Sir,

Because of a complicated Medicare situation, my local office advised me to apply for my SS retirement benefits immediately. I did, in Jan ‘19. The money accumulated in an account opened just to receive these funds—and has never been touched. Several months afterwards, I could see it was not going to help restore my Medicare.

I went to my local office in Apr ‘19, with a form filled out to withdraw my application for retirement benefits. The very senior/competent clerk declined to process my application, saying (after checking his computer) that I had a year from my application date to do that, so I should wait until my Medicare coverage was restored (that was gong to coincide with the enrollment period in July).

On 1 July, I was the first person in line as they opened and he processed my request for me. It was rejected. My birthday had been the day before (30 Jun). Their paperwork said you have 1-yr from the date of eligibility to process the withdrawal. I reminded the clerk that I had done that. I had brought the request form to him in April, but he had not processed it, as he thought the rule said you had one year from the date of applying for benefits. He remembered all of this. He apologized for being wrong, but said it was the government’s error and they would not hold me responsible.
He helped me file an appeal.

After the appeal languished for many months, I turned to my Senator for help. I soon received a call from from the SSA office. The operations supervisor explained he was managing my appeal, and he had read the file. He told me that I was going to prevail because I had filed for withdrawal of benefits well-within a year of my application (the same thing the senior clerk had told me). I pointed out to him that their denial letter said that it was a year from the date of eligibility, NOT a year from the date of applying. He was taken aback. Then he agreed that this would not be held against me, as I had tried to file on time but they had made a mistake.

Now I have a denial of reconsideration letter from the SSA stating they see no paperwork that I applied within the required time, and telling me there is no exception in the law. Even though I went there months before their deadline (admittedly, I knew nothing of these deadlines). I asked for my benefits to be withdrawn. They told me NO. Now they’re telling me my paperwork was not filed in time. (BTW, this seems to be a wide misconception: AARP states on their site that it is a year from application; not eligibility). Any way. I tried to stop it in time. I did nothing wrong (other than not yelling at the clerk and trying to force him to process my paperwork from the other side of the glass).

I can request a hearing and hire a lawyer. All lawyers seem to be for disability and SSI claims. Their fee comes from back pay. My claim has no back pay and does not involve a disability.
My question is this: If I pursue this, will I prevail? Are the folks at my local office right that since it was their error (which they admit to) I will win, or is the denial letter right saying tough luck: the law does not have provisions for going beyond the 1-year date — no matter whose fault it is, applicant’s or theirs?

Thank you,
Dennis

P.S. I realize this seems out of the normal range of advise; I am trying to do this to have a better monthly check, as I had not wanted to apply right at my FRA (DoB: 30 Jun ‘52)

Hi Dennis,

Let me start out by defining Social Security terminology. 'Eligibility' for benefits simply means that a person meets the requirements for benefits. For example, a person with at least 40 quarters (QC) of Social Security coverage is first eligible for Social Security retirement benefits effective with the first month that they're age 62 for a full month. However, even if a person is eligible for benefits they can't actually collect benefits until they apply for and are approved for benefits.

When a person who is eligible for benefits applies for those benefits and their claim is approved, they establish 'entitlement' to benefits. Claims for Social Security retirement benefits can be withdrawn up to 12 months after the person's initial month of entitlement to benefits. So, for example, a person who was first entitled to Social Security retirement benefits effective with June 2018 would have until June 30 2019 to withdraw their application (https://secure.ssa.gov/apps10/poms.nsf/lnx/0200206001).

I assume that what you are saying is that your initial month of entitlement to benefits was June 2018, and that your withdrawal request was disallowed because it was filed one day too late on July 1 2019. If that's the case, and if you filed your application in January 2019 then you must have had an earlier protective filing date that allowed you to claim benefits retroactively to June 2018. Social Security retirement benefits can only be claimed retroactively for up to 6 months, so without an earlier protective filing date the earliest month of entitlement that could be claimed for an application for retirement benefits filed in January 2019 would be July 2018.

Even if your withdrawal request was filed one day late, though, I think that you would have a decent chance of winning your case at the Hearing level of appeal. And, you aren't required to have an attorney to pursue a request for a Hearing. If I were you, my arguments in favor of allowing your request for withdrawal would be threefold as follows:
1. The 12-month limit on withdrawals of retirement benefit claims is a policy that Social Security initiated on December 8 2010. As far as I know, that policy has never been added the Social Security Act or Regulations by an act of Congress, although I could be wrong about that.
2. June 30 2019 fell on a Sunday, which prevented you from being able to file your withdrawal request timely. That fact may not make any difference according to Social Security's official policy on withdrawals, but at least some other Social Security regulations allow for extended time limits when a filing deadline falls on a non-business day.
3. You were dissuaded from filing your withdrawal request timely in April 2019 due to misinformation you were given by a Social Security representative. Social Security's policy with regard to misinformation does not specifically address withdrawals, but I think you could reasonably argue that your withdrawal request should be considered to have been filed timely because your right to file your request for withdrawal was hindered due to Social Security's actions. BTW, misinformation with regard to applications is addressed in the following section of Social Security's operations manual: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200204008.

I can't advise you whether or not to pursue a further appeal, nor do I even have sufficient details about your circumstances to know for sure whether or not withdrawing your claim and refiling later is your best strategy. The bottom line is, though, that I think common sense and reason are on your side. Social Security's policy on withdrawals may not allow for any exceptions to the 12-month limit, but perhaps it should in situations like yours. Hopefully, if you do decide to file for a Hearing the Administrative Law Judge assigned to your case will agree.

Remember, too, that if you win your appeal and your claim is eventually withdrawn, you'll need to reapply for benefits in order to establish entitlement. And, you could then only claim benefits retroactively for a maximum of 6 months from the month in which your new application is filed.

Best, Jerry