Six years, a new version of the Diagnostic and Statistical Manual (DSM), and 2,245 public comments later, the Social Security Administration (SSA) has published significant revisions to its mental impairment listings. SSA had issued a Notice of Proposed Rule Making in August 2010, proposing what at the time appeared to be major changes to the listings.
Those proposals would have ostensibly brought the listings into accord with the DSM-IV-TR. In the interim, the American Psychiatric Association published the DSM-5. Without the opportunity for further public comment, SSA issued final regulations on September 26, 2016, which will become effective January 17, 2017. https://www.federalregister.gov/documents/2016/09/26/2016-22908/revised-medical-criteria-for-evaluating-mental-disorders.
As with most SSA revisions, there is good with the bad. SSA has added a new listing pertaining to Post Traumatic Stress Disorders (PTSD), but has eliminated Listing 12.05C, which encompasses low IQ scores combined with another “significant” impairment. SSA has recognized that Licensed Clinical Social Workers frequently serve as therapists, renaming both as “clinical mental health counselors,” but are still not acceptable medical sources. It also added social workers, shelter staff, and other community support and outreach workers to the list of examples of non-medical sources of evidence.
It has acknowledged some of the unique circumstances of claimants facing homelessness, including an example of a situation that makes it difficult to provide longitudinal medical evidence. It included a recognition that periods of lack of treatment or noncompliance may result from a claimant’s mental disorder. And it rejected suggestions it adopt the use of symptoms validity testing to identify malingering.
But SSA removed from the final regulations proposed language about the effects of work-related stress and the questionable validity of mental status exams. Instead, mental status exams are among the list of evidence from medical sources that SSA will consider, along with psychiatric or psychological rating scales. On the other hand, SSA removed all references to standardized tests to inform assessments, except in relation to Listing 12.05.
Also included in the introductory language at 12.00 is an acknowledgement that evidence of functioning in an unfamiliar setting does not necessarily show how a claimant would function on a sustained basis in a work setting. See §12.00C6a. It also specifies how different levels of support and structure should be evaluated. A “complete picture” of daily activities should be considered, with a recognition that the ability to perform “some routine activities without help and support does not mean that you do not have a mental disorder or that you are not disabled.” By way of example, §12.00D3a cites routine activities such as taking care of personal needs, cooking, shopping, paying bill, living alone, or driving.
SSA did not, as previously proposed, eliminate the special technique, known as the psychiatric review technique. It agreed with commenters who believed it is a useful tool for adjudicators and helps increase consistency in decision making.
Highlights of some of the other changes to the new listing are summarized below.
SSA backed away from broad changes to the “A” – or diagnostic – criteria of the listings. Each category still contains “A” criteria. Introductory section 12.00A describes how the listings are arranged. Section 12.00B gives examples of the mental disorders evaluated under each category, or listing.
As proposed in 2010, SSA has revamped the “B” criteria contained in the mental impairment listings. It has been revised, according to SSA, to better reflect a claimant’s functioning in more work-related terms:
- Understand, remember, or apply information (B1)
- Interact with others (B2)
- Concentrate, persist, or maintain pace (B3)
- Adapt or manage oneself (B4)
SSA defends the removal of “activities of daily living” (ADL) as a criterion by claiming it will continue to evaluate how a person performs ADL; it will use that evaluation as a principal source of information rather than a criterion of disability. The focus of the “B” criteria is instead on the mental abilities a person uses to perform work activities. Examples of the ability to understand, remember or apply information include following one-or-two step oral instructions. Interacting with others includes the ability to handle conflicts with others, responding to social cues, and keeping interactions free from excessive irritability. Adapting or managing oneself encompasses the ability to regulate emotions and control behavior, including but not limited to responding to demands, and maintaining personal hygiene. “Repeated episodes of decompensation” has been eliminated. See §12.00E for the complete listing of examples, which, according to SSA, are non-exhaustive.
In response to comments, SSA did agree to change “and” in the previous version of the criteria to “or,” acknowledging that a claimant need not demonstrate a limitation in each of the three parts of B1 and B3. It also acknowledges in Section 12.00F3f that if a claimant has a “marked” or “extreme” limitation in any single part of B1 or B3, s/he has that degree of limitations for that particular B criterion.
The evaluation of the new “B” criteria will be more comparable to that used to evaluate functional equivalency in children, requiring two marked limitations or one extreme. SSA has created a five-point rating scale (none, mild, moderate, marked, and extreme) to evaluate limitations under the B criteria. As with childhood functional equivalency, SSA’s definitions in 12.00F2 for these terms are less than crystal clear. For example, “mild” means functioning is “slightly limited,” while moderate represents fair, “marked” is seriously limited, and “extreme” means an inability to function on a sustained basis. SSA acknowledges, however, in response to comments, that “extreme” does not mean a total lack or loss of ability to function. In response to comments about the potentially confusing use of these terms by clinicians, SSA added language to §12.00F3a acknowledging the use of these descriptors by clinicians will not always be the same as the degree of limitation specified by the “B” criteria.
SSA retains the “C” criteria as an alternative severity criterion for those situations where a claimant has achieved marginal adjustment, but whose symptoms are diminished because of psychosocial supports or treatment. SSA retained the two year documentation requirement and the requirement that the disorders are “serious and persistent” from the current listings. In 12.00G2c, SSA has substituted the term “deterioration” for “decompensation” in the evaluation of “marginal adjustment.” According to SSA, “decompensation” refers to an extreme state of deterioration, often leading to hospitalization, that exceeds the degree of impairment intended in the “C” criteria. Examples of deterioration, however, include becoming unable to function outside of more restrictive setting without additional support.
Note that Listings 12.07 (Somatic symptom disorder), 12.08 (Personality and impulse control disorders). 12.10 (Autism Spectrum Disorder), 12.11 (Neurodevelopmental disorders), and 12.13 (eating disorders) not include the “C” criteria. According to SSA, experts and program experience indicate the unique situations described in the “C” criteria typically do not apply to these disorders.
12.02 – Neurocognitive disorders
No longer known as “Organic Mental Disorders,” the new listing requires a “significant cognitive decline in one or more cognitive areas, and the usual B criteria.” Examples include dementia related to various medical conditions, including Alzheimer’s. It also covers traumatic brain injuries (TBI) and substance induced cognitive disorders.
12.03 – Schizophrenia spectrum and other psychotic disorders
Examples in this category include schizophrenia, schizoaffective disorder, delusional disorder, and psychotic disorders due to another medical condition.
12.04 – Depression, bipolar and related disorders
Examples of disorders evaluated under this listing include bipolar disorders, cyclothymic disorders, major depressive disorder, and persistent depressive disorder (dysthymia). This listing is currently called “Affective Disorders.”
12.05 – Intellectual Disorder
Some of the most significant changes are in this section. The name has been changed to both reflect the change in nomenclature from Mental Retardation to Intellectual Disability, but also to underscore that an intellectual disability may not be a disability in the eyes of SSA. On the other hand, the listing does not require a diagnosis of intellectual disability. According to SSA, the listings, including 12.05, are “function-driven, not diagnosis driven.”
The listing has been reorganized to reflect the diagnostic criteria from the DSM-5 and the American Association on Intellectual and Developmental Disabilities. It now has only two paragraphs: 12.05A for those claimants whose cognitive limitations prevent them from taking a standardized intelligence test, and 12.05B, for those who are able to be tested. Neither section contains the current “capsule definition,” but each contains three subparagraphs, the last of which requires evidence that demonstrates or supports the conclusion that the disorder began prior to age 22. Per §12.00H4, if evidence recorded before age 22 is not available, SSA will require evidence about current intellectual and adaptive functioning and the history of the disorder to support the conclusion the disorder began before age 22. Examples include school records indicating a history of special education, statements from employers or supervisors and from people who may be able to describe the claimant’s functioning in the past and currently.
The first subparagraph of each section requires “significantly sub average general intellectual functioning,” which for 12.05A is measured by the inability to function at a cognitive level necessary to participate in standardized intellectual testing. For 12.05B, it is measured by a full scale IQ score of 70 or below OR a full scale score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below. This is a significant change from the standard in the current listing, which relies on the lowest score, which might not necessarily be the full scale. SSA claims the full scale scores are the most reliable evidence that a person has an intellectual disability, and not another impairment that affects cognition.
SSA’s prefatory comments contain fairly detailed discussion about its decision to rely on the full scales scores. It has also made clear that only “qualified specialists, Federal and State agency medical and psychological consultants, and other contracted medical and psychological experts, may conclude that an obtained IQ scores(s) is not an accurate reflection of a claimant’s general intellectual functioning.” See §12.00H2d. Will this mean the ALJ cannot decide test scores are not valid?
The second of the three required subparagraphs require significant deficits in adaptive functioning. In terms of 12.05A, that will be demonstrated by dependence on others for personal needs. For 12.05B, it will be manifested by meeting the B criteria. Per §12.00H3c, standardized tests of adaptive functioning will not be required, but will be considered if they already exist. According to §12.00H3d, the fact that the claimant can engage in everyday activities such as caring for personal needs, preparing simple meals, or driving a car, will not always disprove deficits in adaptive functioning. Nor will lack of deficits in one area negate deficits in another. And pursuant to §12.00H3e, past work activity will not necessarily disprove deficits. SSA will consider, for example, whether the job required extra time or supervision, or involved more limited duties. Helpful nuggets that will require lots of extra digging and preparation by advocates!
Of concern is SSA’s cross-reference to new listing 12.11 – Neurodevelopmental disorders, discussed infra, which includes specific learning disability and borderline intellectual functioning (BIF). According to SSA, other mental impairments such as specific learning disability and BIF do not involve the same nature or degree of sub average intellectual functioning and deficits of adaptive function as intellectual disabilities. Query regarding how consultative examination reports diagnosing BIF even when IQ scores are below 70 will be treated?
Listing 12.06 –Anxiety and obsessive-compulsive disorders
Currently called Anxiety Related Disorder, this new listing includes social anxiety, panic, and generalized anxiety disorders, agoraphobia, and obsessive-compulsive disorder. It specifically excludes trauma and stressor related disorders, which are now included in new Listing 12.15
Listing 12.07 – Somatic symptom and related disorders
Examples include symptom disorder, illness anxiety disorder, and conversion disorder – disorders characterized by physical symptoms that are not feigned but cannot be fully explained by a general medical condition, mental disorder, substance use, or culturally sanctioned behavior or experience.
Listing 12.08 – Personality and impulse-control disorders
In addition to personality disorders, examples of disorders evaluated under this listing include intermittent explosive disorder, which was added to both the adult and childhood version in response to comments.
The current reference listing for Substance Abuse Disorders was eliminated.
Listing 12.10 – Autism Spectrum Disorder
SSA’s preface contains extensive discussion of its decision making involving this category. In response to comments, it removed references to Asperger’s disorder. But it declined to specify that the core nature of Autism Spectrum Disorder (ASD), as suggested by commenters, is not an intellectual impairment but a social and behavioral disability. According to SSA, some people with ASD do have cognitive disorders, so all four of the B criteria are used to evaluate individual cases. In the examples of impairments evaluated under this listing, SSA acknowledges ASD may or may not be accompanied by an intellectual impairment, and may or may not be accompanied by a language impairment.
Listing 12.11 – Neurodevelopmental disorders
These include disorders characterized by onset during the developmental period, and include learning disorder, borderline intellectual functioning, and tic disorders, such as Tourette syndrome. Section 12.00B9a sets forth possible signs and symptoms, including but not limited to abnormalities in cognitive processing, deficits in attention or impulse control, low frustration tolerance, or deficits in social skills.
Listing 12.13 – Eating disorders
The new category of eating disorders, which previously only existed in the childhood listings, include, by way of example, anorexia nervosa, bulimia nervosa, binge-eating disorders, and avoidant/restrictive food disorder.
Listing 12.15 – Trauma—and—stressor-related disorders
This category includes posttraumatic stress disorder and other specified related disorders such as adjustment-like disorders with prolonged duration. The disorders are characterized by “experiencing or witnessing a traumatic or stressful event, or learning of a traumatic event occurring to a close family member or friend, and the psychological aftermath of clinically significant effects on functioning.” Section 12.00 B11a lists examples of relevant symptoms and signs.
These disorders are currently considered under listing 12.06 for anxiety disorders. The new listing reflects the DSM-5, which created a new category for trauma and stress related disorders.
Mental Disorders in Children
The changes to the children’s listings mirror to a large extent those in the adult listings. Of note, Listing 112.12 Developmental and Emotional Disorders of Newborns and Younger Infants, is now Listing 112.14 – Developmental disorders in infants and toddlers. The B criteria are unique to that listing. And Section 112.00I2 provides “additional guidance” for calculating corrected chronological age.
Listing 112.15 – Trauma-and-stress-related disorders – also has slightly different criteria than the adult version, including an alternative diagnosis of Reactive attachment disorder.
Of concern is SSA’s refusal to include Oppositional Defiant Disorder and Conduct Disorder as examples of impairments under Listing 112.08 – Personality and impulse-control disorders. According to SSA, “these impairments do not typically result in marked limitation in one of the ‘paragraph B’ criteria or extreme limitation in one of the criteria.” Advocates will need to make sure that adjudicators do not interpret this to preclude consideration of these impairments under the alternative functional equivalency evaluation in childhood claims.
These new regulations will become effective at all levels of adjudication on January 17, 2017, including in pending cases. Federal courts will be expected to review appeals under the rules in effect when the decisions were rendered. A court remand, however, will be governed by the new rules. The listings will remain in effect for five years.
The Empire Justice Center will be offering training sessions on these new listings in the coming months. As has oft been said, neither this summary nor the upcoming trainings will substitute for actually reading the new listings, and the commentary published with them. Happy New Year!