SSA Unprepared For SCOTUS Decision On DOMA

     Social Security has sent out its first staff instruction on what to do with same sex marriages in the wake of the Supreme Court decision that the Defense of Marriage Act (DOMA) is unconstitutional. The instruction is to "Take and hold all claims by individuals who are filing for benefits that are dependent upon the existence of a same-sex marriage." This is not just for those who have moved from the state in which they were married. This is for all cases. The instruction to 800 number operators is to "Please advise callers that we are working with the Department of Justice to review the decision and how it impacts our programs -- including benefits administered by this agency – to ensure that we implement the decision swiftly and smoothly."
     The Supreme Court decision that DOMA is unconstitutional didn't come as a surprise to anyone who had been paying attention. I think that Social Security could have been better prepared. How long will it take them -- and the Department of Justice -- to write staff instructions?

AP Report On Today's Hearing

     From an AP piece:

Driven to reduce a huge backlog of disability claims, Social Security is pushing judges to award benefits to people who may not deserve them, several current and former judges told Congress Thursday. 

Larry Butler, an administrative law judge from Fort Myers, Fla., called the system "paying down the backlog." 

A former Social Security judge, J.E. Sullivan, said, "The only thing that matters in the adjudication process is signing that final decision." Sullivan is now an administrative law judge for the Department of Transportation.

The House Oversight and Government Reform Committee is investigating why many judges have high approval rates for claims already rejected twice by field offices or state agencies. Two current and two former judges spoke at a subcommittee hearing. ...

None of the judges who testified spoke of being specifically ordered to award claims. Three said they had been pressured to decide cases without fully reviewing medical files.

The judges described a system in which there is very little incentive to deny claims, but lots of pressure to approve them. It requires more documentation to deny a claim than to approve one, said Sullivan, the former Social Security judge. Also, rejected claims can be appealed while approved claims are not.

Some ALJ Testimony

     Some excerpts from the written statements of witnesses at today's hearing before the House Oversight and Government Reform Committee:

• Administrative Law Judge (ALJ) Larry Butler (31% reversal rate): "The Social Security disability programs are bankrupt. ... Is SSA managing the disability system for the primary benefit of genuinely disabled individuals and taxpayers or has the disability system became a “cash cow” for other “stakeholders” (attorney and non-attorney representatives, medical providers paid through the Medicare and Medicaid programs, pharmaceutical companies, and others)?...  Did SSA management intentionally adopt or implicitly approve a policy now referred to as “paying-down-the-backlog” in order to reduce the backlog? 
• ALJ Thomas Snook (30% reversal rate): I am a Judge in name – but no one works for me. Moreover, I am judge who, according to our Chief Judge, has no authority over the personnel in my courtroom. In fact, I cannot even set the time and place of a hearing. Former Commissioner Astrue took this authority away from me. ... An outstanding attorney who practices before me recently phrased it differently: “The disability system has turned into a cottage industry for certain claimants’representatives.” He was referring to large firms who use TV advertising and other methods to sign up clients. Claimants’ representatives collectively make $1.7 billion in fees annually. That is a large cottage industry. The largest claimants’ firm Binder and Binder was according to the Wall Street Journal was bought by a hedge fund. [Actually, a private equity firm. There is a difference. Hedge funds don't acquire businesses, just securities.] ... Social Security is an Agency that doesn’t listen to its judges. In fact, the line judges are union members because the Agency refused to talk to us. 
• ALJ Drew Swank (16% reversal rate):  Social Security disability programs, however, were never designed to be a safety net for the jobless or a substitute for unemployment insurance compensation. Furthermore, there is an inherent inconsistency with the notion that a person can switch back and forth between working when the economy is good and coll ecting disability benefits when the economy is bad. ... Working or not, disabled or not, people are increasingly seeing Social Security disability benefits as a relatively easy means of earning a lifetime of government payments, and a gateway to a host of other government entitlement programs. ...  “Pay so they go away” has been an unsuccessful strategy in reducing the hearing backlog, and it will never work. For every individual improperly awarded disability benefits, there will be an incentive for others who likewise do not qualify to apply for them as well — adding to the backlog.

Round Up The Lowest Allowing ALJs And Call Them Models?

     Here's the witness list for tomorrow's hearing before the House Oversight Committee, with the reversal rates for each of the Administrative Law Judges in parentheses after their name:

• The Honorable Tom Coburn, M.D. (R-Oklahoma), Ranking Minority Member, Committee on Homeland Security and Governmental Affairs, United States Senate
• Glenn E. Sklar, Deputy Commissioner, Disability Adjudication and Review, Social Security Administration
• The Honorable Larry J. Butler, Administrative Law Judge, Miami Office of Disability Adjudication and Review, Social Security Administration (31%)
• The Honorable Thomas W. Snook, Administrative Law Judge, Miami Office of Disability Adjudication and Review, Social Security Administration (30%)
• The Honorable J.E. Sullivan, Administrative Law Judge, Pittsburgh Office of Administrative Law Judges, U.S. Department of Labor (14%)
• The Honorable Drew A. Swank, Administrative Law Judge, Pittsburgh Office of Administrative Law Judges, U.S. Department of Labor (16%)
• Thomas D. Sutton, Board of Directors, National Organization of Social Security Claimants’ Representatives

     Are these ALJs the committee's majority considers to be models? I don't know any of these ALJs but I wonder whether, after meeting them, the Republican committee members will still consider all of them to be admirable.

DOMA Found Unconstitutional

     The Defense Of Marriage Act (DOMA), which prevented the Social Security Administration and other agencies from recognizing same sex marriages, has been found unconstitutional by the Supreme Court.

     Unfortunately, this leaves open the question of whether Social Security can recognize same sex marriages when the married person has moved to a state that refuses to recognize same sex marriages since the Social Security Act relies upon the law of the state in which the person is domiciled. Apparently, the ruling is so broad that it is likely that the Court will rule that state laws that refuse to recognize same sex marriages solemnized in other states are also unconstitutional. However, it will probably be at least a year before the Supreme Court rules on that issue. In the meantime, my bet is that Social Security will, at the least, recognize the same sex marriages of those who have moved to a state that refuses to recognize same sex marriages as deemed marriages. Update: On second thought, I can't bet on deemed marriage being the solution because the statute says that the only sort of legal impediment that qualifies one for a deemed marriage is "an impediment (I) resulting from the lack of dissolution of a previous marriage or otherwise arising out of such previous marriage or its dissolution, or (II) resulting from a defect in the procedure followed in connection with such purported marriage." Neither of these applies to a situation where a person duly married in one state moves to another state which refuses to give full faith and credit to the marriage.
     Update: It's not particularly relevant to Social Security but you ought to read some of what Justice Scalia said in dissent. Let's just say, he really disagreed with the majority opinion which he categorized as "black-robed supremacy."  He had a few other things to say as well. As we say in the South, bless his heart.

Make Your Choice Early -- And Don't Move

     From a Notice of Proposed Rule-Making (NPRM) set to appear in the Federal Register tomorrow:

To better utilize our limited resources and make our hearing process more efficient for all claimants, we propose to modify our rules so that we would notify a claimant earlier in the process, before an ALJ is assigned or a hearing is scheduled, that he or she has the right to object to appearing at the hearing by video teleconferencing. If the claimant does not want to appear at the hearing in this manner, the claimant must object in writing within 30 days after the date he or she receives this notice. If we receive a timely objection, we will schedule the claimant for an in person hearing, with one limited exception. 

The limited exception to this rule would apply when the claimant moves to a different residence while his or her request for a hearing is pending. ...

     Note that this is a proposal. Anyone can file comments on it. It will be many months, probably well over a year before it can become part of Social Security's regulations. It may be modified or withdrawn before that ever happens.

Paying Money To Dead People

     The Wall Street Journal is running a story on a report by Social Security's Office of Inspector General concerning payment of benefits to 1,546 people listed in the Death Master File as dead. 

     It's funny. I had seen the same report and thought it showed that on the whole Social Security was doing a good job. I thought about posting about the report but decided that it wasn't of any real consequence. Obviously, I don't think it's a good idea to pay money to people listed as dead and I support reasonable efforts to prevent this but the error rate discussed here seems so low that I think things are going pretty well.

     Social Security's reaction was to point to its 99.9% payment accuracy rate. Isn't that good enough? 

     Was this report really newsworthy? 

     Update: Matthew Yglesias makes the same point. Social Security's payment accuracy rate is astonishingly good.

An Original Type Of Fraud

     From Inside NOVA, which, I think, stands for Northern Virginia:

A former Woodbridge woman was sentenced Friday to one day in prison, plus three years of supervised release, for committing Social Security fraud by helping her husband claim he was dead. ...

According to documents on file at U.S. District Court in Alexandria, Rios’ husband, Luis Melecio Rios Guizado, was wanted on charges of taking indecent liberties with a minor in Prince William County in 2007 when he fled to Peru, his native country.

Rios visited Guizado there and her gave her a false Peruvian death certificate, claiming he had died, “in order to have the charges filed against him in Prince William County dropped,” according to a news release from the Social Security Administration. ...

According to court documents, Rios presented the fake death certificate in Prince William General District Court in May 2007, in order to quash her husband’s outstanding warrant. She then presented the fraudulent document to the Social Security Administration in June 2007, so she could collect survivors’ benefits for herself and her five children, court documents state.

Authorities say that Rios and her children collected $127,000 in Social Security benefits between June 2007 and May 2011.