SSR 65-17: SECTION 202. -- APPLICATION FOR BENEFITS -- WITHDRAWAL OF APPLICATION

20 CFR 404.615

SSR 65-17

In June 1957, at age 62, the claimant, W, became entitled to reduced

old-age insurance benefits of $32.20 (reduced under section 202(g) from

$40.20) and to widow's insurance benefits of $56.10. Under section

202(k)(3) of the Social Security Act, the widow's insurance benefit was

reduced by the amount of her old-age insurance benefit. Thus, her combined

monthly benefits totalled $56.10 ($23.90 + $32.20). Amendments to the law

in 1959 and 1961 increased these benefit amounts but her widow's insurance

benefit before reduction under section 202(k)(3) continued to exceed her

old-age insurance benefit.

In January 1961, W resumed employment for substantial wages and payment

of her benefits was thereupon suspended because of work deductions under

section 203(b) of the Act. In January 1964, W called at a district office

of the Social Security Administration to give notice that she had stopped

working and to inquire about a recomputation of her primary insurance

amount. On the basis of her additional earnings during 1961, 1962, and

1963, years after she attained age 65, the district office determined that

a recomputation would increase her primary insurance amount to $99.00.

However, since W had qualified for reduced old-age insurance benefits

before age 65, the same reduction factor was applicable to subsequent

benefits. In accordance with section 202(q), her old-age insurance benefit

would be reduced by 5/9 of 1 percent multiplied by 36, the number of

months she was entitled to and received old-age insurance benefits prior

to age 65. Thus, while W's additional wages were sufficient to increase

her primary insurance amount to $99.00, application of this reduction

factor would result in her entitlement to a reduced old-age insurance

benefit of only $79.20.

ce benefit

would be reduced by 5/9 of 1 percent multiplied by 36, the number of

months she was entitled to and received old-age insurance benefits prior

to age 65. Thus, while W's additional wages were sufficient to increase

her primary insurance amount to $99.00, application of this reduction

factor would result in her entitlement to a reduced old-age insurance

benefit of only $79.20.

W, therefore, requested to withdraw her application of June 1957 for

old-age insurance benefits. She contended that since her widow's insurance

benefit amount had exceeded her old-age insurance benefit for all months

prior to January 1961, and since no benefits were payable to her for any

months after December 1960 because of deductions under section 203 of the

Act, her entitlement to old-age insurance benefits had resulted in no

advantage to her; that she would have received the same total amount of

benefits solely as the result of her entitlement to widow's insurance

benefits. W further asserted that her application for old-age insurance

benefits was disadvantageous because she was now precluded from

establishing entitlement to an unreduced old-age insurance benefit of

$99.00, rather than the reduced benefit amount of $79.20. If she were

permitted to withdraw the application, her previous award of old-age

insurance benefits would be rescinded, and she could upon filing a new

application become entitled to an old-age insurance benefit which would

not thereafter be reduced.

Under § 404.957 of the Social Security Administration Regulations (20 CFR

404.957), as considered here, a determination or decision may be reopened

within 12 months from the date of the notice of the initial determination;

or, after such 12-month period but within 4 years after the date of the

notice of the initial determination to the party to such determination,

upon a finding of good cause for reopening such determination or decision;

or at any time, for certain reasons specified by regulation.

ination or decision may be reopened

within 12 months from the date of the notice of the initial determination;

or, after such 12-month period but within 4 years after the date of the

notice of the initial determination to the party to such determination,

upon a finding of good cause for reopening such determination or decision;

or at any time, for certain reasons specified by regulation.

The notice of the initial determination of W's entitlement to old-age

insurance benefits was given more than 4 years before her request to

withdraw her application therefor. The issues thus presented are whether

pursuant to section 404.615 of the Social Security Administration

Regulations (20 CFR 404.615) W may withdraw her application for old-age

insurance benefits and, if so, whether the determinations of award made

pursuant thereto may be reopened and, in effect, rescinded, and whether

appropriate adjustment in benefits may be made accordingly.

Section 404.615 of the Social Security Administration Regulations (20 CFR

404.615) governs the withdrawal of applications for social security

benefits and provides, in pertinent part, substantially as follows:

A claimant may withdraw his previously filed application for benefits

provided that (1) he files with the Administration a written request for

withdrawal of the application; (2) he is alive at the time the request is

filed; and (3) the Administration approves his request for withdrawal. The

regulation requires further, where the request for withdrawal is filed

after the date on which the Administration has made a determination on his

application, that (4) any other person whose entitlement to benefits would

become erroneous as the result of withdrawal, consents in writing to the

withdrawal; and (5) any benefits paid on the basis of the prior

application are refunded, or it is established to the satisfaction of the

Administration that repayment of such benefits is assured

Administration has made a determination on his

application, that (4) any other person whose entitlement to benefits would

become erroneous as the result of withdrawal, consents in writing to the

withdrawal; and (5) any benefits paid on the basis of the prior

application are refunded, or it is established to the satisfaction of the

Administration that repayment of such benefits is assured. An application

which has been withdrawn is considered not to have been filed. SSR 64-1,

C.B. 1964, p. 20.

That part of section 404.615 which relates to withdrawal after

adjudication was added by amendment to the Regulations effective May 4,

1963. The amendment prescribed no time limitation within which a request

for withdrawal must be initiated. The intent of the amended regulation was

to permit the correction of inequities caused by useless or premature

filing by, in effect, rescinding an award based on the application which

may be later determined to be adverse to the claimant's best interests.

Withdrawal must be requested in writing and the basic conditions must be

met, as specified by the regulation. The intent is, therefore,

accomplished by rescinding the earlier determination, regardless of the

lapse of time between the two actions since, otherwise, the purpose of the

regulation could be frustrated by applying an arbitrary time limitation.

The amended withdrawal regulation was effectuated later in time, and must

be considered to prevail over the earlier rules as to administrative time

limitations, to the extent that those rules frustrate the purpose of the

withdrawal regulation, and thus are irreconcilable therewith.

nce, otherwise, the purpose of the

regulation could be frustrated by applying an arbitrary time limitation.

The amended withdrawal regulation was effectuated later in time, and must

be considered to prevail over the earlier rules as to administrative time

limitations, to the extent that those rules frustrate the purpose of the

withdrawal regulation, and thus are irreconcilable therewith.

In this case, all conditions requisite for the acceptance of W's request

for withdrawal of the application for old-age insurance benefits which she

filed in June 1957 are present. She filed a written request for

withdrawal, she was alive when the request was filed, no benefits of other

persons would become erroneous, and the repayment requirement is met since

W would have been entitled to the same total amount of benefits for all

prior months had she become entitled only to widow's insurance benefits in

June 1957, rather than to both old-age insurance benefits and widow's

insurance benefits.

Accordingly, it is held that W may withdraw her application for

old-age insurance benefits filed June 1957, and the initial determination

may be rescinded without prejudice to her right to file application and

become entitled to benefits as though no application for such benefits had

previously been filed.