SSR 67-36c: SECTION 202. -- APPLICATION FOR BENEFITS -- WITHDRAWAL OF APPLICATION AFTER ADJUDICATION -- REPAYMENT OF BENEFITS

20 CFR 404.615(b)(3)

SSR 67-36c

KELLER v . GARDNER, 370 F. 2d 554 (2d Cir., 1966)

PER CURIAM:

Lina M. Keller appeals from a judgment of the United States District

Court for the Southern District of New York, Richard H. Levet, Judge , which upheld on review under § 205(g) of the Social Security

Act, 42 U.S.C. § 405(g), the final decision of the Secretary of Health,

Education, and Welfare that appellant had not withdrawn her application

for reduced retirement benefits because she had not assured repayment of

amounts received and therefore was not eligible to apply for primary

benefits. Finding no error, we affirm the district court.

Upon retiring at the age of 62, appellant applied under § 202(q)(1) of

the Social Security Act, 42 U.S.C. § 402(q)(1), for reduced retirement

benefits. From January 1963 to June 1964, she received eighteen monthly

payments of $104.90, totaling $1,888.20. She resumed employment in July

and was ineligible for her benefits because she was earning more than the

allowable maximum. See § 203 of the Social Security Act, 42 U.S.C. § 403.

Appellant then attempted to withdraw her application for reduced benefits

so that she could apply for full payments of $121 monthly at the age of

65. The question for review is whether she satisfied 20 C.F.R. §

404.615(b)(3) which provides that withdrawals are not effective unless

"There is a repayment of the amount of benefits previously paid because of

the application that is being withdrawn or it can be established to the

satisfaction of the Administration that repayment of any such amount is

assured.

21 monthly at the age of

65. The question for review is whether she satisfied 20 C.F.R. §

404.615(b)(3) which provides that withdrawals are not effective unless

"There is a repayment of the amount of benefits previously paid because of

the application that is being withdrawn or it can be established to the

satisfaction of the Administration that repayment of any such amount is

assured.

Appellant did not tender repayment in cash; instead, she proposed to

forego eighteen months of possible future benefits. Her proposal was not

to waive the first eighteen months of benefits to which she became

entitled but rather was to forego any benefits payable to her from 65 to

66«. The Secretary's decision that appellant's offer did not constitute a

satisfactory assurance of repayment was correct because there was no

certainty that appellant would not continue to work, be ineligible for

benefits and thereby repay nothing. In fact, that is exactly what happened

and no repayment occurred. A scheme such as contemplated by appellant

might indeed have much to recommend it. We cannot however, find a basis

for it in the present statutory plan.

Appellant's "retirement credit" argument, that her eighteen months pre-65

retirement should be balanced against her 18 months post-65 employment, is

meritless because she received benefits during her retirement and there

was therefore no credit accrued under the statute now in force. Her other

contentions such as the inadequacy of Social Security payments, the

absence of a private employer pension law, her inability to retain counsel

and her displeasure with the retirement test are likewise better directed

to the Congress.

The judgment of the District Court is affirmed.