SSR 69-19: SECTION 202(j). -- APPLICATIONS -- CHANGE OF ELECTION AS TO INITIAL MONTH OF ENTITLEMENT

This Ruling Modifies SSR 64-1, C.B. 1964, p.20

SSR 69-19

M, a fully insured worker, attained age 65 and filed application for

old-age insurance benefits in February 1963. An application for old-age

insurance benefits may be effective for payment of benefits up to 12

months prior to the month in which the individual files application if

that individual meets all other requirements for entitlement. When he

filed the old-age insurance benefit application, M was receiving a private

pension check which he believed would be reduced if he elected to receive

old-age insurance benefits before age 65. For this reason M elected to

have his benefits begin with February 1963 when he reached age 65, waiving

the right to any benefits in the retroactive period. A determination of

entitlement was made effective February 1963.

In November 1963, M learned that the amount of his private pension check

would not be affected by the old-age insurance benefit. This meant that he

could have elected a reduced old-age insurance benefit effective with

February 1962 and there would have been no change in the amount of the

private pension. Since the election he made in February 1963 was to his

disadvantage, M wanted to correct it.

In order to correct the original election of benefits, M could withdraw

the February 1963 application and refile. This would cancel the original

application, but a new application filed in November 1963 would have a

retroactive life of only 12 months, to November 1962. Such withdrawal and

refiling is the usual way to correct an election of initial month of

entitlement to benefits. M contended, however, that he should be permitted

to withdraw or change only the election of the first month for which he

had requested benefits on the February 1963 application and to elect to

receive benefits effective with February 1962. (That is, M wanted an

additional 9 months of benefits, from February 1962 to February 1963

rather than November 1962 to February 1963.)

to benefits. M contended, however, that he should be permitted

to withdraw or change only the election of the first month for which he

had requested benefits on the February 1963 application and to elect to

receive benefits effective with February 1962. (That is, M wanted an

additional 9 months of benefits, from February 1962 to February 1963

rather than November 1962 to February 1963.)

The question raised is whether a claimant who has made a disadvantageous

election of the initial month of entitlement may later modify that

election after a determination of entitlement has been made on his

application, and if so, to what extent his modified election may be

effective retroactively.

Section 202(j)(1) of the Social Security Act provides, in pertinent part,

that:

Section 202(j)(3) of the Social Security Act provides in pertinent part

that:

The law thus permits an individual "at his option" to elect any month,

within the 12-month retroactive period of his application, as the initial

month of his benefit entitlement, is all other requirements are met.

Nothing in section 202(j)(3) requires that the exercise of this option be

irrevocable. Whenever the Congress clearly has intended that an

individual's exercise of an option be irrevocable, it clearly has

expressed such intent. For example, section 217(f)(1) of the Act provides

that unless a veteran's widow or surviving child waives the right to

receive any civil service annuity which had included military service of

the veteran which could also be credited for a social security benefit, he

or she could not be entitled to a social security benefit based on such

service. This section of the law specifically states that "[a]ny such

waiver shall be irrevocable."

that unless a veteran's widow or surviving child waives the right to

receive any civil service annuity which had included military service of

the veteran which could also be credited for a social security benefit, he

or she could not be entitled to a social security benefit based on such

service. This section of the law specifically states that "[a]ny such

waiver shall be irrevocable."

Section 202(j)(3), on the other hand, does not state that the exercise of

the option as to waiver of retroactive entitlement is irrevocable. The

individual may modify his election as long as the month he subsequently

selects is within the 12-mont retroactive period of his application. Thus,

an election may be modified and a new month selected which is more than 12

months earlier than the month in which the modification is made. The

provision in section 202(j)(1) of the Act governs only the filing of the

application. It does not govern the time within which an election may be

modified nor the retroactive effectiveness of such modified election. If

the filing requirement is met with respect to a particular month, i.e., if

a particular month is within the effective retroactive life of an

application, the provision in section 202(j)(1) would not preclude the

claimant from later changing his election to receive or to waive benefits

for a particular month.

An individual may change his first month of entitlement on a

previously-filed application for benefits to some other month within the

12-month retroactive life of the original application, provided that (1)

the claimant (or a proper party on his behalf) files with the

Administration a written request to change his first month of entitlement;

and (2) he is alive when the request is filed; further, where the request

for modification or change is filed after the date on which the

Administration has made a determination on his application, any other

person whose entitlement to benefits would be adversely affected by the

change in mo

half) files with the

Administration a written request to change his first month of entitlement;

and (2) he is alive when the request is filed; further, where the request

for modification or change is filed after the date on which the

Administration has made a determination on his application, any other

person whose entitlement to benefits would be adversely affected by the

change in month of entitlement, consents in writing to the modification;

and any benefits which would be in error because of the change are

refunded, or it is established to the satisfaction of the Administration

that repayment of such benefits is assured.

Accordingly, it is held that after a determination of entitlement has

been made on his application for benefits, a claimant who meets the

foregoing conditions may modify his election of the initial month of his

entitlement so long as the month he later elects is within the 12-month

retroactive period of his application. M, therefore, upon meeting the

foregoing conditions, may change his initial month of entitlement to

benefits from February 1963 to February 1962.