Social Security Disability Benefits and Mental Retardation

Posted by Robert Donati on May 28th, 2013

You or your child may qualify for disability benefits based upon limitations in intellectual functioning, commonly referred to as mental retardation.  Mental retardation really refers to the intellectual deficits that someone experiences and may actually be caused by numerous other conditions.  The most common causes of mental retardation are: Down Syndrome, Velocardiofacial Syndrome, and Fetal Alcohol Syndrome.  But, you may have other conditions that cause this, including Klinefelter’s Syndrome, Fragile X Syndrome, Neurofibromatosis, Congenital Hypothyroidism, and Williams Syndrome.  Another common cause is the lack of oxygen for a child during pregnancy or delivery, commonly referred to as Hypoxia. 

In general, to qualify for social security benefits based on mental retardation, a claimant must show valid verbal, performance, or full-scale IQ scores of 59 or less; or a claimant may qualify with valid verbal performance or full-scale IQ scores of 60-70 if they have another mental or physical impairment that severely limits functioning. (Social Security Listings of Impairment 12.05)  Additionally, the Social Security Administration requires that you show these problems manifested themselves during the developmental period.  That is to say, you need evidence that these learning problems started before age 22. 

Common Problems

Though the listings of impairment for mental retardation are relatively straightforward, the judges and examiners at the DDS and hearings level have managed to overly complicate qualifying for benefits.  Over the years, they have, in fact, read into the law requirements that are not actually in the listings of impairments for mental retardation.  Common problems that occur for individuals filing based on their learning problems include the following: 

1)      The judges want IQ scores, before age 22 – the listings of impairments do require that there be some evidence of adaptive functioning before the 22nd birthday.  However, the administration has previously made clear that this evidence could be from a variety of different sources, including testimony from the claimant or family members, or other medical evidence. (See 65 FED. REG. 50746, 50772 Aug. 20, 2000). Unfortunately, many ALGs have interpreted the requirement that there be evidence of adaptive limitations before age 22 to mean that the claimant must have IQ testing showing mental retardation before age 22.  Often, this results in a denial despite other favorable evidence.  In such instances, it is necessary to have an effective advocate to argue the actual requirements of the law instead of what the judge believes the requirements should be. 

2)      No valid IQ test - the Listings do require a valid IQ score of 70 or below in order to be considered for mental retardation.  Often times, the administration becomes overly formal in what it takes to qualify as a valid score.  For example, recently I have had two cases for children’s benefits under SSI that have been denied by DDS despite the fact that the testing from the school psychologist showed IQ scores in the 60s.  After I obtained the file from Social Security, it became clear that the reason the government doctors at DDS had rejected these scores was because they did not contain an explicit notation from the school psychologist that this was “a valid assessment of intellectual functioning.” 

3)      The IQ testing is no longer valid – for children in particular, the administration only recognizes IQ scores that are 2 year old or newer.  Therefore, if a claimant is applying for disability based on intellectual deficits at age 17 and they have an IQ test showing a full-scale IQ of 55 that was performed when the child was 14, that child will likely be denied in the absence of a new IQ test that confirm that the child still has functional limitations.

4)      The judges like to “play doctor” – More so than almost any other condition, with mental retardation the judges are likely to not believe a diagnosis made by a treating physician. I have seen many cases where a treating psychiatrist or psychologist has found a claimant to meet the requirements for mental retardation only to have a judge at hearing find that they are not “really” functioning in the mentally retarded range.  The judges do this through a variety of methods.  First, they may look at the claimant’s functional level generally and state that it does not seem, to them, like someone who is suffering from intellectual deficits.  For example, an ALJ may find that the fact that someone has lived alone or held down a job for a significant period of time, or learned to drive a car, would all “prove” that they do not meet the requirements for mental retardation.  Other judges are more formal than this.  These judges may require that a claimant in essence prove the diagnosis for mental retardation by establishing each of the diagnostic criteria under the DSM-IV.  In these instances, the judges will require evidence of deficits in communication, self-care, home living, social-interpersonal skills, use of community resources, self-direction, functional academic skills, etc.  Again, in these instances, effective advocacy by an attorney can be the difference between a case that is approved or denied. 

Tips for Filing Based Upon Mental Retardation

If you or a family member are unable to work because of severe learning impairments, there are a few things that you should consider to improve your chances in filing for benefits under social security disability:

1)      Obtain old school records early – one of the most compelling pieces of evidence that you can present to the judge to convince them of learning limitations are school records.  Unfortunately, many of the school districts that we deal with throughout Tennessee, Mississippi and Arkansas have adopted policies of destroying their records after only a few years of a child leaving the school.  For certain judges, the absence of school records confirming mental retardation makes it extremely difficult to convince a judge to award benefits. Additionally, when you do request school records make sure that you do not just request the student’s transcript.  If a child received any sort of special accommodation, or resource help, or special education, then they likely had to first undergo psychological and cognitive testing by the school.  Many public schools store these testing results separately from school transcripts.   So, when seeking school records make sure that you request both the transcript and any testing that was done.  Similarly, if the child graduates with a special education diploma, save that diploma.

2)      Help document limitations in activities of daily living – as discussed above, the judges are prone to playing doctor in these cases and will often want to disregard a diagnosis of mental retardation based upon a claimant’s functional abilities.  It is important, therefore, that all of the claimant’s limitations be documented so that it is clear the sort of limits that you are having.  For example, I have had many clients who have low IQ scores that have been able to obtain a driver’s license.  However, for them to gain their driver’s license they had to have the test read to them out loud by the examiners.  They also had to take the test several times in order to be able to pass it.  Similarly, I have had individuals with significant intellectual limitations who have also managed to live alone.  Yet, they were only able to live alone because a parent or other family member lived close by, visited them daily and assisted them with more complicated activities, such as paying bills or going over rental lease agreements.  Finally, many individuals with mental retardation are able to sustain employment.  But, I have found that these individuals were often only able to sustain employment because they had additional accommodations from their employer or family.  For instance, a family member would pick them up and drop them off from work every day so that they would not have to remember work schedules.  Similarly, I have had clients who were actually employed by family members who let them work at their own pace or take more frequent breaks throughout the day.  If you or a family member are applying for benefits based upon learning disorders, please make sure that any paperwork that is submitted documents the sort of limitations and accommodations that are discussed above. 

3)      Consider obtaining IQ testing from a doctor outside Social Security – in my practice I am often frustrated by the quality of examiners employed by the Social Security Administration.  Though there are some excellent doctors working as consultants for DDS, there are, unfortunately, some examiners that have little or no patience for the claimants applying for benefits.  I find that these consulting doctors often are prone to an adversarial relationship with those they are examining.  Additionally, because of the number of examinations scheduled, the claimant is often rushed to complete testing.  This poses real problems for those with psychological and cognitive impairments, which often necessitate a psychologist who can be patient and flexible with the person taking the test.  The end result is that many individuals with real cognitive limitations will be denied because the government consulting doctor felt the examination was not “valid.”  In my own practice, I have found that it is often useful to send out a claimant to a private psychological examiner to conduct IQ testing independent from the testing done by Social Security.  This often results in the critical evidence necessary to prove a case and win benefits. 

About Robert Donati

Robert Donati is a Social Security Disability lawyer at Donati Law.  Mr. Donati has worked at all levels of Social Security Disability appeals, and he also handles all of the firm’s SSD appeals to the Federal District Court.

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Tags: social security FAQs, social security disability benefits, Social Security Administration

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