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Comments on the Revised Medical Criteria for Evaluating Mental Disorders

November 15, 2010


Commissioner Michael J. Astrue
Social Security Administration
137 Altmeyer Building
6401 Security Blvd.
Baltimore, MD  21235-6401

RE: Request for Comments: Revised Medical Criteria for Evaluating Mental Disorders, 75 Fed. Reg. 51336 (August 19, 2010); Docket No. SSA-2007-0101

Dear Commissioner Astrue:

We write in response to your request for comments on proposed revisions to the criteria in the Listing of Impairments used to evaluate claims involving mental disorders in adults and children, published in the Federal Register on August 19, 2010 (75 Fed. Reg. 51336) (NPRM).

The Empire Justice Center is a statewide not-for-profit law firm.  Our mission is to protect and strengthen the legal rights of poor, disabled or disenfranchised people in New York through systems change advocacy, training and support to other advocates and organizations, and high quality direct civil representation.  As part of our mission, we represent a number of low-income disability claimants before the Social Security Administration (SSA).  Queens Legal Services and Legal Services NYC work in partnership with the Empire Justice Center. Queens Legal Services serves low-income residents of Queens County in New York City and is an essential part of the network of neighborhood offices that makes Legal Services NYC the largest organization exclusively devoted to the provision of free civil legal services to the poor in the nation.

We also work with advocates throughout New York State who provide similar services, in particular advocates who are funded by the State of New York under the Disability Advocacy Program (DAP) to represent low-income claimants who have been denied disability benefits.  We submit these comments on behalf of the New York DAP providers.

Overall, we are pleased with most of your proposed changes, and are hopeful that they will lead to more accurate and fairer determinations in claims involving mental impairments. We support your decision to broaden the listings to include more mental disorders with the use of nonexclusive examples of disorders in each category.  We believe that proposed changes to the “B” criteria of the listings should prove effective in better evaluating a claimant’s functioning. We also generally support your proposal to add criteria for an “extreme” limitation to the “B” criteria, making the evaluation more akin to that used to evaluate functional equivalency in childhood claims.

We are concerned, however, that your proposed definitions for “marked” and “extreme” limitations may be flawed, or at the very least inadequate. We are especially concerned about what appears to be an over-reliance on standardized test scores to measure limitations.  At the same time, we are concerned about what appears to be a de-emphasis on standardized IQ scores when evaluating intellectual disability/mental retardation (ID/MR) under Listing 12.05.  Finally, we believe that the proposal should include more specific guidance on evaluating substance disorders.

Definitions of “Marked” and “Extreme”

As noted above, we applaud your proposal to add one “extreme” limitation as a means of meeting the “B” criteria of most of the mental impairment listings.  We note that the Introductory language in §12.00.D.1 provides useful language for adjudicators in rating B criteria severity.  We are concerned, however, that your definitions of “marked’ and “extreme” are still too vague.  We are hopeful that your reference to a five-point scale, while not required by adjudicators, will provide some much needed guidance.  We would suggest that it be expanded to a six-point scale, with the sixth point representing a “total limitation.” We believe that this would provide better - and much needed - clarification to adjudicators that “extreme” does not mean a total inability to function.
We also believe that there should be further guidance, as in the current listings, that a marked impairment of even one activity in a Part B category is sufficient to prove severity within that category. You assert in the preface that your proposed change in paragraph 3 of the B criteria from “concentration, persistence or pace” to “concentration, persistence and pace” is a “clarification” of current policy.  Similarly, paragraph 1 of the B criteria requires the “ability to understand, remember, and apply information. To avoid confusion for adjudicators, we recommend that you include language reminding adjudicators of SSA existing policy that a “marked” or “extreme” limitation in any of the three components of Paragraphs B1 and B3 will meet the requirements.

Without such further guidance, however, we are concerned that many adjudicators will rely too heavily on what appears to be an over-emphasis on the use of standardized test results in §§12.00D.2.b and D.3.b in the definitions of “marked” and “extreme.” There is no indication of which tests would constitute appropriate measures of the four abilities enumerated in the B criteria.  We appreciate the reasons why you propose eliminating most of the detailed information on psychological testing in the current 12.00D5 “because most of this information is educational and procedural, and tests are constantly being revised and updated.”  We also recognize that you anticipate issuing an SSR on general and policy-related test information.  In the meantime, it is difficult if not impossible to imagine how these provisions can be implemented without knowing what type of test results would be considered – and whether such tests even exist. 

Although you note that standardized test scores would not be required to determine marked or extreme limitations, proposed §§12.00D.2.a & b do not really offer adjudicators any alternative means of measuring those limitations other than the scale discussed above.  Nor do they provide any advice to adjudicators as to when and how test scores would be gathered.  If appropriate tests to measure the B criteria actually exist, will your adjudicators purchase them? In which cases will that be done?  Surely the burden of producing this kind of evidence should not be imposed upon claimants, particularly claimants who are not represented. 

Additionally, the proposed definitions of marked and extreme in terms of standardized testing appear to be too stringent.  If a test is used, under the proposed rule, an individual's score must be two standard deviations below the mean for the level of functioning to be considered "marked," and it must be three standard deviations below the mean for the level of functioning to be considered "extreme." In addition to encouraging the use of tests that may not be able measure what needs to be measured, these standards would limit the number of people with mental illnesses who would meet the B criteria to only one or two percent of the population. This is far below even the most conservative estimate of the number whose mental health disability makes them unable to work, and who should be eligible for disability benefits.

Furthermore, if appropriate tests do exist, they might be based on different rating scales and definitions of norms and deviations from the norm.  As lay persons, adjudicators will not be equipped to evaluate test results that might use different rating scales and norms.

Finally, adjudicators should be reminded that the rating of severity in terms of the B criteria relates to levels of functioning. Language should be included in the regulations reminding adjudicators that use of terms such as “mild” or “moderate” in the context of diagnoses do not necessarily translate to mild or moderate limitations in functioning. A claimant’s functioning may be more seriously limited when evaluated under the B criteria. For example, clinicians using the multiaxial system for diagnosing clinical disorders often include specifiers for those disorders.  These specifiers have particular clinical meanings defined in the diagnostic manual and may simply refer to the number of symptoms identified rather than a functional assessment of the person’s clinical disorder.

“C” Criteria

We agree with your proposal in §12.00E.2.a to reduce the time frame for consideration under the “C’ criteria from two years to one year to bring it in accord with the statutory one-year durational requirement.  Similarly, we support the elimination of a specific number of episodes of “deterioration.”  We also agree with what appears to be a broader description of “marginal adjustment” in §12.00E.2.c, which would include the inability to function outside the home. 

This change will be significant 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.” We are concerned, however, that your emphasis in proposed §12.00E.2.b on the need to be in continued treatment or highly structured settings may not be flexible enough to evaluate under Listing 12.06C certain phobic conditions such as agoraphobia, the symptoms of which often preclude such treatment. We suggest that §12.00F.2 clarify that the examples provided are not exhaustive, and that other types of supportive services, including in the home, services will also considered.

Intellectual Disability/Mental Retardation (ID/MR)

We appreciate your recognition that the term “mental retardation” should be replaced with “intellectual disability.”  In light of the recently enacted “Rosa’s Law,” however, we suggest that you no longer use the term “mental retardation” in the regulations themselves.  Adjudicators should be instructed, however, that the term “intellectual disability” is synonymous with MR, and may well appear in reports and evidence for some time to come.  

Overall, we are concerned that what you describe as “minor editorial revisions” in this section are actually far more significant.  We fear that your emphasis on adaptive functioning will give adjudicators too much discretion to override valid IQ scores.  This is something that we currently see in practice on innumerable occasions, particularly in the context of listing 12.05C.  Adjudicators frequently reject IQ scores that are considered valid by the psychologist administering the test, essentially substituting their own opinion as to the test validity without further consulting the testers or other resources.  Adjudicators should be reminded that the interpretation of the validity of the test is primarily the responsibility of the professional who administered it. 

We are particularly concerned that your addition of “significant” to “deficits in adaptive functioning” in §12.00B4.a will create too high a standard for adjudicators.  They should be reminded that, especially in terms of evaluations under listing 12.05C, individuals with valid IQ scores in the mentally retarded range may well be capable of performing a wide range of daily activities.  See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) at 43. 

Based on these same descriptors in the DSM, adjudicators should also be reminded that work activity alone should not preclude a finding of disability under listing 12.05.  For example, an ID/MR claimant may have been able, per the description in the DSM, to maintain low level employment in the past, but can no longer do so on the basis of his or secondary impairment.  The prior work activity alone should not be the basis for finding that s/he does not have a significant deficit in adaptive functioning.

We applaud your decision in §12.00B.4.d to continue to use the lowest IQ score when a test such as the Wechsler provides more than one score.  We suggest, however, that you remind adjudicators of the standard error of measurement associated with these tests results.   See, e.g., POMS §DI 24515.056(d)(1)(c), which recognizes that slightly higher IQ's (e.g., 70-75) may support an equivalence determination under listing 12.05C.

Proposed Listing 12.05D requires a finding of two “marked” limitations in the B criteria.  We question why, unlike the other listings and the B criteria itself, it could not alternatively be met with one “extreme” limitation in the B criteria. 

Finally, as noted above, we are concerned that as a result of the proposed emphasis on adaptive functioning, there will be less focus on IQ scores.  We believe that adjudicators should be encouraged to search for results of previous IQ tests or order testing in cases where there is a question of ID/MR.  In all too many cases, we see a consultative examiner report in which the examiner questions the claimant’s level of cognitive functioning, but no IQ tests are ordered.  We believe that this results in a failure on the part of the adjudicator to properly develop the record.

Development of Evidence

We believe that much of what you propose incorporating into §12.00G, “What evidence do we need to evaluate your mental disorder,” particularly the emphasis in §§12.00G.2, 6.b & d will be useful.  We are concerned, however, that it does not go far enough.  For example, while §12.00G.2 recognizes that “other medical sources” can include physician assistants, nurses, licensed clinical social workers and therapists, adjudicators should be reminded that they, per the language of SSR 06-3p, they are required to consider such evidence.  Additionally, although §12.00G.6b&d acknowledge the importance of evidence from other medical sources as well as other sources in addition to medical and the recognition of individual reactions to workplace stress, there is little or no acknowledgement in this section that SSA will develop - or at least help claimants gather - that evidence.  

Furthermore, in developing evidence from treating and other sources, we believe that it is imperative to inform the sources that SSA is seeking evidence of the claimant’s ability to perform full-time competitive work.  As advocates, we frequently see adjudicators rely on “evaluations” from medical or other sources where is not clear the evaluation was done in that context.

Substance Use Disorders

We do not object to your proposal to eliminate Listing 12.09 for evaluation of Substance Addiction Disorders.  We believe, however, that the guidance on materiality that you suggest including in §12.00H should be more extensive.  We suggest that at the very least, the guidance provided in EM-96200 (August 30, 1996), Question 29, be incorporated into these regulations, reminding adjudicators how to determine materiality in cases involving mental impairments. 

Childhood Mental Disorder Listings

Many of the concerns raised above also apply to your proposed changes to the Childhood Mental Disorder Listings.  We do have some specific comments and questions regarding the children’s listings.

We do not object to your proposal to extend the category for Developmental Disorders to age three, in recognition that many medical specialists wait until a child attains age three before making a definitive diagnosis other than “developmental delay.” We assume, however, that the intent is not to bar infants younger than three years old from entitlement under mental listings other than the developmental disorder listing.  We agree that very few mental disorders are diagnosed prior to six years old. There are, however, several DSM diagnoses that are specifically used for infants, e.g., separation anxiety disorder, selective mutism, and reactive attachment disorder of infancy.  Presumably these would continue to fall within existing listings or be analyzed under the medical equivalence standards.

Hypothetically, we do not object to your proposal to conform Listing 112.05 to 12.05 by eliminating §§112.05A & F.  In terms of Listing 112.05F, however, we reiterate our concern expressed above that IQ testing is often not ordered when we believe it should be.  You note in the preface that “[i]n the unlikely event that we receive a claim in which a child appears to have ID/MR but has not had IQ testing, we will purchase IQ testing to determine whether the impairment meets proposed listing 12.05C…”  We suggest that adjudicators be specifically reminded of this mandate in the regulation itself.  Language similar to that of SSRs 09-1p & 09-2p reminding adjudicators that further evaluation, including the development of evidence from existing medical sources or consultative examinations (CEs) may be necessary if there are unexplained or undiagnosed problems or limitations, should be incorporated.

Finally, we are concerned that your proposal at §112.00I6, which 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, may delay needed benefits in some cases. Under this proposal, it appears that using corrected chronological age for premature infants, some premature infants could be nine months old before a determination is made. 

Thank you for this opportunity to offer comments.

/s/ Catherine M. Callery
/s/ Louise M. Tarantino
/s/ Ann Pegg Biddle
/s/Kevin M. Cremin

Catherine M. Callery.
Louise M. Tarantino
Ann Pegg Biddle
Kevin M. Cremin
Disability Advocacy Program Coordinators