SSA announces top baby names

Boys:	1) Jacob	Girls:	1) Isabella
	2) Ethan		2) Sophia
	3) Michael		3) Emma
	4) Jayden		4) Olivia
	5) William		5) Ava
	6) Alexander		6) Emily
	7) Noah		7) Abigail
	8) Daniel		8) Madison
	9) Aiden		9) Chloe
	10) Anthony		10) Mia

The list of top 10 baby names is here.  Some of us are old enough to remember when Social Security was not the repository for every child's name within the year of birth.  I got my Social Security card and number when I got ready to drive and work as a teenager.  Now, babies get their Social Security card and number immediately.  SSA says that getting a SSN is voluntary and necessary only to access the financial system, get medical insurance coverage, or get government services.  Also necessary to deduct the child dependent from the parent's taxes.  But taking SSA's word on its face, I am unaware of anyone that would forgo medical coverage for their children voluntarily.  Nor are many anxious to forfeit a legitimate tax deduction.

At least we know what names are popular before our children go kindergarten to find others similarly labeled. 

Retirement Program Broke in 2037

Well, not broke, just able to pay 78% of promised benefits.  So why be concerned about something that is 26 years away?  I will be 67 and full retirement age in 2037.  If the system cannot pay the promised benefit in 2037, then I and a lot of other late boomers need to start adjusting our retirement plans.

Raising taxes places additional strain on individuals and families.  Lowering benefits changes retirement savings plans for individuals at and over 50 mid-stream.  With the cost of the trust fund's operations already exceeding income for 2010, again next year, and permanently in 2015, the time to act is now.

The choices come in three flavors.

    1.  Raise FICA taxes on employees and employers without changing the benefit calculus.
    2.  Change the benefit calculus to lower benefits now to and extend the life of the program later.
    3.  Raise the retirement age.

Raising taxes has an immediate and adverse consequence on family budgets.  Changing the benefit calculations in  the long term means will cause a dramatic impact in catch-up savings impacting those closest to retirement age the most.  Raising the retirement age extends the work life of healthy individuals, decreases the payouts by eliminating months or years of payments in perpetuity, and increases the FICA payments during that extended work-life.

Wishing and hoping that Social Security will be around when we reach retirement age will not make it happen.  Congress needs to take leadership, swallow the bitter medicine, and explain the simple truth to the American people.  The concept of a system of providing benefits to aged Americans depended on a large base of contribution and a narrow peak of receipts.  That paradigm has shifted as median age of 36.5 has climbed 2 years in the past decade.  No smoke, no mirrors, just a plan.  We need another Moynihan with the gravitas to lead the charge and save the system.

Lockwood v. Astrue

My level of angst rose Friday and approaches crescendo this morning.  Under the Supreme Court's docketing procedures, Lockwood got distributed for conference on April 29, 2011.  The Court will post the order list this morning.  The order list for April 25 was 9 pages long of certiorari denied, habeas denied, mandamus denied, rehearing denied, attorney discipline, and a handful of orders in pending cases.  Most other order lists have 2 cases with certiorari granted.  Thousands of cases filed each year, less than 100 get granted and set for oral argument.  The Supremes have a pretty good idea of how many cases it wants to hear next hear and already has a calendar of oral argument days.

The advertised publication time is 10 AM Eastern Time. At 7:05 AM Pacific Time, I am still waiting.

There it is.  Certiorari denied.  Posted the news to my  brethren on a private list.  Truly disappointed for the simple reason that we should be able to trust that what the government says it means.  Maybe I am naive or yearn for a utopia that will never appear.  But when any agency clears away the haze of ambiguity of a regulation, we should demand the right to bank on it.  Litigation ensues when rights and results are unclear.  If we all know the result based on settled law, then litigation turns on factual disputes only.  When the law is not clear or when one side (the federal government) can run away from clarity, then the whole system fails.

It is an old adage for lawyers.  When the facts are one your side, argue the facts.  When the facts are not on your side, argue the law.  When the law is not on your side, confuse the issues.  I tip my hat to the lawyers that represent the Social Security Administration ... you certainly did confuse the issue on this one.

It isn't that there isn't blame to go around.  The lawyers for SSA blame the lawyers for the claimant for not raising the issue or not raising the issue properly.  Perhaps that is permissible in a truly adversarial position but the Social Security Act is different.  It is non adversarial.  Government lawyers are also different.  They have an obligation not only to a particular case but to the public at large.

More on this topic in the months to come.

Medicare and a Partial Solution

I watched Hardball the other evening.  Matthews played a segment where a woman in Pennsylvania challenged her Congressman who had voted for the Ryan budget over that vote.  Her complaint ... that her adult children would not get the same Medicare that she currently used and enjoyed.  Matthews relished the way the inept Congressman squirmed.

But lets be two things:  honest and clear.  Neither side of the aisle can or will leave Medicare intact as the sacred cow.  The national health care plan makes deep cuts in Medicare.  Fraud and waste will not make up for billions cut from the Medicare budget.  There is fraud and waste, getting rid of fraud and waste is good, but the cost of getting rid of fraud and waste is not zero. So how can we make a dent in Medicare?

The first item of cost is eligibility.  People on disability have to wait 24 months from their first Social Security check to get Medicare.  These are sick and hurting people.  They have been out of work for 30 months before Medicare kicks in.  Compare that to people that turn 65 ... instant Medicare eligibility.  Current full retirement age is 66.  Medicare should get permanently attached to full retirement age.  That would delay eligibility for a year currently and two full years by 2027 when people born in 1960 or later reach full retirement age.

Premiums should also get further indexed to ability to pay.  Currently HHS charges people $555.40 for part A and part B if they have less than 30 quarters of coverage.  Most people either have 40 quarters or are/were married to someone that has 40 quarters of coverage.  For them, part A is free and part B is $96.40 per month.  High income households do pay a little more.

Part A costs $461 alone for people with less than 30 quarters of coverage and $254 for people with 30 to 30 quarters of coverage.  For high wage earners, those continuing to have high income after full retirement age, they should start to pick up part of the part A premium.

The Treating Physician Rule

Some Administrative Law Judges think that the courts have gone too far in imposing a treating physician rule on them in the cases that I have litigated over the last 25 years.  The treating physician rule requires that the ALJ give more weight to the opinions of the treating physician than the opinions of one-time consultative examiners and more than the opinions of non-examining physicians.The logic behind the rule is that the treating physician has a greater opportunity to know the person and has the intent to either cure the problem or relieve the patient of the ill effects of the disease or injury.  Murray v. Heckler, 722 F.2d 499, 501-502 (9th Cir. 1983).

The case law is equally clear that in order to determine whether the ALJ gave greater weight to the opinions of the treating physician, the ALJ must give specific and legitimate reasons for rejecting the opinions of the treating physician where the opinions of other physicians disagree.  Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).  The ALJ will complain that the weight afforded the treating physician and the obligation to give reasons for rejecting the opinions of the treating physician hamper his ability to make decisions according to how he views the evidence.  

That ALJ ignores the very real proposition that the Commissioner of Social Security promises claimants for disability benefits that the Social Security Administration will give controlling weight to the opinions of the treating physician where they are well-supported and "not inconsistent" with other evidence in the record.  20 C.F.R. §§404.1527(d)(2); 416.927(d)(2).  The double negative of the "not inconsistent" standard is clearly intentional to mean something that falls between "consistent" and "inconsistent."  The "not inconsistent" standard tolerates a degree of deviation to mean that some disagreement will not run afoul of the standard.  

Even the the treating physician is not entitled to controlling weight, the Commissioner promises claimants for disability benefits that the Social Security Administration will still reject the opinions of the treating physician for "good reasons."  20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). It is apparent to me that a good reason would have to be both specific and legitimate.  If the record does not contain evidence that contradicts the opinions of the treating physician, then a good reason would have to be clear and convincing.  

The Commissioner also demands that the ALJ give consideration and state the weight given to the opinions of the non-examining physicians.   20 C.F.R. §§404.1527(f); 416.927(f).  So in those two instances, the Commissioner binds the hands of the wayward ALJ to give the evidence proper consideration.  

The only real disagreement ... the Ninth Circuit does not allow the ALJ to simply disregard favorable evidence that comes form examining physicians.  There, the courts require the ALJ to give at least specific and legitimate reasons for rejecting those opinions that help the claimant.  The regulations are silent on how to treat its own hired guns.  For now, the public deserves to know that the terms of the social contract do not give the random ALJ carte blanch to deny cases for arbitrary reasons but to give good reasons, whether those reasons be specific and legitimate or clear and convincing. 

Strauss v. CSSA

Strauss v. Commissioner of the Social Security Administration is one of those "of course" cases.  Simply put, a federal court must find a person claiming disability benefits disabled before ordering the Commissioner to pay disability benefits.  The legal principle is simple enough but bore repeating if only to emphasize that the courts have the power to order the payment of benefits.

What I find irritating is the failure of experienced attorneys to get the name of the parties correct.  I have been involved in cases with the misnamed defendant.  Chavez v. Department of HHS is one.  (That opinion stands for the well-worn proposition that the Commissioner gets to tell the world what his regulations mean and the courts must respect that determination, unless plainly erroneous.)    I didn't file that case, taking it on later in the game.  But come on people, can we exercise just a little care out there?

Pending at the Supreme Court

Lockwood v. Astrue is currently pending before the Supreme Court.  Your erstwhile writer acts the attorney of record.  Lockwood concerns application of the borderline age case for an individual about 1 month from turning 55 but the Administrative Law Judge treats her as 54.  The regulations promise that the ALJ won't do that.  The program operations manual tells SSA to explain why it did or didn't take a flexible approach to age.  At issue is whether the Social Security Administration can promise the public one thing in a policy and procedure manual and then run away from that promise in federal court.

It is the social contract theory in administrative law.  The Supreme Court changed the paradigm in Chevron.  Regulations, not the Courts, get first crack at refining an ambiguous statute.  Auer extends that doctrine.  The agency gets the first crack at refining an ambiguous regulation.  But the Social Security Administration want to defend ALJ decisions in Court more than it wants to defend the right of every federal agency to promulgate regulations and then tell the world what those regulations mean.

Just to make it interesting, the Acting Solicitor General declined to tell the Supreme Court what the executive branch of government thinks about Auer deference.  The SG didn't do that in Parra v. Astrue, when the government told the Supremes that the Ninth had the whole deference thing wrong.