Waiver For SSI Overpayments Resulting From Legal Acceptance Of Same Sex Marriage

     Social Security has issued Emergency Message (EM) 16013 to give its staff instructions on overpayment issues resulting from legal acceptance of same sex marriage. Some readers are now thinking "Wait, what? I thought legal acceptance of same sex marriage would result in more money being paid." Overall, yes, somewhat more money will be paid. That's almost always the case for Title II benefits, those based upon someone's earnings record. (For sticklers, I said almost always. I know marriage could eliminate entitlement to widows benefits in some cases, for instance.) However, in Supplemental Security Income (SSI), which is a needs-based benefit, marriage usually causes reduction or elimination of entitlement to benefits. There are two ways that same sex marriage can hurt SSI recipients. The first and less common way is if both partners to a same sex marriage are on SSI. The rate for a married couple where both are eligible for SSI is less than the total of what the two would receive if they were not married. The second and more common way that same sex marriage can reduce SSI benefits is that if you're married the income and resources of the person you're married to are attributed to you for purposes of computing your SSI benefit. If, for instance, a disabled person is living with and being supported by a healthy person who is working and has a good income, if they're not married, the disabled person will suffer, at worst, a one-third reduction in his or her SSI benefits for "living in the household of another" whereas if they're married, the disabled person will lose his or her SSI benefits altogether.

     Now that I've explained the problem, what's Social Security going to do about the SSI overpayments resulting from legal acceptance of same sex marriage? Social Security will assume that the claimant is requesting waiver of the overpayment and will waive the overpayment. The claimant need not even file the form normally required to obtain consideration of waiver of an overpayment. The agency is saying it would be "against equity and good conscience" to try to collect these overpayments.

House Social Security Subcommittee Hearing Announced

     A press release:

House Ways and Means Social Security Subcommittee Chairman Sam Johnson (R-TX) announced today that the Subcommittee will hold a hearing on “Social Security and Public Servants: Ensuring Equal Treatment.” The hearing will focus on Social Security provisions that affect certain public employees, as well as proposals for calculating public employees’ benefits in a proportional manner. The hearing will take place on Tuesday, March 22, 2016 in B-318 Rayburn House Building, beginning at 10:00 AM.

     There has been substantial agitation in Johnson's home state of Texas over the application of the Windfall Elimination Provision which reduces Social Security benefits because of the receipt of pension benefits from wages not covered by Social Security. Apparently, the wages of teachers in Texas  are not covered by Social Security. 

     I'm mildly surprised that Johnson cares. In my state, North Carolina, the Republican Party is openly, bitterly, angrily hostile towards teachers. I think it's the same in many other states. 

Social Security Ruling 16-3p: A Disability Claimant's Honesty Doesn't Matter

     The Social Security Administration will be issuing Ruling 16-3p on Evaluation of Symptoms In Disability Claims tomorrow. Here's some excerpts:

...[W]e are eliminating the use of the term “credibility” from our sub - regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evalua tion is not an examination of an individual’s character. Instead, we will more closely follow our regulatory language regarding symptom evaluation . ...

In evaluating an individual’s symptoms, it is not sufficient for our adjudicators to make a single, conclusory statement that "the individual's statements about his or her symptoms have been considered" or that "the statements about the individual’s symptoms are (or are not) supported or consistent." It is also not enough for our adjudicators simply to recite the factors described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the weight given to the individual’s symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms. ... 

In evaluating an individual’s symptoms, our adjudicators will not assess an individual’s overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful person. ...

New Acquiescence Ruling

     The Social Security Administration has released Acquiescence Ruling 16-1(7) concerning Boley v. Colvin, 761 F.3d 803 (7th Cir. 2014). I had written earlier about that 7th Circuit's decision.  It took an unusual degree of foolishness and arrogance at Social Security for this case to have reached the court of appeals.

Two New Rulings Coming Monday

     Even though it's in the middle of adjudicating about 1,500 cases of alleged fraud or similar fault, the Social Security Administration is issuing two new rulings on Monday, one dealing just with  the issue of similar fault and the other dealing both with fraud and similar fault.
     I don't know how much good it does to so conclusively demonstrate that you're changing the rules for one specific group of cases. It's like they're trying to bootstrap a weak case.

Patent Applied For

     A summary of a patent application filed by Jeffrey A. Killian of Grove City, OH:

A computerized system and method for determining eligibility for social security disability insurance benefits (SSDI) through a computer network who have been placed on a waiting list for medical treatment. The network provides access to State waiting list databases containing information relating to persons wanting to receive treatment for developmental disabilities and/or mental illness from a State licensed care facility and Federal Social Security records containing information relating to person's status of SSDI benefits and parental/marital information relating to person's eligibility of SSDI benefits. The system and method is programmed to automatically determine who is potentially eligible for SSDI benefits and determine those who are eligible for SSDI benefits based on the information identified within the State and Federal databases. Moreover, the computerized system and method may also automatically identify lump sum payments paid out on behalf of at least one person who want to receive treatment for disabilities and/or mental illness from a State licensed care facility, yet have been placed on a waiting list.

Hearing Backlog May Get Better In Buffalo, But Nationally?

     A local TV station reports that the Social Security Administration is working on the hearing backlog at one of the worst hit offices, Buffalo, but can we expect improvement nationally? Social Security says it will hire 200 more Administrative Law Judges (ALJs) this year and 250 in each of the next two years, which sounds like a lot, but is that enough to even take care of ordinary turnover as ALJs retire, quit and die, much less enough to improve the situation nationally?

OIG Report On Rep Payees

     Social Security's Office of Inspector General (OIG) has issued a report on the agency's efforts to police organizational and volume representative payees. Representative payees handle funds for claimants who are judged to be incapable of handling funds. The report talks about abuses by some of these larger rep payees. Social Security does not always obtain reimbursement from abusive rep payees. Sometimes, the agency allows a rep payee who has misused funds to continue to be a rep payee. This is sometimes appropriate if the misuse was minor and unintentional. The agency is supposed to reimburse claimants who are the victims of rep payee abuse but sometimes fails to. 

     On the whole, I'm sure the agency could do better but rep payees have always been and will always be a problem area for Social Security. It's hard to get people to be rep payees. There's only so much the agency can do. The problems identified are, in my opinion, minor.

Claims Rep Accused Of Fraud

     From the Reading, Pennsylvania Eagle:

Federal investigators have charged a Bernville man working for the Social Security Administration of allegedly defrauding the agency of more than $6,000.
Miguel Gutierrez, 42, was charged Friday by the Eastern District of the U.S. Attorney's Office in Philadelphia with three counts of wire fraud for the incidents that began in October. - See more at: http://www.readingeagle.com/news/article/bernville-man-charged-with-defrauding-social-security-administration#sthash.ObpE4ebl.dpuf

 Federal investigators have charged a Bernville man working for the Social Security Administration of allegedly defrauding the agency of more than $6,000.

Miguel Gutierrez, 42, was charged Friday by the Eastern District of the U.S. Attorney's Office in Philadelphia with three counts of wire fraud for the incidents that began in October. ...

Gutierrez was employed as a claims representative in the Social Security Field Office in Reading when he allegedly used access to the agency's computer system to redirect benefit payments intended for third-party individuals into his own bank account. He allegedly received three stolen benefit payments totaling approximately $6,166.66 from October to December. ...

Gutierrez was employed as a claims representative in the Social Security Field Office in Reading when he allegedly used access to the agency's computer system to redirect benefit payments intended for third-party individuals into his own bank account. He allegedly received three stolen benefit payments totaling approximately $6,166.66 from October to December. - See more at: http://www.readingeagle.com/news/article/bernville-man-charged-with-defrauding-social-security-administration#sthash.ObpE4ebl.dpuf

Federal investigators have charged a Bernville man working for the Social Security Administration of allegedly defrauding the agency of more than $6,000.
Miguel Gutierrez, 42, was charged Friday by the Eastern District of the U.S. Attorney's Office in Philadelphia with three counts of wire fraud for the incidents that began in October. - See more at: http://www.readingeagle.com/news/article/bernville-man-charged-with-defrauding-social-security-administration#sthash.ObpE4ebl.dpuf

Federal investigators have charged a Bernville man working for the Social Security Administration of allegedly defrauding the agency of more than $6,000.
Miguel Gutierrez, 42, was charged Friday by the Eastern District of the U.S. Attorney's Office in Philadelphia with three counts of wire fraud for the incidents that began in October. - See more at: http://www.readingeagle.com/news/article/bernville-man-charged-with-defrauding-social-security-administration#sthash.ObpE4ebl.dpuf

Social Security Disability Claim Files Getting Longer And Longer

     The Springfield, Ohio News-Sun is running a piece on Social Security's horrendous hearing backlog. It's always good to see these pieces but they seldom contain any information that's not already well known to regular readers of this blog. Here's a few nuggets of news from this piece:

Judge Marilyn Zahm, the [Administrative Law Judge] association’s president, said each case is a very labor intensive process ...

Zahm said the size of the case files has exploded in recent years, particularly as new regulations have been added. As a result, up to 30 percent of the files now contain more than 1,000 pages of medical evidence, she said.

“Do you have any idea how long it takes to review 1,000 pages of medical evidence?” said Zahm. “We are the only adjudicatory body that I’m aware of that allows such loose requirements for representatives.”

A work analysis study commissioned by the Association of Administrative Law Judges in 2014 found it would take a judge more than seven hours to process and render a legally sufficient decision on a case containing 652 pages, the national average for that year.

But with an expected quota of at least 500 dispositions a year, a judge would have available only 2.5 hours per case, the study found. ...

     I doubt that the rapid increase in the size of Social Security disability claim files registers with Social Security management. They never look at these files. It's all very abstract to them. The increasing file size matters. It takes more Administrative Law Judge (ALJ) time and it takes more time for those of us who represent Social Security disability claimants. ALJ productivity standards need to be adjusted. The fees paid to those who represent Social Security disability claimants need to be adjusted.

I'm Guessing That Ms. Hyde Isn't Obese And Doesn't Have Much Time For Those Who Are

     Jody Schimmel Hyde of the Mathematica Center for Studying Disability Policy has issued a report on the prelevance of obesity among applicants for Social Security disability benefits. Not surprisingly, the study shows an increasing rate of obesity among Social Security disability applicants. I say not surprisingly because the incidence of obesity in the population in general has been increasing.

     The interrelationship between obesity and disability is complex. Take a construction worker who becomes disabled by orthopaedic problems. It's a near certainty that he or she will gain weight, probably a fair amount of weight. This happens because he or she will probably continue to eat about the same amount of food even though he or she is no longer nearly as active. It may also happen because he or she is trying to deal with a good deal of stress because of the sudden change in their life and financial problems. Stress often leads to weight gain.

     Hyde makes the suggestion that people shouldn't be found disabled if obesity is a material factor in causing their disability. That would be a great way of institutionalizing prejudice against the disabled.

Zahm Elected To Head AALJ

     From the Buffalo Law Journal:

A judge from Buffalo has become the first woman to head the union of federal judges that hear Social Security disability cases.

The Hon. Marilyn Zahm was elected president of the Association of Administrative Law Judges. AALJ said that she will serve a three-year term.

Zahm is the first woman to head the AALJ, which represents 1,200 federal judges across the nation involved in Social Security disability cases. ...

Zahm defeated Miami-based AALJ member Thomas Snook in a runoff election, 335-296. She succeeds Judge Randall Frye, an administrative law judge based in Charlotte.

OIG Report On Households With Multiple Children Receiving SSI Due To Mental Impairments

     The Social Security Administration's Office of Inspector General (OIG) has recently completed a report on Households with Multiple Children Receiving Supplemental Security Income Payments Because of Mental Impairments. If you're expecting it to be a big expose of rampant fraud or, indeed, of any fraud you're going to be disappointed. It's mostly about efforts the agency has taken and can take to make sure there isn't fraud. 

     Please don't make the assumption that there's fraud just because a family exists which has multiple children with mental impairments. That's not a justified assumption. To give a couple of examples where this might occur, consider a couple who adopts multiple children whom they know have mental impairments or consider a family where one child is born with a congenital mental impairment who then have another child who happens to have the same congenital mental impairment. I've seen these cases.

A Novel Idea

     Henry Aaron and Lanhee Chen have a novel idea for how to deal with the terrible hearing backlog at Social Security. Turn over the process for vetting applicants to become Administrative Law Judges (ALJ) to some other agency, perhaps the Administrative Conference of the United States (ACUS). 
     This assumes that Social Security has really been wanting to hire more ALJs for years but has been held up by the Office of Personnel Management (OPM) that persistently fails to provide the agency with an adequate number of ALJ candidates and the only solution is to take it out of OPM's hands. The first problem with this theory is that Congress recently passed legislation providing:

Notwithstanding any other provision of law, the Office of Personnel Management shall, upon request of the Commissioner of Social Security, expeditiously administer a sufficient number of competitive examinations, as determined by the Commissioner, for the purpose of identifying an adequate number of candidates to be appointed as Administrative Law Judges ... The first such examination shall take place not later than April 1, 2016 and other examinations shall take place at such time or times requested by the Commissioner ...

     Why isn't that enough? Are we already assuming that OPM will fail to do what it has been explicitly ordered to do? Wouldn't transferring this responsibility to ACUS just cause more delay as ACUS struggles to get up to speed?
     The second problem is that there is reason to question how much delay OPM has caused. If you look around the Social Security Administration there are backlogs everywhere. Has Social Security really, really wanted to hire far more ALJs only to be held up by the dastardly OPM or is the bigger part of the problem lack of budget and lack of will at Social Security? Take a look at the Appeals Council. There's a huge backlog there. OPM is no obstacle to hiring there. Why haven't they hired more?

     The third problem is that anyone who thinks that ACUS can take on this job must not know much about ACUS. ACUS arranges for studies of administrative issues and holds conferences on these issues. I'm not aware of them ever taking on any line responsibility for anything. It's hard to imagine these academics wanting to take on such a responsibility or being able to do so effectively. It would be like turning over the responsibility for running a publishing company to the English department of some university. Yes, publishers and English professors are both interested in the written word but that's about the extent of the overlap.

Social Security Proceeding On Gun Control

     The Social Security Administration has sent proposed regulations to the Office of Management and Budget (OMB) on "Implementation of the NICS Improvement Amendments Act of 2007." NICS is the National Instant Criminal Background Check System. The NICS Improvement Amendments Act of 2007 was passed in the wake of the mass shooting at Virginia Tech. That Act was designed to allow NICS to better obtain information about individuals who have a history of severe psychiatric problems which might make them dangerous.

     Before anyone gets too excited about this, let me give a brief sketch about what happens next in the process which must be followed if these proposed regulations are to come into effect. First, OMB must approve them. Ordinarily, this takes at least a few weeks. Second, Social Security must publish the proposed regulations in the Federal Register in what's called a Notice of Proposed Rule-Making (NPRM). The public is allowed comment on the NPRM. Generally, the public is given 60 days to comment but this time period is usually extended for an NPRM that attracts much public attention. Social Security must then review the comments, perhaps alter the proposed regulations to some extent, and them publish them in the Federal Register again so that they may go into effect. This process normally takes a year or more even for regulations that attract only a few comments. This NPRM will attract thousands of comments. They'll be repetitive but employees still have to catalog them. I have no idea how long it will take Social Security to deal with the comments but it will be a big job. Without truly extraordinary efforts there is no way this proposal will go into effect while Barack Obama is still President.

Hearings Proceeding Rapidly For Eric Conn's Prior Clients

     Ned Pillersdorf, the lead counsel for the class action lawsuit to halt Social Security's attempt to cut off the disability benefits of about 1,500 former clients of Eric Conn, has obtained some numbers on the ongoing Administrative Law Judge hearings in those cases. So far about two-thirds of the hearings have been held. About 49% of the claimants who have had gotten decisions have won. About 57% of those who have an attorney have won.

     It's not in Pillersdorf's Facebook posting but the early signs are that the Appeals Council is rushing out denials of review in the cases of those who are denied by ALJs. They're coming out within a month after the request for review.
     The United States District Court for the District of Kentucky is about to be hit by an avalanche of cases. The judge who has been sitting on the motion for preliminary injunction may wonder why he didn't take care of these cases en masse instead of one by one.

Colvin Can Continue As Acting Commissioner Even If Eanes Is Confirmed

     The "Open Executive Session" of the Senate Finance Committee to consider the nomination of Andrew Lamont Eanes to become Deputy Commissioner of Social Security, as well as some other nominations, which had been scheduled for today, has been postponed. No new date has been announced.

     I have been saying that if confirmed that Eanes will become Acting Commissioner of Social Security replacing the current Acting Commissioner, Carolyn Colvin. That's exactly right as things stand now. If Eanes is confirmed, Colvin is out of a job and Eanes as Deputy Commissioner automatically becomes Acting Commissioner. However, it appears that there is a plan to change that. The plan is to create some other position at Social Security, I assume in the Senior Executive Service (SES), for Colvin. The President could then alter the order of succession to make the person holding that position the Acting Commissioner. There are no formalities to this. All that's needed is a simple memorandum from the President. While the Social Security Act provides that the Deputy Commissioner becomes the Acting Commissioner, it also provides that the President can designate someone else.

     I find this weird. The job of Deputy Commissioner at Social Security has only one defined duty -- to become Acting Commissioner if the Commissioner's job is vacant -- and the President would be taking away that duty. What's the point of having a Deputy Commissioner if you take away the only duty of the office? I don't mean to suggest that Eanes won't have anything to do if confirmed. I'm sure he'll be given something to do but if he can't be Acting Commissioner he really seems like a fifth wheel. It also seems weird to me because a person holding a statutory position where he had to be confirmed by the Senate will be reporting to a person holding an SES position which doesn't require Senate confirmation. I wonder how often that happens in the federal government.

     Whose idea was it to confirm Eanes but to retain Colvin as Acting Commissioner? Why would you do this? Why bother nominating or confirming Eanes if you have such a low regard for him that you want to make sure he has no power, at least for now?

Senate Finance Committee To Vote On Eanes Nomination

     The Senate Finance Committee has scheduled a vote for March 2 on the nomination of Andrew Lamont Eanes to become Deputy Commissioner of Social Security. Barring any last minute problem, Eanes is likely to be confirmed by the Senate in the near future.

     If confirmed, Eanes will immediately replace Carolyn Colvin as Acting Commissioner of Social Security. Let me explain why that is. Social Security's Commissioner and Deputy Commissioner do not serve at the pleasure of the President. They serve set six year terms. Colvin's term as Deputy Commissioner ended about three years ago if I remember correctly. She has stayed in office only because the statute allows a Commissioner or Deputy Commissioner to stay in office until a successor is confirmed. The last Commissioner of Social Security, Michael Astrue, resigned some time ago. If Eanes is confirmed, Colvin is immediately out of a job. Eanes will immediately succeed her as Acting Commissioner. There is no pending nomination for Commissioner. Colvin had been nominated in the last Congress but President Obama did not re-nominate her after the 2014 Congressional election.

Rudolph Patterson 1939-2016

     I regret to report that Rudolph Patterson of Macon, Georgia, who was one of the founders of the National Organization of Social Security Claimants Representatives (NOSSCR), has passed away. Rudolph was an invaluable part of NOSSCR for three decades. He trained thousands of attorneys in Social Security law and remained an inspiration to many.

     I first met Rudolph at the first NOSSCR Conference, help in New Orleans in the fall of 1979. I remember being disappointed that I got into town too late to take Rudolph up on his offer of dinner at Antoine's. I think he invited all the attendees to dinner. Rupolph was always generous with his time and his considerable expertise. He certainly helped me greatly.

     Rudolph was NOSSCR's Atticus Finch, the role model to which we all aspired and should still aspire.

Off Topic: Clarence Thomas Asks A Question

     For the first time in more than a decade, Supreme Court Associate Justice Clarence Thomas asked a question from the bench during oral arguments! Actually, he asked several questions in a five minute exchange concerning gun rights.