Social Security Benefits May Provide Greater Stability for Individuals with Fetal Alcohol Spectrum Disorders

Amy GilbroughAmy Gilbrough, Attorney, Douglas Drachler McKee & Gilbrough, LLP

Summary: A brief description of potential Social Security benefits for children and adults dealing with fetal alcohol spectrum disorders.

While benefits received under these programs are modest[1], establishing eligibility for Social Security benefits may provide much-needed support and stability for children and adults most affected by fetal alcohol spectrum disorders (FASD). When presented with a child, parent or family with significant disabilities, consider whether a child or parent may be eligible for benefits under the Social Security Act.

The presence of FASD (or any significant physical or mental impairment) does not automatically create entitlement to Social Security benefits. The evidence must show that an individual meets Social Security’s definition of disability. There are distinct definitions of disability for children under the age of 18 and adults. In addition to establishing disability, individuals must meet financial or other criteria.

Disability in children must be established by a medical diagnosis supported by medical signs and findings and evidence of marked limitation in more than one area of functioning. Disabled children under the age of 18 may receive Supplemental Security Income (SSI) disability benefits of up to $710 per month if the household is financially eligible for the program. Financial eligibility depends on the income of the household and the size of the household. Social Security provides a basic financial eligibility chart,[2] however the income rules are complicated. If there is any doubt regarding eligibility a call to Social Security or a Social Security specialist is appropriate. Once a child receiving benefits reaches age 18, Social Security will make a new determination regarding eligibility under the adult rules.

Social Security benefits may be available to children who are not disabled. Biological children, step-children, dependent step-children or sometimes even grandchildren of a wage earner who is disabled, retired or deceased may be eligible for benefits from Social Security until they reach age 18 (or age 19 if the child is still attending school).[3]

Adults (age 18 and over) may be eligible for Disability Insurance Benefits (DIB),[4] Supplemental Security Income disability benefits (SSI),[5] or Disabled Adult Child (DAC) benefits.[6] In order to receive benefits under any of these programs, the adult must be disabled as defined in the Social Security Act. Disability is the “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a), 416.905(a). Whether an individual meets the criteria for disability is not always easily resolved. For example, as individuals get older, the criteria for disability become less stringent. An individual who is 50 or over may receive benefits when a person who is 25 will not, even though they have a similar degree of impairment. If there is any doubt, it is worthwhile to contact an individual who specializes in Social Security disability benefits who can provide advice regarding potential eligibility.

In order to apply for SSI as a child or an adult, an individual must go in person to the local field office.[7] The best way to start the process is to call Social Security at 1-800-772-1213. This call will result in an appointment at a local field office to file an application. Applicants for disability insurance benefits or disabled adult child benefits may also apply in person or on line at the Social Security Administration website.

Potential claimants should not delay filing an application as the dates benefits begin are based on the filing date. Some claimants feel that they need to gather medical records for Social Security prior to application. This is not the case. Social Security will pay for and gather medical records relevant to the claim if the claimant provides the names, addresses and telephone numbers of medical providers or other sources of information.

Once an application is filed, Social Security will reach a decision regarding eligibility. If an individual is denied benefits, there are several opportunities to request review of the denial decision.[8] At each level, appeals must be filed in writing within 60 days.

Effective representation can be particularly crucial for individuals with significant limitations due to FASD. Difficulties with decision making, frustration tolerance, and executive function—the very limitations that result in disability—can make it particularly challenging for claimants with FASD to navigate the multi-tiered and lengthy Social Security process. For specialized questions or when difficulties arise establishing eligibility, there are many advocates who specialize in this area of law and cannot accept a fee for representing claimants unless the claim is successful. Attorney fees are capped at 25% of an individual’s back award and must be approved by Social Security. The National Organization of Social Security Claims Representatives (NOSSCR), a specialized bar association, will provide referrals to claimants needing an advocate in the process.[9]

Author biography:

Amy Gilbrough is a partner at Douglas Drachler McKee & Gilbrough, a Seattle law firm practicing Social Security and labor law. She has been practicing Social Security law since 1997, first at the Social Security Administration’s Office of Disability Adjudication and Review as a decision writer, then at the Office of General Counsel. She moved to private practice in 2003, dividing her time between administrative and federal court cases in the Western District of Washington and the Ninth Circuit Court of Appeals. She has spoken on Social Security law and practice for the King County Bar Association, the American Bar Association, the National Business Institute and the Circuit 9 Conference.


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