Disability Aspects of Asperger Syndrome

By Peter J. Martinelli

This article is a general review of the pertinence of social security disability benefits to impairments presenting limitations associated with Asperger Syndrome. The author, an administrative law judge for the office of hearings and appeals of the social security administration, submits this article in his private capacity, without official support or endorsement of the Social Security Administration. The article should not be construed as an official statement of the Social Security Administration.

One cannot watch television too long without being assailed with an ad from an attorney advising of our rights to disability benefits under the Social Security Act, and the attorney’s ability to assist in obtaining such benefits. The purpose of this article is to take a specialized area of law, and explain certain aspects as to be more understandable, particularly as pertinent to limitations associated with Asperger Syndrome and the Autism spectrum. This edition will speak to adult disability. Benefits for children may be discussed at a later date.

At the outset it must be understood that there are two basic types of disability benefits. Those commonly referred to as “Title II” benefits are based upon contributions to the Social Security Trust Fund by the person applying for benefits, or, in some cases one responsible for the applicant’s support. The complications of the latter type of claim are beyond the scope of this article, but alerts one that inquiry about Title II benefits should be made even when applying for disability benefits without a work background. The contributions that pay for these benefits are found on your pay stub under the denotation “FICA” among the deductions to your pay.

The other type of benefits are those commonly known as “SSI,” that is Supplemental Security Income. These benefits are paid out of the general tax funds, and are designed to supplement a person’s income such as to reach a certain level deemed the least one needs to live.

The above speaks to the non-disability eligibility requirements for disability benefits, and generally lead to few controversies. It is the disability aspects of eligibility, which supplies the bulk of grist for the litigational mill. That is the same for both programs. I will, in explaining this element of eligibility, refer to standard language appearing in many decisions evolving from this litigation, as the decisions are designed to be understood by applicants, and provide an understandable explanation of the law.

What is “Disability?”

For adults, most decisions explain to the litigant that:

The general issue is whether the claimant is entitled to a period of disability and Disability Insurance Benefits under Sections 216(i) and 223 of the Social Security Act (and/or Supplemental Security Income benefits). The specific issue is whether he/she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment expected to result in death, or that has lasted or can be expected to last for a continuous period of not less than 12 months.

As can be gleaned from that explanation, the question is whether one is able to perform in any position. That is generally measured by the existence of a significant number of jobs in the national economy that would accommodate the individual’s properly established limitations. To be properly established those limitations must be caused by a medically determined impairment. Three points which often give rise to misunderstanding in this definition are:

  1. the fact that inability to do a past job is not determinative of eligibility;
  2. the mere existence of jobs within the applicant’s ability is the measuring stick, not specific openings available for placement; and
  3. an individual’s marketability is not a factor.

The last two of these points is most pertinent to the applicant with Asperger Syndrome. The ability to perform a function is not the same as the ability to get along in the workplace. Thus the latter must be specifically brought up as a limiting factor as to the number of jobs that exist for a specific claimant. In other words, to succeed in collecting benefits the claimant must be unable to perform work because the jobs within her/his physical, mental and vocational capacity would also require interaction with more people than the claimant is capable of interacting with. The third point is particularly problematic, as marketability is not a factor for purposes of eligibility, and may be the factor most likely to keep someone with Asperger Syndrome from employment. Getting by the hiring interview is probably the biggest hurdle for that group, yet that block to getting a job is not a qualifying factor. The question is: If the individual gets by the interview, can she/he do the job. Thus, a claimant capable of doing simple, repetitive tasks, such as unskilled assembly work, despite having a low probability of hire, would not qualify as disabled.

Again, using language generally found in decisions, we find the use of a five-step, sequential analysis, using the word claimant to describe the person applying for benefits:

  1. If the claimant is performing substantial gainful work, she is not disabled.
  2. If the claimant is not performing substantial gainful work, her impairments must be severe before she can be found to be disabled.
  3. If the claimant is not performing substantial gainful work and has a severe impairment (or impairments) that has lasted or is expected to last for a continuous period of at least twelve months, and her impairment (or impairments) meets or medically equals a listed impairment contained in Appendix 1, Subpart P, Regulation No. 4, the claimant is presumed disabled without further inquiry.
  4. If the claimant’s impairment (or impairments) does not meet or equal an above referenced Listing, nor prevent her from doing her past relevant work, she is not disabled.
  5. Even if the claimant’s impairment or impairments prevent her from performing her past relevant work, if other work exists in the national economy that accommodates her residual functional capacity and vocational factors, she is not disabled.

The first step means simply that if the claimant is working, and earning around $700 per month in a setting other than a sheltered workshop, it is presumed the individual is not disabled.

The second step means the medically determined impairments must significantly impede one’s ability to work.

The third step refers to a rarely applicable situation, in which certain very serious ailments, when accompanied by specific, objectively verified signs and symptoms, are presumed to create limitations precluding any work.

The fourth step means that if, after taking into consideration all of the limitations attributable to properly established medically determined impairments, the person can still do her/his former job, disability is not established. The ability to do “previous relevant work” refers to work the claimant did within 15 years of the time benefits are sought. The claimant could be found capable of past relevant work either as actually done, or as generally done in the national economy. Thus, if the claimant performed a task in a manner more difficult that the norm, the norm will be the measuring stick.

The last step means that, if the individual cannot do a past job, the Social Security Administration must show that other jobs exist in significant numbers in the national economy, that will accommodate any of the claimant’s limitations.

Peter Martinelli lives in Western Massachusetts. His daughter Marie Martinelli was a graduate intern at AANE during 2001-2002; she is currently living in Colorado.