Same Sex Marriage Battle Continues

     From CNN Money:

Kathy Phelan has been waiting more than a year for her first benefit check from Social Security, caught in a back-and-forth with the agency as it works to keep up with a changing legal landscape for same-sex couples. ...

She last heard from the agency in December and was told it could be another 12 to 18 months before a hearing is scheduled on her case. Her claim was first flatly rejected and she has since appealed.

Phelan isn't the only one stuck in limbo with the Social Security Administration.

 "The process is moving inexplicably slowly," said Susan Sommer, an attorney for Lambda Legal, a non-profit that advocates for LGBT rights. ...

 Over the past two decades, there's been a patchwork of same-sex marriage laws across the country as more and more states made it legal. It wasn't until 2013 when the Supreme Court struck down the Defense of Marriage Act (DOMA) that they could get federal benefits like Social Security as a married couple. But that still left some in the lurch if they were married in a different state than where they lived.

 That's what happened to Phelan. They married legally in Washington state in 2013, but lived in Arizona where same-sex marriage wasn't recognized until the middle of 2014. Since Kaye lost her battle with cancer five months before it was legal in Arizona, Social Security did not treat Phelan as her legal spouse. ...

 Why, exactly, does that impact Phelan's benefit? Because married couples are entitled to a "survivor" benefit if the higher-earning spouse died first.

Attorney Fee Payments Continue To Decline

     Social Security has posted its final numbers on fees paid to attorneys and others for representing Social Security claimants in 2015. The total was $1.094 billion. This was down $46 million or 4%, from 2014. Fees are down $335 million, or 23%, from their peak in 2010.
     All attorneys who practice Social Security law face considerable economic pressure. Almost no one is entering this field of practice now. The attorney fee provisions of the Social Security Act were designed to allow claimants to have representation. This right could be effectively eliminated over coming years unless something changes. One important way that the Acting Commissioner of Social Security could assure that claimants don't lose their right to representation is to increase the cap on Social Security attorney fees. It's currently $6,000. The Social Security Act allows the Acting Commissioner to raise this to adjust for inflation but does not require that she do so. If adjusted for inflation, the cap would now be over $7,000. It's past time to raise the cap.

Headcount Holds Steady

     The Office of Personnel Management (OPM) has just posted updated figures for the number of employees at the Social Security Administration as of the end of the third quarter of 2015:

• September 2015 65,717
• June 2015 65,666
• March 2015 64,432
• December 2014 65,430
• September 2014 64,684
• June 2014 62,651
• March 2014 60,820
• December 2013 61,957
• September 2013 62,543
• June 2013 62,877
• March 2013 63,777
• December 2012 64,538
• September 2012 65,113
• September 2011 67,136
• December 2010 70,270
• December 2009 67,486
• September 2009 67,632
• December 2008 63,733
• September 2008 63,990

Lawsuit On Social Security Hearing Backlogs

     From a press release:

The attorneys and certified legal interns from Miami Law’s Health Rights Clinic have filed a federal suit against the Social Security Administration on behalf of 12 indigent and disabled clients who have been waiting as long as 26 months to secure a hearing or receive rulings from a Social Security judge.

The suit asks the government to compel the Social Security Administration to “promptly schedule, hear, and adjudicate” the claims of their clients. ...

Miami has the longest wait times in the country.  “We don’t know exactly why this is the case,” said Zach Lipshultz, a third-year law student in the Clinic, who is working on the case. “It might be due to a lack of administrative judges, or staffing, or something else with Social Security. It might also relate to the extreme poverty and extreme need for disability benefits in Miami-Dade County.” ...

     The problem with this lawsuit is that the Supreme Court ruled on something like it in 1984 in Heckler v. Day. The Court held that a class action could not be used to force Social Security hearings to be held within a time deadline. However, the Court did indicate that individual actions concerning delays at Social Security would still be allowed. It appears that the Miami case isn't a class action, just a normal civil action that happens to have a number of plaintiffs seeking relief. If bringing a lawsuit on behalf of a number of claimants works, expect to see such lawsuits proliferating around the country. 

     For those who think that the federal courts wouldn't possibly do something about the backlogs, don't be so sure. There is a right wing majority on the Supreme Court but the lower courts, including most Courts of Appeals, are increasingly dominated by Democratic appointees. If the Courts of Appeals keep ruling for the plaintiffs in such cases, the Supreme Court probably won't hear a case on the issue.

     By the way, at the time of the Day decision the average hearing backlog was only about nine months if I remember correctly, a fraction of what it is today.

There's No Fountain Of Youth

     The Center for Retirement Research at Boston College has posted a piece promoting the idea that Social Security's full retirement age should be variable based upon the worker's socio-economic status since life expectancy depends to some extent upon socio-economic status.

     To my mind this piece is wrong, wrong, wrong. There's no realistic way of basing policy on a concept as nebulous as socio-economic status. How do you write that into a statute? The bigger problem is that the authors accept at face value that full retirement age should be related to life expectancy? Why? The right wing likes that notion since it might justify higher full retirement age but is there any non-political justification? All I've ever heard basically goes "Well people live longer so they should work longer." That's simplistic. There's no rational reason why full retirement age should be x number of years less than life expectancy. 

     Why should we have any full retirement age anyway? The reason is that there are natural degenerative changes in people's bodies and minds as they age. These changes occur at somewhat differing rates but they happen to everyone as they age. Full retirement age acknowledges that these changes decrease the ability to work even in those who seem healthy -- for their age. Instead of trying to do determinations of disability for people whose main problem isn't so much a specific disease as the general effects of aging, we have a full retirement age. What's wrong with this concept?

     The fact that people live longer does not mean that they don't age. People have been looking for a fountain of youth for centuries. No one has found it yet. The effects of aging cannot be delayed or reversed by medical treatment.

ERE Shutdown Over Weekend

     I just received this message from Social Security:

ERE will be unavailable Friday, January 8^th from 11:00pm through 5:00am Monday, January 11^th due to an emergency release.

This release will fix the invalid characters in Secure Messaging issue detailed in System Notices on the ERE home page.

Social Security Law Section of FBA Posts Newsletter

     The Social Security Law Section of the Federal Bar Association has posted its Winter 2016 newsletter. There is an article on the "Reserved to the Commissioner" defense that the Social Security Administration tries to use to avoid the treating physician rule and a very interesting article on suicides among Social Security disability claimants.

Big Surprise: Controversy Over SSA Role In Gun Control

     From the New York Times:

Responding to Republicans who have repeatedly tied gun violence to mental healthissues, President Obama’s new gun control plan will allow state agencies and the Social Security Administration to provide certain “protected health information” to the F.B.I. to help crack down on weapons sales to people who pose a danger to themselves or others or are unable to manage their own affairs. ... 

“We are concerned about the implications of this rule,” said Jennifer Mathis, a lawyer at the Bazelon Center for Mental Health Law, an advocacy group for patients. “It points a finger inappropriately at people with mental illness as a source of gun violence. It’s a bad precedent to start creating exceptions to the privacy law for people with mental illness, who are responsible for about 4 percent of incidents of gun violence.” ...  

Under a rule to be developed by Social Security, the administration said the agency would provide information on “approximately 75,000 people each year who have a documented mental healthissue, receive disability benefits and are unable to manage those benefits because of their mental impairment, or who have been found by a state or federal court to be legally incompetent.” ... 

“No one’s psychotherapy notes are going to end up being disclosed because of this rule,” said Andrew Sperling, a lobbyist at the National Alliance on Mental Illness, an advocacy group for patients and their families. 

Dr. Paul S. Appelbaum, an expert on psychiatry and the law at Columbia University, said that the regulation “does not require or permit the reporting of any clinical information.” 

Dr. Renée L. Binder, president of the American Psychiatric Association, said the group did not see a threat to doctor-patient confidentiality. 

“We feel that people who are dangerous should not have access to guns,” Dr. Binder said. ... 

Jonathan M. Stein, a lawyer at Community Legal Services in Philadelphia who has won many court cases for Social Security beneficiaries with disabilities, called the Social Security component discriminatory. 

“The government is seizing on a group of people with serious mental illness who are unable to manage their money,” he said. “What does that have to do with any propensity for gun violence?”

     For the record, I strongly disagree with Ms. Mathis and Mr. Stein. I see no privacy or discrimination issue here. This list isn't going to be public. The greatest threat that this will address is suicide and that's no minor threat in the group who will be affected by this action. 

     By the way, Social Security still hasn't sent a proposal over to the Office of Management and Budget. At least, no proposal is showing up on the OMB website. If this is going to be finalized before President Obama leaves office, this needs to start moving pronto.