Disabled children under age 18 can receive Social Security disability benefits under the Supplemental Security Income (SSI) program, or “Child’s SSI.” In order to qualify for children’s disability benefits, Social Security requires that the child:

1. Is not working at a job that Social Security considers to be substantial work; and
2. Has a physical or mental condition (or a combination of conditions) that results in “marked and severe functional limitations.”  This means that the condition(s) very seriously limits his or her activities; and
3. The condition(s) has lasted, or is expected to last, at least 1 year or is expected to result in death.

Note: some conditions result in presumptive disability decision. If your child has one of these condition, he or she may be able to be instantly approved.

However, the majority of children’s disability cases focuses on the second part, the requirement of that a condition produces “marked and severe functional limitation.” There are several ways of doing this:

1. Just as in adult cases, a child may meet one of the Listing of Impairments. A listing of medical conditions, acceptable medical evidence, and the severity necessary for an impairment to be considered disabling. The children’s listings are available here.
2. An impairment may also “medically equal” a listing level impairment. Medically equaling an impairment means that the child’s impairment is not provided in the listings, however, the conditions produces the same or very similar symptoms and limitation as a listed impairment. Note: while you can certainly consider medically equaling a listing, as a practical tip, it is often better to consider meeting or “functionally equaling” a listing.
3. An impairment may also “functionally equal” a listing level impairment. This is another way of saying that the child’s condition is as bad as a listing level impairment. However, there are very specific rules for functional equivalence which are best discussed in their own article.

INCOME AND ASSET LIMITS APPLY:

Additionally, just like the adult SSI program, income and asset limits apply. One wrinkle in children’s SSI case is that Social Security looks at household income and assets (instead of just those of the child). Social Security has pages discussing how it decides whether parents’ and child’s income and resources are within allowed limits.

The household financial limits sometimes make children financially ineligible for children’s SSI benefits even though they might meet the medical requirements for disability.

If denied on financial grounds, parents sometimes wait to re-apply for Social Security benefits for their children until the child is 18. At 18, only the child’s income and resources are counted. However, the child is then evaluated under the adult standard for Social Security disability.

Another option parents are often not aware of when re-applying at age 18, is also apply for Social Security Disabled Adult Child (DAC) benefits.

• DAC provides benefits under the parent’s contribution to Social Security (which may allow for higher monthly benefits).
• As a Title II benefit program, DAC does not count non-compensation sources of income. Gifts, support, inheritance, settlements would not affect DAC eligibility.
• DAC benefits provide Medicare health insurance instead of Medicaid coverage provided with SSI.

Disabled Adult Child benefits have additional requirements. For example: one parent needs to have worked long enough paying into Social Security to qualify.

1. Establish a medically determinable impairment. In any Social Security disability case, you have to prove the existence of not only symptoms, but also an underlying cause — a diagnosis. When the records are not clear, or when different doctors have provided different diagnoses (especially over time), a Medical Expert can help clarify what the underlying conditions have been and are today.
2. Determine if the impairments meet or equal a listing level impairment (step 3 in the Sequential Evaluation Process). If a Medical Expert states your impairments either meet the requirements of  listing level impairment, or have the same limitations as a listing level impairment, the case may be approved very quickly.
3. Provide limitations from the impairment(s). In many cases, treating doctors do not want to make any kind of opinion about work-place limitations. They refuse to complete forms which often results in a gap in your evidence. Even though Social Security often has one of their own doctors review a case and determine limitations during the initial case review (before the first decision), the Medical Expert can provide a new opinion. This can be a better opinion since it is based on evidence that has been developed over the course of the case.
4. Establish an onset date. If the Medical Expert is supportive of the disability, they may also be asked to estimate how far back the limitations existed. This is important to establishing the correct onset date in a case.
5. Provide a prognosis. In order for a condition to be disabling it has to either be expected to result in death or be disabling for 12 months or longer. If a condition has not clearly been disabling for 12 months, a Medical Expert may be asked whether it is likely to continue until the durational requirement is met.

While a Medical Expert may touch on any or all of these, the make or break issues are whether the impairments meet a listing, or if not, what limitations are expected to result from the impairments.

Is having a Medical Expert good or bad?

Unfortunately,  you have no way of knowing until the ME testifies at the hearing. I have had cases where the ME is completely supportive of the disability and we are done and have an approval five minutes after the ME testifies. I have also had cases where the ME is completely unhelpful and the rest of the hearing is like trying to scale Mount Everest. MEs make or break cases. When they are helpful, it is like the heavens part. When they are not, it is as if they threw and hand grenade into the room and then walked out. Why do MEs have such a critical impact on Social Security hearings?

• Medical Expert testimony is often the last evidence the Judge receives. In trial presentation theory, there are the concepts of recency and primacy. This simply means that jurors, or in this case the Judge, is more likely to accept what is heard first or last. When a Medical Expert testifies at the hearing, that testimony has the benefit of recency.
• Medical Experts are perceived as independent.
• Medical Experts provide live testimony. Unlike other doctors’ reports and records in the file, the Medical Expert is providing live testimony and responding to the Judge’s questions. Combined with the other two factors, Medical Expert testimony is usually quite persuasive at hearings.

What to do about bad medical expert testimony:

So, is that it? If a Medical Expert testifies, is that the entire case?

No. You have several options:

1. Object to the Medical Expert / object to certifying the witness as an expert. You can always object to a witness at the hearing. However, this cannot be done willy-nilly. There has to grounds for the objection, and the Judge may overrule the objection. Another risk is that you can only object to the ME before they testify. If you object, and the ME testimony was going to be good, you may be loosing the best evidence you could possibly get.
2. Have your own doctor testify at your Social Security disability hearing. This is one of those things that sounds perfectly reasonable and yet, rarely happens. I have had a number of clients tell me that their doctor testify. However, when the hearing date is set and the doctor is notified, it turns out they will not attend. I can count on one hand the number of times I have seen a treating provider actually come in to testify. Keep in mind that even if a doctor is willing to testify, you may have to pay from two hours to half a day for the doctor’s time — even if they only testify for 20 minutes. This can easily cost several thousand dollars.
3. Submit a post hearing rebuttal opinion. Some Judges will allow you to provide a written report from your doctor addressing the Medical Expert’s testimony. Even doctors who were previously unwilling to get involved are sometimes spurred to take action by the Medical Expert’s testimony. A rebuttal report may be free, or may cost several hundred dollars.
4. Put on the best damn case you have. Even if the Medical Expert is not helpful, all you can do is present the case you have prepared. Remember that the Medical Expert has never examined you and does not know you as well as your own doctors. Social Security has to give consideration to the length, extent, and nature of treating relationship between you and your doctors.

Even if the Medical Expert is not helpful, there is often evidence in the file that supports your disability. You just have to fight extra hard to bring it to the Judge’s attention.

How does Social Security look at children’s disability cases based on epilepsy or other seizure disorders?

Social Security first considers the Listing of Impairments. The Listings are a set of descriptions of medical conditions which can be disabling. The Listings tell you the what kind medical evidence you need and the medical findings to prove that the condition is disabling.  While the Listings are not the only way to be found disabled, they are very important in children’s disability cases.

For seizure disorders, there are two critical Listings.

• 111.02 Major motor seizure disorder
• 111.03 Nonconvulsive epilepsy
  

Listing 111.02 Major motor seizure disorder

This Listing primarily applies in convulsive seizure disorder cases.

A. Convulsive epilepsy. In a child with an established diagnosis of epilepsy, the occurrence of more than one major motor seizure per month despite at least three months of prescribed treatment. With:

1. Daytime episodes (loss of consciousness and convulsive seizures); or

2. Nocturnal episodes manifesting residuals which interfere with activity during the day.

B. Convulsive epilepsy syndrome. In a child with an established diagnosis of epilepsy, the occurrence of at least one major motor seizure in the year prior to application despite at least three months of prescribed treatment. And one of the following:

1. IQ of 70 or less; or

2. Significant interference with communication due to speech, hearing, or visual defect; or

3. Significant mental disorder; or

4. Where significant adverse effects of medication interfere with major daily activities.

To be found disabled under this Listing, you must show be able to prove either the

• “A” criteria: 2 or more convulsive seizures per month with loss of consciousness, during the day, or at night with side effects (residuals) that last into the daytime hours; or the
• “B” criteria: 1 convulsive in the last year and one of the 4 subparts.

111.03 Nonconvulsive epilepsy

This listing deals with non-convulsive seizures which may or may not include loss of consciousness.

In a child with an established seizure disorder, the occurrence of more than one minor motor seizure per week, with alteration of awareness or loss of consciousness, despite at least 3 months of prescribed treatment.

In both of these Listing, there has to be a well-established diagnosis, and the seizures have to continue despite 3 or more months of treatment.

Social Security attorney Gordon Gates wrote about a Social Security Administrative Law Judge (ALJ) who only approves 11 percent of cases.

In trying to find some insight in to how this ALJ could only approve 11% of cases when most other ALJs approve somewhere between 45-60% of cases, Gordon found the following post from the ALJ on a high profile public website:

Some doctors go overboard on diagnoses and treatment because they sense the “pot of gold” in having a fairly young patient on Medicare for many years to come with a reliable source of payment for constant treatment.

Lawyers and other non-attorney representative can receive fees as a percentage of the back benefits awarded to a claimant. Once a claimant has a legal representative, one can actually track how the alleged impairments become much worse, with new impairments and symptoms added as the case matures.

A judge with some experience can almost recite verbatim the same story we hear from virtually EVERY claimant, suggesting they have received training from the national organization of the claimants attorneys. The government is complicit in this boondoggle, because the Social Security Administration actually publishes lists of symptoms for various impairments in the form of rules for judges to follow. Is it any wonder we hear those lists of symptoms at almost every hearing?

The Judge’s quote is quite lengthy and covers a number of topics.  I encourage you to read it in Gordon’s article:  The 11 Percent ALJ.

While I can agree with the Judge on several points in the longer quote, I strongly disagree with what the Judge says above.

Let’s set ‘em up and knock ‘em down!

Medicare as a “Pot of Gold”

The ALJ states that doctors are likely to “go overboard” with medical opinions to get patients approved for Social Security so the doctor has a “reliable stream of income” for years to come. 

In my experience, doctors generally do not want to provide any medical opinions and the hardest part of being an advocate for the disabled is trying to get doctors to make opinions in Social Security disability cases. 

Of course, the attorney’s and client’s attempts to get these medical opinions happens before the hearing and is typically invisible to the ALJ.

Additionally, there are two kinds of health insurance which come with Social Security:

1. Medicare – if you are approved for disability insurance (Title 2 – SSDI).
2. Medicaid – if you are approved for Supplemental Security Income (Title 16 – SSI).

Many clients tell me that they cannot find a doctor to take them on if they are on Medicaid. The doctor’s office is either no longer taking Medicaid patients or they have taken all the Medicaid patients they can for the year.

Doctors often do not want to take Medicaid patients because they make less money on those patients.  Medicaid is not any kind of “windfall” for doctors.

So, I wonder if the ALJ also believes that doctors are also likely to exaggerate opinions in SSI cases where the person will only get Medicaid?

Attorneys receive a percentage of the claimant’s back benefits.

Yes, attorneys do not work for free.  Neither does the Judge, the Judge’s clerk, or his staff.  We all have to pay rent, buy groceries, and pay our utilities. 

But, don’t disability attorneys have a vested interest in finding everyone disabled.

Do firefighters have a vested interest in burning buildings?

Do cops have a vested interest in crime?

Disability attorney have a vested interest to the extent that we only get paid if our client wins. But, you could also say attorneys who take Social Security disability cases feel strongly enough about the disabled that we risk not getting paid for our work if we don’t win.

But, how do you know if you have an attorney who just wants to be paid versus one who genuinely cares about helping the disabled. That’s pretty simple.

Attorneys “train” their clients.

No.  We prepare our clients for the day that may change their lives forever.  

That’s just semantics!

I don’t think so. I do not tell my clients what to say. But, I go over common hearing questions and their answers. Why?

• Time is short. Judges often schedule 30-45 minutes for each hearing. That the Judge’s comments, swearing in, Medical Expert testimony (in some cases), and Vocational Expert testimony.  
• You need to focus on what’s important. People have a natural tendency to drift off into other topics. With the limited time, I want to make sure my client does not miss a critical part of the case because we ran out of time.
• You need to address inconsistencies ahead of the hearing. A client may say something which appears to be inconsistent with their disability. Often there is an explanation. But, unless you work through the inconsistency before the hearing, the client may be too nervous at the hearing to provide an adequate explanation. 

Actually, it is pretty easy to tell when someone is just repeating something they were told to say. Most people are terrible liars, especially when faced with the stress of their Social Security hearing.

Ultimately, the coaching question comes down to this: good lawyers do not hide the problems in a case, they overcome them.  

Impairments and symptoms become worse as the case matures.

Well, of course they do!

When you work with a good attorney, he or she helps you obtain evidence that Social Security was not able to get or was unaware of. 

• I have seen bi-polar cases where none of the psychiatric records were obtained until the lawyer got involved.
• I have seen back injury cases where the spinal specialist’s injection records were not obtained until the lawyer got involved.

As more evidence is obtained, cases become better developed which means there is more relevant documentation of the impairments and symptoms. So, of course, impairments and symptoms “get worse.”

However, the ALJ seems to suggest that the actual condition(s) worsen AFTER the attorney is hired. That lawyers somehow add-on symptoms and impairments that do not exist to make their clients look worse than they actually are in order to improve the chances of winning the case. 

Allow me to present an alternative explanation: a benefit of regularly meeting with my clients is that they tell me how they are feeling.  Often the conversations go like this:

You just told be about your migraines. Have you talked to your doctor? Why not bring it up at the next visit.

-or- 

I am sorry to hear the physical therapy isn’t helping. Maybe your doctor can send you to a specialist for a consultation?

Good Social Security disability attorneys help their clients get their conditions evaluated and documented.

Also, doctors are very good at telling when someone is exagerating symptoms, let alone, faking symptoms outright.

One of the purposes of getting medical records is to see if the symptoms reported at the hearing have been previously reported to the doctor AND whether the doctor found any exaggeration, malingering, “drug seeking behavior,” or “secondary gains issues.”

If a patient is exaggerating, it will show up in the medical records. 

Symptoms described at hearing parallel those in the government published “list of symptoms.”

The Judge is referring to the Social Security Listing of Impairments (aka The Blue Book).  The Listings describe conditions which Social Security views as “disabling” and the medical findings necessary to find a person disabled for those conditions. 

The Listings are literally a short-cut in the disability evaluation process.  If you have a condition described in the Listings and the medical evidence supports the severity required to be approved, you can be found disabled for “meeting a listing.”

The judge asks, “Is it any wonder we hear those lists of symptoms at almost every hearing?”

Let’s remember that the Listings are Social Security’s own attempt to create uniformity in how its technicians and Judges evaluate medical conditions.  The idea is that different people within Social Security should not have different standards on whether a condition, for example whether diabetes is disabling or not. 

Is it fair to complain that people actually use the regulations Social Security has put in place for the evaluation of claims?

The Listings are not a free pass to disability.  It is not enough to have a condition described in the listing, you also have to have medical documentation (not just your say-so) that the condition meets certain medical requirements.  For example, here is the listing for chronic pulmonary insufficiency which may be used for COPD. Not only do you need to have a breathing test performed but your results must be within a particular range based on your height. 

I have had numerous clients with COPD and other respiratory conditions.  Very few have met the Listing.

However, when I have a case that does meet a Listing, of course I will structure the presentation of the case around it: Social Security own guidelines says that the condition is disabling.

Are we all liars?

The sum of the Judge’s quote suggests that doctors lie, lawyers lie and claimants are trained to lie.

So, who is left? Ah, yes, the Social Security technicians and Social Security doctors who denied the case in the first place. 

Should anyone be surprised that this judge only approves 11% of cases?

I have no problem that Judges should approach disability cases with skepticism since they are the holders of the public purse strings. But, this goes beyond healthy skepticism and into cynicism.

Is this the right approach for reviewing Social Security disability claims at hearing? What is your opinion? Add a comment to let us know.