Autism Spectrum Listing a Challenge
Autism was included as a unique impairment in the 2017 amendments to the Mental Health Listings of Impairments. It is likely that the increasing number of claimants suffering with autism diagnoses motivated the addition of this subsection.
The Listing, however, only identifies the most severe symptoms that no one could seriously debate as totally disabled from work activity. As with all mental health listings, the Autism listing is divided into A and B criteria. The “A” section describes what is required to prove the diagnosis, the “B” criteria describes the functional limitations required for eligibility.
Section 12.10(A) requires “both”: qualitative deficits in verbal communication, nonverbal communication, and social interaction; and significantly restricted, repetitive patterns of behavior, interests, or activities.
Then, someone who meets those severe standards, still must prove a “marked” limitation in two of the four B criteria, or an “extreme” limitation in one. 12.10(B) states: B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: Understand, remember, or apply information; interact with others, concentrate, persist, or maintain pace; and/or adapt or manage oneself.
In the “real world” parents, doctors, social workers and counselors will easily recognize and document people who have qualitative deficits in communication and social interaction along with significantly restricted and repetitive patterns of behavior. It is hard to imagine that any person meeting the difficult “A” criteria, would not also meet the “B” requirement.
However, that does not cover the vast bulk of people with autism needing disability assistance. Often the symptoms are far more subtle, but equally limiting.
The explanatory language to the Mental Health listings notes that Autism may cause a variety of other symptoms. These could include impaired cognitive skills; unusual responses to sensory stimuli and a variety of behavioral difficulties impacting attention span, impulsivity, aggressiveness and self-injury. Problems focusing and sustaining attention, and easy distractibility, would also make work difficult. While none of these symptoms is reflected in the Listing, they need to be documented and proven to Social Security.
We often see claimants whose families stopped treating with doctors because “nothing can be done anyway.” However, those doctor notes and observations can be critical to proving eligibility for benefits. Similarly, social worker notes, school records, therapists’ records and family observations are all useful in preparing an application and for a hearing before an Administrative Law judge.
As a representative, we gather all of this information to create a more robust description of our client and the symptoms and limitations. While this may not meet the requirements of Listing 12.10, if we can prove that the residual functional capacity of our client is so limited by these symptoms that no sustained work activity exists, then we can get benefits approved.
APRIL IS AUTISM AWARENESS MONTH
Much of the success of our representation depends upon the community of family, friends, therapists, counselors, physicians and other providers of care to our clients. Your referrals of people that need this assistance are valued by our law firm. We treat each client as an individual in need who deserves our professional legal advice. If we can support your work with a training or in-service at your office to discuss these issues, please do not hesitate to give us a call.