Monday, February 17, 2014

Disability Claims Involving Borderline Intellectual Functioning

Representing Social Security Disability clients with borderline intellectual functioning is something that I am particularly passionate about.  (Borderline intellectual functioning was formerly called "borderline mental retardation".)  I must confess that these cases can be very challenging and, at times, totally frustrating.  The main reason why these cases are so difficult is that determining a person's intelligence is a complicated matter. Test scores and psychological evaluations are very imprecise indicators of a person's ability to function.

Pursuant to Social Security Listing of Impairments 12.05, a person with "a valid verbal, performance, or full scale IQ of 59 or less" is eligible for Social Security Disability benefits.  (Section 12.05 B of the listing)   For purposes of Social Security Disability, a person with an IQ of 59 or less is considered to have low intellectual functioning.  
The situation is a bit more complicated when a claimant obtains a score between 60 and 70.  For purposes of Social Security Disability, a score between 60 and 70 is considered "borderline intellectual functioning". Listing section 12.05 C states that a person is entitled to benefits if he or she has "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".  (Emphasis added.)  The important question in cases when a claimant scores between 60 and 70 is determining what constitutes "an additional and significant work-related limitations of function".  There has been much litigation regarding what this particular phrase means.  The Court of appeals of several circuits have defined this term as follows: "an impairment imposes a significant work-related limitation of function when its effect on a claimant's ability to perform basic work activities is more than slight or minimal.  See Fanning v. Bowen, 827 F.2d 631, 632-33 (9th Cir. 1987). (citing Pullen v. Bowen, 820 F.2d 105, 109 [4th Cir.1987]; Cook v. Bowen, 797 F.2d 687, 690 [8th Cir.1986]; Nieves v. Secretary of Human Services, 775 F.2d 12, 14 [1st Cir.1985]; Edwards by Edwards v. Heckler, 755 F.2d 1513, 1515 [11th Cir.1985].)  (See also District Court decision in  Magray v. Shalala, 880 F. Supp. 1278 (E.D. Wis. 1995))  Generally, this means that additional mental health conditions such as depression and anxiety in addition to an IQ between 60 and seventy might be considered an "additional significant work-related limitation" within the meaning of Social Security listing 12.05 C.  Other relatively common physical conditions might also be considered an additional work-related limitation.