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.

Disability Claims Filed, Approved And In Current Payment Status Declined In 2015

     Social Security has posted year end data on the number of Disability Insurance Benefits claims filed, approved and in payment status through the end of 2015. As of the end of calendar year 2015 the number of claims filed was down 4.3% from 2014. The number of claims approved was also down 4.3%. The number of claimants in current payment status declined by a half percent in 2015. Terminations of benefits increased by 2.95%. The termination rate was up to 8.62%, the highest it's been in at least 15 years.

Social Security To Be Involved In Gun Control

     From a fact sheet on the President's initiative to reduce gun violence issued by the White House yesterday:

... The Social Security Administration has indicated that it will begin the rulemaking process to include information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons. ...

Current law prohibits individuals from buying a gun if, because of a mental health issue, they are either a danger to themselves or others or are unable to manage their own affairs. The Social Security Administration (SSA) has indicated that it will begin the rulemaking process to ensure that appropriate information in its records is reported to NICS [National Instant Criminal Background Check System]. The reporting that SSA, in consultation with the Department of Justice, is expected to require will cover appropriate records of the approximately 75,000 people each year who have a documented mental health issue, 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. The rulemaking will also provide a mechanism for people to seek relief from the federal prohibition on possessing a firearm for reasons related to mental health. ...

     To this point, the Office of Management and Budget (OMB) website doesn't show any proposed rulemaking pending review. OMB approval is required before Social Security can publish a Notice of Proposed Rule-Making (NPRM).

User Fee To Stay At 6.3%

     The user fee charged attorneys and others who qualify for withholding of fees from the past due benefits of the claimants they represent will remain at 6.3% for 2016. Social Security swears that it costs more than this to compute and authorize a fee but attorneys have always been deeply skeptical that it really costs this much.

Preparing Social Security Cards

The "Right Mental Attitude"

    During this slow period for Social Security news, I thought I would repeat this post I made earlier this year:

     Someone retweeted this to me: "Nothing can stop the man w/ the right mental attitude from achieving his goal; nothing on earth can help the man w/the wrong mental attitude,"

     This was tweeted by a man who was a college football player and who is now the sales manager of a large corporation. It sorta fits his background, wouldn't you say?

     There is every reason to encourage people to have "the right mental attitude." That can help take one far. However, taken literally, and many people take this sort of platitude literally, it means that if you've succeeded in life, it must be because you have "the right mental attitude" and if you've been unable to overcome adversity, it must mean that you have "the wrong mental attitude."

     I'm cruel to say this but if the person who wrote this comes down with cancer, his "right mental attitude" may not enable him to achieve any goal he may have. If medical treatment doesn't work, he's going to suffer and die. Whether medical treatment works has almost nothing to do with his "mental attitude." Whatever goals he may have had will not be achieved. If his son or daughter develops schizophrenia, having the "right mental attitude" won't get them very far. They'll probably be unable to work on a regular basis, regardless of their mental attitude. Life circumstances can completely overwhelm any "mental attitude" no matter how "right" it may be.

     I deal with clients every day who feel that their disability isn't so much caused by illness as by their personal shortcomings. They feel that being out of work means that they have failed even though objectively they haven't failed; they're simply dealing with serious illness. It's bad enough to be sick. It's worse to mistakenly think that your inability to work is your fault when it isn't.

     As a society, we're eager to tout the successes of those who have overcome disability with the "right mental attitude" while ignoring the fact that the disability overcome seldom involves factors such as chronic severe pain or chronic progressive illness or chronic severe mental illness. We like nice stories about people in wheelchairs who are still working. We think that's how we'll be if illness strikes us. We'll have the "right mental attitude" and be able to overcome our disability. When we hear stories about people with bipolar disorder who end up homeless, we want to think that can't happen to us because, unlike the homeless people, we have the "right mental attitude." We don't want to consider the possibility that the difference between the person in the wheelchair who is still working and the homeless person with bipolar disorder is the nature and severity of the disability rather than "mental attitude." We think we can control our "mental attitude." We don't like to think about the fact that we can't control illness and injury.

     Writ large, this is the problem with this country's attitudes towards disability. We think that people can control disability with the "right mental attitude" but that's a delusion that leads us to be cruel to disabled people and even to ourselves when we become disabled.

ADA Didn't Help Disabled People Work

     I'm repeating some old posts during this slow time of the year for Social Security news. Here's one from July:

   From TPM Cafe:

Twenty-five years ago this past Sunday, the Americans with Disabilities Act (ADA) was signed into law. Today, people with disabilities are less likely to be employed than they were before the law was enacted. Workers with disabilities earn, on average, about $14,000 less than similar workers without disabilities. About one in every three disabled Americans lives in poverty.