Maine Social Security Disability Lawyer

Listing 12.05C

Social Security Adult Listing 12.05C rewards the lawyer who digs a little deeper into a claim. The listing requires:

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

The beauty of this listing, from my point of view, it that it transforms a case that would lose at step 5 of the sequential evaluation into a case that is sure to win at step 3.

Typically this case arrives after a DDS denial, with a 40-something year old claimant and a residual functional capacity (RFC) for light or medium work and a limitation to simple instructions.

You look at the claim file and you see that either a learning disability or borderline intelligence is diagnosed, which is why the "simple instructions" limitation is part of the RFC. If you stop there, you do not have a case that would prevail at hearing. In fact, vocational testimony would not even be needed to deny the claim. It properly could be denied under the medical-vocational guidelines.

Sometimes the parent is the one to make initial contact with the lawyer, and the parent provides the needed background information. However, sometimes the claimant is the one to contact a lawyer, and you have to connect the dots to recognize a potential 12.05C claim.

So you inquire about special education. You get the school records. You talk to the parents, if possible. And from one of these places, there is often an archived evaluation showing IQ testing with a score in the 60-70 range. And now you have a 12.05C listing case.

The second prong of the listing, "an additional and significant work-related limitation of function" is not defined or further explained by the regulations. The First Circuit has a good rule, which is if the additional impairment is "severe' at step 2, it is a significant work-related limitation. See Nieves v. Sec'y, Health & Human Servs., 775 F.2d 12, 14 n.7 (1st.Cir. 1985)("A claimant satisfies the second half of the Sec. 12.05(C) test if he or she has a severe impairment under Sec. 404.1520(c).")

New Listings for Hearing Loss

Effective today, the SSA has revised the 2.00 listings regarding hearing loss. The changes are only to the listings for hearing loss and their accompanying introductory text.

Listing 2.08 "Hearing Impairments" has been removed, and new listings 2.10 and 2.11 have been added:

• 2.10 Hearing Loss Not Treated With Cochlear Implantation
• 2.11 Hearing Loss Treated With Cochlear Implantation

The revisions are discussed at length in the final rule published on the Federal Register on June 2, 2010 (link goes to pdf version). According to the final rule, the revisions are intended "to update the medical criteria, provide more information about how we evaluate hearing loss, and reflect our adjudicative experience."

The final rule also notes that proposed rules for disturbances of labyrinthine-vestibular function (listing 2.07) and loss of speech (listing 2.09) are forthcoming, and will be separately published.

{update: I should note that the corresponding childhood listings have also been amended}

Social Security Adult Listing 12.05C

Every year I handle at least one claim involving adult listing 12.05C. That listing requires:

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;

The listing is a two-pronged test. The first prong is a valid IQ score from 60 to 70. The second is some other mental impairment, or a physical impairment, that imposes a significant work-related limitation of function.

There are a few things to bear in mind about this listing:

• The mental impairment must have "manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22." Ideally, there is an IQ test somewhere in the school records. Someone who meets this listing in all likelihood would have been a special education student. So get the school records.
• The lowest number of the Weschler series is used. See 12.00D.6.c.
• A test score slightly above 70 might be okay (but I wouldn't count on it). See POMS DI 24515.056 section D.1.c.
• The additional impairment must result in a "significant work-related limitation of function." While that phrase is not defined, it roughly equates to "severe" at step 2 of the sequential evaluation. I had a recent Maine disability claim where a lifting restriction of 25 pounds satisfied this prong of the test. 
• To establish the additional impairment, try to obtain a treating doctor's medical source statement assessing work-related functional limitations. 

The criteria for this listed impairment are pretty clear. If you have a qualifying IQ test, and evidence of a significant work-related limitation, there is little reason for a hearing. The claim can be granted on the record.

Autism and Social Security Disability

Autism is certainly a basis for a Social Security disability claim, and there is a listed impairment for "Autistic disorder and other pervasive developmental issues" See Adult Listing 12.10 and Childhood Listing 112.10.

Typically we see autism as the basis for a childhood disability claim. However, we also see it quite a bit with a 19 year old claimant as the basis for a Social Security disability or an Adult Child Disability claim.

Every autistic child exhibits different symptoms and has a different place on the autism spectrum. These cases can take some time to see where your client fits.

Here is the adult listing:

12.10 Autistic disorder and other pervasive developmental disorders: Characterized by qualitative deficits in the development of reciprocal social interaction, in the development of verbal and nonverbal communication skills, and in imaginative activity. Often, there is a markedly restricted repertoire of activities and interests, which frequently are stereotyped and repetitive.

The required level of severity for these disorders is met when the requirements in both A and B are satisfied.

A. Medically documented findings of the following:

1. For autistic disorder, all of the following:

a. Qualitative deficits in reciprocal social interaction; and

b. Qualitative deficits in verbal and nonverbal communication and in imaginative activity; and

c. Markedly restricted repertoire of activities and interests;

... AND

B. 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.

Overall, the "B" Criteria of listing 12.10 are a natural fit for an autistic claimant. Common symptoms of autism include restricted daily activities, difficulty in social functioning, and difficulty with concentration, persistence or pace. If the criteria of part A are met, in most cases part B will also be met, because the two parts are describing and measuring the same areas of functioning.

The autism listing differs in this respect from the other mental disorder listings where the disorder is defined in part A and the severity is measured in part B. Usually the two parts are largely unrelated. See, for example, listing 12.06 for anxiety. But with the autism listing, both the A and B criteria describe the same general areas of functioning.

Of course, it is quite possible for a mildly autistic person not to meet the "B" criteria. But this natural fit between the A & B criteria of the autism listing makes the listing much more likely to be met.

 

Listing 1.04A Worksheet

Social Security Adult Listing 1.04A is often met for claimants with severe back pain, when there is an MRI or CT scan showing impingement of the nerve root or spinal cord. The practical difficulty with the  listing is that the other findings necessary to meet the listing, such as a positive straight leg raising test or muscle weakness, are not necessarily documented in the medical record.

It is very frustrating to have the telltale MRI in hand but not meet the listing due to the lack of documentation of the other criteria of the listing. Further, a treating  doctor's opinion that the listing is met is routinely disregarded at DDS, since the finding of a listing being met is reserved to the Commissioner. What you need is findings that all the components of the listing are met, somewhere in the medical records where they can be found.

So I have developed a Listing 1.04A_worksheet. The worksheet contains all the components of the listing. I give the worksheet to the patient to take to the next doctor visit. The doctor completes the worksheet right then, and (hopefully) also enters the requisite findings into the progress notes. When I submit the worksheet and the progress notes and the MRI to Social Securitiy, the listing should be met.

I'll let you know how it works.

Listing 1.04A

I have had a spate of cases lately with disability claims involving Listing 1.04A.

Listing 1.04 is entitled "Disorders of the Spine." This listing is for people who have serious back or neck problems (often due to a herniated disc) and are in a great deal of pain. The listing is in play when there is an MRI or other radiological evidence showing compression of the spinal cord nerve root or the spinal cord itself.

Listing 1.04A has several other criteria as well, including neuro-anatomic distribution of pain (in most cases, pain radiating from the lower back to the legs), limitation of motion of the spine, muscle weakness and a postive straight-leg raising test for cases involving the lower back.

These claims are often problematic during the early disability claim process - even when claimant has an MRI showing the nerve root compression, which is the hardest element of the listing to meet. The problem is that the other listing criteria, although present, are rarely noted in the claimant's medical records. As a result, the listing is almost never met initially. So what to do?

The Listings

Step 3 of Social Security's 5-step sequential evaluation process is a determination whether or not a disability claimant "meets or equals a listing." The Social Security Administration has regulations describing more than 150 categories of medical conditions. These are called "listed impairments," or “listings.” The listed impairments are medical conditions that are severe enough to presumptively preclude a person from working. If you “meet or equal a listing” you will be granted benefits, without the necessity of proceeding to steps 4 and 5 of the sequential evaluation process.

An official from the Social Security Administration spoke at a recent conference I attended. He said that 10 or so years ago, 90% of all the disability claims were decided based on the listings. Today, however, just 50% of the claims are decided based on the listings. That's a big change, but what does it mean for you?

It means that the most obvious disability claims are still determined according to the listings, and can often be resolved at the initial or reconsideration level. But the remaining 50% of the claims - the ones that are not determined according to the listings - are much more complicated. Those claims will be decided according to your ability to do your past relevant work (step 4 of the sequential evaluation process) and your ability to do other work (step 5 of the sequential evaluation process). Those claims probably will require a hearing before an administrative law judge. At that hearing, it is critical to know the medical-vocational guidelines and how to handle the testimony of a vocational expert.

These are the difficult cases. An experienced Social Security attorney, who is familiar with the administrative law judges in your area and the vocational experts that testify at these administrative hearings, will improve the likelihood that you receive the disability benefits you deserve.