I was asked a question about arrest and disability and I wrote the following in response

[happyslug]

The person who asked me about the arrest and disability had a close relative in Jail for fighting. That relative has a long history of disability and is in the middle of applying for Social Security Disability, I wrote the following:

Before I go on, I see you have been sent a "Adult Function Report" by your State's "Disability Determination Services" (Often called the" BDD" of the "BDD" see my side note below). That implies that your son is under "Reconsideration" NOT a review by a Federal Administrative Law Judge (ALJ),

When Social Security Disability was added to the Social Security Act in 1954, the Social Security Administration (SSA) set up a process to evaluate claims. People make an initial application (Which in the case of your son was denied), then make a request for reconsideration (Which was a review by the same agency that made the first determination) then if denied again (and most times it was) you applied for a Hearing in front of a Administrative Law Judge (An agent of the Federal Government).

In the early 1970s, Congress added Supplemental Security Income (SSI). SSI is covered under Title XVI of the Social Security act as amended. SSI covers those people who can NOT work, but are NOT eligible for Social Security Disability do to a lack of work history, or a work history that does NOT provide Social Security in excess of the "Standard of Need" which in 2012 is $698 plus whatever your state supplements it with. As part of adding Title XVI (SSI) to the Social Security act, Congress also added language that relied on the above process when applying for Social Security Disability.

In the early 1990s, SSA decided to "streamline" the application process, by eliminating the Reconsideration stage. The problem was not a problem as to Social Security Disability which is under Title II of the Social Security Act, for Title II does not mention the above administrative system and thus SSA could drop Reconsideration for Social Security Disability with no problems.

The problem was the SSI program. Title XVI of the Social Security Act, which covers SSI, expressly mentioned the then existing Reconsideration stage and thus made it a product of Statute not Regulations and only Congress can change a Statute. Thus for Social Security Disability you do NOT have a right to go through the Reconsideration process (For SSA has dropped it administratively), but all SSI applicants must go through the Reconsideration process (For to drop it for SSI, requires an act of Congress). Since you apply for one you automatically apply for the other, if you MAY be eligible for SSI, you will go through the Reconsideration Process.

I bring this up for the "Adult Function Report" of your State's "Disability Determination Services" is something done at the initial application level or upon reconsideration. Thus I know where the Claimant (The name SSA gives to anyone who applies for Social Security or SSI) is in the application process. The Claimant is at the Reconsideration stage of the application process. At Reconsideration his application will be reviewed by the same people who rejected before.

My experiences with the Reconsideration Process is that it is a waste of time. This was true BEFORE SSA dropped it in the 1990s for Social Security Applications, and remains true to this day. The reason it is a waste of time is that almost every time the BDD will uphold what was the initial decision. Prepare your self for that decision. When the Claimant is denied at the Reconsideration Level the Claimant can then request a hearing in front of an Administrative Law Judge (ALJ). ALJ's can and do reverse prior decisions of the BDD by about 50-80% of the cases.

On the other hand, the ALJ does not have a budget to develop the record, that is the job of the BDD. Thus I would advise anyone to give the BDD everything I can get to them, any arrest record, any medical care while in Jail, any medication, any doctor or other medical source. etc. When in doubt give it to the BDD.

I would have you fill out the Adult Function Report, including any problem the Claimant has. My attitude is no matter how badly you fill it out, I can fix it at the ALJ hearing. I would prefer if the Claimant fills it out, but get it to your BDD office along with a list of the Claimant's medications, any side affects, any doctors (Whether you have told BDD of them or not) and any other place where the Claimant has had medical treatment. Remember at the BDD level, the BDD has the duty to get the records, all you have to do is tell them where the records are. . At the BDD level SSA is more concern about what the Doctors are saying NOT what is reported by the Claimant, thus it is more important to tell the BDD where the Claimant has gone for any medical care then anything else.

As to the time in Jail, I have had several cases where my Clients had spent time in Jail. The issue is NOT that the client spent time in jail, but why? I have had clients who has spend time in Jail. Jail time is even mentioned in some of the "Listings" of impairment when it comes to mental impairments. Thus being in Jail does NOT harm the Claiamant's case, it might even help the Claimant's claim for Disability, based on WHY he was in Jail.

Now, if he is in Jail for some crime that shows an ability to do regular work that is different, but such crimes tend to be Drug dealing and other similar illegal retail operations, NOT fights.

This case is the classic case where someone has to go to the Administrative law Judge (ALJ) level so a Judge can hear the case and where a Vocational Expert (VE) can testify what jobs such a person can and can not do. The Vocations Expert (VE) can also testify as to the minimum on task performance an employer expects of an employee (i.e. NO fights, no arguments with Supervisors, co-workers and Clients/Customers, showing up for work, doing work from beginning to end, doing the work as it is suppose to be done etc).

A big issue is how often does the claimant see the Claimant's psychologist? And I mean not only the Claimant's visits to a Psychologist, but anyone else in that office such as a counselor or a therapist. I ask this question for given the heavy medication load, I suspect the Claimant is seeing a medical person (A Doctor, a Psychologist, Psychiatrist, Therapist, nurse etc) more then once a month. If that is the case any Vocational Expert (WE) will rule that is a person has to miss more then two days a month for sickness, every month. such a person is unemployable do to the frequency of the medical visits.

I also would look into what we in Pennsylvania call "Partial hospitalization Program". That is when a person goes to "Classes" at the local Mental Health office anyway from two to five days a week. Each class day can be as short as one hour, but most are about six hours. These classes are to help people with mental problems learn how to interact with the public. People in the "Partial hospitalization Program" are NOT employable do to the fact they are in "Class" three to five days a week.

Now, the drinking is a problem. Social Security has a rule that if someone would be ruled NOT disable except for the Claimant's alcohol and/or drug addiction, such a Claimant is NOT disabled and thus NOT eligible for Social Security or SSI. Thus the Claimant going through Re-hab should show how much the drinking is affecting the Claimant's day to day living activities. Social Security is going to find out about the drinking anyway so I would report it.

Now, while in Jail (or other "Institution" an broad term to cover Jails, Prisons and Mental Hospital) a person can NOT get Social Security or SSI, but only while he is in Jail or some "other Institution". If the Claimant gets an Attorney through Legal Aid (Which I do recommend) they can NOT represent the Claimant while the Claimant is in Jail, but once the Claimant is out of jail, Legal Services can represent the Claimant.

In my opinion there is no need for an attorney until you request a hearing. Do NOT wait to see an attorney before you file an appeal, I tell my clients, if denied, file the request for a hearing then look for an attorney. The sooner an request for a hearing is filed, the sooner the Claimant will get a hearing. Thus do NOT wait to see an attorney first, make the request for a hearing (It is a one page form) and then look for an attorney.

Side note: People tend to think of Social Security being a FEDERAL PROGRAM, it is NOT. President Franklin D. Roosevelt (FDR) when he had Congress pass the Social Security Act, did two separate things at the same time in passing the Social Security Act:

First FDR had Congress set up the Social Security tax, for it is clear under the US Constitution that Congress has the right to TAX, thus the Social Security Tax has never been or can be questioned.

Second, FDR then had Congress pass the Social Security Act, that permitted the Federal Government to set up a Social Security Program IF EACH STATE GAVE THE FEDERAL GOVERNMENT THE STATE'S POWER TO DO SO. i.e. legally Social Security is a State program run by the Federal Government as an agent of the state. Thus Social Security can NOT be ruled to be an unconstitutional grab of power by the Federal Government, every state has the right to drop out of it, thus no state has standing to fight the constitutionality of the Social Security Act.

Now, every state to this day can drop out of the Social Security Program by withdrawing its grant of power to the Federal Government to set up the Social Security program. No state has ever done so, for while the State can STOP Social Security from paying benefits to residents of that state, the Federal Government's Social Security tax is independent of that grant of authority. i.e a State can drop out of Social Security, but its residents still have to pay the Social Security tax even as no one gets any Social Security benefits. Thus no state will ever withdraw its grant of power to the Federal Government in regards to Social Security. While such a withdraw is legally possible, the State that passes such a law will have to answer to a lot of elderly residents asking WHY.

I bring this up for you will hear people call the "Disability Determination Services" the "State Agency", the reason for that is to maintain the image of Social Security being a "State" not a "Federal" program, FDR permitted the states to do a lot of the initial work on who can be on Social Security. One part of this is the "Disability Determination Services" employees are hired by the State through that State's Civil Service system (Having a Civil Service System is also part of the Social Security Act). Thus the "Disability Determination Services" is often called the "State Agency" for it is a branch of the State Government not the Federal Government even through it deals exclusively with Social Security.