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
- Where a claimant files application for benefits and in electing his first month of entitlement he elects to waive retroactive entitlement to benefits, and where, after a determination of entitlement has been made on his application, he discovers that his election is disadvantageous and he therefore wishes to modify his election and elect an earlier month as initial month of entitlement, held, the claimant is not precluded by the Social Security Act from modifying his election of the initial month of his entitlement to benefits, so long as the month he later elects is within the 12-month retroactive period of his application.
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.)
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:
- An individual who would have been entitled to a benefit * * * for any month after August 1950 had he filed application therefor prior to the end of such month shall be entitled to such benefit for such month if he files application therefor prior to the end of the twelfth month immediately succeeding such monthly * * *.
Section 202(j)(3) of the Social Security Act provides in pertinent part that:
- Notwithstanding the provisions of paragraph (1), an individual may, at his option, waive entitlement to any benefit referred to in paragraph (1) for any one or more consecutive months (beginning with the earliest month for which such individual would otherwise be entitled to such benefit) which occur before the month in which such individual files application for such benefit; and in such case, such individual shall not be considered as entitled to such benefits for any such month or months before such individual filed such application. * * *. [Emphasis supplied.]
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."
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 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.