[Federal Register Volume 75, Number 226 (Wednesday, November 24, 2010)]
[Proposed Rules]
[Pages 71632-71635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29577]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA-2007-0101]
RIN 0960-AF69
Revised Medical Criteria for Evaluating Mental Disorders
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking; limited reopening of comment
period.
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SUMMARY: We are reopening for a limited purpose the comment period for
the notice of proposed rulemaking (NPRM) that we published in the
Federal Register on August 19, 2010 (75 FR 51336). We are reopening the
comment period for 15 days to clarify and to seek additional public
comment about an aspect of the proposed definitions of the terms
``marked'' and ``extreme'' in sections 12.00 and 112.00 of our Listing
of Impairments (listings). We are reopening the comment period to
accept comments about that issue
[[Page 71633]]
only. We will not consider comments on any other aspects of the
proposed listings for mental disorders that we receive during this
reopened comment period.
DATES: To ensure that your comments are considered, we must receive
them no later than December 9, 2010.
ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, mail. Do not submit the same comments multiple times or
by more than one method. Regardless of which method you choose, please
state that your comments refer to Docket No. SSA-2007-0101 so that we
may associate your comments with the correct regulation.
Caution: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly urge
you not to include in your comments any personal information, such as
Social Security numbers or medical information.
Internet: We strongly recommend that you submit your
comments via the Internet. Please visit the Federal eRulemaking portal
at http://www.regulations.gov. Use the Search function to find docket
number SSA-2007-0101. The system will issue a tracking number to
confirm your submission. You will not be able to view your comment
immediately because we must post each comment manually. It may take up
to a week for your comment to be viewable.
Fax: Fax comments to (410) 966-2830.
Mail: Address your comments to the Office of Regulations,
Social Security Administration, 107 Altmeyer Building, 6401 Security
Boulevard, Baltimore, Maryland 21235-6401.
Comments are available for public viewing on the Federal
eRulemaking portal at http://www.regulations.gov or in person, during
regular business hours, by arranging with the contact person identified
below.
FOR FURTHER INFORMATION CONTACT: Cheryl A. Williams, Office of Medical
Listings Improvement, Social Security Administration, 6401 Security
Boulevard, Baltimore, Maryland 21235-6401, (410) 965-1020. For
information on eligibility or filing for benefits, call our national
toll-free number, 1-800-772-1213, or TTY 1-800-325-0778, or visit our
Internet site, Social Security Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Electronic Version
The electronic file of this document is available on the date of
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.
We are reopening until December 9, 2010 the comment period on one
aspect of our proposed rules to revise our mental disorders listings:
Definitions we provide for the terms ``marked'' and ``extreme'' that
refer to standardized testing. In light of the public comments we have
received on this aspect of our proposed rules, we have decided to
provide more background about these proposals, to clarify our intent,
and to request additional public comment on only this clarification. We
have received many letters and facsimile messages from members of the
public who appear to have misunderstood the background and purpose of
these proposals. We believe that it will be helpful to these and other
commenters if we provide more information and more time to comment on
this issue.
Background
In this section and the sections that follow, we will review what
our current rules say, the history of those rules and how we developed
them, and how they relate to the proposed rules. As we will show, in
most instances the proposed rules would not be new, especially for
children with mental disorders who claim disability benefits under the
supplemental security income (SSI) program. We developed the rules with
input from both medical experts and advocates for people who have
mental disorders. We do not intend the proposed rules to have the
effect of encouraging our adjudicators to purchase testing; rather,
they are alternative criteria that we use to help define our terms for
assessing severity under the listings. The proposed rules would also
not directly affect adults or children who are already receiving
disability benefits from us.
Under our current mental disorders listings, each listing (except
listings 12.05 and 12.09) consists of a statement describing the
disorder(s) addressed by the listing (a ``capsule definition''),
paragraph A criteria (a set of medical findings), and paragraph B
criteria (a set of four impairment-related functional limitations).\1\
In general, we will find that an adult is disabled under the current
mental disorders listings if he or she has a mental disorder that meets
the capsule definition and the paragraph A criteria of a listing, and
the disorder results in ``marked'' limitations in two of the four
paragraph B criteria. We define the term ``marked'' for adults in
current Sec. 12.00C as follows:
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\1\ There are additional functional criteria, which we refer to
as the paragraph C criteria, in current listings 12.02, 12.03,
12.04, and 12.06. We do not discuss those criteria here.
Where we use ``marked'' as a standard for measuring the degree
of limitation, it means more than moderate but less than extreme. A
marked limitation may arise when several activities or functions are
impaired, or even when only one is impaired, as long as the degree
of limitation is such as to interfere seriously with your ability to
function independently, appropriately, effectively, and on a
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sustained basis.
We also cross-refer to current Sec. Sec. 404.1520a and 416.920a in our
regulations, which indicate that ``marked'' is more than moderate and
less than extreme. We repeat a variation of this definition of
``marked'' in additional sections under Sec. 12.00C. For example, in
Sec. 12.00C1, we state: ``We do not define `marked' by a specific
number of activities of daily living in which functioning is impaired,
but by the nature and overall degree of interference with function.''
We follow this statement with an example that refers generally to
``serious'' difficulties in daily activities.
Except for very minor language changes, we have had this definition
of ``marked'' in our adult mental disorders listings since 1985.\2\ The
1985 adult mental disorders listings were also the first listings in
which we established a standard of listing-level severity based on
``marked'' limitations in two broad areas of functioning. Since that
time, however, we have issued other listings and rules that use a
``two-marked standard'' or otherwise refer to ``marked'' limitations.
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\2\ 50 FR 35038, 35066 (August 28, 1985).
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Over the last 20 years, we have refined and expanded our definition
of the term ``marked'' in response to questions from our adjudicators
and the public and based on expert input. We first expanded the
definition of ``marked'' in revised childhood mental disorders listings
we published in 1990.\3\ Although we have made minor language changes,
the definition of ``marked'' in our childhood disability rules, which
we developed with information we received from a panel of experts, has
been substantively the same since we first published it. The current
childhood rule provides:
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\3\ 55 FR 51208 (December 12, 1990).
Where ``marked'' is used as a standard for measuring the degree
of limitation[,] it means more than moderate but less than extreme.
A marked limitation may arise when several activities or functions
are impaired, or even when only one is impaired, as long as the
[[Page 71634]]
degree of limitation is such as to interfere seriously with the
ability to function (based upon age-appropriate expectations)
independently, appropriately, effectively, and on a sustained basis.
When standardized tests are used as the measure of functional
parameters, a valid score that is two standard deviations below the
norm for the test will be considered a marked restriction.\4\
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\4\ Listings, Sec. 112.00C.
We incorporated this definition by reference for the policy of
functional equivalence when we first established that policy in
1991.\5\ In 1997, following the enactment of Public Law 104-193, we
published separate definitions of the terms ``marked'' and ``extreme''
for the purposes of determining functional equivalence. We also
provided several alternative definitions, including a definition that
provided that ``[w]hen standardized tests are used as the measure of
functional abilities, a valid score that is two standard deviations or
more below the norm for the test (but less than three standard
deviations)'' would establish a marked limitation. Our 1997 rules also
provided that ``[w]hen standardized tests are used as the measure of
functional abilities, a valid score that is three standard deviations
or more below the norm for the test'' would establish an extreme
limitation.\6\
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\5\ See, in general, 56 FR 5534 (February 11, 1991).
\6\ 20 CFR 416.926a(c)(3) (1997).
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When we first published this rule in 1997, we explained that the
definitions of ``marked'' and ``extreme'' were ``not new, but are based
on longstanding policy in the regulations and interpretations we have
used in our internal instructions and training.''\7\
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\7\ 62 FR 6408, 6414 (February 11, 1997).
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As in 1991, the rules for SSI children we published in 1997 were
interim final rules with a request for public comment. When we
published the final rules in 2000,\8\ we explained in the preamble that
``we asked a number of individual experts for information as we
formulated these final rules. The experts included pediatricians,
psychologists, and other pediatric specialists, and individual
advocates for children with disabilities who have expert knowledge
about the SSI program.''\9\ The final rules we published in 2000
contained specific definitions of the terms ``marked'' and ``extreme''
that are consistent with the rules we proposed in our August 2010 NPRM,
including the provisions that:
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\8\ 65 FR 54747 (September 11, 2000).
\9\ Ibid.
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We will find that a person has a ``marked'' limitation
when he or she has a valid score that is two standard deviations or
more below the mean, but less than three standard deviations, and
``Marked'' limitation is the equivalent of the functioning
we would expect to find on standardized testing with scores that are at
least two, but less than three, standard deviations below the mean.
The current functional equivalence rule is identical to the rule we
published in 2000.\10\ We also provide a definition of ``extreme'' with
criteria similar to those in the definition of ``marked'' but at a
higher level of severity.
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\10\ 20 CFR 416.926a(e)(2).
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When we published the current definition of ``marked'' for
functional equivalence, we explained in the preamble of the final
rules:
In addition to retaining the other definitions of ``marked''
from the interim final rules, we also added a new one explaining
that ``marked'' is the equivalent of functioning we would expect to
find on standardized testing with scores that are at least two, but
less than three, standard deviations below the mean. This includes
in our rules a longstanding instruction from the training manual we
provided to our adjudicators when the interim final rules were
implemented. (Childhood Disability Training, SSA Office of
Disability, Pub. No. 64-075, March 1997.)\11\
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\11\ 65 FR at 54757.
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What the Proposed Rules Say
Immediately before we define the terms ``marked'' and ``extreme,''
we provide the following general guidance in proposed Sec. 12.00D1:
1. General
a. When we rate your limitations using the paragraph B mental
abilities, we consider only limitations you have because of your mental
disorder.
b. To do most kinds of work, a person is expected to use his or her
mental abilities independently, appropriately, effectively, and on a
sustained basis.
c. Marked or extreme limitation of a paragraph B mental ability
reflects the overall degree to which your mental disorder interferes
with your using that ability independently, appropriately, effectively,
and on a sustained basis in a work setting. It does not necessarily
reflect a specific type or number of activities, including activities
of daily living, that you have difficulty doing. In addition, no single
piece of information (including test scores) can establish whether you
have marked or extreme limitation of a paragraph B mental ability. (See
12.00D4.) [Emphasis added.]
d. Marked or extreme limitation of a paragraph B mental ability
also reflects the kind and extent of supports you receive and the
characteristics of any highly structured setting in which you spend
your time that enable you to function as you do. The more extensive the
supports or the more structured the setting you need to function, the
more limited we will find you to be. * * *
The proposed rule defining ``marked'' limitation for adults says:
2. What We Mean by ``Marked'' Limitation
a. Marked limitation of a paragraph B mental ability means that the
symptoms and signs of your mental disorder interfere seriously with
your using that mental ability independently, appropriately,
effectively, and on a sustained basis to function in a work setting.
Although we do not require the use of such a scale, marked would be the
fourth point on a five-point rating scale consisting of no limitation,
slight limitation, moderate limitation, marked limitation, and extreme
limitation.
b. Although we do not require standardized test scores to determine
whether you have marked limitations, we will generally find that you
have marked limitation of a paragraph B mental ability when you have a
valid score that is at least two, but less than three, standard
deviations below the mean on an individually administered standardized
test designed to measure that ability and the evidence shows that your
functioning over time is consistent with the score. (See also 12.00D4.)
[Emphasis added.]
c. Marked limitation is also the equivalent of the level of
limitation we would expect to find on standardized testing with scores
that are at least two, but less than three, standard deviations below
the mean.\12\
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\12\ Propose Sec. 12.00D2, 75 FR at 51356. Again, there is a
similar definition of ``extreme'' in the next paragraph on the same
page.
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Proposed Sec. Sec. 12.00D4a and D4c say, as pertinent to this
reopened NPRM:
4. How We Consider Your Test Results
a. We do not rely on any IQ score or other test result alone. We
consider your test scores together with the other information we have
about how you use the mental abilities described in the paragraph B
criteria in your day-to-day functioning.
* * * * *
c. Generally, we will not find that a test result is valid for our
purposes when the information we have about your functioning is of the
kind typically used by medical professionals to determine that the test
results are not the best measure of your day-to-day functioning. If
there is a material inconsistency between your test results
[[Page 71635]]
and other information in your case record, we will try to resolve it. *
* *
* * * * *
(Emphasis added). We provide similar definitions of the terms
``marked'' and ``extreme'' in the listings section for children, with
criteria appropriate to childhood.
Why are we providing a limited reopening of the public comment period?
In response to the NPRM, we received many public comments that
seemed to misunderstand our current policy, what changes we were
proposing, and how the proposals might affect adults and children. We
believe that much of the confusion was caused by our failure to provide
sufficiently detailed information about our current policies and where
our proposals came from. We apologize for that omission, which we have
corrected in this notice.
Although we received a wide variety of comments, we are reopening
the public comment period on a limited basis to specifically address
the misunderstanding of our current and proposed policy regarding the
use of standardized tests. We are requesting public comment only on
this issue in light of the clarification we are providing in this
notice.
Many commenters focused on two aspects of our proposed rule: (1) A
definition of ``marked'' based on a standardized test score that is two
standard deviations below the mean; and, (2) a separate definition of
``marked'' based on functioning that would be the equivalent of such a
score if there were a standardized test. As discussed above, neither of
these proposals represents new policy; both are based on our
longstanding rules. However, some commenters said that our proposal
would encourage our adjudicators to use standardized tests. Many said
that we should drop all reference to standardized tests in the mental
illness sections of the proposed rules and that the change would reduce
the number of children and adults with serious mental disorders who
qualify for disability benefits. Some who are already beneficiaries or
who have family members who are beneficiaries were concerned that they
would lose their benefits.
We did not intend for, and do not believe that, our proposed rules
would do any of these things. The childhood mental disorders listings
have contained a provision defining ``marked'' limitation as a score
that is two standard deviations below the mean on a standardized test
for 20 years. We developed those rules with information we received
from a group of mental health experts. We did not propose to change
that provision or the way we determine disability in children with
serious mental disorders. We proposed only to extend the provision to
adults since it has worked well in childhood claims.
The proposed rules for adults and children do not state that
adjudicators should obtain standardized tests, encourage them to do so,
or indicate that there are standardized tests for all serious mental
disorders. Rather, our proposed rules state only that if a person has a
standardized test and the scores are two standard deviations below the
mean, the test will show that the person has a ``marked'' limitation.
Consistent with our current childhood rules, the proposed rules also
state that adjudicators must not rely on the results of standardized
tests alone but must consider all of the evidence in the person's case
record.
Since the beginning of 2001, our functional equivalence regulation
has contained an alternative rule defining ``marked'' limitation for
children based on functioning that would be consistent with a score on
a standardized test that is two standard deviations below the mean, if
there were such a test. As with the provision for actual scores from an
actual test, the rule provides that we will find that the child has a
marked limitation if the child is functioning at that level. The
regulation section, like the proposed rule for the mental disorders
listings, also provides other definitions for the term ``marked.'' We
began using this regulation in 1997, 13 years ago. The number of awards
of children who apply for SSI has not fallen since that time.\13\ Given
this experience, we believe that it was appropriate to include the rule
in both the adult and child mental disorders listings.
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\13\ You may look up our award data for children under SSI by
year in the SSI Annual Statistical Report, available at: http://www.socialsecurity.gov/policy/docs/statcomps/ssi_asr/2009/ssi_asr09.pdf.
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Perhaps most importantly, it appeared that many commenters did not
understand that we do not deny a person's claim merely because his or
her impairment(s) does not meet or medically equal the criteria of our
listings. As under our current rules, adults with mental disorders who
cannot perform their past work or a significant number of jobs in the
national economy considering their age, education, and work experience
would still be able to qualify under other rules we have for finding
persons disabled.
We also want to make clear that we do not reexamine the entitlement
of beneficiaries when we revise listings. When we periodically perform
continuing disability reviews to determine if beneficiaries are still
disabled, we continue to use the same listing section we used to make
our most recent favorable decision.\14\ Thus, beneficiaries who
qualified under a current listing would continue to qualify as long as
their impairments continued to meet or medically equal the current
listing.
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\14\ See 404.1594(c)(3)(i), 416.994(b)(2)(iv)(A), and
416.994a(b)(2).
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In light of the importance of this issue and the widespread
misunderstanding of our proposed rules, we are reopening the comment
period for the limited purpose of allowing interested persons to
provide any additional comments they may have on our proposed policy
regarding the use of standardized tests.
Michael J. Astrue,
Commissioner of Social Security.
[FR Doc. 2010-29577 Filed 11-23-10; 8:45 am]
BILLING CODE 4191-02-P