Trying To Straighten Out Earnings Record Results In Criminal Charge

From the Associated Press:

For five years Olivia Avila worked under a false name and bogus Social Security number at the National Beef meatpacking plant in Liberal to support her family. She kept working there after obtaining legal residency two years ago. But it was not until she went into the Social Security Administration to get credit for her earlier wages as an undocumented worker that her legal problems began — even though a loophole in federal law allows lawful immigrants to claim both legally and illegally earned wages in determining Social Security benefit eligibility. Avila, 51, was arrested at her job in June on six immigration-related counts after her visit to the Social Security Administration office in Wichita. Avila is now out on bond while awaiting her Oct. 16 trial on charges of using false documents to work in the United States and aggravated identity theft. ... At least two such recent immigration cases involving legal residents are now being prosecuted by the U.S. Attorney's Office in , although such prosecutions remain relatively rare. Fewer than 10 cases involving legal immigrants claiming Social Security benefits for past illegal earnings were filed within the last couple of years in Kansas. ... Jonathan Lasher, spokesman for the Social Security Administration's Office of Inspector General, said such crimes are a "separate issue" from benefit eligibility. ... "The law currently does allow that if someone gains legal status so that they now have a Social Security number that is legal, and they are authorized to work in the United States, the law does allow them to go back and get credit for any earnings they may have," said Mark Lassiter, spokesman for the Social Security Administration.

Why Did This Case Have To Go To The Court Of Appeals?

From Costello v. Astrue, ___ F.3d ____ (7th Cir. 2007)

Florine Costello visited her local Social Security office in 1994 with a straightforward question: from which of her two ex-husbands could she collect the largest monthly benefit check? (Divorcees can draw retirement benefits on their former spouses’ earnings records. 42 U.S.C. §402(b).) Based on the advice she received, she applied for (and received) benefits for which, it turns out, she was ineligible. The SSA eventually discovered the error and demanded repayment of eight years’ benefits. Costello seeks to offset this amount by the benefits she would have received had she applied under the other ex-husband’s account. An administrative law judge concluded that such an offset is unavailable because the situation does not fall within 42 U.S.C. §402’s “misinformation” provision, which allows applications to be granted retroactively in some circumstances. After the Appeals Council declined Costello’s request for review, she brought this suit, in which the district court granted summary judgment for the agency.

The Seventh Circuit Court of Appeals, in a decision by Judge Easterbrook reversed and allowed Ms. Costello the offset she requested.

I have a hard time understanding how the Administrative Law Judge, Appeals Council and District Court all ruled against Mrs. Costello. As described, her case is extremely sympathetic.

In addition to the theory Mrs. Costello used, there is at least one other theory that could have been used (and maybe it was used, but was not an issue presented to the Court of Appeals), a theory which I find more compelling than the one used. When Mrs. Costello filed that claim for survivor's benefits, the claim form said that she was applying for all benefits under Title II of the Social Security Act to which she might be eligible. That is what all Title II claim forms say and that language is there for a reason -- to take care of cases in which, by mistake, the wrong claim is taken, which happens to be exactly Mrs Costello's situation. There is nothing in this language that limits the claim to the Social Security number listed on the claim form. Therefore, Mrs. Costello did file a claim for benefits on the account under which she was eligible and has no need to establish the claim filing date based upon misinformation.

Also, Mrs. Costello should have been granted waiver of the overpayment if she had asked. Obviously, she was without fault and probably has nowhere near enough money to repay. In any case, it would be against equity and good conscience to ask her to repay under these circumstances, which would make her financial status irrelevant.

New Veteran's Benefits Proposal

From the Tacoma News Tribune:

The Bush administration is preparing a legislative proposal to present to Congress in September that would establish a separate and, under most circumstances, a more generous disability package for service members who are injured in war or while training for war, sources said.

Under the plan, recommended by the Dole-Shalala commission, service members found unfit for duty as a result of combat or combat-training injuries, regardless of the number of years served, would qualify for an immediate lifetime annuity from the Department of Defense.

I mention this because a number of people have been saying recently that those who are approved for 100% service connected VA benefits should be automatically eligible for Social Security disability benefits. I cannot say whether this will ever happen, but this legislation would be a convenient vehicle to carry such a change forward.

An Image From 1939

More On Charlotte Observer Article

The article in today's Charlotte Observer concerning backlogs in the Charlotte, NC hearing office may not be the only article along these lines to expect. The Charlotte Observer article indicates that the reporter collected data on individual Administrative Law Judge (ALJ) productivity (and I know that he collected information on ALJ reversal rates as well) from all of Social Security's hearing offices in the Carolinas (and by the way, as a North Carolinian, let me make it clear that there is no geographic entity which may properly be referred to as "Carolina" -- the reference should always be to the Carolinas). The Charlotte Observer is part of the McClatchy chain of newspapers. McClatchy also owns newspapers in Raleigh, NC, Rock Hill, SC, Columbia, SC, Myrtle Beach, SC, Beaufort, SC and Bluffton, SC. There may well be a series of articles in these other newspapers having to do with productivity and reversal rates of ALJs in the other hearing offices in the Carolinas.

Rochester Editorial

From an editorial in the Rochester Democrat and Chronicle:

One million people by 2010. That's the estimated backlog of pending cases for Social Security Disability Insurance benefits.

To handle that increase, due largely in part to the aging of baby boomers, the approval and appeals process must be altered.

The Social Security Administration is making an effort to screen and prioritize cases that are or will be 1,000 days old by the end of September.

That's a start. But those are just bare minimums. Implementing those things won't be enough to address the growing backlog, currently at 745,000 cases.

Michael Astrue, SSA commissioner, blames understaffing and an increase in claims. While not much can be done to decrease the number of claims as boomers age, an increase in staffing should be a top priority. Congress, which has provided an annual average of $150 million less to SSA than President Bush has requested since 2001, needs to ease the strain on the system. ...

Change is needed immediately. Congress and SSA officials must act or the future of the country's disabled population will grow even bleaker.

Why is it that "the appeals process must be altered?" Why not just give the agency adequate resources? Social Security's backlogs seem to produce a knee jerk response of a desire to alter or reform the process. However, Social Security is suffering from an overdose of alterations and reform that well meaning people proposed as a means to avoid the need for additional resources. These schemes have only had a negative effect upon productivity while wasting valuable resources and time. Social Security will never alter or reform its way out of this hole. People who ask for alterations or reform in the process are part of the problem. Talk of reform is merely a distraction.

Charlotte Observer On Hearing Backlogs

Some excerpts from an article in the Charlotte Observer (see also a sidebar piece giving a history of how the article came to be written and a touching multimedia story):

Nearly all American workers pay the federal government for insurance in case they get too sick to keep a job. But thousands of disabled workers wait longer for help in the Charlotte region than almost anywhere else in the nation. ...

In one case, a Gastonia man took his own life.

David "Joey" McKee, 21, couldn't afford medicine to treat his manic depression and waited two years to learn whether he qualified for disability. In March, he jumped from an overpass into traffic on Interstate 85 near Kings Mountain. ...

The Carolinas have about 48,500 pending disability cases, including 8,704 in the Charlotte region. Waits at Charlotte's Disability Adjudication and Hearing Office rank among the longest nationwide, 125 out of 141 offices, a recent national report says. ...

Charlotte judge Duncan Frye said judges in his office work "exceptionally hard" to reduce wait times but do not have enough support staff to collect applicants' medical records and prepare cases for hearings. Budget constraints have left the disability court with vacancies, said Frye, who is also executive vice president of the Association of Administrative Law Judges, which represents disability judges nationwide. ...

Through interviews, documents and the results of a Freedom of Information Act request, the Observer found:

• Charlotte judges, on average, decided fewer cases than judges in other offices in the Carolinas: 375 cases per judge last year, compared with a combined average of 427 at offices in Greensboro, Raleigh, Columbia, Charleston and Greenville, S.C.

• At any given time, half of the six courtrooms at the Charlotte hearing office are not in use. The Observer spent about 40 hours monitoring the office this month.

Around 3 p.m. on a Friday, an office worker observed an empty waiting area when an applicant failed to show up. She said to no one in particular, "We might as well go home." The office closes at 4:30, but lawyers for applicants say hearings are rarely scheduled after 3 p.m. Judge Dennis Dugan issued 188 rulings last year, the fewest among judges in the Charlotte office. Frye, Kevin Foley, Ronald Osborn and Robert Egan also issued fewer than 400 decisions. Saul Nathanson issued the most with 484.

Work Incentives Touted

Some excerpts from the Contra Costa Times:

Oakland resident Bernadette Nicholson was a law student when she was diagnosed with multiple sclerosis in 1972. Despite her growing incapacity, she pursued a career in law until she could no longer work. Last year, she launched Write Touch, a greeting card publisher, from her home. ...

She jumped in without a net. She was willing to take the gamble without knowing -- as so many others are also unaware -- that the Social Security Administration has programs to help people with disabilities transition into self-employment without risking benefits and insurance. ...

Plan for Achieving Self-Support, PASS, is a federal program allowing recipients of SSI and SSDI to set aside money to achieve certain work goals. Under SSI, any outside income reduces your benefit. But if you qualify for PASS, Social Security will not count that new income against your monthly benefit.

My experience is that PASS is almost worthless because of multiple restrictions on how it can be used and because Social Security cannot make PASS decisions on a timely basis. Social Security employees seem almost rightened of approving a PASS application. There seems to be much sentiment at Social Security that if you can even think about working, you should not be on Social Security disability benefits and any statutes or regulations suggesting otherwise must be interpreted against the claimant or ignored.