The Standard for Proving Your Child is Disabled

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Child’s Disability Cases are Very Complicated and the Legal Standard is Far Different from Adult Disability Cases

To be found disabled, within the meaning of sections 1602 and 1614(a)(3)(C) of the Social Security Act (“Act”) the child must suffer from a medically determinable physical or mental impairment (or combination of impairments) that results in marked and severe functional limitations, and that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months.  To result in marked and severe functional limitations, the impairments must meet or medically or functionally equal the requirements of a listing in the Listing of Impairments in appendix 1 of subpart P of the Social Security regulations.

Every child is unique, so the effects of an impairment on a child may be different from the effects the same impairment may have on another child.  Therefore, SSA “will try to get information from people who can tell us about the effects of your impairment(s) on your activities and how you function on a day-to-day basis” including parents, teachers and other caregivers.  20 C.F.R. § 416.924a(a)(2).  Teachers may be asked about a child’s functioning “on a day-to-day basis compared to other children . . . who do not have impairments.”  20 C.F.R. § 416.924a(a)(2)(iii).

SSA “will consider all the evidence we receive from your school, including teacher questionnaires, teacher checklist, group achievement testing, and report cards.”  20 C.F.R. § 416.924a(b)(7)(ii).

The child’s functioning is to be compared “to the activities of children your age who do not have impairments.  20 C.F.R. § 416.924a(b)(3)(i).  The standards used by the person providing the information will be considered when evaluating reports of a child’s functioning.  20 C.F.R. § 416.924a(b)(3)(ii).

“Children may function differently in unfamiliar or one-to-one settings than they do in their usual settings at home, at school, in childcare or in the community.  You may appear more or less impaired on a single examination (such as a consultative examination) than indicated by the information covering a longer period.”  20 C.F.R. § 416.924a(b)(6).  When assessing limitations in functioning, we should not look to the maximal level achieved by a child in a special situation, but to the typical performance of a child in routine situations. The child’s behavior should be compared with the behavior of unimpaired children in typical, routine, day-to-day situations.

It is not sufficient to assess behavior in a one-to-one situation (such as in a one-to-one testing situation), or in a novel situation such as a psychological CE, and infer that the child’s behavior in that instance is reflective of behavior in all situations, especially when other information in file reflects other kinds of behavior.  “We sill not draw inferences about your functioning on other situations based only on how you function in a one-to-one, new, or unusual situation.”  Id.

The assessment from a “one-time-CE” does not generally outweigh other significant information in file. The CE provider is already dealing with a very difficult task in assessing a child based on one visit, one interview.  The situation itself is artificial. The child is taken out of his/her usual environment, taken to a completely different environment, and expected to interact with an adult who is more than likely a stranger to the child. It is to be expected that some children with serious problems will manage to hide or control those problems during the CE. To minimize potential inconsistencies, the CE provider must be furnished with background information prior to the CE…. This is also a situation when a test of adaptive functioning may warrant serious consideration (emphasis in the original).  SSA Office of Disability, Childhood Disability Evaluation Issues (SSA Pub. No. 64-076, March 1998) at pp. 136-37.

“No single piece of information,” such as test scores, “taken in isolation can establish whether,” a child has, “a ‘marked’ or an ‘extreme’ limitation in a domain.”  20 C.F.R. § 416.926a(e)(4).  See also 20 C.F.R. § 416.924a(a)(1)(ii).

Adaptations.  SSA must consider, in assessing the severity of functional limitations, the amount of help or adaptations a child requires and the impact of structured or supportive settings. In so doing, the ALJ is to consider the following: a) the range of activities a child does; b) the child’s ability to do them independently, including any prompting the child requires to begin, carry through, and complete those activities; c) the pace at which the child does those activities; d) how much effort the child needs to do those activities; and e) how long the child is able to sustain such activities.  20 C.F.R. § 416.924a(b)(5)(i).

Extra help.  “Children are often able to do things and complete tasks when given help, but may not be able to do these same things by themselves.  Therefore, we will consider how much extra help you need, what special equipment or devices you use, and the medications you take that enable you to participate in activities like other children your age who do not have impairments.”  20 C.F.R. § 416.924a(b)(5)(ii).

Structured or supportive setting.  A child with a serious impairment(s) may spend some or all of his or her time in a structured or supportive setting beyond what a child without such an impairment(s) normally requires. The ALJ must consider how that child would function outside of the structured or supportive setting.  A “structured or supportive setting” as any of one of the following:  the child’s home in which family members or other people (e.g., visiting nurses or home health workers) make adjustments to accommodate the child’s impairment(s); the child’s classroom at school, whether it is a regular classroom in which the child is accommodated or a special classroom; and a residential facility or school where the child lives for a period of time.  20 C.F.R. § 16.924a(b)(5)(iv)(B).

A structured or supportive setting may minimize signs and symptoms of the child’s impairment(s) and help to improve his or her functioning while he or she is in it, even though the child’s signs, symptoms, and functional limitations might worsen outside this type of setting.  As a result, SSA considers the child’s need for a structured setting, and the degree of limitation in functioning that the child has or would have outside the structured setting.  20 C.F.R. §§ 416.924a(b)(5)(iv)(C), (D), (E).

 

Three and One-Half Step Sequential Evaluation Process

(Pursuant to 20 C.F.R. Section 416.924)

Step One:  Engaged in Substantial Gainful Activity?

The child has never performed substantial gainful activity.

Step Two:  Severe Medically Determinable Impairment?

The child has the following impairments which, either alone or in combination, are considered to be “severe” under the Social Security Act and Regulations:  attention deficit hyperactivity disorder (“ADHD”); depression; oppositional defiant disorder; high blood pressure; and kidney problems.

Step Three:  Meet or Medically Equal the Listings of Impairments?

The child’s impairments meet or equal the Listings of Impairments (20 C.F.R. Part 404, Appendix 1 to Subpart P).

Step Three and One-Half:  Functionally Equal the Listings of Impairments (Pursuant to 20 C.F.R. Section 416.926a)

The child’s condition also functionally equals the listings.

There are new rules for determining functional equivalence (65 Fed. Reg. 54747 (Sept. 11, 2000) (effective January 2, 2001).  The new rules apply to all claims pending at any administrative level as of January 2, 2001.  Thus, they apply in this case.

The definition of listing level severity has not changed:  A child claimant still needs “marked” limitations in two domains, or “extreme” limitations in one domain.

Definition of “marked and “extreme” levels of impairment in functioning or development (20 C.F.R. section 416.926a(c)(3))

The definition of “marked” and “extreme” levels of impairment are as follows:

The definition of “marked” or “extreme” remains the same for the purposes of standardized testing:  Standardized test scores at least two (but less than three) standard deviations (“SD”) below the norm constitute a “marked” impairment; three SD or more below the norm constituted “extreme impairment.

However, the other definitions of “marked” and “extreme” have been changed.  For children from age 3 to 18th birthday, a “marked” limitations now means an impairment or impairments that “interferes seriously with your ability to independently initiate, sustain, or complete activities.”

“Extreme” limitation “interferes very seriously.”  “Extreme” no longer requires no meaningful function, and “does not necessarily mean a total lack or loss of ability to function.” “more than moderate” and “less than extreme” limitation is considered “marked”; and “extreme” limitation means “no meaningful function in a given area.”

Combined effects of multiple impairments are now called “interactive and cumulative effects,” and may result together in a single limitation, and any single impairment may cause limitations of functioning in more than one domain.  Most importantly, a “marked” limitation may result when an impairment or impairments limits only one activity or when the “interactive and cumulative effects of impairments limit several activities.”

“Broad areas of development or functioning” (20 C.F.R. section 416.926a(C)(4))

The so-called “domains” have also been changed.  One has been added (“Health) and the other five have been reorganized.  Now the six relevant areas of development or functioning to assess are as follows:

  1. Health and physical well-being (a new domain added to evaluate the physical effects of both physical and mental impairments);
  1. Acquiring and using information (the old “Cognition and Communication” domain);
  1. Attending and completing tasks (“Concentration, Persistence or Pace”);
  1. Interacting and relating with others (“Social”);
  1. Moving about and manipulating objects (“Motor”); and
  1. Caring for yourself (“Personal”).

Factors which must be considered in evaluating a childhood disability claim and the severity of impairments (20 C.F.R. section 416.924c

The so-called “other factors” are now more important to functional analysis, and the word “other” was thus deleted from the children’s disability regulation.  These factors are now integral to functional analysis, and have been clarified as follows:

  1. Symptoms, e.g., pain, fatigue, decreased energy, anxiety;
  1. Age-appropriate functioning;
  1. Combined effects of multiple impairments;
  1. Ability to initiate, sustain and complete activities, including the amount of help or adaptions needed and the effects of structured or supportive settings.  The word “highly” was deleted from “supportive settings” to clarify that a child’s functioning in all settings should be considered.  Also, the circumstances of school attendance, including the ability to function in a regular classroom and that good performance in a special education setting does not signify the same level of functioning by non-impaired children in a regular classroom;
  1. Unusual settings, such as performance in special situations such as a consultative evaluation or other one-on-one situation;
  1. Early intervention and school programs, such as special education, attendance and participation;
  1. Impact of chronic illness and limitations that interfere with activities over time; and
  1. Effects of treatment, including medication and other types of therapies.

Every child is unique, so the effects of an impairment on a child may be different from the effects the same impairment may have on another child.  Therefore, SSA “will try to get information from people who can tell us about the effects of your impairment(s) on your activities and how you function on a day-to-day basis” including parents, teachers and other caregivers.  20 C.F.R. § 416.924a(a)(2).  Teachers may be asked about a child’s functioning “on a day-to-day basis compared to other children . . . who do not have impairments.”  20 C.F.R. § 416.924a(a)(2)(iii).

SSA “will consider all the evidence we receive from your school, including teacher questionnaires, teacher checklist, group achievement testing, and report cards.”  20 C.F.R. § 416.924a(b)(7)(ii).

The child’s functioning is to be compared “to the activities of children your age who do not have impairments.  20 C.F.R. § 416.924a(b)(3)(i).  The standards used by the person providing the information will be considered when evaluating reports of a child’s functioning.  20 C.F.R. § 416.924a(b)(3)(ii).

“Children may function differently in unfamiliar or one-to-one settings than they do in their usual settings at home, at school, in childcare or in the community.  You may appear more or less impaired on a single examination (such as a consultative examination) than indicated by the information covering a longer period.”  20 C.F.R. § 416.924a(b)(6).  When assessing limitations in functioning, we should not look to the maximal level achieved by a child in a special situation, but to the typical performance of a child in routine situations. The child’s behavior should be compared with the behavior of unimpaired children in typical, routine, day-to-day situations.

It is not sufficient to assess behavior in a one-to-one situation (such as in a one-to-one testing situation), or in a novel situation such as a psychological CE, and infer that the child’s behavior in that instance is reflective of behavior in all situations, especially when other information in file reflects other kinds of behavior.  “We will not draw inferences about your functioning on other situations based only on how you function in a one-to-one, new, or unusual situation.”  Id.

The assessment from a “one-time-CE” does not generally outweigh other significant information in file. The CE provider is already dealing with a very difficult task in assessing a child based on one visit, one interview.

The situation itself is artificial. The child is taken out of his/her usual environment, taken to a completely different environment, and expected to interact with an adult who is more than likely a stranger to the child. It is to be expected that some children with serious problems will manage to hide or control those problems during the CE. To minimize potential inconsistencies, the CE provider must be furnished with background information prior to the CE…. This is also a situation when a test of adaptive functioning may warrant serious consideration (emphasis in the original).  SSA Office of Disability, Childhood Disability Evaluation Issues (SSA Pub. No. 64-076, March 1998) at pp. 136-37.

“No single piece of information,” such as test scores, “taken in isolation can establish whether,” a child has, “a ‘marked’ or an ‘extreme’ limitation in a domain.”  20 C.F.R. § 416.926a(e)(4).  See also 20 C.F.R. § 416.924a(a)(1)(ii).

Adaptations.  SSA must consider, in assessing the severity of functional limitations, the amount of help or adaptations a child requires and the impact of structured or supportive settings. In so doing, the ALJ is to consider the following: a) the range of activities a child does; b) the child’s ability to do them independently, including any prompting the child requires to begin, carry through, and complete those activities; c) the pace at which the child does those activities; d) how much effort the child needs to do those activities; and e) how long the child is able to sustain such activities.  20 C.F.R. § 416.924a(b)(5)(i).

 

Extra help.  “Children are often able to do things and complete tasks when given help, but may not be able to do these same things by themselves.  Therefore, we will consider how much extra help you need, what special equipment or devices you use, and the medications you take that enable you to participate in activities like other children your age who do not have impairments.”  20 C.F.R. § 416.924a(b)(5)(ii).

Structured or supportive setting.  A child with a serious impairment(s) may spend some or all of his or her time in a structured or supportive setting beyond what a child without such an impairment(s) normally requires. The ALJ must consider how that child would function outside of the structured or supportive setting.  A “structured or supportive setting” as any of one of the following:  the child’s home in which family members or other people (e.g., visiting nurses or home health workers) make adjustments to accommodate the child’s impairment(s); the child’s classroom at school, whether it is a regular classroom in which the child is accommodated or a special classroom; and a residential facility or school where the child lives for a period of time.  20 C.F.R. § 16.924a(b)(5)(iv)(B).

A structured or supportive setting may minimize signs and symptoms of the child’s impairment(s) and help to improve his or her functioning while he or she is in it, even though the child’s signs, symptoms, and functional limitations might worsen outside this type of setting.  As a result, SSA considers the child’s need for a structured setting, and the degree of limitation in functioning that the child has or would have outside the structured setting.  20 C.F.R. §§ 416.924a(b)(5)(iv)(C), (D), (E).

Posted on: January 17, 2017 in Tips for Claimants, Uncategorized,

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