20 CFR 404.615

SSR 65-17

Where a claimant established entitlement to benefits and 6 years later requested in writing, withdrawal of her application, and where all other conditions for withdrawal were met under pertinent regulations (20 CFR 404.615), held, withdrawal of the application may be approved and the previous determination may be rescinded notwithstanding regulations (20 CFR 404.957), generally barring the reopening of a determination more than 4 years after the date of the notice of the initial determination.

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.

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.

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. 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.

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.

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