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;


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.

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U.S. District court orders SSA to provide correspondence in alternative formats for the blind or visually impaired

As reported on the NOSSCR (National Organization of Social Security Claimants’ Representatives) website, “a federal judge in the northern California district has ruled that SSA violated Section 504 of the Rehabilitation Act, and its implementing regulations, by failing to provide “meaningful access” for SSA programs to all blind and visually impaired individuals. American Council of the Blind, et al v. Astrue , No. C 05-04696-WHA (N.D.Cal. Oct. 20, 2009).”

The history of this case is fairly amazing.  It has been going on for four years and involved 329 filings made either by the government or the plaintiffs’ lawyers. The Social Security Administration (“SSA”) had an opportunity to end it earlier. Last year, after the Judge ruled that the SSA had to comply with Section 504 of the Rehabilitation Act, he gave both sides the opportunity to stay the proceedings and allow SSA to engage in rulemaking so as how to comply with the Rehabilitation Act.  The Social Security Administration refused and continued on with the litigation.  The judge stated in his order:

Both sides, including SSA, requested that the litigation continue with a decision on the merits. Having spurned the opportunity for a stay pending rulemaking, the agency has, in effect, consented to resolve the case by litigation, not rulemaking.

The Court ruled that the SSA has to provide two alternative modes of communication when sending out notices to people who are disabled by blindness.  The notices must be either:  1) written in Braille or  2) contained on a CD in  Microsoft Word.

And since the Judge was now making the rules, he did so. He gave the SSA strict guidelines as to when they must comply:

  • November 29, 2009, Defendants must file with the court a description of the Braille or Microsoft Word CD and plans on how it is to be distributed;
  • December 31, 2009 – the SSA has to send out notices asking claimants to elect either receipt of a CD or notices in braille;
  • April 15, 2010 – the SSA has to develop and offer either a Braille alternative or a navigable CD in Microsoft Word;
  • The SSA  has to post a notice to their website and train staff on how to deal with people who are blind or visually impaired.  They must offer to read the notice which indicates how claimants are supposed to choose between a Braille format or a CD;
  • April 16, 2010 – no social security benefits may be reduced or terminated to any individual shown in the SSA records to be blind or visually impaired (or whose authorized payee is shown to be blind or visually impaired) unless such person was first provided with the notice prescribed above and the method of notice, if any, selected by said person was followed.

This is a great result and will undoubtedly benefit many people in the future.

Ten tips for winning your Social Security Disability case in federal court

I am currently attending the NOSSCR (National Organization of Social Security Claimants Representatives’) conference in San Francisco.  I am going to write posts this week highlighting some of presentations I go to at the conference.  Today I went to a presentation on “Judicial Review of a Social Security Disability Claim.”  The presenters were:

  1. The Honorable Edmund Brennan, U.S. Magistrate (U.S. District Court, Eastern District, California)
  2. Bess Brewer, Esq. (Attorney in private practice)
  3. Michelle Beckwith, law clerk (U.S. Court of Appeals, 9th Circuit)
  4. Lucille Meiss, Esq. (Attorney with OGC/SSA , Region IX)

Each presenter gave excellent advice on how to be more successful in federal court.  I will summarize their advice  into ten tips.

  1. Develop a theory of the case at the earliest opportunity. Every adjudicator looking at a case from the first time it is filed wants to know why the claimant cannot work.  When filling out the disability forms and specifically when answering questions about daily activities, your answers should relate to the theory of the case.
  2. Get all the records.  Make the Administrative Law Judge’s job easier.  If the case goes to federal court, you will want the record fully developed.
  3. Submit a brief to the ALJ. This is your chance to orient the ALJ to your theory of the case.  You may not have to go to federal court at all if you win in front of the ALJ.
  4. Deal with adverse facts early on. If there are few treatment records because the claimant did not have medical insurance and could not go to the doctor, make this fact known to the ALJ in the record.  By doing this, a federal judge will not have to guess why there are no treatment records and/or will not have to accept the ALJ’s reasoning that the lack of treatment records indicates that the claimant is not severely disabled.
  5. Obtain third party testimony. There is good case law about the weight that must be given to testimony from third parties (friends, relatives of the claimant).  Witnesses should either come to the hearing or submit a letter describing their observations of the claimant.   Third party testimony is especially helpful in cases dealing with mental impairments or for claimants who have pain.
  6. Try to enter into a voluntary stipulation with government counsel for remand. If you have a case which you think would benefit from remand,  send a concise letter to the Office of General counsel describing why you think they should agree to a remand.  (Note:  although this was the advice given, it is not clear how often it works.)
  7. Know the court and the law clerk. To the extent possible try to find out a little about the federal judge who has been assigned to your case  in district court.  If he or she has decided Social Security Disability cases before, you do not need to give a detailed explanation of the sequential evaluation in your brief.
  8. Write a concise yet comprehensive brief. Use plain language, cite to the record, define terms.  Although the law clerks and judges have access to the medical dictionaries and legal resources, it is helpful if you define a medical term in the same sentence in which you use it.  If you cite to a DOT listing, it would be helpful to them  if you create an appendix and submit the listing.
  9. Be credible. Follow the court rules, be forthcoming.  Do not exaggerate.
  10. File a reply brief. Many law clerks will read the reply briefs first in order to find out what the real issues are in a case.  You want to persuade the judge to decide in your favor; the reply brief gives you an opportunity to restate your position.