October 26, 2015 at 11:18 pm EDT | by Chris Johnson
121 Dems seek to lift Social Security penalty on gay couples
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Sen. Elizabeth Warren (D-Mass.) is among the lawmakers calling on the Social Security Administration to issue a blanket waiver on gay couples who received overpayment.  (Washington Blade photo by Damien Salas)

A group of 121 members of Congress — led by gay Rep. Mark Takano (D-Calif.) in the House and Sen. Elizabeth Warren (D-Mass.) in the Senate — are calling on the Social Security Administration to lift penalties on gay couples who were overpaid benefits following the historic rulings from the Supreme Court on marriage.

In a letter dated Oct. 26, the lawmaker — all Democrats — call on Social Security Administration Acting Commissioner Carolyn Colvin and U.S. Attorney General Loretta Lynch to take action to administer benefits “fairly to all individuals.”

“We are concerned to hear that, for some time after the Supreme Court’s Windsor decision, SSA continued to issue benefits to Supplemental Security Income recipients in same-sex marriages as though these individuals were single, and that for some SSI recipients, SSA is still doing so,” the letter says. “Because benefits for unmarried individuals are higher than those for married individuals, SSA’s failure to update its policies resulted in overpayments.”

According to the letter, the Social Security Administration sent out overpayment notices to recollect the money even though “they were overpaid due to SSA’s delayed implementation of the law.”

The letter calls on the Obama administration to “issue a blanket waiver for recovery of overpayment” so that couples who inadvertently continued to receive higher benefits after the Supreme Court’s decisions against the Defense of Marriage Act would be able to keep that money automatically.

The lawmakers ask the Social Security Administration to respond by Nov. 18 with information on how the agency is identifying affected recipients and efforts to update its systems so benefits are administered fairly.

As the letter notes, litigation filed by Justice in Aging and the New England-based Gay & Lesbian Advocates & Defenders known as Held v. Colvin seeks to compel the administration to drop the penalty on these overpayments. A district court dismissed the lawsuit on the basis that administrative remedies aren’t yet exhausted, but the litigation is on appeal before the U.S. Ninth Circuit Court of Appeals.

No Republicans signed the letter. Warren’s office didn’t respond to a request for comment on whether any of the organizers engaged in any Republican outreach.

William “B.J.” Jarrett, a Social Security spokesperson, said the agency cannot comment on the letter as a result of pending litigation.

“Social Security is committed to treating all Americans fairly, with dignity and respect,” Jarrett said. “We cannot comment as this issue is the subject of active litigation. Acting Commissioner Colvin will respond to the letter from the members of Congress at the appropriate time.”

The Justice Department didn’t immediately respond to the Washington Blade’s request to comment on the letter.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

  • Sorry, Liz but you are wrong on this one, SS needs to administer the program to the rules and has a fiduciary responsibility to every current or future beneficiary to collect overpayments regardless of the reason. If you want to waive recovery then the money needs to be reimbursed from somewhere. That’s why they call it a “trust fund.”

  • I’m a little confused what the “penalty” actually is. If they were overpaid, they should return the overpayment. But if there’s some sort of additional penalty due to a government error, that’s bullcrap.

  • Based on the comments below, the article needs to be more clear. What the Democratic lawmakers are addressing is not Social Security Old Age, Survivors and Disability Insurance (OASDI) but Supplemental Security Income (SSI). This program is administered by the Social Security Administration but is financed from general revenues and not out of the Social Security Trust Fund.
    SSI provides small payments to the elderly, blind and disabled who are dirt poor. The payments often are not even enough to lift them out of poverty. While authorized under the New Deal Social Security Act, it is separate from the social insurance programs of Social Security that are trust fund financed.
    The beneficiaries on SSI are so poor, it would be a tremendous hardship to them to collect these overpayments.

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