Social Security Says She Owes $38,192 But They Won't Tell Her Why

     From the Hartford Courant:

Bill Small of Rocky Hill got a jolt this past March when the Social Security Administration (SSA) notified him in a letter that it had overpaid his wife, Bess, during two decades of disbursing her monthly benefit. And so, now that he and his wife are 85 years old and she has been diagnosed with dementia, the SSA is demanding that he repay a total of $38,192 on her behalf. ...

The retired Air Force colonel, who during a 28-year career piloted multiengine military aircraft all over the world and served in Vietnam, says the government admits it made a mistake and that he and his wife of 63 years are blameless. He asked in June that the SSA waive its demand for repayment.

But on Wednesday, an SSA representative told him during a personal conference in Hartford that his request is being denied. ...

Small said he still hasn’t received an explanation of what specific error by the SSA resulted in the overpayment, as well how it happened and when it began. (He said he doesn’t know how long the overpayments were happening, but if they spanned the entire 22 years, they would have averaged around $145 a month to reach the $38,192 total.) ...

“To approve the waiver of an overpayment we must be able to determine that the individual is without fault in causing the overpayment, and repayment would cause an undue hardship,” Kevin Reino, an SSA public affairs specialist in the agency’s regional office in Boston, said in describing the SSA’s general policy. ...

     Years ago I had a case that might have been a little like this. The client had been an employee of the New York City transit system. Years before he retired somebody at Social Security had made a mistake. The city had sent the agency a reel (I said it was years ago) containing data on employee wages. Somebody at Social Security had run the reel twice, double crediting wages for all those employees. The mistake was only discovered many years later. The mistake resulted in a large number of former New York City transit workers being overpaid by Social Security. I argued that the original award certificate determining the primary insurance amount was res judicata and that there was no basis for reopening it. The Administrative Law Judge bought it and the overpayment was wiped out. At least in that case, we knew why the overpayment had happened. Often, it's almost impossible to get an explanation of how the overpayment occurred. In this woman's case, I'll take a guess that Social Security didn't properly coordinate this woman's wife's benefits with her retirement benefits based on her own earnings.
     By the way, I'll bet that Social Security would take a small fraction of the overpayment amount as a full settlement if the husband makes a lump sum payment offer. Given this woman's age and health, they'll never collect much of the overpayment by way of a repayment plan.

Maybe He Really Is Disabled; Definitely, He Shouldn't Have Access To Weapons

     An Oregon man has been arrested after threatening to shoot up a Social Security office. This was not the first time he had made such threats. Here's what happened at the Administrative Law Judge hearing on his case:

At the July hearing, he yelled at his attorney and an administrative judge and threatened future physical violence, the complaint says. Salem police responded and Carlsen was allowed to leave without arrest after he was escorted out of the hearing room. Carlsen live-streamed his actions, according to prosecutors.

Kotlikoff Interacts With The Real World And Is Shocked By Its Harshness

     Laurence Kotlikoff is a columnist on Social Security issues for Forbes. Mostly he writes about claiming strategies that almost no one uses and oddball rules that he finds outrageous. Mostly, I tune him out because I don't think he's writing about real world problems. If you're a Social Security professional and have read many of his columns I think you understand why. 

     As a welcome change, Kotlikoff is now writing about two problems from the real world. First, he's shocked to discover that Supplemental Security Income's (SSI's) resource limits are draconian. Second, he's shocked to discover that a claimant on Social Security disability benefits who tries to park his income below the agency's Substantial Gainful Activity (SGA) limits can easily end up with a large overpayment. I wish I was shocked by either of these situations but they are an everyday part of my work life. SSI recipients should never accumulate even modest sums of money because the rules are insanely out of date. Social Security disability recipients shouldn't try to park their income below SGA because they almost always screw it up and the consequences of a screw up can be severe.

     What gets me about Kotlikoff's column is that he's appealing to Social Security Commissioner Andrew Saul to do something about these problems but Saul can't. I suppose he could recommend that Congress update the SSI income and resource limits but he can't change them unilaterally and Mitch McConnell won't be doing any favors for SSI recipients. Saul could try to increase the SGA limits but that takes changes in regulations which would require the approval of the Office of Management and Budget which is currently headed by a Director who isn't exactly sympathetic to disabled people. An increase in the SGA limits wouldn't solve the parking problem anyway. As a practical matter, there's nothing Saul can do. Kotlikoff ought to know that.

New POMS On Child Relationships

     There's a new POMS (Program Operations Manual Series) issuance from Social Security updating the agency's policies on child relationships and dependence. It covers issues like children of same sex marriages, in vitro fertilization, posthumously conceived children and surrogacy. This area of the law has always been complicated because outdated state law must be applied in many cases and because things often get messy when human sexuality is involved. The advent of same sex marriages and advances in reproductive technology have made things far more complicated. There's also the problem that the statutes were written a long time ago and may not have been well written even at the time. For example, posthumous out of wedlock children were certainly known when these statutes were written but the Social Security Act doesn't talk about how the agency should deal with those cases other than referring to state laws, which are themselves problematic.

Wyden Plan For Social Security

     Senator Ron Wyden (D-Ore.) has released a plan to devote additional revenue to the Social Security Trust Funds. Unlike the Social Security 2100 Act pending in the House of Representatives, Wyden's plan would rely upon increases in taxes upon capital gains rather than increases in the F.I.C.A. taxes. Also, Wyden's plan, unlike the House plan or Senator Warren's plan, does not call for an increase in Social Security benefits.

     Wyden's plan is particularly important because he is the Ranking Member of the Senate Finance Committee. There's no way that any of these plans pass unless Democrats take the Senate as well as the House of Representatives and the White House in next year's election. If that happens, Wyden stands to become Chairman of the Senate Finance Committee, the Committee that has jurisdiction over both taxes and Social Security, making his views crucial.

     I understand the short term political reasons for using capital gains taxes rather than increased F.I.C.A. taxes to shore up the Trust Funds; however, in the long run Social Security is safer if it is financed through payroll taxes, making workers feel that Social Security is an earned right. That was the genius of Franklin Roosevelt. It's kept Social Security safe for 84 years. Don't mess with success.

Senator Warren Wants To Increase Social Security Benefits

     It’s a different plan than the Social Security 2100 Act that may be moving in the House of Representatives and it’s not fleshed out but Senator Elizabeth Warren, who’s running for the Democratic Presidential nomination, is putting forward a plan to increase Social Security benefits.

Most Disability Claims Denied

https://www.cbpp.org/research/social-security/chart-book-social-security-disability-insurance

It’s A Lot Bigger Problem Than Larry Kotlikoff Realizes

     Somebody needs to tell Larry Kotlikoff about the payment center backlogs. He can’t understand why a mildly complicated widows benefits situation can’t get straightened out in a timely way. There are hundreds of thousands of cases like the one he’s complaining about in many months long backlogs.The total payment center backlog is over four million! I’m sorry for the woman he’s writing about but I’ve got a few dozen clients with their own horrendous payment center backlog stories. These cases don’t get the media attention that used to go to the hearing backlog but they’re no less of an outrage. The payment centers will get more resources but these backlogs will be with us for some time to come.

Happy 40th NOSSCR!

     The National Organization of Social Security Claimants Representatives (NOSSCR) is celebrating its 40th anniversary this year with a conference in New Orleans. The first NOSSCR conference was held in New Orleans 40 years ago. I was among the 75 or so who was present at that first conference. NOSSCR asked me to write a something about my involvement in NOSSCR. Here’s what I wrote:

​I had the good fortune of hanging out a shingle to practiceSocial Security law just before NOSSCR’s first conference. Without NOSSCR I don’t think I would have made a go of it.

​I started work for what was then the Bureau of Hearings and Appeals (BHA) as a staff attorney in February 1978. While I found that I liked the field of Social Security law, I did not like working for the federal government or anybody else for that matter. I opened my own law office on the Tuesday after Labor Day in 1979.  

While working at BHA was an excellent way of learning Social Security law, I realized as I was preparing to leave the agency that I had learned nothing about how to practice Social Security law. There was no one locally to learn from since no other attorney in the area did much Social Security work. I also discovered that I would now be a small business owner. That was a real shock.

     After I submitted my letter of resignation to Social Security, I talked with another staff attorney whom I had met in training. He worked in Atlanta. He told me that there was a new organization forming of attorneys who represented Social Security claimants. He didn’t know much about it but he gave me the telephone number of a Georgia attorney, Rudolph Patterson, who was involved in the effort.

    Rudolph was gracious when I called. He told me how to join NOSSCR and told me the newly formed organization would be holding its first conference in New Orleans that November. He sent me copies of the first two or three issues of NOSSCR’s newsletter. I pored over them. Even though my finances were tight, I decided that I had to go to the first NOSSCR conference. 

    I still regret one thing about that first NOSSCR conference. Rudolph invited pretty everyone to dinner at Antoine’s the night before the conference was to begin. Because of another commitment, I took a late flight and didn’t arrive in time for that dinner. I’ve been able to dine at Antoine’s since but I still regret missing that dinner on Rudolph’s dime.

     I couldn’t afford to stay at the conference hotel, the Royal Orleans, so I stayed at a barely adequate place on St. Peter Street a few blocks away. I remember walking over to the Royal Orleans at about 8:00 on the first morning of the conference and seeing bars open and serving drinks to customers. I knew that I was definitely not in Raleigh! At that time, you couldn’t even buy a mixed drink in a restaurant in Raleigh.

I was impressed by many things once the conference beganbut most by the obvious hunger for knowledge that everyone was exhibiting. Even though we were in a city that afforded endless temptations, almost everyone stayed for almost every minute of every presentation. This was the case for NOSSCR conferences that followed for at least several years. 

     Even though people at that first conference were meeting for the first time, there was almost instant camaraderie. In addition to meeting Rudolph for the first time, I met people like Nancy Shor, Steve Babitsky, Bob Crowe, Jim Brown, Carl Weisbrod, Steve Horenstein, Cliff Weisberg, Mike Glancy and Lyle Lieberman, all of whom became friends. I have learned so much from them over the years. 

    At that first NOSSCR conference I noticed that I had something to contribute. While I knew nothing about practicing Social Security law or running a law office, I had picked uptechnical Social Security knowledge that was in short supply in the early days of NOSSCR. 

     I couldn’t afford to attend the second NOSSCR Conferencebut for many years thereafter I didn’t miss another one. They were cherished opportunities to learn, to network with other Social Security attorneys and to contribute what I could.

     Those conferences and phone calls with other NOSSCR members were opportunities to feel less isolated professionally. I was used to working at BHA with other staff attorneys and ALJs but I was now by myself. While there are dozens of other Social Security attorneys in North Carolina now, at the time there was just myself, another attorney in Charlotte who was somewhat seedy and a few fine legal services people such as Mike Glancy. Other young attorneys in private practice in Raleigh at the time doing personal injury and workers comp didn’t understand the challenges I was facing nor did I understand theirs. I think I might have eventually given up without NOSSCR because it would have just been too lonely.

     In retrospect, joining NOSSCR and going to that first NOSSCR conference were the two best moves I’ve made professionally. NOSSCR has meant and continues to mean a lot to me. I hope I’ll be there for the 50th anniversary NOSSCR conference in 2029 and even the 60th in 2039. 

Keep this organization strong. It’s needed now as much as ever.

Astrue Nomination To SSAB Withdrawn

     Michael Astrue was nominated to a seat on the Social Security Advisory Board (SSAB) in August of last year.  He hasn’t been confirmed. That nomination has now been withdrawn. No, I don’t know whatever stories there may be behind the failure to act on the nomination and the withdrawal of the nomination.