Childhood SSRs Issues

March 1, 2009

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Ann Biddle, Esq., Paul M. Ryther, Esq.

The Social Security Administration (SSA) has published new Social Security Rulings (SSRs) dealing with the evaluation of functional equivalency in childhood disability claims and continuing disability reviews (CDRs).  According to the preamble in each, the SSRs provide policy interpretations and consolidate information from the regulations, training materials and question-and-answer documents.  SSRs 09-1p, 09-3p, and 09-5p through 09-8p were published in the Federal Register (74 Fed Reg. 7527 et seq., February 17, 2009).  SSRs 09-2p and 09-4p were published the next day (74 Fed Reg. 7625 et seq.).  They will become effective thirty days after publication and remain in effect until further notice.

SSR 09-1p, Determining Childhood Disability Under the Functional Equivalence Rule – The "Whole Child" Approach, sets the tone. SSR 09-2p, Documenting A Child's Impairment-Related Limitations, provides specifics. SSRs 09-3p through 09-8p each relate to one of the six domains set forth in the regulations: Acquiring and Using Information, Attending and Completing Tasks Interacting and Relating with Others, Moving About and Manipulating Objects, Caring for Self, and Health and Physical Well-Being.

These SSRs should prove overall to be helpful to advocates representing children in SSI claims.  They generally take a functional approach to analyzing cases, but include helpful language on special education, and useful explanations of various language disorders.  Additionally, they all emphasize that rating limitations caused by a child's impairment(s) in each and every domain affected is not "double-weighting." Rather, that approach legitimately recognizes the particular effects the child's impairment(s) has in all domains involved in the activities limited by the impairment(s).  They also contain language reminding adjudicators that some children have chronic physical or mental impairments with episodes of exacerbation (worsening) and remission (improvement) that may vary considerably over time.  Any variations in the child's ability to function must be considered.  See note 17 in SSR 09-1p and note 7 in SSRs 09-3p, 4p, 5p, 6p, 7p and 8p.

On preliminary review, the SSRs in some instances are a condensed version of the regulations found at 20 C.F.R. §416.924a, but in others, provide more specific examples.  Similarly, they incorporate some of the guidance previously set in the training materials published by SSA for adjudicators.  See Final QA Compendium May 2001, issued by SSA in November 2004, and available at www.empirejustice.org and on its on-line resource center as DAP #333.  To a certain extent, especially in terms of the SSRs specific to the domains, they are repetitive of each other.  Advocates, however, will undoubtedly find their own particularly useful nuggets in this collection.  Some highlights - including those found in the footnotes - are outlined below.

SSR 09-1p, or "The Whole Child Approach,"  reminds adjudicators to identify which of a child's activities are limited and which of the domains are involved.  The next step is to determine whether the child's impairment(s) could affect those domains and account for the limitations. How the child functions every day and in all settings compared to other children in the same age group must be considered.  This "Whole Child" approach recognizes that many activities require the use of more than one of the abilities described in the first five domains of functioning, and/or may be affected by a problem considered in the health and well-being domain.  Per the SSR, it is incorrect to assume that the effects of a particular impairment must be rated in only one domain or that a combination must be always be rated in several.

The SSR sets forth several examples of activities that require two or more abilities. For example, shoe tying encompasses four domains:  learning and remembering the sequence (Acquiring and Using); focusing on the task (Attending); using the fingers (Moving About); and taking responsibility for dressing (Caring for Self).  Which domains are actually affected depends on the nature of the impairment(s).  A child with a hand deformity may only be affected in one domain (Moving About).  Pain or side effects of medication, however, might spread the problem to the domain of Attending and Completing.  Note 12 reminds adjudicators that while children with mental impairments may often have limitations that are rated in several domains, physical impairments can also affect several domains.  The SSR also gives examples of children with a single impairment (ADHD) that affects more than one domain, a child with a combination of impairments (hearing impairment and cleft lip) that is rated in only one domain, and a child with a combination of impairments (Borderline Intellectual Functioning and depression) that must be rated in more than one domain.

In terms of rating severity (Section III), the SSR emphasizes that any help and support the child receives must be taken into consideration. At this point, in order to determine whether there is a marked or extreme limitation in functioning, the adjudicator should use the picture of the "whole child" constructed of the child's functioning in each domain and then consider: 1) how many activities in the domain are limited; 2) how important are they (basic, marginal, or essential); 3) how frequently do the activities occur and how frequently are they limited; 4) where do the limitations occur (school, home or all settings); and 5) what factors are involved (support, structured setting, medication, etc.)?

According to SSR 09-1p, there is no set formula for this evaluation.  For example, a serious limitation in only one activity could account for a marked limitation, as could one that does not affect the child on a daily basis, depending on the relative weight assigned to the considerations described above.

Adjudicators are also reminded in this SSR - and again in the other SSRs, particularly SSR 09-2p - that they should be alert to the possibility that limitation of several activities may point to a larger problem that may be undiagnosed or not yet identified and that requires further evaluation, including the development of evidence from medical sources or consultative examiners (CEs).  Finally, they are reminded that the rating is not to be derived from an "average" of what the child can and cannot do.  The fact that a child can do one activity particularly well should not negate the difficulties the child may have with other activities.

The SSR concludes with an example of how an eight year old with an anxiety disorder should be evaluated.  It does not, however, actually rate the severity in this example, emphasizing that the additional evidence might be needed – in other words, avoiding an example that could be cited by advocates in support of finding limitations in a similar fact pattern!  Finally, it notes that while SSR 96-6p requires the use of medical expert opinion before making a medical equivalency determination, there is no such requirement for functional equivalency.

SSR 09-2, Documenting a Child's Impairment-Related Limitations, explains the evidence needed to document impairment related limitations; the sources of evidence; how evidence from early intervention and school programs (including special education) is considered and inconsistencies are addressed.  According to SSA, evidence is needed to help determine: what activities a child is or is not able to perform; which are limited or restricted compared to other children of the same age who are not impaired; in what settings does the child have difficulties; what kind of help does the child need and how often; and does the child need a structured or supported setting and how often.

The SSR provides useful examples of the ways in which various medical sources, including those that that are not considered "acceptable medical sources" under the regulations, can provide helpful evidence of functioning – once evidence from an acceptable medical source has established the existence of at least one medically determinable impairment.  The SSR also explains in great detail the usefulness and significance of evidence from early intervention and school programs.  It describes and defines the content and terms in comprehensive evaluations and IEPs (Individual Education Plans), including various classroom placements, accommodations, and 504 plans. Of note, the SSR touches upon the goals generally includes in IEPs, pointing out that a child who achieves the goals may still have limitations because, for example, the goals may have been set low. On the other hand, inability to achieve the goals is likely an indication of severity.

The SSR also reminds adjudicators that a child's functioning should be compared to other children of the same age who do not have impairments, and warns that they should understand which standard the source of information is using. As an example, the SSR points out that a teacher's comment that a child is "doing well" could have various meanings depending on the standard used.  It also reminds adjudicators of their responsibility to resolve inconsistencies in the record.  It points out, however, that some inconsistencies may not be material and others may not be true inconsistencies.  For example, a child with ADHD who has a longitudinal history of hyperactivity at home and at school may not display it at a CE.  This, according to the SSR, is an example of a well known clinical phenomenon that children with ADHD may behave better in a novel or one-on-one setting.

SSR 09-3p covers the domain of Acquiring and Using Information. It reminds adjudicators that the domain is not limited to consideration of IQ, achievement or grades.  Rather, children acquire information at all ages for very different purposes: a baby shaking a rattle learning it produces sound, or a teenager learning the rules and mechanics of driving. It gives by way of example impairments other than mental retardation or learning disorders that can cause limitations in this domain: children with anxiety disorders who are so fearful of failing that they cannot perform learning-related activities at school such as test taking.

As in SSR 09-2p, adjudicators are reminded of the particular significance of school evidence.  The kind and level of special education services may also be indicative of limitations. Citing 20 C.F.R. §416.924a(b)(7)(iv), however, adjudicators are reminded that lack of services does not mean the child does not have limitations.  Their needs may go unnoticed or unmet for various reasons.

As in SSR 09-1p on the "Whole Child," SSR 09-3p also emphasizes the extent to which an impairment may affect more than just the domain of Acquiring and Using.  For example, language deficits may cause limitations in the domain of Interacting.  Pain may interfere in the domain of Attending and Completing, and also have an effect on Acquiring and Using.

SSR 09-4p addresses Attending and Completing Tasks. It acknowledges that although a number of the examples provided refer to ADHD or other mental disorders, physical impairments can also interfere with abilities in this domain (e.g., pain, side-effects of medications).  The SSR also reminds adjudicators that some children with attention problems may attend to some tasks but not all in all settings.  Some children may "hyperfocus" only on things that interest them, such as video games.  This can be common in children with autistic spectrum disorders, who may hyperfocus, and in fact excel in one area, but are nonetheless severely limited in others.  These children may well have impairments in several domains.

SSR 09-5p involves the domain of "Interacting and Relating with Others."  Among other things, the SSR reminds adjudicators that children who are not necessarily disruptive may also have limitations in this domain.  They may be so withdrawn as to be unnoticed. Their impairments, however, may be just as significant as those with disruptive behaviors, since children's understanding of self and the world comes from interactions with others. Note, however, that a child who simply prefers to be alone does not necessarily fall into this example

The SSR also points out a child with physical abnormalities may have problems making friends, as might a child with speech and language impairments. (Note 13 clarifies that in evaluating this domain, a child's fluency in his/her primary language should be considered. Note 14 reminds adjudicators to be sensitive to cultural differences. For example, while children of Northern European backgrounds might learn to look others in the eye when addressing them, children of Asian backgrounds might avoid eye contact as a sign of respect.

It also distinguishes between speech and language, noting that speech is the production of sound for the purposes of communication, while language provides the message of communication. Language involves understanding what is said and heard (receptive) and expressing what one wants to say, either orally or in writing (expressive). [Advocates should note that SSR 98-1p remains another useful source for analyzing speech and language issues, as well as mental retardation, in children's cases.]

SSR 09-5p distinguishes between the domain of Interacting and Relating versus that of Caring for Self, with the former involving feeling and behavior in relation to other people, and the latter encompassing feelings about one's self. By way of example, a girl with ADHD who interrupts conversations might be evaluated in the domain of Interacting, while if she impulsively ran out into the street, her behavior could fall with in the Caring for Self category.  On the other hand, a child with Oppositional Defiant Disorder who disregards parental instructions and runs on a slippery mat might be evaluated in both domains.

SSR 09-6p, which concerns the domain of Moving About and Manipulating Objects, reminds adjudicators that both physical and mental impairments can affect a child's ability to move about and manipulate objects.  For example, a benign brain tumor can cause difficulty with balance, rheumatoid arthritis difficulty with writing, or a developmental coordination disorder slow hand-eye coordination or clumsiness. Somatoform disorders can affect this domain, as can the side effects of medications (e.g., some anti-depressants can cause hand tremors).

It distinguishes between the domain of Moving About versus Health and Physical Well-Being, noting that Moving About considers a child's ability to move his or her body, while the Health domain takes into account the cumulative effect of all physical and mental impairments and their treatments.  It also notes that an impairment(s) or its treatment can have effects in both domains.  Medications, for example, can have physical effects (nausea, headaches, allergic reaction or insomnia) that will sap a child's energy or make the child feel ill. These overall effects might be evaluated in the Health domain, while the limits in motor functioning would fall within Moving About.

SSR 09-6p contains some useful discussions about pain, acknowledging that it may interfere with the ability to concentrate (Attending and Completing domain), and affect the Acquiring and Using domain. Interacting and Relating could also be affected in that pain might cause the child to be less active socially, or medications might cause restlessness or anxiety that could affect social functioning or emotional well-being (Caring for Self domain).  Note 11 points out the use of a prosthesis or other adaptive equipment might also cause social stigmas, and thus straddle two domains.

SSR 09-7p involves the Caring for Yourself domain. In this domain, SSA considers a child's ability to maintain a healthy emotional and physical state in an age-appropriate manner. It includes how well children get their emotional and physical needs met; how they cope with stress and changes; and how well they take care of their health, possessions and living areas.  The domain does not, however, address children's physical abilities to perform self care such a bathing, dressing or cleaning their rooms.  These activities would fall within the domain of Moving About; or in some instances, Health; or as highlighted in Note 10, Acquiring and Using, if for example a child's cognitive limits cause difficulty in dressing.

The SSR points out a child could have limitations in this domain due to medication or treatment.  For example, an adolescent who is prescribed medication that causes weight gain refuses to take it because of embarrassment about his weight, thus endangering his health.  Note 11 is significant in that reminds adjudicators that SSA will not consider a child fully responsible for failing to follow prescribed treatment.  Also, the issue of failure to follow treatment will not arise unless and until there has first been a finding a disability, and a determination that with treatment the child would no longer be disabled, as dictated by SSR 82-59.

SSR 09-7p focuses on children's emotional wants and needs, recognizing that to be successful as they mature, children must be able to cope with negative feelings and express positive feelings appropriately.  It lists several examples of appropriate responses, ranging from an infant sucking on a pacifier or thumb when upset, to a teenager listening to music when stressed.  On the other hand, an example of inappropriate behavior would be a teenager with a depressive disorder engaging in self-injurious behavior such as binge eating, substance abuse, or suicidal gestures. In addition to regulating emotional well-being, the SSR notes that a child must be able to satisfy physical wants and needs on a daily basis.  Examples include recognizing when one is ill, seeking medical attention, following safety rules, and making decisions that do not endanger one's self.

SSR 09-8p deals with the Health and Physical Well-Being domain, which encompasses the cumulative physical effects of physical and mental impairments and their associated treatments on a child's health and well-being.  Unlike the other domains, this one does not address typical development and functioning, but instead addresses how such things as recurrent illnesses, medication side-effects and ongoing treatment affect a child's body.  In Note 11, the SSR acknowledges that 20 C.F.R. §§416.924a(b)(8) and (b)(9) provide that the impact of chronic illness and effects of treatment are "factors" to consider in evaluating functioning.  The difference between "factors" and the Health domain is that the factors address any kind of effect (mental or physical) that a child's impairment(s) has on functioning at every step in the sequential evaluation.  The domain is only considered when determining whether the physical effects of an impairment functionally equal a listing.

Physical effects include weakness, dizziness, shortness of breath, fatigue, low stamina, psychomotor retardation, pain, allergic reactions, recurrent infections, poor growth, bladder or bowel incontinence, changes in weight or eating habits, stomach discomfort, nausea, seizures or convulsions, headaches or insomnia.  Note 12 clarifies that SSA follows the definition of psychomotor retardation generally accepted by psychiatrists and psychologists, meaning the motor effects of psychiatric disorder, as opposed to that used by pediatricians and developmental specialists (combination of cognitive, communicative and motor limitations).

The SSR reminds adjudicators that these effects can be caused by medication, treatments, or therapies.  Medical fragility should also be considered, in that some children may appear to functioning appropriately only because of intensive medical or other care necessary to maintain health and well-being.  Correct evaluation of episodic illness is also emphasized.  Per Note 13, brief episodes like ear infections are generally not considered.  They will be, however, if associated with an underlying impairment such as an immune deficiency that increases a child's susceptibility to infection.

As noted above, SSA claims to have incorporated information from its regulations, training materials, and Q&A documents.  In fact, many aspects of the May 2001 Q&As, reissued in November 2004 (available as DAP #333) are included in the SSRs.  It is not clear if the Q&As will remain in effect.  Adjudicators should remember, however, what an invaluable source they are.  Take for example §III-2, in which SSA posits that it is irrelevant why a child is disabled, except for limited drug and alcohol situations.  In other words, adjudicators are not allowed to discount impairment based on family circumstances.  A quick review of the Q&As in the context of learning these new SSRs could be time well spent.

 The full text of the new SSRs can be found at www.ssa.gov.  Keep us informed of your favorite - or not so favorite - nuggets as you begin to use these SSRs, or see them used by SSA adjudicators.