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New Mental Impairment Listings Proposed

September 25, 2010

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Social Security has proposed regulations that, if adopted, would result in significant changes to the criteria in the Listing of Impairments used to evaluate claims involving mental disorder in adults and children.  The NPRM (notice of proposed rulemaking), published in the Federal Register on August 19, 2010, would - among other proposed changes - revise both the “A” and “B” criteria to the mental impairment listings.  The evaluation of those criteria would be more comparable to that used to evaluate functional equivalency in children, requiring two marked limitations or one extreme.  Listing 12.05 for mental retardation, renamed “Intellectual Disability/Mental Retardation (ID/MR),” would also be affected, placing more emphasis on adaptive functioning but essentially maintaining the current categories.

The NPRM, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-20247.pdf, follows on an ANPRM (advance notice of proposed rulemaking) issued in 2003, which invited comments from the public as to how the mental impairment listings could be revised.  The Commissioner also sponsored an outreach policy conference in 2003.  And back in 2000, the Social Security Administration (SSA) commissioned a report from the National Research Council (NRC), Mental Retardation: Determining Eligibility for Social Security Benefits.

The Federal Register publication includes introductory material explaining the overall changes, followed by a detailed description of proposed changes to the introductory text to both the adult and children’s listings, as well as the proposed changes to the listing themselves.  Some of the proposals are highlighted below. Comments on the proposed changes are due by November 17, 2010. 

MAJOR REVISIONS

“A” Criteria

Both the content and structure of the adult and children’s listings would be revised.  If the changes are adopted, the listings will no longer include  introductory diagnostic criteria or  specific “A” diagnostic criteria.  The listings would be divided into broad categories of impairments rather than specific diagnoses: 12.02, Dementia and Amnestic and Other Cognitive Disorders; 12.03, Schizophrenia and Other Psychotic Disorders; 12.04, Mood Disorders; 12.05, Intellectual Disability/Mental Retardation (ID/MR); 12.06, Anxiety Disorders; 12.07, Somatoform Disorders; 12.08, Personality Disorders; 12.10, Autism Spectrum Disorders; 12.11, Other Disorders Usually First Diagnosed in Childhood or Adolescence; and 12.13, Eating Disorders. 

According to SSA, this approach will broaden the listings to include more mental disorders.  Section 12.00B would include nonexclusive examples of disorders in each category.  Note that two new listings have been added (12.11 and 12.13).  Disorders Usually First Diagnosed in Childhood would include learning disorders, ADHD, and tic disorders.  Most of the guidance currently provided at 12.00D12 would be eliminated in light of the new listing on eating  disorders.  Listing 12.09 (Substance Addiction Disorders) would be completely eliminated.  Instead, proposed section 12.00H would be added: “How do we evaluate substance use disorders,” which explains the requirements in the Social Security Act and regulations governing materiality.

“B” Criteria

The “B” criteria would be significantly revamped to reflect comments from mental health advocates that the criteria should evaluate a claimant’s functioning in more work-related terms:

  • Understand, remember, and apply information (B1)
  • Interact with others (B2)
  • Concentrate, persist, and maintain pace (B3) (Emphasis added, highlighting the change from “or” to “and,” which SSA describes as a clarification rather than a substantive change)
  • Manage oneself (B4)

SSA proposes eliminating the current B1 criterion of activities of daily living (ADLs) because limitations in ADLs, according to the preamble, are manifestations of limitations of any one, several or even all of the above four proposed mental abilities.  SSA recognizes that most applicants are not working, so information about daily activities from medical and other sources would still be necessary to draw conclusions about the functional limitations they would have in a work setting.  Current B4 - repeated episodes of decompensation - would be incorporated in changes to the “C” criteria discussed below.

Proposed B2 is related to the current criterion of “social functioning.” Some examples in the preamble, however, would be removed because of the heightened focus on mental abilities needed to work.  Instead, they would be replaced with examples of interaction in a work setting: cooperating with co-workers or accepting criticism from a supervisor.

Examples in regard to B3 (concentrate, persist and maintain pace) include ability to avoid distraction, initiate and complete tasks, and sustain an ordinary routine.  SSA proposes moving some of the detailed information in the introductory material at 12.00C3 pertaining to testing and evaluations to another section (12.00G), since it is relevant to the other B criteria as well.

Proposed B4 is described at 12.00C4 as the ability to regulate emotions, control behavior and maintain well-being in a work setting. This ability is used to cope with frustration and stress.  Examples include responding to change; protecting oneself from harm and exploitation by others; inhibiting inappropriate actions; taking medications; and maintaining health, hygiene and grooming.

Marked and Extreme

In a major departure from the current evaluation   process, SSA proposes adding criteria for an “extreme” limitation to the “B” criteria.  It would   essentially create a five-point rating scale (none, mild, moderate, marked, and extreme), although adjudicators would not be required to use a scale.  (In fact, elsewhere in the NPRM, SSA proposes eliminating the requirement of the Psychiatric Review Technique form (PRTF) from 20 C.F.R. §§404.1520a(c)(4) & 416.920a(c)(4).)

As with functional equivalency evaluations for children, a claimant could be found disabled with either an extreme limitation in one “B” category, or “marked” limitations in two.  The definitions of “marked” and “extreme” from the SSI childhood disability criteria would be adopted.  SSA also references the need to evaluate the kind and extent of support a claimant receives, and the characteristics of any highly structured setting that the claimant needs in order to function.

“Marked”- as with the childhood criteria - would be the equivalent of functioning found on standardized testing at least two, but less than three, standard deviations below the mean; in other words, functioning within the bottom two percentiles of the general population.  Similarly, “extreme” would equate to a score at least three standard deviations below the mean.  SSA makes clear, however, that while extreme would be the last point on a five-point rating scale, it “does not mean a total lack or loss of ability to function.” (Proposed 12.00D3).

SSA does not specify what tests might be considered or would be useful in making determinations of marked and extreme limitations.  In fact, most of the detailed information on psychological testing in the current 12.00D5 would be eliminated “because most of this information is educational and procedural, and tests are constantly being revised and updated.”  SSA instead anticipates issuing an SSR on general and policy-related test information.  For now, consideration of psychological and psychiatric measures will be explained in general terms in 12.00G.  SSA does make clear, however, in Proposed 12.00D4 and 12.00G that test scores will be considered only to the extent that they are consistent with other objective evidence about the effects of a mental disorder on a claimant’s functioning, including ID/MR.

Additionally, according to Proposed 12.00G, evidence from psychological and psychiatric measures are only one of the six categories of evidence SSA will consider in evaluating mental disorders.  The others include: evidence from medical sources; evidence from the claimant and persons who know him/her; evidence from school, vocational, training, work, and work-related programs; and longitudinal evidence.  SSA also makes clear in 12.00G that information from sources other than “acceptable medical sources” is relevant and “very helpful.”  The introductory material refers to Social Security Ruling (SSR) 06-3p. 

In addition to expanding the list of sources of evidence, SSA includes information regarding cultural background and sensory, motor and speaking abnormalities that may affect evaluation of a claimant’s mental disorder.  It also de-emphasizes the mental status exam, which it believes is more thoroughly described in standard psychiatric and psychological textbooks. In terms of longitudinal evidence (12.00G6), SSA notes that a claimant’s behavior or ability to function in an unfamiliar or one-time situation, such as a consultative examination, does not necessarily reflect how s/he would function in a work setting (12.00G6c). 12.00G6d explains how stress is considered.  The proposed provision is allegedly based on SSR 85-15, and acknowledges that stress may affect people differently.

“C” Criteria

SSA reiterates that the “C” criteria will continue to provide alternative severity criteria for those situations where a claimant has achieved marginal adjustment, but whose symptoms are diminished because of psychosocial supports or treatment.  The language of each listing, however, would be simplified.

SSA proposes reducing the time frame for consideration from two years to one year to bring it in accord with the statutory one-year durational requirement.  That definition, however, would appear in 12.00E2 rather than each listing.  The listings themselves would require a “serious and persistent mental disorder,” with reference back to 12.00E2. SSA emphasizes that it chose this language carefully to avoid confusion with terms such a “chronic mental impairment” or “serious and persistent mental illness (SPMI),” which are terms of art in other contexts such as the DSM-IV-TR or other Federal and State statutes.  It also proposes changing episodes of “decompensation” to “deterioration,” which would no longer be defined numerically as in the current 12.00C4. It proposes a description of “marginal adjustment” that would incorporate the current criteria but would be broader.   Of significance, it would include the inability to function outside the home.  This may be of most significance in reference to Listing 12.06, which currently requires as part of the “C” criteria “the complete inability to function independently outside the area of one’s home.”  Finally, the definitions would emphasize the need to be in continued treatment or highly structured settings.

12.05 – Intellectual Disability/Mental Retardation

SSA begins its explanation of the changes to Listing 12.05 by justifying the name change.  According to the preamble, the term “mental retardation” has taken on negative connotations over the years and may be offensive to some people.  Therefore, it is proposing gradually replacing it with the term “intellectual disability,” which it believes is more consistent with many other organizations.  To avoid confusion, it will use both terms for the time being, abbreviated as ID/MR.

SSA also proposes adding the requirement of “significant” deficits in adaptive functioning in order to demonstrate ID/MR. According to SSA, this is in accord with most definitions, including those of the American Association on Intellectual and Developmental Disability (AAIDD), the American Psychological Association, and DSM-IV-TR. Rather than including that definition in Listing 12.05 itself, the listing will refer back to the definition in 12.00B4. There will undoubtedly be a greater emphasis on adaptive function, and the need to confirm test results with other evidence, especially evidence of functioning.

Although the language of the four subsections of 12.05 would be changed, the elements would remain essentially the same. The definitional section in 12.00B4 would remove reference to the “developmental period,” but leave in that that ID/MR must be manifested before age 22.  It makes clear, however, that SSA will still find ID/MR even if there is no evidence from before age 22, as long as the current evidence and history is consistent with the diagnosis.

The proposed rule would also continue to accept the lowest IQ on a test that provides more than one score. It also explains the second prong of Listing 12.05C will be met by another physical or mental impairment that is “severe,” as defined by 20 C.F.R. §§404.1520(c) & 416.920(c). It re-emphasizes, however, that the secondary impairment must be “additional,” “clarifying” that the limitations caused by the other impairment must be separate from the limitations caused by the ID/MR.

Childhood Mental Disorder Listings

Many of the same changes would apply to the evaluation of claims under the childhood mental disorder listings, with obvious differences such as references to age-appropriate activities as opposed to ability to function in a work setting, and references to the functional equivalence provision for childhood claims. Examples appropriate to children are also incorporated.

A major change, however, would involve the removal of the “B” criteria for children ages one to three from each listing.  Instead, a newly proposed Listing 112.14 (Developmental Disorders of Infants and Toddlers) would pertain to developmental disorders in children from birth to age three.  This would replace current Listing 112.12 (Developmental and Emotional Disorders of Newborn and Younger Infants – Birth to the attainment of one).  SSA asserts this age group (birth to three) represents a better continuum than two distinct age groups.  It also believes that it is more appropriate to consider this age group in terms of development rather than the mental disorder categories proposed for older children. According to SSA, medical professionals have not reached consensus on appropriate mental disorder diagnoses for younger children; many medical specialists wait until a child attains age three before making a definitive diagnosis other than “developmental delay.”

Proposed Listing 112.14 would also include different “B” criteria: ability to plan and control motor movement; ability to learn and remember; ability to interact; and the ability to regulate physiological function, attention, emotion, and behavior. In connection with this proposal, SSA also explains its rules for deferring adjudication for infants.  Proposed 112.00I6 would allow SSA to wait until a child is six months old in cases where adjudication is deferred, regardless of whether s/he was born full-term or prematurely. Chronological age would be used for full-term infants and corrected chronological age for premature infants.  SSA believes that the current three month deferral is not adequate.  It explains, however, that adjudication will not always be deferred. 

SSA also proposes conforming Listing 112.05 to the adult ID/MR listing. Current listings 112.05A and F would be eliminated.  According to SSA, section A would be redundant of proposed 112.05B and D. Per SSA, current Listing 112.05F, which pertains to cases of ID/MR where there are no IQ scores, is not used.  SSA claims that in such situations, it would purchase IQ testing.

Current Listing 112.11 for ADHD would be incorporated into a new Listing 112.11: “Other Disorders Usually First Diagnosed in Childhood or Adolescence.”  This listing, like the analogous proposal for adults, would incorporate ADHD as well as tic disorders currently in 112.07 and other disorders not previously listed.  Eating Disorders would become a separate disorder (112.13), and 112.07 would apply only to Somatoform Disorders.  As with adults, Listing 112.09 (Psychoactive Substance Dependence Disorders) would be eliminated.

Finally, the age at which field office employees can make presumptive disability findings would be reduced from age seven to four.

Conclusion

While overall, these proposed changes appear for the most part to be helpful changes, the devil is always in the details.  And as has oft been said, this summary is no substitute for actually reading the proposal.  The Empire Justice Center anticipates commenting on the NPRM by the November 17, 2010 deadline.  Please let us know your concerns or questions before that date so we can incorporate them into the comments. 

 





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