when the benefits are under the same earnings record; or

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  Secure an AUXSPO application to award past due AUXSPO benefits when the benefits are under a different earnings record.

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  Select a MOET that equals the first month the claimant was eligible for the additional AUXSPO benefits.

When a claimant files for benefits and names a spouse or ex-spouse who is entitled to RIB and is eligible for AUXSPO benefits, secure an application. If the spouse or ex-spouse is not present at the time the claimant files for benefits, contact the spouse or ex-spouse to determine eligibility and secure an application. If you are unable to contact the spouse or ex-spouse, follow the policy for processing leads in GN 00202.020.

NOTE: Treat the naming of a current spouse who is eligible for both RIB and AUXSPO benefits as a protective filing. Follow the processing instructions for closing out a protective filing in GN 00204.012.

When applying deemed filing, the MOET for the deemed filer’s claim must be the first month he or she is eligible for the second benefit. When adjudicating the claim, MCS may generate an adjudicative edit message because the month of election does not correspond with the filing date. In this situation, use the deemed filing date as the protective filing date for processing purposes. The deemed filing date is the first day of the MOET. For example, if the MOET is 05/2016, the deemed filing date would be 05/01/2016. For more information on adjudicative messages, see MCS 001.007D. For information on using the protective filing date in MCS, see MCS 009.013 Decision Input (DECI) and MCS 009.014 File Date Determination Screen (FDDS).

An adjudicator is responsible for documenting the claim to clarify aspects of a claim that may not be apparent to others reviewing the file. Use the RPOC screen in MCS to document the following information:

1. a. 

   Attempts to secure an application,

2. b. 

   Reason(s) for not taking an application,

3. c. 

   Attempts to secure evidence,

4. d. 

   Reason(s) for denying a claim,

5. e. 

   Reason for using the deemed filing date, and

6. f. 

   Information about a spouse or ex-spouse named on an application who is deemed to file for spouse benefits

In conditional MOET cases, the question of the applicability of deemed filing cannot be resolved until after any required annual reports are processed and a formal determination of the correct MOET has been made. During the initial interview, when explaining reduced benefits, explain the deemed filing rules even when only one of the eligible claimants files.

One problem area, that existed before the 1977 amendments, involves cases where one spouse files for RIB and the other spouse subsequently files for RIB creating a potential deemed filing situation. The system treats the two spouses' RIB records separately. To identify eligibility to spouse's benefits after the annual reports are processed, prepare a listing following the instructions in GN 00204.035D.3 in this section.

When a claimant is eligible for both reduced RIB and AUXSPO benefits and wants to restrict his or her application to one type of benefit, the adjudicator must consider whether the claimant is eligible for both benefits in the first MOET due to the deemed filing provision.

It is possible for the NH, on whose earnings record AUXSPO benefits are payable, to effectively restrict retroactivity by use of the option “C” election code. This may preclude the applicability of the deemed filing provisions to the spouse. Since we no longer require the filing of an annual report, a result unintended by the claimant may ensue because we may not review their MOETs. Since we made an initial determination of the MOET at the time we adjudicated the claim, it is the claimant's responsibility to pursue the matter. Any adjustment of the MOET is subject to the rules of administrative finality.

If a NH files for RIB in the same calendar year as, but not simultaneously with, his or her spouse, and at least one of the MOET's is conditional, prepare a listing by coding the Decision Input (DECI) screen as follows:

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  Use code 708 for claims filed in odd-numbered years; and

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  Use code 020 for claims filed in even-numbered years.

In September of each year, the Program Service Center (PSC) will call up the prior year's listing and determine whether we must invoke deemed filing.

Helen filed 12/21/2015 and becomes entitled to reduced RIB effective 02/2016. Later, based on a 06/10/2016 filing, her husband becomes entitled to RIB effective 02/2016. One-half of his Primary Insurance Amount (PIA) is greater than Helen’s PIA.

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  Helen’s DOB is January 2, 1954 or later: Helen is deemed to have filed retroactively for the reduced spouse’s benefits with a MOET of 02/2016 because 02/2016 is the first month she is eligible for spouse’s benefits when entitled to RIB.

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  Helen’s DOB is prior to January 2, 1954: Helen is deemed to have filed retroactively for the reduced spouse’s benefits with a MOET of 02/2016 because she is filing for reduced benefits and is eligible for spouse’s benefits in the first month of her RIB entitlement.

Mary filed 12/21/2015 and becomes entitled to reduced RIB effective 02/2016. Later, based on a 06/10/2016 filing, her husband becomes entitled to RIB effective 04/2016. One-half of his Primary Insurance Amount (PIA) is greater than Mary’s PIA:

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  Mary’s DOB is January 2, 1954 or later: Mary is deemed to have filed retroactively for the reduced spouse’s benefits with a MOET of 04/2016, because deemed filing can occur in any month.

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  Mary’s DOB is prior to January 2, 1954: We would not invoke the deemed filing rule for Mary retroactively because she was not eligible for spouse’s benefits in the first month of her RIB entitlement.

Margaret files on 11/10/2020 and becomes entitled to reduced RIB effective 01/2021. Based on non-covered government employment, her Windfall Elimination Provision (WEP) PIA is $694.00. Margaret’s husband files for RIB on 12/20/2020 and becomes entitled to RIB effective 01/2021. One-half of his PIA is greater than Margaret’s PIA, so she is “deemed” to have filed for reduced spouse’s benefits effective 01/2021 even though her spouse’s benefit is subject to full GPO. Deemed filing is still applicable under both sets of rules because Margaret is entitled to a reduced RIB and is eligible for reduced spouse’s benefit in the first month of entitlement.

Same example, but Margaret is FRA:

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  Margaret’s DOB is January 2, 1954 or later: Margaret is deemed to have filed for AUXSPO benefits effective 01/2021.

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  Margaret’s DOB is prior to January 2, 1954: Margaret is not deemed to have filed for the AUXSPO benefits because she is FRA and falls under the deemed filing rules in effect prior to the BBA.

John Jones, age 62, filed an application on 10/05/2015 for reduced spouse’s benefits beginning 01/2016. He is also entitled to DIB as of 01/2016. In this case, the deemed filing rules do not apply to the reduced RIB because he is entitled to DIB in the first MOET to spouse’s benefits.

Mr. Jones’ disability terminates. His last month of entitlement to DIB is 02/2017. He continues to receive spouse’s benefits and is eligible for RIB. Because Mr. Jones is entitled to spouse’s benefits only, the deemed filing rules apply to the reduced RIB in the first month he is no longer entitled to DIB.