Secret Social Security Policy Complicates Disability Determination for Mentally Ill

Secret Social Security Policy Complicates Disability Determination for Mentally Ill

Children who are determined by the Social Security Administration (SSA) to be disabled prior to age 22, and who remain unmarried and disabled as an adult, may become eligible to receive a Social Security (SS) benefit when their parents begin receiving SS retirement or disability benefits.  This is called the a Childhood Children’s Disability Benefit (CDB).  A child under age 18at any age with a disability may be entitled to Supplemental Security Income (SSI) from SSA and may later transition to CDB or Disability Insurance Benefits (DIB, based on earnings and inability to work full-time).  In the past, such a transition was automatic because of the prior disability determination.  However, this is no longer the case due to a secret (unpublished) policy change by the Social Security Administration.  The new policy impacts entitlements based on a mental impairment or HIV that were awarded prior to January 17, 2017 and where a new claim for CDB or DIB was filed AFTER that same date.

The policy change is based on an internal agency memorandum issued February 14, 2019, that the agency has refused to publish or release.  Avram Sacks, a Special Needs Alliance member and Social Security expert, obtained and shared a copy of the memorandum.

The underlying basis for the memorandum is that the medical criteria for establishing disability on the basis of a mental impairment or HIV was changed by final rules issued September 26, 2016, which became effective January 17, 2017.  (81 Fed Reg 66138).  The new rules are lengthy, but, in short, more restrictive in terms of who can qualify for SS disability on the basis of a mental impairment or HIV.

The agency notice, AM 18029, was issued to all field offices and disability determination services offices and announces that as of the date of the notice, the field office “will no longer make collateral estoppel decisions in disability determination, regardless of the impairment…”    As a result, in such cases, all new claims will be sent to Disability Determination Services for a new determination of disability.  

According to Sacks, this can lead to anomalous results.  Although Junior may have been found disabled at age 18 in 2010, he could very easily be found to NOT be disabled on a CDB claim filed in 2019!    Why “easily?”  That is because disability claims based on mental health are among the most difficult to prove, particularly where cognition is not severely impacted.   Assessments are much more subjective.  

Sacks mentioned speaking with the SSI claims rep at a local field office to reschedule a client meeting.  The client is on SSI and has now worked enough quarters at sufficient income to qualify for DIB.  A notice asked him to bring in a checkbook for direct deposit information on his DIB claim.   However, when the attorney attempted to confirm with the claims rep that that was all that was needed to confirm the DIB claim, she stated that the client will need to bring in medical records and any other evidence to prove his entitlement.  This was NOT in the notice to the client.    

This is a trap for the unwary because the client will not know that the claim has to be proven as a new claim.   It will not be sufficient to provide the same evidence used to prove the initial claim.   Current evidence of disability will also need to be provided.  And, in the case of a claim for CDB after age 22, evidence of disability for the entire period subsequent to age 22 will need to be provided in order to demonstrate the disability existed continuously from age 22.  

As a practical matter, such cases should be handled like any other first-time disability claim.  The SSA is certainly going to be treating the claim as a first-time claim.   And, because the criteria, in most cases, will be more stringent than it was previously, you should not assume that the same evidence or similar evidence will suffice to prove the case.  

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