What Happens If DOMA Is Found Unconstitutional?

    The Supreme Court is likely to hand down its opinion on the constitutionality of the Defense of Marriage Act (DOMA) next week. DOMA forbids the federal government from recognizing same sex marriages even though some states recognize them. Many observers expect that DOMA will be found unconstitutional. This would not take care of the same sex marriage issue for Social Security, however.  The Social Security Act says that the determination of whether a person is married is based upon the law of the state in which he or she is domiciled, or was domiciled as of the date of the person's death. 

     What if two men or two women marry in New York or some other state that recognizes same sex marriage and one party to the marriage later starts to draw Social Security benefits based upon that marriage but the couple then moves to North Carolina, one of the many states that refuse to recognize same sex marriages within their borders, even if the marriage took place in another state? Does that mean that the spouse who was eligible for Social Security benefits while living in New York is suddenly ineligible because he or she has moved to North Carolina? That would be a weird result and hard for Social Security to implement. There is certainly an argument that North Carolina has a constitutional duty to give "full faith and credit" to the marriage that took place in New York but that issue isn't before the Supreme Court at the moment and won't be for at least another year. So what can Social Security do now? Let's look at the Social Security Act itself. In addition to providing that in determining marital status Social Security must look to state law in the state in which the claimant is living, 42 U.S.C. §416(h)(1)(B) provides that:

In any case where under [state law a person is not married] but it is established to the satisfaction of the Commissioner of Social Security that such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage, then ... such purported marriage shall be deemed to be a valid marriage.

     Doesn't that apply here? The parties to this same sex marriage went through their marriage ceremony in New York in good faith. It was no "purported" marriage to them or to the state of New York. The only legal impediment is one that arose after the marriage when the parties moved to North Carolina. Shouldn't the marriage be deemed to be a valid marriage even after the couple move to North Carolina? That's no slim reed. It's a strong argument based upon the plain language of the statute, one that I'd be happy to litigate. This interpretation avoids the ridiculous outcome of a person being eligible for Social Security benefits in one state but ineligible if he or she moves to another state. This doesn't force same sex marriage on states that don't want it. They're free to ignore them. This just allows for a uniform application of the Social Security Act across the country.
    The problem with the "deemed marriage" provision is that it doesn't help the Obama Administration deal with the issue in other settings, such as veteran's benefits (update: the concept of deemed marriage does exist to some extent in veterans benefits law, 38 C.F.R. §3.52) and federal employee benefits. It's possible that the Obama Administration will decide that if DOMA is unconstitutional that state laws that refuse to recognize same sex marriages contracted in other states are unconstitutional and refuse to apply them. The President felt that he was obliged to apply DOMA (but not defend it in court) even though he believed it unconstitutional but DOMA was federal law. The President swore an oath to uphold federal law. He never swore an oath to abide by state laws that he regards as unconstitutional.
     We'll see what the Supreme Court does and what the White House does thereafter but my bet is that if DOMA is found unconstitutional, one way or another Social Security will start recognizing same sex marriages that were valid at the time the parties entered into them regardless of where the parties move thereafter.

ACUS Recommendations

     The Administrative Conference of the United States (ACUS) has issued its recommendations for "Improving Consistency in Social Security Disability Adjudications." In reading this document, it's quite obvious that ACUS thinks that too many claims are being approved by Administrative Law Judges (ALJs) and Something Must Be Done. It's also obvious that even after studying Social Security, ACUS barely has a handle on what happens at the agency but, still, Something Must Be Done. Anyway, here is a summary of the recommendations with my comments in brackets and bolded after each recommendation:

• Require attorneys and others representing claimants to submit pre-hearing briefs [Why?]
• "Expand" the use of video hearings [How? Why?]
• The Appeals Council should issue "Appeals Council Interpretations" with "greater frequency." [What's an Appeals Council Interpretation? I've never seen any document by that name. What makes ACUS think that Social Security management trusts the Appeals Council to issue policy guidance to ALJs.]
• Publish selected ALJ or Appeals Council decisions to serve as model decisions. [ACUS doesn't realize that ALJ decisions are mostly boilerplate disseminated by Social Security management.]
• Allow even more ALJs to serve even longer details with the Appeals Council. [Why?]
• Expand "own motion" Appeals Council review based upon "announced, neutral and objective criteria." [You don't understand, ACUS, that keeping the criteria (which are already used) a secret is of primary importance to Social Security. They can't tell the world what their criteria are because there's a good chance the world won't like the criteria, not to mention the fact that attorneys and ALJs will find ways to slide around criteria if we know what they are. You also don't understand, ACUS, that the Appeals Council doesn't have anything like the manpower needed to do more "own motion" review. They can't keep up with their workload as it is.]
• "SSA should revise its regulations ...to eliminate the controlling weight aspect of the treating source rule in favor of a more flexible approach based on specific regulatory factors." [Why? Really, why? Other than the fact that you'd like to see fewer claims approved, what is the basis for this recommendation? This is not happening with a Democrat in the White House. Probably not happening even with a Republican in the White House. Social Security would have a hard time explaining or justifying such a change. The fact that appellate courts all over the country have forced the treating physician rule on Social Security should tell you that the treating physician rule makes a lot of sense to a lot of people. If the agency is going to change this it's going to have to come up with reasons that go beyond saying it's based on the agency's "adjudicative experience." The agency has gotten away with that "explanation" in the past but I don't think it'll work on something so prominent and so easily understood by laypeople.]

Center For American Progress Report On Social Security Disability

     The Center for American Progress has issued a report in Q&A format on Social Security's disability programs. Here are a few somewhat random excerpts:
 

...
 Controlling just for income, participation in Supplemental Security by working-age adults who are potentially eligible because of low income has actually declined over the past decade and a half. In 2011 there were 17.6 nonelderly adults receiving Supplemental Security for every 100 nonelderly adults with incomes below 100 percent of the poverty line, compared to 18.5 nonelderly adults in 1996. In other words, the number of nonelderly adults receiving Supplemental Security grew at a slower rate than the number of nonelderly adults with very low incomes. ...

How does the United States compare with other countries?

According to a recent analysis by the Organisation for Economic Co-operation and Development, or OECD, the United States has the least generous disability-benefit system of all OECD member countries except Korea.

Problems With Debit Cards

     From the Center for Public Integrity:

A government initiative aimed at saving money by eliminating paper checks is hurting some recipients of federal benefits while earning the bank that operates the program millions in fees charged to consumers.

The U.S. Treasury Department has been urging people who collect Social Security and other benefits to switch to direct deposit rather than rely on mailed checks, to save millions of dollars a year in administrative costs.

But beneficiaries without bank accounts — and even some who do have accounts — are being pressured into using prepaid debit cards offered by Comerica Bank, an effort that is shifting costs to elderly people, veterans and other vulnerable consumers. ...

Between October 2011 and the end of August 2012, the Social Security inspector general received more than 18,000 reports of unauthorized changes or suspected attempts to make unauthorized changes to payments. Treasury says it put new procedures in place in January 2012 to reduce fraud. Yet early this year, the Social Security inspector general’s office said it was still receiving more than 50 such reports a day.

MySSA Help Desk

     From EM-13020 posted yesterday by Social Security:

... [O]n June 18, 2013, the Social Security Administration (SSA) will establish a dedicated MySocialSecurity (MySSA) Help Desk to assist the public with MySSA related issues. SSA will implement prompts to the existing National 800 Number that will route callers with MySSA related questions to the dedicated Help Desk for resolution. On June 25, 2013, we will introduce an option for the public to request and receive call-backs from the Help Desk via a MySSA Contact Us page.

     Meanwhile, the Better Business Bureau is warning about fraud associated with MySSA.

It's Time To Stop Allowing Any New Online Accounts

     From the Braintree  Patriot Ledger:

When the form letter from Social Security arrived, Lillian Broide almost didn’t give it a close reading. She has been receiving lots of official forms and letters lately, after going through several hospital stays and rehab programs.

“I did open it and found out there is a fraud going on that is tagging seniors,” Broide said when she called recently.

The letter on May 22 was confirming that she had recently opened an online Social Security account. It said she did not have to do anything unless this was not correct and told her to contact Social Security immediately if she had not in fact opened an online account.

“I had never gone online with my Social Security,” she said. She called right away and was shocked to discover that someone had opened an online account using her Social Security number. A few days later, she also found out someone had changed the bank account where her monthly Social Security check was to be deposited.

     What is it going to take to wake up Social Security management? This sort of fraud is exploding. It's irresponsible to allow this to continue. Stop allowing new online accounts until there's a fix! What are you waiting for?

Some Straight Talk On The Trust Funds

Andy Landis writing for Market Watch at the Wall Street Journal, of all places, has an excellent Q&A piece addressing the recently released report of Social Security's trustees. It's refreshingly honest and straightforward. Here's an excerpt:

How much does Social Security waste in bureaucracy?

SSA's operating overhead is 0.8% of total expenditures, about the same as a discount mutual fund, and that includes Medicare. It's been a fraction of 1% for decades.

What about the 2% payroll tax "holiday"? Didn't that further erode Social Security finances?

No. During the "holiday" in 2011 and 2012, government made up the missing income with direct grants from general revenues. It was the first time SSA was not self-funded and depended on government money. Grants have stopped now that the "holiday" has ended.

Is this Social Security's worst financial report ever?

Far from it. In the late 1970s and early 1980s Social Security ran deficits. Trust fund insolvency loomed in July 1983. With mere months of solvency left, Congress acted to bolster finances on April 20, 1983. SSA still operates under the 1983 funding arrangement, generating surpluses every year since.

WSJ On Unemployment And Disability

     From the Wall Street Journal's Economy Stream Blog:

The sharp rise in federal disability rolls in recent years has sparked worry that able-bodied workers are using the system to hide from the weak job market. But new research suggests those fears may be overblown. ...

University of California, Berkeley economist Jesse Rothstein set out to test [that] theory. He reasoned that if the increase [in disability claims] is being driven by unemployed workers gaming the system, there ought to be a correlation between expiring jobless benefits rising disability claims. After all, there’s no need to file for disability insurance — often a long, involved process — if you can still draw an unemployment check.

When Mr. Rothstein looked at the data, however, he found no such correlation. When the unemployment rate started rising in 2008 and 2009, the government extended unemployment benefits, leading to a drop in the number of people exhausting their payments. Yet the number of people filing for disability kept on rising. In more recent years, the government has cut back unemployment benefits, leading to an increase in expirations, but the number of disability applications has remained flat or even slowed. ...

Federal disability rules allow workers to get benefits only if they have an “impairment” that prevents them from working. But Mr. Rothstein notes that the ability to work isn’t necessarily independent of the labor market.

A construction worker who hurts his back, for example, might be able to get a desk job during good economic times; when unemployment is high, however, making such a career switch could be much harder. Moreover, companies are much more likely to make accommodations for existing workers who become disabled than to hire a disabled worker — so a person with a disability who loses a job might well struggle to find a new one.

Mr. Rothstein says his findings suggest that “really what’s going on is that there are people who are disabled who may in good markets be able to get jobs but in difficult market can’t.”