20 CFR 404.353(b)
The issue before the Appeals Council is whether the claimant may again elect to receive child's insurance benefits on his mother's record effective with the first month deductions became applicable against the benefits due based on his father's record.
The claimant was entitled to child's insurance benefits on the Social Security records of both his mother and his father. After receiving child's insurance benefits on his mother's record in 1974, the claimant elected to receive benefits on the record of his father effective January 1975 because the monthly benefit on his father's record was larger. Both parents were entitled to old-age insurance benefits, with the father's record having the higher PIA. However, the claimant's father subsequently returned to work and because of the father's excess earnings in 1976, deductions were determined to be applicable against the father's and the claimant's benefits, resulting in an overpayment to the claimant for 1976 in the amount of $811.80. The claimant's mother had no excess earnings in 1976; therefore, no deductions were applicable against her benefits.
In his decision, the ALJ determined that SSA had erred in not permitting the claimant to again elect to receive child's insurance benefits on his mother's record. The ALJ found that there was no provision in either the Act or in the regulations which would preclude the claimant from electing to receive such benefits effective with the first month his benefits on his father's record were withheld because of the father's excess earnings. The ALJ further found that the 1976 deduction overpayment incurred by the claimant on his father's record could be reduced by the amount that was "payable" to him on his mother's record for that year.
Section 202(k)(2)(A) of the Act provides, in pertinent part, that a child entitled to child's insurance benefits on more than one worker's record can receive benefits only on the record with the highest PIA with one exception. The child will receive benefits on a record with a lower PIA only if (1) the child's benefit before any reduction for the family maximum would be higher on that record than the benefit before any reduction on the record with the higher PIA, and (2) no other person, including the child, entitled to benefits on either record would receive a smaller benefit after reduction for the family maximum because of the child's entitlement on the record with the lower PIA.
The Appeals Council found that section 202(k)(2)(A) of the Act precluded the claimant from again electing to receive benefits on his mother's record. This section provides that an individual entitled to child's insurance benefits on more than one worker's record will be paid on the record with the highest PIA with one exception not applicable here. There is no question but that the claimant's father had a higher PIA than the claimant's mother. Deductions imposed on benefits based on excess earnings, however, do not terminate entitlement on the record involved, but only suspend payments. The law does not permit a dually entitled claimant to oscillate between earnings records whenever a parent returns to work. Although his father was working and in deduction status, the claimant continued to be "entitled" to a larger benefit on his father's record than he was "entitled" to on his mother's record. Thus, even though a larger benefit amount could have been paid on his mother's record for certain months, section 202(k)(2)(A) of the Act precluded such payment as long as the claimant was "entitled" on his father's record with the higher PIA. Consequently, the Appeals Council reversed the decision of the ALJ and found that the claimant could not change his entitlement to child's insurance benefits from his father's record to his mother's record for the months in which deductions were applicable against benefits based on his father's record.
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