I don't care if I am disabled I want to marry

This blog is a fork in the road that appears after winning a decision of disability for a client. What problems can arise, miles down the road, especially if the claimant suffered a serious mental disorder?

Assume that you or someone else was successful and the claimant was found disabled. He suffers from bipolar I or II, (or some other mental impairment). He has significant problems, so much so that a guardian has been appointed to handle all of his day to day obligations and he lives in a group home setting.

The group home in which claimant lives allows him to be some what independent, in that, he can come and go as he wants, with permission. Has free access to people in the home and outside the home. He even has the right to overnights with women with whom he formed a 'relationship', out side of the home.

With this freedom he has found the love of his life and wants to get married. The guardians say no and the matter end up in court to determine if the claimant is allowed to marry.

THE MINNESOTA COURT OF APPEALS delivered an opinion on May 27, 2014 (A13-1348) that give guidance on what must be proven and who has the burden of proof --

 "(W)e hold that the standard for a ward's competency to marry is that he understands the meaning, rights, and obligations of marriage. See, e.g. Martin v. Martin, 26 So.2d 901,901 (Fla.1946 Chapman, C.J., concurring) ("The mental capacity requisite to a valid marriage is a capacity to understand the nature of the contract and the duties and responsibilities it creates."); Elfont v. Elfont, 157 A. 741, 746 (Md. 1932) ("Every variation from a normal mental condition is not in itself enough to avoid the marriage contract.  the mental defect or derangement must be one having a direct bearing upon such contract. If the party entering the marriage relation has sufficient capacity to understand the nature of the contract and the duties and responsibilities which it creates, the marriage will be valid.") Johnson v. Johnson,  104 N.W.2d 8, 14  (N.D. 1960)("It seems that the best accepted test as to whether there is a mental capacity sufficient to contract a valid marriage, is whether there is a capacity to understand the nature of the contract and the duties and responsibilities which it creates." (quotation omitted))."

"We also hold that the burden of proof is on those opposing the ward's competence to marry."

I am happy with the decision.  The case was appealed because of the lack of guidance in this area.  We now have guidance and the case will proceed to another hearing.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

Fetal Alcohol Syndrome and Disability

This blog may seem a little disjointed, but the subject matter doesn't present an easy road map to success.

Fetal alcohol syndrome (FAS) is not a single birth defect. It is a cluster of related problems that occur due to the mother drinking alcohol while pregnant. There is no measure as to the amount of alcohol consumed by the mother during pregnancy, and a child suffering FAS. The effects on a child due to the mother's substance abuse can vary greatly from child to child. There can be no effect, or almost no effect, in one case - and death in a severe case - or anything in between.

It all begins with concerned parents bringing in their daughter/son with concerns over their child's ability to support themselves because they have been unsuccessful in holding a job, socializing, have a low IQ, always been in special education etc.  The parents will describe symptoms or the medical records will record symptoms such as:

• poor coordination, which may delay abilities such as riding a bike
• poor fine motor skills, including poor handwriting skills
• speech and language delays
• developmental issues, including low height and weight for age
• epilepsy
• lack of imagination or curiosity
• LOW IQ
• sensory problems, including overreaction or under reaction to stimulus
• learning difficulties, including memory problems, difficulty understanding concepts, poor problem-solving skills, poor language comprehension, and poor reasoning and judgment skills,
• poor socialization skills, including difficulty making and keeping friends or feeling part of a group

What makes this situation all the more difficult is that although Social Security does have a disability listing that addresses impairments that affect multiple body systems, it does not list FAS as a specified impairment in that listing. In an attempt to win Social Security benefits, it requires the claimant suffering with FAS to present evidence of impairment under specific listings for the affected body systems.
For the child to meet one of the disability listings, there must be medical evidence that shows the child meets all of the requirements of a listing or the child's condition must be considered medically equivalent to a listing. What is necessary to show that your child's limitations medically or functionally equal to a listings? The child must show a marked limitation in two areas of functioning or an extreme limitation in one area. (Marked limitations seriously interfere with your child's ability to function, while extreme limitations very seriously interfere with your child's ability to function.)

There must be demonstrated by evidence, medical and otherwise that the child’s ability to function in the following six areas is seriously impaired:

• acquiring and using information
• attending and completing tasks
• interacting and relating with others
• moving about and manipulating objects
• caring for himself or herself, and
• health and physical well-being.

Why is this important? Social Security wants to know how a child functions in these areas compared to other children who are the same age. What is the child's ability to care for him or herself? Mental problems, including speech and language delays, low IQ, learning disabilities, difficulty concentrating and hyperactivity, memory problems, difficulty understanding concepts, poor problem-solving skills, poor language comprehension, and poor reasoning and judgment skills, are things that can adversely effect a child’s ability to acquire information and complete tasks appropriate for their age.
Further, emotional problems, including poor awareness of personal boundaries, poor anger management, socialization skills, poor impulse control, stubbornness, and anxiety, which many times adversely affects the child’s ability to interact with others and to complete tasks that others their age could complete without assistance.

There is a tendency for FAS symptoms to become worse as the child grows older, especially behavioral symptoms. As the child ages, questions of ability to be competitively employed arise. There is no cure for FAS. The best is treatment based upon individual symptoms.

A typical case could involve a child who is now a younger individual applying for social security benefits. He has had several small jobs, but has been unable to keep a job but for a short period of time. He finds himself being terminated for poor accountability, anger toward fellow employees etc.  A review of the claimant's educational records show that through high school and maybe into college, he was in a special education program. You see Claimant's education was based upon an Individualized Education Program (IEP). What is an IEP?

An Individualized Education Program (IEP) describes the educational program that has been designed to meet that child's unique needs.  Each child who receives special education and related services must have an IEP. This is so, because IEP's are mandated by the Individuals with Disabilities Education Act. 20 U.S.C. § 1400.  It establishes a plan for an individual student who meets eligibility criteria. (There are 13 disabilities. You can count Sensory disability as 1 or as 3 separate (Hearing, Vision, Deaf-Blind) .

As long as a student qualifies for special education, the IEP must be regularly maintained and updated over the student's primary educational years (i.e. up to the point of high school graduation, or prior to the 22nd birthday). If a student in special education attends university upon graduation, the university's own system and procedures take over.

It is important to obtain claimant's IEP if possible. It will provide insight into what courses were taken, how they were taken, the results and what the results mean.  Many times in reviewing the claimant's case the medical records show FAS, physical impairments such as kidney problems, epilepsy, low IQ, attention problems etc., but the separate impairments do not meet or equal a listed disability.  There is a need to present a whole person presentation to the ALJ. Hopefully, arriving at steps four and five in the sequential evaluation procedure, you are able to prove that the child is disabled or the younger individual cannot be competitively employed. There needs to be good medical evidence; evidence of day to day activities, evidence concerning education, what it was, what it consisted of and what the grades meant. You need to look for evidence of lack of concentration, defects affecting pace and persistence, inability to provide those items that are necessary for competitive employment. These are tough cases. The easy cases never make it to the attorney's door, it is the cases in which benefits have been denied on the initial application or reconsideration that comes to an attorney's attention.



Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

Taxes, Social Security Disability and The IRS

After hard work and preparation, the Administrative Law Judge decides the case in claimant's favor. After a receipt of the award you contact claimant to tell him the good news.  During the discussion the claimant's wife mentioned off hand, “You know, I have a question. My husband hasn't paid taxes in several years and owes the IRS $30,000.00 in back taxes. Will this effect what we will receive?”

The question of the IRS collecting back taxes against a social security award is not an uncommon situation. The answer to that question depends on the present status of the taxes and the IRS collection efforts. First, if the IRS has established the amount of taxes that is owed, it does have a right to collect against social security benefits. Many times the client says they owe taxes but that has not been established. It is just their feeling on the subject. The actual situation needs to be decided.

If money is owing for back taxes, a compromise and settlement may be something to consider.  If the IRS accept such an agreement, the IRS will abide by that agreement. 

A discussion with the IRS disclosing your dire financial condition is many times helpful in saving money from levy, but you need to be proactive. 

If the IRS has established you owe taxes, and there is no settlement agreement it can proceed in by using the Automated Federal Payment Levy Program under which the IRS can take automatically 15% of what is due you each month until paid in full; or worse, it could use the Manual levy, and take all your back payments without limitation (except for subsistence expenses).

Before the IRS can levy under either program, it must give you notice. If you are subject to a levy you will receive a notice from the IRS – if you do not contact the IRS or make payment within 30 days of the date of the notice, the IRS is allowed to levy on your income, i.e. social security disability money.

The IRS may hold off taking social security disability payments if it determines that it would cause an economic hardship or low income. In either case, it can temporarily hold off trying to collect on the debt. This is only a temporary situation and it has ten years (from date is assesses tax to collect), and it can add penalties and interest.

All of this is explained to the claimant and what happens next is that thee claimant talks to friends or 'Googles' the issue and calls you back saying, “Social Security is protected from garnishment. They can't touch my money!!!”

The claimant has found 42 U.S.C. 407, sec. 207 which provides:

“(a) The right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

(b) No other provision of law, enacted before, on, or after the date of the enactment of this section, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.

(c) Nothing in this section shall be construed to prohibit withholding taxes from any   benefit under this title, if such withholding is done pursuant to a request made in accordance with section 3402(p)(1) of the Internal Revenue Code of 1986 by the person entitled to such benefit or such person’s representative payee.”

Subsection (b) by reference allows seizure by the federal government and/or IRS. There are five sections of the law that allow seizure, important to this discussion are the following:


1. 26 U.S.C § 6334(c) of the Internal Revenue Code (26 U.S.C. 6334 (c)) allows benefits to be levied to collect unpaid Federal taxes ( 26 USC § 6331 provides for Levy and 26 USC § 6334 does not provide an exemption from Levy);

2. 26 U.S.C. § 3402(p) of the Internal Revenue Code allows beneficiaries to elect to have a percentage of their benefits withheld and paid to the Internal Revenue Service to satisfy their Federal income tax liability for the current year; and

3. The Tax Payer Relief Act of 1997 (Public Law 105-34) authorizes the Internal Revenue Service to collect overdue federal tax debts of beneficiaries by levying up to 15 percent of each monthly payment until the debt is paid.

(Notwithstanding the foregoing,Supplemental Security Income payments cannot be levied or garnished).

The bottom line is that if you owe back taxes to the IRS, you need to take some action and deal with the issue if you want to protect at least a portion of your back payments and deal with future payments.

If you are in this situation, contacting a tax expert may be worth the cost.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

Bipolar and chemical abuse

Recently Social Security gave notice that SSR 13-2p would rescind and replace SSR 82-60. The change deals with how Social Security is to deal with the issue of a claimant with a claim for disability who at the same time has chemical abuse (alcohol and drugs) issues.

The general statement of the law is that a claimant shall not be considered disabled if chemical use (alcohol or drugs) would be a contributing factor material to the Commissioner’s determination that the claimant is disabled. (Sections 223(d)(2)(C) and 1614(a)(3)(J))

If in the proceedings the claimant is found to be disabled, but is also found to have abused drugs or alcohol the forgoing paragraph must be considered, i.e. then there must be a determination as to whether the claimant would continue to be disabled if he or she stopped using. Put another way, would the claimant still be disabled if he stopped using drugs or alcohol?

When chemical use is an issue, the normal five step sequential evaluation has a sixth step added to it. If found disabled after application of the five step evaluation, the hearing must then determine if claimant’s other impairment(s) improve to the point of non-disability in the absence of drug or alcohol use?

In a prior blog, I talked about this issue in more detail. This issue pops up in many many cases because it has raised so many other issues of interpretation,

The one situation that I want to speak to in this blog is the claimant suffering from bipolar disorder and who has substance abuse issues.

Very often in representing a claimant who suffers from bipolar disorder, I see substance abuse in the medical reports. Is the claimant still disabled when consideration is given to the chemical issues?

I believe that even if chemical abuse is an issue, in most cases the decision should be resolved in claimant's favor, given a prior finding of disability.

When bipolar disorder is involved, there must be consideration given to the effects of the impairment on the claimant. Medical research has shown that bipolar disorder causes substance abuse as a means for relieving symptoms, but there is no evidence that the symptoms of bipolar disorder are triggered by drug and/or alcohol . Consider Kangail v. Barnhart, 454 F.3d 627,629 (7^th Cir. 2006):

“(A)though the medical literature, while noting a positive correlation between the two conditions (bipolar disorder and substance abuse) and speculating that alcohol may trigger bipolar symptoms, does not indicate that the disorder itself can be so caused. American Pyschiatric Association, Diagnostic and Statistical Manual of Mental disorders 187,354 (4^th ed. 1994); Frederick K. Goodwin & Kay Redfield Jamison, Manic-Depressive Illness 219-25 (1990); Willem A. Nolen et al. ”Correlates of 1-Year Prospective Outcome in Bipolar Disorder: Results from the Stanley Foundation Bipolar Network,” 161 Am. J. Psychiatry 1452 (2004); Marcia L. Verduin et al., “Health Service Use Among Persons With Conorbid Bipolar and Substance Use Disorders,” 56 Psychiatric Services 475-76 (2005).

What is clear is the reverse-that bipolar disorder can precipitate substance abuse, for example as a means by which the sufferer tries to alleviate her symptoms. Goodwin & Jamison, supra, at 219-25; Li-Tzy Wu et al., “Influence of Comorbid Alcohol and Psychiatric Disorders on Utilization of Mental Health Services in the National Comorbidity Survey,” 156 Am. J. Psychiatry 1235 (1999); Edward J. Khantzian, :the Self-Medication Hypothesis of Addictive Disorders: Focus on Heroin and Cocaine Dependence.” 142 Am. J. Psychiatry 1259, 1263 (1985).

The Eighth Circuit has held that the burden is on the claimant to prove that drug addiction and /or alcoholism is not material to a finding of disability. Brueggemann v. Barnhart, 348 F.3d 689, 693 (8^th cir. 2003). It is also established that when it cannot be determined whether substance use is a material factor the “…tie goes to (the claimant).”

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.