A Happy Ending

I had given a link in August to the story of a West Des Moines woman with Down syndrome who had been declared overpaid $4,425 by Social Security. The overpayment was apparently the result of computational errors at Social Security. The story has a happy ending. Even though it appears that the woman's family filed no request for waiver, waiver was still granted.

What would have happened without the media attention?

Rhodes Scholar Gets New Social Security Number And Uses It To Commit Fraud

From CBS News:

Former Alaskan beauty queen and Rhodes scholar, Rachel Yould, was sentenced to nearly five years in prison and ordered to pay more than $700,000 in restitution [in September] after pleading guilty in a peculiar case of fraud and double identities.

Federal prosecutors indicted the Oxford University Ph.D. candidate last December on felony charges of mail, wire fraud and making false statements to influence a bank. The 38-year-old Yould, born Rachel Hall, had claimed her father sexually abused and stalked her and allegedly took on a new identity under a Social Security Administration program that aims to help rape and domestic violence victims hide from their abusers.

There is a longer Jeffrey Toobin piece in the New Yorker on this peculiar story but you have to subscribe to read it.

She's definitely not my relative.

A Long, Slow March

The New York Times has an article today about two brothers trying to make a business of helping physicians change over to electronic records. They have found it “a long, slow march" and "a lot harder getting to a business that is self-sustaining than" they had imagined even though they seem to have some good ideas.

Electronic medical records may not be coming as fast as these two brothers had hoped or as fast as Social Security would like.

OIG Report On Disability Recipients Who Return To Work

Representative Sam Johnson, the ranking Republican on the House Social Security Subcommittee, asked Social Security's Office of Inspector General (OIG) to do a report on Social Security's efforts to deal with the cases of disability recipients who return to work. OIG has reported back that Social Security is working hard on the issue but that Social Security has a backlog of these cases. The agency could do more if it had more resources. The report notes that:

SSA convened a “Work CDR [Continuing Disability Review] Workgroup” in January 2010 to identify and implement improvements and adopted the following recommendations:

• Dedicated staff to target the oldest cases—initially, cases over 365 days old, then a gradual reduction of the age threshold;
• Prioritized earnings alerts by amount of earnings and worked cases with highest earnings to minimize overpayments;
• Improved communication between operational components; and
• Allocated additional staff resources to conduct work CDRs [Continuing Disability Reviews].

The report also notes that the agency is working on a proposal to simplify its work policies to "reduce administrative complexity and workloads through program simplification" and to "encourage more DI [Disability Insurance] beneficiaries to return to work." I hope this is true and that the proposal is being developed on a different time frame than the nine year Benefit Offset National Demonstration (BOND).

Multiple Social Security Numbers

From the Denver Post:

More than 20 million Americans have multiple Social Security numbers associated with their names, according to a new study of commercial databases by a leading consumer risk-management firm.

The study by ID Analytics Inc. in San Diego also found that about 100,000 Americans have five or more Social Security numbers tagged to their identity. Most of the associations are innocuous — a mistakenly entered digit or a transposition of two numerals — with little or no intent to defraud the legitimate owner, experts say.

The Lodestar Is Dead -- Long Live The Lodestar

From Jeter v. Astrue, ___ F.3d ____ (5th Cir. Sept. 30, 2010)

We are presented with the question of whether district courts may employ the lodestar method to determine whether an attorney fee constitutes a “windfall” under Gisbrecht v. Barnhart, 535 U.S. 789 (2002). Because we read Gisbrecht as merely forbidding exclusive reliance on the lodestar method to determine the reasonableness of a 42 U.S.C. § 406(b) attorney fee, we do not conclude that Gisbrecht precludes a court’s consideration of the lodestar method altogether. And since the district court here did not rely exclusively on the lodestar method to evaluate the reasonableness of a contingency fee, we conclude the district court did not abuse its discretion in finding the contingency fee unreasonable under § 406(b).

Social Security And Terrorists

From a recent audit report by Social Security's Office of Inspector General:

In September 2001, President Bush signed Executive Order (EO) 13224, Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism, giving the Government a means of disrupting the financial support network for terrorists and terrorist organizations. On December 18, 2002, the Department of the Treasury (Treasury) issued Financial Manual, Bulletin No. 2003 04, notifying Federal agencies of the implementation of EO 13224. The Bulletin states Federal agencies must not make payments or draw checks or warrants payable to an individual or organization listed on the Office of Foreign Assets Control’s (OFAC) Website of persons who commit, threaten to commit, or support terrorism.

In 2005, we reviewed the actions SSA had taken to ensure it was not making payments to individuals or organizations on OFAC’s Website. We determined that SSA had not taken all of the necessary steps to ensure it was not making such payments. Specifically, SSA had not matched payment records for its Title II and XVI programs or its Third Party Payment System (TPPS) with OFAC’s file. ...

However, SSA does not screen other payments because it believes that neither EO 13224 nor the Social Security Act gives the Agency authority to withhold or stop benefit payments when a person is identified on the OFAC list as a terrorist. Additionally, the Agency believes it is taking all appropriate measures in its authority to carry out the provisions of EO 13224. ...

In September 2009, SSA began providing Treasury with identifying information to enable OFAC screening of SSA recipients who reside outside the United States and receive payment by direct deposit at a foreign financial institution. An official from SSA‘s Office of Financial Policy and Operations told us the Agency began providing Treasury with such information because of new rules governing international direct deposits. These rules were written to ensure that international transactions undergo the screening required by OFAC to fight terrorist financing and money laundering. According to this official, SSA is also working with Treasury to develop a similar process to screen recipients who reside outside the United States and receive payment by direct deposit at a domestic financial institution. However, this official told us that Treasury had not decided whether it will screen these payments or request that SSA do so. ...

Accordingly, we recommend that SSA work with DoJ, Treasury, OMB, and, if necessary, others to resolve any issues the Agency believes prevent it from screening payments to individuals identified on OFAC’s list.

As a legal matter, Social Security's position is unassailable. No president has the authority to summarily prohibit payment of Social Security benefits to a person who is otherwise entitled to them.

When you do a match between a large database and a humongous database, you are going to come up with many matches. In this case, virtually all of the matches would be spurious. Look at the problems with the no-fly list. Nothing is impossible but the idea that any meaningful amount of Social Security benefits is being used to support terrorists seems far-fetched to me. We all want security but let's not get carried away.

I guess we can expect a Congressional hearing on this if Republicans take control of the House of Representatives next year.

The Merits Of That Binder And Binder Lawsuit

I have posted on the separate Social Security Perspectives blog the complaint brought against Social Security by Binder and Binder, a large entity which represents Social Security claimants. Binder and Binder may include a law firm but it is primarily something other than a law firm. Whatever it is, it is large and advertises heavily on cable television. Binder and Binder is seeking an order that would force Social Security to allow its employees to appear before Administrative Law Judges (ALJs) by video hookup.

I hope this lawsuit fails. The idea that someone could represent a Social Security claimant without ever once meeting that claimant in person is abhorrent to me. The notion that Social Security would be compelled to allow such a thing is almost inconceivable to me. However, my feelings about the result sought by Binder and Binder are irrelevant to the question of whether this lawsuit has legal merit.

I will try not to belabor the legal questions presented by this lawsuit. My opinion is that this lawsuit lacks merit. A fundamental question in administrative law is whether a decision by an administrative agency may be reviewed by the courts. If every decision could be reviewed, the federal courts would be overwhelmed and federal agencies would be unable to function. There are rules about what can and cannot be reviewed. This strikes me as a clear example of a non-reviewable decision. To give you an idea of how serious a problem this is, one Court of Appeals has held that even when Social Security bars a person from representing claimants before the agency, thus taking away that person's livelihood, that there is no right to judicial review. Binder and Binder tries to get around this problem by invoking mandamus. The writ of mandamus is beloved by American attorneys because it was at the center of that most famous constitutional decision, Marbury v. Madison, which established that the Supreme Court could declare an Act of Congress unconstitutional. Strictly speaking, the writ of mandamus no longer exists. It was abolished by Rule 81(b) of the Federal Rules of Civil Procedure but this is a quibble since the same sort of relief is still available. It just lacks a venerable name or, indeed, any name. There is a long history of attempts to use mandamus to obtain judicial review of federal agency action. It virtually always fails. In fact, a complaint alleging only mandamus jurisdiction is usually a sign of a weak lawsuit that will be quickly dismissed. I and others have used mandamus successfully when Social Security had a clear duty to act but completely failed to act but that is not the situation here. Social Security has acted. Binder and Binder does not agree with that action.

Binder and Binder tries to buttress its argument by alleging that it spent money in reliance upon its interpretation of agency regulations. If anything, this hurts Binder and Binder's case. Leaving aside the question of whether Binder and Binder's interpretation is the only way in which the regulations can be read and leaving aside the question of whether there should be any relief even if this is the case, this does not seem to me to come close to justifying the injunctive relief sought. Monetary damages would seem an adequate remedy for what is, essentially, a claim based upon detrimental reliance. It is a fundamental legal principle that a party cannot get a form of equitable relief such as an injunction if legal damages -- as in money -- will suffice to make the party whole. That is exactly the situation here.

I note that Binder and Binder's attorney does not list administrative law as a field in which he practices.

Update: No doubt the 2005 decision of the Second Circuit Court of Appeals in Binder & Binder, P.C. v. Barnhart, 399 F.3d 128, will be cited as support for finding jurisdiction in the case at hand. In that case, Social Security paid an attorney fee and then demanded it back because the client's debts had been discharged in bankruptcy. The Court used mandamus as the basis for jurisdiction to review the decision. There is loose language in that decision suggesting that mandamus is always available if there is not some other basis for reviewing the actions of a federal agency. I said above that trying to use mandamus to obtain review of federal agency actions virtually always fails. This old Binder case is an example of why I added the qualifier "virtually." On rare occasions it works. Using mandamus to obtain review of Social Security's interpretation of the bankruptcy laws is vastly different than using mandamus to obtain review of Social Security's interpretation of its own procedural regulations.