Ferguson v. Massanari
2001 WL 902207 (D.Del.)

This was a lawsuit seeking benefits under the Social Security Act for Dion Ferguson, a young man in this 20s. His mother sought benefits for him under SSI (Supplemental Security Income) or under Title II of the Social Security Act. The question in dispute in the case was whether Ferguson was so disabled that he could not work. The court vacated the denial of benefits and remanded the case to the Social Seucirty Administration.

Diagnosis: The opinion describes several distinct factors used in diagnosing FAS or FAE:

(1) Behavioral factors: "special education placements, developmental delay, hyperactivity, and behavioral problems" (2001 WL at *3); "inappropriate social behavior, memory deficits . . . lack of judgment, lack of remorse for misbehavior, lying . . . unusual aggressiveness, and wide variations in learning abilities". (2001 WL at *8)(quoting the concurring and dissenting opinion in Devereux).

(2) Exposure: a history of exposure to alcohol while in utero. (2001 WL at *3)

(3) Physical Features: "short stature, distal digital hypoplasia, nail dysplasia, and mild facial dysmorphisms." (2001 WL at *3).

[Note: some of these features are limited to FAS, and are not present in cases of FAE].

Eligibility for Benefits: The opinion concluded that the Social Security Administration, which had denied benefits to Ferguson, had made several errors.

(1) When an applicant seeks disability benefits based on his or her IQ, the Social Security regulations usually require an IQ below 70. If the applicant has taken the IQ test several times and gotten different scores, the lowest score should be used. In this case the lowest score was 72. The court noted that because of possible statistical errors, Ferguson's actual IQ could be 5 points higher or lower, i.e. perhaps as low as 68. (2001 WL at *7)

(2) The Social Security Administration should have considered the combined effect of Ferguson's low IQ together with possible FAS in determining his ability to work.

(3) The Social Security Administration had an obligation to develop the evidence and record regarding whether Ferguson had FAS and what impact such FAS would have on his ability to work.

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