TN 84 (01-17)
GN 00204.035 Deemed Filing
Social Security Act §202(r)
Regulations 20 CFR §404.623
Section 831 of Public Law 114-74 (Bipartisan Budget Act of 2015)
Since 1956, the Social Security Act required claimants to file for both reduced retirement insurance benefits (RIB) and spouse’s, divorced spouse’s, and independently entitled divorced spouse’s (AUXSPO) benefits when eligibility for both benefits existed in the claimant’s first month of entitlement to either benefit. We refer to this requirement as “deemed filing” because when a claimant applies for one benefit, we “deem” him or her to have filed for the other benefit.
On November 2, 2015, the Bipartisan Budget Act of 2015 (BBA) Section 831(a) changed the policy for deemed filing for claimants who have a date of birth (DOB) of January 2, 1954 or later.
B. Policy for deemed filing
Deemed filing applies to:
retirement insurance benefits (RIB), and
spouse’s, divorced spouse’s, and independently entitled divorced spouse’s (AUXSPO) benefits.
When totalization benefits are involved, the claimant entitled to RIB and AUXSPO benefits must file for totalization benefits if he or she wants to receive any social security benefits.
Deemed filing does not apply to survivor benefits. For example, when a claimant becomes entitled to widow(er)’s benefits (WIB), he or she is not deemed to file for RIB. The claimant may restrict the WIB application and delay filing for RIB. For instructions on handling a surviving divorced spouse claim based on the disabled widow(er)’s benefits (DWB) provisions in Section 5103 of Public Law (P.L.) 101-508, see DI 11015.001.
NOTE: If a RIB applicant is eligible for reduced AUXSPO benefits on more than one record, he or she is deemed to have filed for benefits on all records.
1. Deemed filing rules
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.
a. DOB is January 2, 1954 or later
Deemed filing applies:
To RIB and AUXSPO benefits (reduced and unreduced) at any age, and
In the first month the claimant is eligible for either RIB or AUXSPO when entitled to RIB or AUXSPO.
Note: See GN 00204.035B.2 in this section for exceptions.
b. DOB is prior to January 2, 1954
Deemed filing applies:
To reduced RIB and AUXSPO benefits (claimant is under FRA), and
Only when eligibility for the second benefit (for example AUXSPO) exists in the month of entitlement to the first benefit (for example RIB).
NOTE: For exceptions to deemed filing, see GN 00204.035B2 in this section.
2. Exceptions to deemed filing
Regardless of the claimant’s DOB, you must consider the following two exceptions before applying deemed filing:
a. Child-in-care (C-I-C)
A claimant who has in his or her care a child (under age 16 or disabled) entitled to a child’s insurance benefit on his or her spouse’s earnings record, and is filing for spouse's benefits is not deemed to have filed for RIB. He or she may exclude RIB from the scope of the application for spouse's benefits by providing an unequivocal statement.
Once the spouse no longer meets the child-in-care requirements, the benefits are suspended. If the spouse files an SSA-25, Certificate of Election for Reduced Benefits, use the claimant’s DOB to determine which deemed filing rule applies.
When the spouse no longer meets the child-in-care requirements, the benefit converts to an aged spouse’s benefit with the month of FRA or later. If the spouse is eligible for RIB upon entitlement to aged spouse’s benefits, use the claimant’s DOB to determine which deemed filing rule applies.
b. Disability Insurance Benefits (DIB)
If a number holder (NH) becomes entitled to reduced spouse's benefits and in the first month of entitlement (MOET) to such benefit is entitled to DIB, the NH is not deemed to have filed for reduced RIB.
· Termination of DIB before FRA
When a NH’s DIB terminates before FRA and the NH is entitled to AUXSPO benefits, the NH is deemed to file for reduced RIB effective with the first month there is no entitlement to DIB.
· Conversion of DIB to RIB at FRA
When DIB converts to RIB at FRA and the claimant is eligible or becomes eligible for AUXSPO benefits, you must use the claimant’s DOB to determine which deemed filing rule applies.
3. Simultaneous entitlement to reduced RIB and DIB
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.
4. Invoking the deemed filing rules retroactively
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.
5. Claimant fails to submit evidence
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.
C. Procedure for applying deemed filing for DOB January 2, 1954 or later
When a claimant files for benefits, you must explore his or her eligibility for other benefits. The naming of a spouse or ex-spouse on an application could be a protective filing or lead that may require securing additional applications. When exploring potential eligibility for other benefits in either situation, determine if deemed filing applies to any current or past due benefits, for the claimant or the spouse or ex-spouse named on the claimant’s application.
1. Application for RIB or AUXSPO benefits
When a claimant files for RIB or AUXSPO benefits and eligibility exists for both benefits:
Secure an application for both benefits;
Determine the month of election for the first benefit; and
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.
2. Application for Widow(er)’s Insurance Benefits (WIB)
When a claimant entitled to RIB files for WIB and you determine that deemed filing applies to past due AUXSPO benefits:
Use the WIB application to award the past due AUXSPO benefits when the benefits are under the same earnings record; or
Secure an AUXSPO application to award past due AUXSPO benefits when the benefits are under a different earnings record.
Select a MOET that equals the first month the claimant was eligible for the additional AUXSPO benefits.
3. Claimant names spouse or ex-spouse on application
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.
4. Deemed filing date
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).
5. Deemed filing documentation
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:
Attempts to secure an application,
Reason(s) for not taking an application,
Attempts to secure evidence,
Reason(s) for denying a claim,
Reason for using the deemed filing date, and
Information about a spouse or ex-spouse named on an application who is deemed to file for spouse benefits
D. Procedure for applying deemed filing for DOB prior to January 2, 1954
For claimants with a DOB prior to January 2, 1954, the application of deemed filing is limited to the first month of entitlement to either reduced RIB or AUXSPO benefits.
If the claimant is eligible for both reduced RIB and AUXSPO benefits in the first MOET to either benefit, secure an application for both benefits. The MOET for both benefits should be the same. However, if the claimant or the claimant’s spouse or ex-spouse’s month of election (MOEL) is conditional, you may not be able to determine the applicability of deemed filing at the time of filing.
1. Conditional MOEL
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.
3. Listing codes
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:
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.
E. Deemed filing examples
1. Reduced RIB and AUXSPO with the same months of entitlement
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.
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.
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.
2. Reduced RIB and AUXSPO with different months of 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:
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.
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.
3. Government Pension offset (GPO)
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:
Margaret’s DOB is January 2, 1954 or later: Margaret is deemed to have filed for AUXSPO benefits effective 01/2021.
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.
4. DIB terminations
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.