Happy Easter!

Social Security Doesn't Like Binder And Binder's Release

An e-mail that went out recently, just in Social Security's Atlanta Region as best I can tell:

Subject: INFORMATION: Binder and Binder's Privacy Statement

PLEASE SHARE WITH ALL INTERVIEWING PERSONNEL

The firm of Binder and Binder (B&B) serves nationwide as the authorized representative for a large number of SSA claimants. In some cases, B&B has submitted the following Privacy Statement in conjunction with their claims and appeals:

Privacy Statement

I do not authorize SSA to release my medical records and/or to discuss my medical condition with any neighbor, friend, or third party non-physician not directly affiliated with SSA.
My right to privacy is paramount to me. I do not want my medical information or any information disclosed in a SSA form to be discussed with anyone who is not an employee of SSA, an employee of the state agency contracted to process my social security case, or a health care professional contracted to examine me or review my file as part of the social security process.
I expressly authorize SSA to release any and all information to my representatives, . . . .
To the extent that any form I sign (including SSA-827) is inconsistent with this, this statement takes precedence.

Dated & signed by the claimant

The Office of Privacy and Disclosure (OPD) notified Charles Binder on April 11, 2011, to discontinue the use of these Statements. These Privacy Statements conflict with Federal statutes and regulations for disclosures related to SSA’s program administration. A form drafted by an authorized representative cannot overrule the requirements of the Privacy Act (5 USC 552a) and SSA’s regulations when we are permitted to disclose an applicant’s record information to assist us in making entitlement determinations for our program purposes.

Now that Mr. Binder has been notified, B&B should discontinue using this Statement. However, if you know of any situations in which the claimant or B&B has submitted or continues to submit the above Privacy Statement, please notify Martha Shepherd, RSI Programs Team at [e-mail address redacted] or by fax at 404-562-1583. You should provide the claimant’s name, SSN and address and a copy of the signed Privacy Statement. OPD will take the necessary action to notify the claimant and Mr. Binder that the Statement cannot be honored.

Contact Martha at 404-562-1319 if you have any questions.

Amy Roberts

Assistant Regional Commissioner

Management and Operations Support

Social Security Employee Pleads Guilty

From the Contra Costa Times:

A 29-year employee of the U.S. Social Security Administration office in San Jose has pleaded guilty to illegally creating and selling Social Security cards to more than 25 people she knew were not eligible to receive them.

Rachel Ochoa, 66, of San Jose was arrested at an office in San Jose in November and eventually pleaded guilty to one count of unlawfully producing an identification document -- Social Security cards -- as part of a plea agreement, according to the U.S. Department of Justice.

Recipients of the cards were illegal immigrants who paid from $2,500 to $5,000 to obtain them, according to an affidavit by the FBI. ...

Ochoa is scheduled to be sentenced on July 18 and is facing a maximum term of five years in prison and a $250,000 fine, according to the Department of Justice.

Service Cut In Alabama

From the Troy, Alabama Messenger:

Residents headed to the Pike County courthouse to visit the remote office of the U.S. Social Security Administration in Troy this week found a sign taped to the door that read, “The Social Security office will be closed until further notice due to budget cuts.”

According to Probate Judge Wes Allen, the closing of the office doors came without much warning.

“All we know is what they put on the front door,” Allen said. “We got a phone call and they said, ‘we would not be open, because of budget cuts and constraints, and will be closed until further notice."

No Match Letters Going Out Again

The Immigration Employment Blog reports that Social Security has resumed sending out "no match" letters to employers after a long hiatus. The no match letters are sent out when an employer reports earnings with a name and Social Security number that do not match.

Remember Oklahoma City

Yesterday was the anniversary of the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City that killed 16 Social Security employees. Here is a quote from President Clinton's State of the Union address in 1996 that still seems timely:

Our federal government today is the smallest it has been in 30 years, and it's getting smaller every day. Most of our fellow Americans probably don't know that. And there is a good reason: The remaining federal workforce is composed of Americans who are now working harder and working smarter than ever before, to make sure the quality of our services does not decline.

I'd like to give you one example. His name is Richard Dean. He is a 49-year-old Vietnam veteran who's worked for the Social Security Administration for 22 years now. Last year he was hard at work in the federal building in Oklahoma City when the blast killed 169 people and brought the rubble down all around him. He reentered that building four times. He saved the lives of three women. He's here with us this evening, and I want to recognize Richard and applaud both his public service and his extraordinary personal heroism.

But Richard Dean's story doesn't end there. This last November, he was forced out of his office when the government shut down. And the second time the government shut down he continued helping Social Security recipients, but he was working without pay.

On behalf of Richard Dean and his family, and all the other people who are out there working every day doing a good job for the American people, I challenge all of you in this chamber: Never, ever shut the federal government down again.

Thanks to Tom Shoop at Fedblog for this memory.

Obama Backs Increase In FICA Base

From Reuters:

President Barack Obama on Tuesday backed boosting the amount of individual income subject to Social Security taxes, one of the first concrete proposals he has endorsed to put the retirement program on a stronger fiscal footing. ...

"For the vast majority of Americans, every dime you earn, you're paying some in Social Security," Obama said at an event with college students in Virginia. "But for (billionaire investor) Warren Buffett, he stops paying at a little bit over $100,000 and then the next $50 billion he's not paying a dime in Social Security taxes."

Actually, I think Warren Buffett does not make $50 billion a year (that would be his net worth) and most of his income is from investments and would not be covered by FICA anyway but let us not quibble.

Heading To The Supreme Court?

From Schafer v. Astrue (4th Cir. April 12, 2011):

Don and Janice Schafer married in 1992. Don died the next year. With the help of in vitro fertilization, however, Janice gave birth to W.M.S., Don Schafer’s biological child, a number of years later. Janice Schafer then applied on W.M.S.’s behalf for survivorship benefits under the Social Security Act.

The Social Security Administration rejected W.M.S.’s claim. Because under its view natural children must be able to inherit from the decedent under state intestacy law or satisfy certain exceptions to that requirement in order to count as "children" under the Act, W.M.S. was not eligible for survivorship benefits. See 42 U.S.C. §§ 416(h)(2), (h)(3)(C). The district court agreed. On appeal, Schafer contends that undisputed natural children such as W.M.S. plainly fall within 42 U.S.C. § 416(e)(1)’s basic definition of "child," making their state intestacy rights irrelevant.

We shall affirm the judgment. The agency’s view best reflects the statute’s text, structure, and aim of providing benefits primarily to those who unexpectedly lose a wage earner’s support. And even if the agency’s interpretation were not the only reasonable one, it falls well within the range of permissible readings entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

This opinion is at odds with Gillett-Netting v. Barnhart, 371 F.3d 593, 597 (9th Cir. 2004) and Capato ex rel. B.N.C. v. Comm’r of Soc. Sec., ___ F.3d ___, 2011 WL 9368 (3d Cir. Jan. 4, 2011). The issue is also pending before the 8th Circuit Court of Appeals at the moment in Beeler v. Astrue.

This issue does not break down easily on liberal-conservative lines but we cannot completely dismiss that as an issue, especially when talking about the 4th Circuit Court of Appeals which has been highly ideological and right wing in recent years. The Shafer opinion was written by Judge Wilkinson and joined by Judge Agee. Judge Davis dissented. Wilkinson was appointed by President Reagan and Agee by George W. Bush. Davis was appointed by President Obama. A majority of the 4th Circuit's judges are now Democratic appointees. This is a dramatic change since President Obama took office.

I have not talked with the attorneys representing the mother and her child so what follows is just my speculation. I have to expect a motion for rehearing en banc, that is by all the judges on the Court. Rehearing en banc is uncommon but this is an uncommon case and the 4th Circuit is in transition. If the case is not reheard en banc or if it is reheard and the decision remains the same, I expect a petition for certiorari, that is a request that the Supreme Court hear the case. I would expect that petition for certiorari to be granted since the Courts of Appeals would be in disagreement on the issue and that normally gets a case heard at the Supreme Court.