Saturday, July 11, 2009

I just call her mommy

One of the more interesting challenges of being an ALJ for SSA is the occasional need to decide a “child's case.” Some background – Social Security includes a provision to assist families of seriously disabled children who live below the poverty line. The policy goal is to provide a small monthly payment to such families to assist with the additional costs of having a disabled child in the household. Child's benefits are part of the Supplemental Security Income [SSI] program. As with SSI for adults, the income eligibility part of the child's benefit program is administered by a different part of the agency. I just have to decide whether the child is seriously disabled.

The disability requirements are complex. I'm supposed to evaluate functioning in six “domains” (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. In each of these domains there are quite different factors to consider depending on the child's age. Infants and pre-school children have their own criteria; elementary and high school children have different criteria. Children can come into the system at any age and are re-evaluated periodically so it's possible I would hear an appeal of a child at any age from just after birth to age 18. When a child turns 18, and if they have not successfully joined the labor force, they are re-evaluated as an adult. I not only have to read medical records in these cases but a wide variety of school records including Individualized Education Plans (IEPs) as well as IQ and other psychological testing.

Only about 10% of the cases I hear are child cases. That means I've heard about 50 since last September. In 49 of the 50 the claim was initiated by the mother or grandmother. Only one case was initiated by a father, but unfortunately when that case was scheduled the father and child did not appear in court. No shows are quite common in all child cases. One reason is that a much smaller percentage of these cases have legal representation, thus there is no one to help prepare the case and to remind the claimant of the hearing. I never represented children in my private practice primarily because I had not studied this area of Social Security law and because the fees are relatively small. It's a lot of work for not much money. So about 2/3 of these cases have no lawyer; most of the rest are represented by Legal Aid.

I was quite daunted, therefore, when I encountered my first child case about the third week I was on the bench. That case involved a 3-year-old with sickle cell anemia. She has a twin sister with the same disorder who was granted benefits without a problem in initial application so the mom didn't understand why this child was being denied. It ended up being my job to explain that this child was just not as sick as her twin sister, not yet. Not a fun task.

Then there is the issue of how to take testimony from children. According to SSA rules, I'm supposed to ask adequate questions of the child to satisfy myself on whatever issues the case presents. How is this done? I was offered virtually no training in this area by SSA. I asked the other judges. Some never take testimony from children. Some let the lawyer do it, if they are lucky enough to have a lawyer. Most told me they just ask a few questions and observe the child's behavior in court. Nobody had much helpful to say. I decided to ask at least some questions of all children old enough to talk. If they had lawyers, I'd ask the lawyer to question the child and observe how they did it. I'd ask questions about school, pets, hobbies, going to the doctor, etc. and just see what happened. So far this has worked out well for me and I'm actually having a good deal of fun doing it.

I asked one six-year-old boy who the woman sitting next to him was and he said, “That's my mommy.”

What's her name?” He looked puzzled. What was I asking? He looked at her. “Tell the judge my name, honey.” He looked up at me and sweetly said, “I just call her mommy.”

In another case I was questioning a ten-year-old about her need for glasses. There was nothing in the school or medical records on this, but her mother had just testified she could not see the blackboard without glasses. The girl was not wearing glasses in court. I asked her whether she always wore glasses when she went out. “Yes.” Why didn't she have them on now? “I forgot them.” Could she see me alright? “Yes.” I pointed down the front of the bench, could she read my name plate there?

She frowned and looked puzzled. “No.”

Why not, is it blurry?“

After a second she smiled and said, “No, I can't read it 'cause you don't got no name tag.”

My hearing clerk got up and looked. Sure enough, she had forgotten to insert my name plate before court. If I had bothered to look, I would have seen it lying on the bench in front of me.

Next time I'll be more careful before inadvertently asking a child a trick question.

No comments:

Post a Comment