Hell For An 81 Year Old Widow

     From Laurence Kotlikoff writing for Forbes:

... Eighty-one year-old, Dolores Cooper, is being financially tortured by Social Security for Social Security's own mistake. On September 19, 2018, Dolores called Social Security to tell them her husband, Jimmy, had died two days earlier. The Social Security staffer mistakenly typed into the system that Jimmy had died not on September 17, 2018, but on September 17, 2017. 

One week after Dolores' call, she received a notice from SSA (the Social Security Administration) that Jim had been overpaid by $22,533 and that she, Dolores, needed to make repayment.What happened? The typo triggered Social Security's computer system to decide Jimmy had been paid benefits for a year when he was actually dead, which, of course, he wasn't. Dolores called SSA the next day — on September 27th. After waiting 1.5 hours for someone to come on the phone, she spoke with an Aileen. Aileen found the mistake and told Dolores to take Jimmy's death certificate to the Modesto, CA office. Aileen said it would take up to two months to fix the problem — so not to worry. On October 5th, Dolores took the death certificate to the Modesto office, waited three hours and spoke to Mike Wylie.

To quote her son, Kim, "Mike assured my mom he would make sure the issue was corrected. In the meantime, my mom started receiving tens of thousands of dollars of Jimmy’s medical bills as the incorrect date of death had propagated into the Medicare system and they stopped paying Jimmy’s medical bills and were asking for repayment of their payments. ...

On October 17, SSA sent Dolores two notices. The first stated that they'd used $17,226 of her benefits to recover part of the overpayment, but that she still owed $5,307. Social Security had retroactively activated Dolores' widows benefit to their incorrect start date, namely a year before Jimmy actually died. Those widow's benefits, which hadn't been paid were, SSA said as cryptically as possible, being used to cover $17,226 of her bill.

The second notice dated October 17 notice claimed that SSA, to quote Kim, "... paid Dolores $24,324 for September 2017 through August 2018 but they should have only paid her $10,197 so she need to refund $14,127 within 30 days. The notice also said the total amount of overpayment was $8,820. So in the same notice two different amounts were given ($14,127 and $8,820) and on the same day another notice stated $5,307."

On November 5 SSA made a direct deposit in Dolores' checking account of $8,649. On November 7 the SSA sent a notice stating the deposit of $8,649 should have been for $3,342, so there was an overpayment of $5,307 that needed to be returned. After repeated calls to find out where to send the check, Dolores sent, on November 23, a cashier’s check by priority mail. According to USPS tracking it was delivered on November 27. ...

     The story goes on but you get the ugly picture. What happened isn't a fluke. It's what I would have predicted would happen after the initial mistake was made. The two month prediction on how long it would take to correct the mistake was about what I would have predicted although I would warn a client that it could certainly take longer.
     Mistakes will happen. The problem at Social Security is the lack of staff to correct mistakes coupled with systems set up to be extremely aggressive about collecting overpayments.

A Question

     I'm preparing the 2019 edition of Social Security Disability Practice. One small way that I may update the book is to talk about the new practice in some U.S. District Courts of omitting the claimant's surname from the caption of a case. This is being done to try to protect the privacy of the claimants. 

     This isn't being done in any of the Districts in my state so I'm uncertain about the mechanics. Is the surname omitted in the initial complaint? Is it omitted by the parties only thereafter? Is it only the Court that omits the surname when it files an order?

Caseload Analysis Report

Click on image to view full size. Obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR)

Failure To Raise Fee Cap Has Consequences

     The National Organization of Social Security Claimants Representatives (NOSSCR) filed a Freedom of Information Act (FOIA) request for information on the extent of representation of claimants who had hearings on their Social Security disability claims. The response they got back shows that 80% of Title II claimants, that is claimants for Disability Insurance Benefits, Disabled Widows and Widowers Benefits and Disabled Adult Child Benefits were represented ins fiscal year 2018. That went down to only 57% in Supplemental Security Income (SSI) only cases. It was 76% in cases involving both a Title II claim and an SSI claim.
     The important thing is that representation is down significantly. In 2010 about 95% of claimants were represented at Social Security disability hearings. The major reason for this is that the cap on fees for representing claimants hasn't been raised since February 4, 2009. Ten years of inflation has slowly harder and harder to represent Social Security claimants. We have to be more and more careful about the cases we take on. The result is clear. It's more difficult now to find an attorney to represent you on a Social Security disability claim.

Class Action May Create Big Workload For Social Security

     The United States District Court for the Northern District of Ohio has entered a decision in favor of the Plaintiffs in the Steigerwald v. Berryhill class action. The case has to do with the computation of benefits to which a claimant is entitled in a case where both Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) are both approved and the claimant is represented. To oversimplify, the needs based SSI benefits are supposed to be reduced because of the DIB payments. However, a represented claimant does not receive the entire DIB payment because some of it is used to pay the attorney. Should the SSI benefits be reduced by money the claimant never sees because it's used to pay the attorney? The Court held that the answer is no. 

     If they can't get this reversed, and I doubt they will, Social Security is going to have to do a lot of recomputations. This isn't computerized. It's all manual. This will be a nightmare for an agency as shorthanded as Social Security is.

     We'll see but I guess that Social Security will appeal, not because they think they can win on appeal, but to stall. I get the impression that there's a lot of stalling going on at Social Security. Everything is being put off until there's a confirmed Commissioner. Maybe they can stall this one until the agency gets better funding.

Something That Shouldn't Be Forgotten

     I first posted this last July and wondered at the time whether Social Security was acting as if Republicans would be in charge of the House of Representatives forever. This may be something the House Social Security Subcommittee ought to look at.

     From the Virginian-Pilot:

Widows and widowers who were shortchanged on Social Security benefits by an estimated $131.8 million won’t get any of that money back, despite an Inspector General report calling for action.

Earlier this year, the administration’s Office of the Inspector General issued an audit report that determined the Social Security Administration underpaid 9,224 people over the age of 70. In addition, as more people in this group turn 70, the underpayment will amount to $9.8 million annually, auditors found.

The report said SSA officials agreed to “take action, as appropriate” for 41 beneficiaries it identified directly in the sample study and determine if it should review the records of more than 13,000 other beneficiaries. It also asked the administration to review its procedures and staff training for informing beneficiaries of their claiming options.

SSA has since provided “nationwide training” to field office workers about these survivor options and changed the language in application materials, said Darren Lutz, a Social Security spokesman.

It won’t, however, change anyone’s benefits retroactively based on the study.

“We reviewed the cases from the audit and determined they were adjudicated correctly, according to the law,” he said in an email. He declined to comment beyond the statement or make officials available to discuss the training. ...

Into The Clouds

     From Fedscoop:

The Social Security Administration is looking to industry for commercial tools to help manage its hybrid, multi-cloud environment.  

 SSA said in a request for information Friday that it “requires a suite of COTS tools, including implementation and integration support, for the enhanced automated management of its diverse cloud hosting environments.” ...  

 SSA’s pursuit of such a tool is in line with it’s greater cloud strategy. As the agency described last summer, rather than pushing blindly into it, it is trying to be “cloud smart,” much like the administration’s recent Cloud Smart policy.  

 “What that means is consider cloud first but be aware of where things run the best,” said John Foertschbeck, senior adviser in SSA’s Office of Systems Operations and Hardware Engineering, the office that issued this RFI. “So just because we’re considering cloud first doesn’t mean that’s where it goes. We want to make sure that we look holistically at applications and make the best determination for where they fit in our environment.”

     This sounds like a concession that the National Data Center that Social Security constructed recently at great expense was a waste of money. 

En Banc Review Requested In Hicks v. Berryhill

     In Hicks v. Berryhill the 6th Circuit Court of Appeals held unconstitutional the process that the Social Security Administration had used to terminate the disability benefits of hundreds of former clients of Eric Conn, who was found guilty of fraudulent conduct. That opinion came out on November 21, 2018. After getting two extensions, the Social Security Administration asked for rehearing en banc on February 6, 2019.

     Normally, cases at the Court of Appeals level are heard by three judge panels. However, after an opinion from a three judge panel, the losing party can ask that all the judges on the Court hear the case en banc. The 6th Circuit has 16 judges. En banc review is seldom requested and rarely granted. 

     An oral argument is very much an interactive process. I can't even imagine what it would be like to argue a case before a 16 judge panel.

     If this is reheard en banc, I fear that the result will be a deeply fractured plurality opinion, one where there's not a majority of the Court in agreement on anything. A plurality opinion would probably leave the Social Security Administration uncertain of what it should do. Plurality opinions are bad enough when they happen at the Supreme Court. They shouldn't happen at a Court of Appeals.