Do You Really Need to File a Restricted Application?

Reader Question on Social Security Restricted Application

social security benefits application form
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Social Security claiming for married people can be more complex than you might think. You have to know your facts. Here is a great example of how complex it can be. This reader sent me the following question:

"Everything I read says I need to file a restricted application but the Social Security (SS) office said it was not necessary.  I am 66, full retirement age, and my wife is sixty nine. She began taking SS at 66, her full retirement age. I just filed against her SS record for spousal support at my local SS office. They would not file a restricted application saying it was unnecessary. They assured me that my own SS record would not come into play and I would receive the lesser of the options which is the spousal support until I actually filed on my own record at age 70. I called the SS 1-800 number and asked the same question. They looked up their records on what my local office had filed and also said the restricted application was not necessary to ensure that I received only the spousal support with nothing being filed against my own SS record. Why is everything I read emphasizing the necessity for the restricted application to be filed?"

The answer this reader was given by the Social Security office didn’t sound right to me. Turns out, I was right. Per attorney Avram Sacks, a national expert in Social Security law, here is the answer as to why a restricted application is usually needed:

The claimant MUST file a restricted application to ensure receipt of the spousal benefit and to ensure that the claimant's own benefit accrues delayed retirement credits (DRCs). The internal operating manual of the Social Security Administration, the Program Operations Manual System ("POMS") at GN 00204.020.D.1 clearly states that a claimant may restrict the scope of the application for any reason unless the deemed filing rule applies. That rule (an agency regulation at 20 CFR §404.623), which states that an application for either old-age retirement benefits (Retirement Insurance Benefits or "RIB") or spousal benefits will be deemed to be an application for both if the claimant files prior to full retirement age, is not applicable here because the claimant is filing at full retirement age.

 The POMS rule just cited, however, states that any claim will be considered a claim for all benefits to which a claimant is eligible  unless it is specifically limited by the claimant. This is why the claimant MUST file a restricted application to ensure receipt of the spousal benefit.

In your reader's case, notwithstanding the clerk's assertion that the reader's own benefits would "not come into play" until he actually filed on his own record at age 70, POMS §GN 00204.020 as well as §GN 00204.004 indicate that unless the claimant actively restricts a spousal application to spousal benefits only, the Social Security Administration will, in fact, consider the spousal application to be an application for RIB as well.

And, once that is done there is ​a dual entitlement. And, with dual entitlement, Social Security Act (SSA) §202(k)(3) [42 USC §402(k)(3)] is triggered. Under that provision, the RIB will be paid first, and if the spousal benefit is larger, then the total amount paid will equal the RIB plus the difference between the spousal benefit and the RIB.  IF, on the other hand, the RIB is larger, no spousal benefit is paid. (There is no "double-dipping.")  And, once there is payment of the RIB, DRCs cannot accrue.

(20 CFR §404.313.)  In other words, the clerk's assertion to your reader that the lower, spousal benefit would be paid, even if a restricted application is not filed, is contrary to SSA §202(k)(3).

I can think of only two scenarios in which the SSA clerk would be correct, that failure to file a restricted claim would not impact the worker's own benefit:  

(1) IF the claimant's Primary Insurance Amount ("PIA" -- a worker's full benefit amount at age 66) is so low that his spousal benefit is more than 132% of his own PIA (the amount a worker receives on his or her own account if the worker's full retirement age is at age 66 and the worker waits until age 70 to claim benefits on his or her own account) AND even if his earnings for the next four years were at or above the wage base (the maximum amount of earnings subject to tax under FICA), 132% of the recalculated PIA would still be less than 1/2 of the primary wage earner's PIA (i.e., the PIA of your reader's wife), THEN the filing of the restricted application would be unnecessary.

Thus, in order to know, with certainty, if this is the basis for the Social Security Administration's position, one would have to know the PIA of the claimant and of the claimant's spouse.

(2) If the claimant engaged in employment that was not covered under the Social Security Act (such as local or state government or foreign employment) and receives a pension based on that employment, the claimant's pension could reduce the spousal benefit to zero under the Government Pension Offset provision of the Social Security Act ( SSA §202(k)(5); 20 CFR §404.408a).

In that circumstance, it is more advantageous for the worker to receive the RIB.  Although the worker's own benefit under the Social Security Act will also be reduced, the reduction is under a different provision of the Act, the Windfall Elimination Provision (SSA §215(a)(7); 20 CFR 404.213). However, the WEP reduction is usually less than the GPO reduction and never reduces the Social Security benefit to zero. 

So what should the reader do when faced with a clerk who insists that the filing of a restricted application is not necessary?

The reader should: 

  1. Present the clerk with a copy of POMS GN 00204.020.D.1 and GN 00204.004 and ask why his own RIB won't be impaired in the absence of a restricted application? GN 00204.020.D.1 gives the reader the right to file a restricted application. The reader should ask the clerk to cite a statute, regulation, or agency rule that permits the clerk to ignore the reader's request to file a restricted application.
  2. If the clerk's answer is unsatisfactory, the reader should ask to speak to a supervisor (and, if necessary, the field office manager) and make the same request.
  1. If the clerk or the clerk's supervisor is unable to provide satisfaction, get their response in writing and take it to the Social Security liaison of their local Congressman's office and ask for an inquiry as to why a restricted application is not necessary in order to ensure that the worker's own benefit will accrue DRCs.

If all else fails, the reader may appeal the determination and seek reconsideration, and, if necessary, a hearing before ALJ. However, I doubt it would get this far.

Social Security workers do make mistakes, as do their supervisors and managers. That is why there are so many attorneys successfully litigating claims against the Social Security Administration.

Unless the reader's lifetime earnings are so low such that the spousal benefit will be higher, even with DRCs at age 70 or unless the reader is receiving (or will receive) a pension based on non-covered employment, the reader should stick to his guns and insist that a restricted application be filed on his behalf. You can get in touch with attorney Avram Sacks via his LinkedIn Profile.