7th Circuit: Child with ADHD, other conditions not entitled to disability benefits

A Hoosier child with several intellectual limitations is not considered disabled and therefore doesn’t qualify to receive benefits from the Social Security Administration, the 7th Circuit Court of Appeals has ruled.

Father Joseph McCavitt came before an administrative law judge to argue that his son, N.A.M., was disabled as a result of his attention deficit hyperactivity disorder, intellectual limitations, oppositional defiant disorder and nocturnal enuresis.

For adults, SSA benefits depend on a work history plus current inability to perform a job. But children, unlikely to have a work history, must have limitations that meet one of the many listed categories of disability or are functionally equivalent to one of them.

When determining whether a kid’s impairment is functionally equivalent to a listing, the SSA asks whether it produces a marked limitation in at least two, or an extreme limitation in one, of six “domains of functioning”. McCavitt argued that his son’s conditions met or were functionally equivalent to Listings 112.05, 112.08 and 112.11.

But the ALJ, Indiana Northern District Court and 7th Circuit Court of Appeals all agreed that N.A.M. is not disabled. All three found common ground after reviewing evidence from several of N.A.M.’s teachers and medical care providers that led the judges to determine N.A.M. did not meet any of the listings.

The evidence, they concluded, showed he had a marked limitation in only one functional category: “acquiring and using information.”

“An example suffices. A general-education teacher opined that N.A.M.’s skills are ‘extremely low,’ from which McCavitt argues that N.A.M. must be ‘extremely limited’ in the domain of acquiring and using information, but his special-education teacher called his skills ‘average’ when he was taking his medications. The ALJ was entitled to credit the views of the special-education teacher, who knew N.A.M. well and had a good grasp of gradations among children with intellectual shortcomings,” Circuit Judge Frank Easterbrook wrote for the 7th Circuit in a Wednesday decision.

The appellate court also rejected McCavitt’s request for the 7th Circuit to use an older version of Listing 112.05, which was amended after McCavitt filed his application but before the ALJ rendered its decision.

“McCavitt contends that N.A.M. acquired rights under the old regulation from his birth through the amendment’s effective date. But the ALJ applied the amendment to the entire claim, because that’s what the amendment itself instructs. The order promulgating this change provides that it applies ‘to claims that are pending on or after the effective date,’” Easterbrook wrote.

“Disability benefits are not designed to encourage people to acquire disabilities or reward them for doing so; limits on a federal subsidy differ from penalties. It is therefore unsurprising that we have held that amendments to changes in the rules for disability benefits may be applied to pending cases,” the 7th Circuit concluded. “As far as we can see, every other circuit that has considered the issue has come to the same conclusion.”

The case is Joseph McCavitt, on behalf of N.A.M., a minor v. Kilolo Kijakazi, Acting Commissioner of Social Security, 20-2727.

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