Children’s Disability Cases Part VII: Sources of Evidence - Melvin
Children’s disability cases Part VII is the Sources of Evidence. Contact an experienced Salt Lake City children’s disability attorney.
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Children’s Disability Cases Part VII: Sources of Evidence

by Melvin Cook

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Children’s disability cases are SSI cases. This means that, in order to qualify, the child must meet certain medical criteria and the child’s family must also meet certain needs-based criteria.

In order to find a child disabled, social security must find that the child is not engaged in substantial gainful activity and that the child has a medically determinable impairment that results in “marked and severe” functional limitations.

The child will qualify if his or her medical impairments are severe enough that they meet or medically equal the criteria set forth in one of Social Security’s listings of impairments. Alternatively, the child is found disabled if he or she had a medical impairment that results in limitations that are “functionally equivalent” to one of the listings.

In order to determine functional equivalence, social security looks at a child’s functioning in six key domains of activities. These domains encompass all of a child’s activities, whether at home, at school, or in the community. The six domains are:

1) Acquiring and using information

2) Attending and completing tasks

3) Interacting and relating with others

4) Moving about and manipulating objects

5) Caring for yourself, and

6) Health and physical well-being

Social security will compare a child’s activities with those of children of the same age without any impairments. They look at the child’s ability to initiate, sustain and complete activities appropriately, effectively and in independently compared with other same-aged children.

In making this analysis, social security looks at the “whole child.” In other words, they look at the child’s activities 24 hours a day, 7 days a week at home, at school or in the community to determine what activities a child cannot do, is limited in doing, needs help doing or is restricted from doing.

A child’s impairments are functionally equivalent to a listing if the child is “markedly” limited in two domains or “extremely” limited in one domain.

However, social security will not consider a child’s limitations, no matter how severe, unless the child had a medically determinable impairment. But while all children struggle with activities from time to time, a child with sustained and persistent difficulties in one or more of the domains may have an impairment that was not alleged or is not diagnosed. In such cases, adjudicators may attempt to more fully develop the record.

In making the disability determination, social security looks at evidence from all sources, both medical and non-medical. Such sources can include doctors, nurses, teachers, family members, day care providers, psychologists, speech pathologists, physician’s assistants, chiropractors, naturopaths, audiologists, clergy, and others.

Only a “medically acceptable” source can establish a diagnosis. A medically acceptable source is an MD (medical doctor), DO (osteopathic doctor), or a licensed psychologists.

However, other medical professionals such as nurse practitioner, physician’s assistant, naturopath, chiropractor, speech pathologist, audiologist, physical therapist, occupational therapist, primary social worker and so forth, can help establish the severity of a medical impairment. In addition, non-medical sources can help establish the severity of an impairment.

In most cases Early Intervention (EI) and school programs are significant sources of evidence.

Individual Family Service Plans (ISFPs) and Individualized Education Plans are important sources of evidence as well. These programs are not designed for social security purposes, but rather to design the services and supports a child needs in order to maximize growth and development and participate in the general education curriculum. In contrast, social security looks at these programs to determine the severity of a child’s functional limitations.

These programs set goals that are achievable for the child in order to foster a sense of success in the child. But these goals may be low compared with those of same-aged children without an impairment. There fact a child has achieved a goal does not necessarily mean he is not severely limited in functioning. On the other hand, the fact that a child does not achieve a goal dies not necessarily establish that she has “marked” or  “extreme” functional limitations. The nature of the ISFP or IEP with its goals, and the totality of facts and circumstances must be considered.

Social Security will consider any section 504 plans in making their determination. Section 504 of the Rehabilitation Act of 1973 prevents discrimination on the basis of disability for any schools that receive federal financial assistance. Schools must provide a free public education to each student with a disability.

Students must receive educational and related aids and services even if they do not receive special education services under the Individuals with Disabilities Education Act (IDEA).

Social security looks at an appropriate standard of comparison in making a child’s disability determination. Social security compares a child’s functioning with that of children of the same age without an impairment. For example, a special education teacher might state that the child is doing well. But the teacher might be using one of the following standards of comparison:

Compared with the teacher’s expectations for the child.

Compared with other children in the special education class.

Compared with children of the same age who do not have an impairment.

Adjudicators will do their best to resolve inconsistencies in the evidence. However just because there may be inconsistencies does not necessarily mean the file is incomplete. Certain inconsistent evidence may not be material to the outcome of a case.

See Social Security Ruling (SSR) 09-02p.

If you need help in gathering and organizing evidence in your child’s SSI case, please consider contacting an experienced attorney.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

Contact a Salt Lake City Attorney Committed to Protecting Your Rights

When it comes the family law and social security disability, each client and case is different. It is also important to select an attorney with the experience, skills and professionalism required to address your legal issues. To learn more, contact the Salt Lake City law offices of Melvin A. Cook and schedule an initial consultation to discuss your case.

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