The new SSI child disability rulings

JOA · Joined: 13 May 2004 Posts: 2021

There are six new rulings out Tuesday, all on evaluating disability for SSI child claims. The list that's at the end of SSR 09-1p makes it plain that these six are part of a package of eight. The two that aren't out yet are about "Documenting a Child's Impairment-Related Limitations" (SSR 09-2p) and "Attending and Completing Tasks" (SSR 09-4p).

(I am posting no links. I am depending on Paul Nolan to do this first thing tomorrow morning.)

When we get the complete set, we'll have two general rulings plus six more rulings that are specific to each of the six areas of functioning that are part of determining functional equivalence. But it's clear enough from what's in SSR 09-1p that what we won't have is anything specific about what counts as a marked limitation. There is, 09-1p says, "no set formula" about this.

A general impression is that these rulings set out examples of the activities that go into each functional area that are somewhat more extensive than similar lists in the regulations. A second general impression is that the rulings include a considerable amount of discussion not found elsewhere of how to parse out the different functional areas.

A first reading that doesn't attend to all details yields these additional impressons:

1. SSR 09-1p includes two profile/examples of a functional equivalent analysis that are likely going to be useful, one for ADHD, the other for BIF.

2. There's some language in SSR 09-1p that I expect will be subject to some and maybe considerable future misinterpretation. This language is about how if there is "no evidence to the contrary, we conclude that the [medically determinable] impairment (s0) cause the activity limitations we have identified in each domain." I do not read this as a free pass for all alleged functional limitations. I read it instead as a restatement of the same Luna-style "loose nexus" standard the regulations set out for the first of the two steps for evaluating statements about symptoms.

3. The new rulings include repeated statements that it doesn't count as "double-weighting" to conclude that a single impairment presents itself in terms of limitations in multiple areas of functioning.

4. The new rulings include repeated footnotes that restate the policy familiar in this form: episodic impairments need to be evaluated longitudinally, in terms of evidence over time.

5. The new rulings also include multiple statements of a duty-to-develop character: when there are problems suggesting an impairment "that has not been alleged or has not yet been diagnosed," then adjudicators "shore pursue any indications that an impairment(s) may be present" (e.g., SSR 09-7p).

6. At footnote 11, SSR 09-7p says that "[w]e do not consider a child responsible for failing to follow prescribed treatment." This is familiar from internal policy statements. But just right off, I can't recall seeing this in the regs or rulings—before now.

7. At footnote 12, SSR 09-12 includes a tidbit that will be new to many of us that "psychomotor retardation" has a special meaning as a term of art for pediatricians and developmental specialists that's different from what psychiatrists and psychologists mean by it.

A last comment is about my particular disappointment that the new rulings, or at least the first six, don't comment on how one is to evaluate assessment of school performance---meaning grades—is special education classrooms versus mainstream classrooms.

JOA · Joined: 13 May 2004 Posts: 2021

I've had a second though on comment no. 2 about, about the language in SSR 09-1p that "when there is no evidence to the contrary, we conclude that the impairment(s) cause the activity limitations we have identified in each domain. I think now that this is aimed at the reasoning sometimes encountered inside SSA that poor functioning is related not to the medically determinable impairments but rather to poor effort and/or poor parenting. Actually, this kind of reasoning sometimes extends to the idea that a parent is faking by proxy—is coaching the child.

We live in a fallen age. Surely cheating isn't confined only to Wall Street. After all, there's a steady trickle of criminal convictions for individuals who defraud or attempt to defraud the disability program. So I don't deny that a parent might try some kind of coaching or similar behavior. But by memory, back in the immediate post-Zebly era this kind of suspicion was so common that SSA undertook to study it, but without finding much of any evidence for it.

David Traver · Posted: Tue Feb 17, 2009 04:26 pm Post subject:

Please provide links or other data regarding the studies, if possible.

Thanks.

Sandy Fambrough · Joined: 30 Jan 2005 Posts: 248 Location: Dallas TX

SSA may not have found anything on a large scale but I can tell you from personal experience it did happen. I was hired by the Louisiana DDS in 1991 as a direct result of the Zebley ruling. Louisiana had the second highest number of Zebley cases to adjudicate. While I never had to actual work a Zebley case (thank goodness!), we did see claims for SSI on children where it was quite evident something fishy was going on. The child would have been doing well in school and then - WHAM - now the child is acting up, failing, etc. I recall one c/e report in which the child reported that the parent had coached him on acting 'crazy' to get benefits. I also recall speaking with a claims rep at one of the local office who said people were filing claims alleging Zebley disease.

When I left DDS, half my caseload was SSI kids. What finally did it for me was receiving a claim on a child who was in my son's kindergarten class. The only issue this child really had was that his parents taught him nothing before he entered school so he was behind all the other kids. He also had some expressive language deficits. When I had to allow that claim, I knew it was time to go.

David Traver · Posted: Tue Feb 17, 2009 05:11 pm Post subject:

Sandy, I really think that kind of anecdotal "evidence" is not helpful at all to the disabled. What is missing is a comparison to the other thousands of meritorious claims that passed through your office when you worked at DDS. We tend to remember the extreme cases while the rest of the herd goes past in an unremarkable fashion. This results in an extreme observational bias that can be devastating.

DDS in Wisconsin took this awful logical error to an extreme. They started referring "suspect" cases to psychologists to investigate for "malingering." What did they get? One psychologist found that every minority person presented for "malingering evaluation" was malingering or did not give "full effort" on testing. What a surprise! It took me almost five years and the help of the NAACP and Senator Feingold to stop that hideous mistake. Happily, the "malingering" psychologist will never perform another psychological evaluation for DDS in Wisconsin. Hopefully, DDS in Wisconsin learned something from that disaster. Sadly DDS did not undo the errors in the thousand-plus cases where benefits were improperly denied.

So, watch out for your blind spots. They are killers.

Sandy Fambrough · Joined: 30 Jan 2005 Posts: 248 Location: Dallas TX

I have never understood why a child would get a check for being deemed disabled. For adults the idea is to replace wages as the adult is not able to sustain full time employment. But children - what is the money for? Give them medical treatment, counseling, therapy, etc. But a check?

I recall many times having to deny an adult claim but completely disagreeing with it. I would call the claimant and strongly encourage him/her to file an appeal.

There was a lot of politics when I was there and based on my current experience as a representative, think this it is still true.

David Traver · Posted: Tue Feb 17, 2009 05:37 pm Post subject:

A little time volunteering in a pediatric cancer ward or pediatric psychiatric hospital should answer that question for you. Or, adopt a special-needs child. There are a lot of them out there that need support. That should do the trick.

Of course you may already have a special needs kid, or do that kind of work. I don't mean to presume that you don't have that kind of experience. My point is, however, that having a special needs kid is a huge burden to families. They need medical and financial help.

For example, my older sister was (and still is) very disabled. She needed repeated surgeries every year when I was growing up. We had to sell our house at one point to pay the bills. It set us back a lot and there were times when my siblings and I had to go collect bottles for the deposits to buy the evening meal. Poverty really sucks. Poverty with a handicapped family member to help sucks even more. Poverty with two handicapped family members is an absolute disaster. I know, I've been there.

JOA · Joined: 13 May 2004 Posts: 2021

MY memory is that the COSS issued a public letter about the results of a study about faking/coaching about 15 years ago. On the time I can spare, I can't find a copy, either paper or digital. I did find a 14-year-old internal document that although about something else, included this language:

David Traver · Posted: Tue Feb 17, 2009 09:16 pm Post subject:

Many thanks.

David Traver · Posted: Wed Feb 18, 2009 04:58 am Post subject:

Added to the quick list
http://ssaconnect.com/content/view/107/169/