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

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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;


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


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;


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.

One of the main California cases on point is Pedro v. Astrue, 849 F. Supp.2d 1066 (D. Oregon 2011).  In Pedro, the claimant had received special education from an early age but had managed to graduate high school. She struggled with reading and writing. She could read the paper but required assistance from friends.   She had a history of low skilled work. Id., at 1012. The court held that a showing of early onset for purposes of the listing does not require clinical or IQ tests.   A claimant may use circumstantial evidence to demonstrate adaptive functioning deficits, such as “attendance in special educations classes, dropping out of high school prior to graduation, difficulties in reading, writing, or math and low skilled work history.” Id. (Internal citations omitted.)   The Pedro court found that the claimant in that case satisfied the requirement.

Pedro is a terrific case and from now on whenever I see an individual with what appears to be intellectual disability, I will urge that we obtain IQ testing and use circumstantial evidence to meet the requirement of early onset.

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