Children and Disability

Children and Disability

Children are to a parent the most precious thing in the world. Parents live, struggle and agonize with and over their children. When the child is disabled there may be a need to receive social security benefits on the child’s behalf. When parents make an application for benefits for their disabled child they are often mystified and confused when they receive a denial.

There are a couple situations that need to be discussed.  No discussion can do the subject justice because claims involving children are complicated.

If it is an adult child, who is disabled and not able to work, the child may be eligible for social security disability benefits (Title II) if:

1. The child has an insured deceased parent or an insured living parent who is receiving social security benefits for retirement, disability or blindness.
2. The onset of disability must precede the child’s 22^nd birthday.
3. An application is filed before the child attains the age of 23.
4. The disability is established for the child after age 18 but before attainment of age 22.

The situation is much different if dealing with a minor child. In almost all cases the child has no working history, benefits if available at all are payable under Title XVI – Supplement Security Income (SSI) benefits.

The history of benefits for minor children goes back to at least 1973. Prior to 1996, the standard defining childhood disability came out of the original 1973 SSI legislation. It defined childhood disability as “any medically determinable physical or mental impairment comparable in severity”…that would disable an adult. What that meant was that comparable severity, childhood disability/adult disability, was a condition that met or equaled a listed impairment, without any consideration to functional limitations (unless of course the functional limitations were part of a listings definition of a particular impairment).

In 1990 this definition of comparable severity was challenged. In Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885, 107 L.Ed. 2d 967(1990), the Supreme Court ruled that the Social Security Administrations narrow interpretation of comparable severity violated the Social Security Act. It violated the Act because the SSA did not take into consideration functional limitations for children.

In 1996 Congress passed the Personal Responsibility and Work Opportunity Act of 1996 (Act). The Act changed the statutory definition of disability for SSI eligible children. For a disabled child to be eligible for benefits, the child’s impairment must impose “marked and severe functional limitations.”

The Act eliminated the concept of “comparable severity”, and replaced it with the requirement that a child claiming benefits must now prove “marked and severe functional limitations, and that can be expected to cause death or that has lasted not less than 12 months.” § 416.906

A child alleging disability must show that an impairment or combination of impairments:

1. The impairment medically meets or equals a Listing, or
2. Functionally equals a listing.

SSA has interpreted the “marked and severe” language to mean a Listings level severity. § 416.911. Listing level severity is demonstrated when a child has marked limitations in two areas of functioning or extreme limitation in one area of functioning. § 416.926a

SSA will find that a child has a ‘marked’ limitation when the child's impairment(s) interferes seriously with his/her ability to independently initiate, sustain, or complete activities. It is a limitation that is “more than moderate” but “less than extreme”. An ‘extreme’ limitation is found when the child's impairment(s) interfere very seriously with the child's ability to independently initiate, sustain, or complete activities. § 416.926a(e)(2),(3)

SSA will look to six ‘domains’ to help determine disability. A domain is proposed as a method to show all of what a child can or cannot do. The six domains that are used are:

1. Acquiring and using information;
2. Attending and completing tasks;
3. Interacting and relating with others;
4. Moving about and manipulating objects;
5. Caring for yourself; and,
6. Health and physical well-being.

In applying the six domains, the regulations require that SSA consider the child’s age, effects of any treatment or medication, the structure or non-structure of his/her day to day living, chronic illness etc. § 416.924a

             To attempt to win such a case great reliance must be placed on testimony of care givers and medical/psychological records that show the extreme limitations required to obtain benefits.  In many case, interacting with the child on a one time basis, having one meeting and examination, does not demonstrate the limitation under which the child must live.  A treating physician, a treating psychologist who has seen and interacted with the child may in fact give the best evidence.  I have found that it is very difficult to get a ALJ to accept the treating physician rule when there is medical records in the file from 'independent' examiners.

          This the complexity of proving a disability case is difficult at best to explain to concerned parents.