Counsel’s Corner

One Size Fits All

By Steven Bruce, PWDF Legal Director

For approximately 20 years, the Social Security Administration (SSA) has had no specific reasonable accommodations (RAs) to provide to those who have psychiatric, intellectual, cognitive, developmental, or neurological (e.g., autism and ADHD) disabilities. The SSA has stated that Section 504 of the Rehabilitation Act of 1973 does not apply to them, even though Congress extended it to apply to federal agencies in 1978 and the Supreme Court stated in Lane v. Pena, 518 U.S.187 (1996) that one can only get injunctive relief and not monetary damages since finding that Congress did not waive immunity.

The SSA tries to offer the same RAs for all psychological disabilities which it calls non-standard RAs.  The first is a representative payee, who manages a disabled recipient’s monthly disability benefit checks even if the individual is trying to manage their own money in an effort to live independently and has been managing their own checking account for over a year.  Although the SSA states that the assessment of each individual is individualized, from filing several of these cases over the years, with two cases taking five and a half years to resolve, the SSA has stuck with their “one size fits all” approach for RAs for a significant range of mental disabilities. This includes an individual with schizophrenia; specifically, this offer was for notices or explanations to be provided at a 6th or 6th to 8th grade reading level by an SSA employee assigned to him/her which is acceptable; but nothing to address the primary disability, schizophrenia, which is contradictory to an individualized assessment.

This is the case with many of our current clients. A client who was also diagnosed with schizophrenia will have her case re-filed because there was [intentional] internal confusion at the SSA regarding whether their Appeals Council had an opportunity to read the issues that were appealed, even though the SSA decided an ALJ does not have jurisdiction to adjudicate whether an individual needs RAs for meaningful program access.

There are many complicated programs, such as work incentive programs, including a Plan to Achieve Self-Support (PASS) with income sheltering; impairment-related work expenses (IRWEs); trial work periods, where unsuccessful work attempts are not countable against beneficiaries in finding they have earned over the allowable amount; employer subsidies; and special conditions, where employees are paid the same for doing less work. These are not RAs but are part of the Social Security Act.

The offer from the SSA for a client who has had schizophrenia at least since elementary school was to have field office employees assigned as the primary and the backup representatives.  We have no problem with clients getting to know a program expert or claims representative over the long term because it can be helpful, that is building a relationship.

People with a psychosis need a lot of flexibility in determining the ‘good cause’ regulations for missing a deadline; e.g., a 10-day deadline. An example is a woman who lives in a northern San Francisco area county having her benefits yanked from “working” while hallucinating that the manager was trying to kill her, which is more than she can handle to be engaged in sustained work. Despite the county’s Behavioral Health Services’ offer to work with the SSA to develop RAs, the SSA said they were never contacted by the county.  PWDF’s was not given any SSA contact information, including email, phone number or address. When PWDF wrote to an individual working at SSA’s Compliance Unit, the SSA conceded that they had no clinical employees on staff.[1] When asked if there was a psychologist counterpart in the SSA that a psychiatrist calling from the county could speak to, the individual said no and that they did not have to do that. It appeared to me that our client lacked the comprehension that is considered average, indicating the absence of understanding most concepts. I requested cognitive testing from the county, a copy of which I just received after approximately 8 months of waiting, which indicated that client’s results in many areas were equal to or less than the lowest 1% of the population.

In some cases, the situation is worse than giving a partial list of RAs to someone with schizophrenia while using a restrictive interpretation of a ‘good cause’ for missing deadlines, for example.  The SSA needs to use a lot of flexibility in applying “good cause” when the person needs more time or has late submission. This person may or may not need cognitive accommodations. The RAs that are for people with intellectual or cognitive disabilities are being offered to the wrong people because there is no evidence that this is an individual’s disability. Or it can be said that they are offering 6th to 8th grade reading comprehension to the wrong person since the RAs are not the same for someone who has schizophrenia, which can be defined as having disorganized thoughts, delusions, and audio, and/or visual hallucinations rather than IQs of 69 or below. With no clinical experts available at SSA’s Compliance Unit and little flexibility, the process has become frustrating and slow, showing that the SSA needs to make systemic changes to serve people with mental or neurological disabilities effectively.

[1] The truth is that they do have psychiatrists at SSA because they have what is known as listings, which are specific impairments, including schizophrenia, intellectual disability, and neurocognitive impairments.

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant’s disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney’s fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF’s educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.