A strategy to win SSI for someone with Williams Syndrome

I am currently working on a case for an individual with Williams Syndrome.  According to the Williams Syndrome Association, Williams Syndrome is  “a genetic condition that is present at birth and can affect anyone.  It is characterized by medical problems, including cardiovascular disease, developmental delays, and learning disabilities.  These occur side by side with striking verbal abilities, highly social personalities and an affinity for music.”

I have not come across this disease until now and indeed it appears pretty rare.  According to the Association, “Williams Syndrome affects 1 in 10,000 people worldwide – an estimated 20,000 to 30,000 people in the United States. ”

Williams Syndrome is not a “listing” impairment.  This means that you cannot obtain SSI automatically  if you have it.  Indeed, it appears to be a struggle to win it.  I was reviewing the Williams Association Facebook page and in 2011, there was comment after comment about folks being denied SSI.  It appeared then that the Social Security Administration did not understand the Syndrome and given the denial my client received, they still do not.

My strategy will be to show that while my client does not meet a listing (because there is none), her condition is as severe as an analogous  impairment that appears in the Listings.   In other words, I am going to try to show that she medically equals a Listing.  There are several listings that may be applicable.  The first is Listing 12.05D, Intellectual Disability.   One can meet this listing by showing:

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.

People with Williams Syndrome may not have the low IQ that is required by this listing but they may have some deficits in learning.  There are also likely going to be difficulties with activities of daily living such as getting dressed, bathing, eating, taking medication.  Maintaining concentration, persistence or pace is also difficult for people with Williams Syndrome.

I plan to show that my client meets this listing by an evaluation from a psychologist and  IQ testing.  I also plan to obtain school records to show her developmental delays.  I will have Declarations from family members who can talk about her activities of daily living.  Finally, I will obtain a Declaration from my client’s employer (a supportive work environment) which can address her difficulties with concentration, persistence and pace.

Another listing applicable in my case is 11.07 Cerebral palsy.   In order to meet this listing, one has to show the existence of cerebral palsy with:

A. IQ of 70 or less; or

B. Abnormal behavior patterns, such as destructiveness or emotional instability; or

C. Significant interference in communication due to speech, hearing, or visual defect; or

D. Disorganization of motor function as described in 11.04B.

Again, the goal is to make Williams Syndrome equivalent to cerebral palsy using this Listing.   In my particular case, I plan to use IQ testing to show the IQ.  I will have a psychologist address her behavioral patterns.  People with Williams Syndrome have difficulty with fine motor functions and I plan to show this through Declarations and medical records.

Although not applicable in my case, you should also review the cardiac listings as many people with Williams Syndrome have cardiac difficulties.

I think it is possible to win a case for someone who has Williams Syndrome.  It requires more explanation perhaps because individuals with it are communicative and social.  A Social Security adjudicator may not understand what the problem is.  If you have a similar case, I would recommend obtaining a psychological evaluation, IQ testing, school records and Declarations from family members and employers.  Do not rely on Social Security’s psychological exam; obtain your own.   And, do not assume that simply being diagnosed with Williams Syndrome will be sufficient.  Do the extra work and I believe you will prevail.

Argue and present evidence at your hearing that you meet or equal a listing

In a recent decision issued by the 9th Circuit Court of Appeals, the Court indicated that a claimant must raise the issue that he or she equals the listings, at the time of a hearing in front of an Administrative Law Judge (“ALJ”) otherwise the Court will conclude that the ALJ’s failure to discuss this in a decision is not an error.

In Kennedy v. Colvin, 738 F.3d 1172 (9th Cir. 2013), the claimant had sickle cell anemia and borderline mental retardation as well as other impairments.  A psychologist who examined the claimant found that the claimant had a verbal score IQ score of 71, a performance IQ score of 78 and a full-scale of 72.

One may be found disabled if he or she meets or equals any one of “The Listings.”  The listings are impairments which Social Security has already determined to be disabling.  If one can show that he or she meets or equals a listed impairment, he or she may be considered disabled.  There is a listing for “intellectual disability,” known as listing 12.05.  One can meet this listing with a valid verbal, performance or full IQ of 60 through 70 and meet other requirements.  The claimant in Colvin argued on appeal that although his IQ score was one point above the level required in Listing 12.05, he equaled the listing because his physical impairments were so severe that they compensated for the one point difference between his IQ score and the score required under the listing.

The Court did not find in Kennedy’s favor but this is not the part that interested me in this case.  What interested me is that the Court penalized him for not arguing that he equaled the listing when he was at his hearing in front of the ALJ, although he argued it on appeal.  Citing to another case, Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005), the Court found that the an ALJ is “not required to discuss the combined effects of a claimant’s impairments or compare them to any listing in an equivalence determination, unless the claimant presents evidence in an effort to establish equivalence.”  Here the claimant “never presented evidence or advanced an argument for equivalency.”  (Kennedy  at 1178.)  The 9th Circuit never indicated whether or not Mr. Kennedy was represented at his hearing.  I find it somewhat shocking and possibly a due process violation if a claimant is unrepresented. I cannot believe a court would find that a claimant is required to know what the listings are and then present and argue that he or she equals a listing at the hearing if unrepresented.

To be fair, the Court’s decision on this point is limited to cases in which a claimant is trying to show that he or she “equals a listing.”  Presumably if a claimant meets the listing, the ALJ is required to discuss the reasons in the decision why he or she does or does not.

What I take away from this case is that it is important in every case to always present evidence and argue that you either meet or equal a listing.   Otherwise if you fail to do so,  you may be precluded from establishing an equivalency argument on appeal.