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.



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