Listing 12.05 requires onset prior to age 22, not diagnostic testing prior to age 22

Writing federal court briefs is hard work.  It takes a lot of time and I do not know if I am going to win (and collect fees).  The upside though is that I learn a lot and by having to write about it, I understand and learn the law much better.   This is true of a case I am currently working on in which my client has “intellectual disability” (mental retardation).

Social Security has what they call “Listings” – a list of impairments which if you meet one of them, you are considered disabled.  One of them is 12.05, Intellectual Disability.  Listing 12.05 provides:

12.05 Intellectual disability: intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.

The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.

A. Mental incapacity evidenced by dependence upon others for personal needs (e.g., toileting, eating, dressing, or bathing) and inability to follow directions, such that the use of standardized measures of intellectual functioning is precluded;

OR

B. A valid verbal, performance, or full scale IQ of 59 or less;

OR

C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function;

OR

D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration.

In order to win disability with the listing, a claimant has to meet the criteria contained in the introductory paragraph and one of the criteria set forth in parts A through D.  I had always thought that IQ testing or a diagnosis was required prior to the age of 22 to meet the requirement set forth in the introductory paragraph.  It turns out that I was wrong, and that a diagnosis of intellectual disability is not required to have been made prior to the age of 22.  Instead, the submission of other evidence of early onset of intellectual disability is acceptable.

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Solano County Public Health Department Starts Hepatitis C Rapid Testing Program

Solano County Department of Public Health is now offering rapid Hepatitis C testing at its HIV clinic in Vallejo, 365 Tuolumne Street. The test is confidential and free to anyone at risk for infection. Results are available in 20-40 minutes.  According to the Center for Disease Control and Prevention, approximately 75 percent of people infected with Hepatitis C do not know they have it because there are often no symptoms for several years.

Hepatitis C is not a listed impairment for disability.  I.e, you cannot win disability for simply having it.  In order to win disability for hepatitis, it is best to argue that you meet listing 5.o5, chronic liver disease.

It is diagnosed by the detection of hepatitis C viral RNA in the blood for at least 6 months. Documentation of the therapeutic response to treatment is also monitored by the quantitative assay of serum HCV RNA (“HCV viral load”). Treatment usually includes a combination of interferon injections and oral ribavirin; whether a therapeutic response has occurred is usually assessed after 12 weeks of treatment by checking the HCV viral load.

Hepatitis C is a virus that affects the liver and can cause serious health problems including liver damage, cirrhosis, liver cancer and even death.  It is most commonly passed from person to person through infected blood. Currently, most people become infected with Hepatitis C by sharing needles and other injection drug equipment.

Testing is available on a drop-in basis on the second and fourth Thursdays of each month from 5-7 p.m. at the Solano County Family Health Services Clinic, 365 Tuolumne St., Vallejo. For more information call 707-553-5552. 

 

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Getting the Earnings Record Right

I am seeing in more and more of my cases that the Social Security Earnings Record is an issue in and of itself.  It isn’t that Social Security is getting it wrong.  It is that the individuals have not checked to see that it is right.  Having an incorrect earnings record can hurt in many ways.  In a SSDI case, a claimant needs to be “insured” (have sufficient quarters of coverage from earnings) in order to be found eligible to collect disability insurance.  If your earnings record does not accurately reflect all of your earnings, you may not be considered insured and therefore lose out on a benefit that you might otherwise be eligible for.

In both SSI and SSDI cases, the issue of earnings arises at the first step of the disability evaluation.  The adjudicator is required to determine if the claimant is working and if so,  to determine whether it is substantial gainful activity.  (In 2014, substantial gainful activity is equivalent to earnings of $1070 a month, for a non-blind person.)    It is not uncommon in a disability case for a claimant to have stopped working but then again resume working at a reduced level of hours.  If the person is making over $1070 a month, he or she is not considered disabled.   (There are exceptions to this, of course.)   The adjudicator will look to the earnings record as well as other earnings information to make this determination.

The earnings record also comes up at the third step in disability evaluation when the adjudicator is trying to determine what kind of work you did in the past.  The adjudicator will look back to the last 15 years.   I have now seen cases in which employment was listed that my client did not perform or vice versa, employment was not listed but my client had performed it.

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