Hearing Office Average Processing Time Report

     From the newsletter of the National Organization of Social Security Claimants Representatives (click on each page to view full size):

Why Is The Chamber Of Commerce Attacking Social Security?

     Jamelle Bouie writing for the Washington Post asks why the U.S. Chamber of Commerce has rededicated itself to a campaign to slash Social Security. Bouie notes that the Chamber's executive director for government affairs recently gave a speech about Social Security that was filled with overstatements and inaccuracies, a speech that seemed lifted from Republican campaign rhetoric. 

     The U.S. Chamber of Commerce has never been a liberal organization but the question is why it wants to attack Social Security. Why not just stick to the knitting -- issues that directly affect business interests?

I Don't Know What To Make Of This

     Below is a table from the Social Security Administration's monthly International Update. The Update deals, in part, with changes made in early retirement programs. I don't think that differences in social insurance programs can explain these dramatic differences between countries or that changes in social insurance programs explain the differences over time in individual countries. I don't know what to make of a lot of this. For example, why the dramatic differences between Spain and Portugal for those aged 65-69? In any case, the Update notes that many European countries are raising the minimum age for early retirement under their social insurance programs and that they are generally encouraging older workers to stay in the workforce, or, perhaps, more accurately, punishing those who don't.

Table 1. Older workers in the labor force in selected European Union countries, as a percentage of their age group, 2001 and 2011

Country	Aged 55–64		Aged 65–69
	2001	2011	2001	2011
Belgium	25.2	38.7	2.4	3.5
Czech Republic	37.1	47.6	7.6	9.3
Denmark	56.5	59.5	12.2	13.5
Finland	45.9	57.0	5.3	11.8
France	30.7	41.4	2.1	5.3
Germany	37.9	59.9	5.4	10.1
Greece	38.0	39.4	10.3	8.6
Ireland	46.9	50.8	14.8	16.8
Netherlands	37.3	56.1	5.6	11.4
Poland	29.0	36.9	10.8	9.4
Portugal	50.2	47.9	27.8	21.9
Spain	39.2	44.5	3.9	4.5
SOURCE: "Older Workers Scorecard, 2001, 2005, and 2011," OECD, 2011.

Problems With MySocialSecurity

     From the testimony of Theresa Gruber, Assistant Deputy Commissioner for Operations, Social Security Administration to the Senate Special Committee on Aging:

In May 2013, we added key measures to combat fraud through our on line MySocialSecurity portal. For example, we have added unique and stringent fraud protection tools to our online registration and authentication technology. Because of these changes, we have seen a significant drop in the volume of successful MySocialSecurity registrations - indicating we may be preventing some fraudulent accounts from being established. We also established an executive-level workgroup tasked to identify additional fraud deterrent measures to explore and implement, including items recommended by OIG. We will be implementing several of these real-time fraud prevention measures by the end of the year. In August 2013, we will eliminate the ability change payment information via the internet for users who have a block in place.

     Some things to note here. At the moment, putting a block on one's online MySocialSecurity "portal" doesn't prevent some stranger from using one's online MySocialSecurity "portal" to divert your Social Security benefits to a bank account they control. Are you kidding me? What does a "block" mean if it doesn't block this? Why is Social Security even pretending that a "block" is of some use when they know it is worthless and they don't have a plan to change this situation for at least another couple of months? Second, now that Social Security has implemented new fraud prevention measures, they've seen a significant drop in online registrations. This indicates one of two things: either fraudulent registrations were a significant part of all registrations or a significant number of those who want to establish an account for genuine reasons are being thwarted by the new security measures. Either way, this isn't good news.

Threatening To Rape Little Girls Isn't Cool

     From WOOD-TV:

A Battle Creek man may spend up to five years in prison after threatening to "rape little girls" in a message to the Social Security Administration. 

In December 2012, Timothy Burgess sent a message via the Internet to the Social Security Administration office in Maryland, according to the U.S. Attorney's Office. 

In the message, he said he wanted more money. He threatened to rape and implied he may murder "little girls" if his demands were not met.

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.