New Mental Impairment Listings Linda Landry Disability Law Center - - PDF document

New Mental Impairment Listings

Linda Landry Disability Law Center

Final Regulations

• Published September 26, 2016
• Effective January 17, 2017
• Federal Register, 81 FR 66138 (9/26/16)
• https://www.federalregister.gov/documents/201

6/09/26/2016‐22908/revised‐medical‐criteria‐for ‐evaluating‐mental‐disorders

• Originally proposed in August 2010
• Proposed listings based on DSM‐IV‐TR
• Final in accordance with DSM‐5

Preamble & Headnote Highlights

• Clinical mental health counselors

– Recognition of role of LSCWs as therapists – But not “acceptable medical sources”

– 81 FR 66142

• Social workers, shelter staff, & outreach workers

acknowledged as examples of non‐medical sources.

12.00C.1.&2.

• Unique challenges of obtaining longitudinal evidence

for homeless claimants acknowledged. 12.00C.5.c.

• Greater emphasis on ability to sustain work like
• activities. 12.00F.4.a.

Preamble & Headnote Highlights

• Lack of treatment or noncompliance may be due

to mental impairment. 12.00G.2.b.

• Validity testing to identify malingering rejected.

81 FR 66143.

• Mental status exams added to list of medical

source evidence. 12.00C.2.

• Standardized testing references removed, except

with regard to Listing 12.05. 81 FR 66142.

• Psychiatric review technique retained & revised.

81 FR 16139, 66160.

u

Preamble & Headnote Highlights

• Acknowledgment that evidence of functioning in an

unfamiliar setting does not necessarily show the ability to work. 12.00C.6.

• Support and structure must be evaluated. 12.00D.
• Complete picture of ADLs necessary. 81 FR 66143.

12.F.3.

• But ability to perform some routine activities without

help does not necessarily mean no mental disorder or not disabled. 12.00D.3.

• Routine activities include caring for personal

needs, cooking, shopping, paying bills, living alone,

• r, driving. 12.00D.3.

Preamble & Headnote Highlights

• Daily functioning may depend on the special

contexts in which the individual functions, e.g., among only familiar people or surroundings, in a simple and steady routine

• r an unchanging environment, or in a highly

structured setting. This does not necessarily show how the individual would function in a work setting on a sustained basis throughout a normal workday and work week. 12.00D.3.b.

Preamble & Headnote Highlights

• Difficulty using an area of mental functioning

at home or in the community, may also mean difficulty using that area to function in a work

• setting. OTOH, SSA will not assume that ability

to use an area of mental functioning at home

• r in the community necessarily means ability

to use that area to function in a work setting where the demands and stressors differ from those at home. 12.D.3.6

“A” Criteria

• Each Category – or listing – contains “A”

criteria.

• Diagnostic criteria pertaining to each listed

impairment

• In accordance with DSM-5 criteria.

“B” Criteria

• Revised to better measure work related

functioning

– B1 Understand, remember, or apply information – B2 Interact with others – B3Concentrate, persist, or maintain pace – B4 Adapt or manage oneself – 12.00E.1. – 4.

• B1 and B3 now use “or” instead of ‘and

– Marked or extreme limit in any part of B1, B3 or B4 will constitute a marked limitation. 12.00F.3.

“B” Criteria

• Focus of B criteria in on mental abilities needed

to perform work activities

– Follow one or two step instructions – Handle conflicts with others – Respond to social cues – Interact without excessive hostility – Regulate emotions and control behavior – Maintain personal hygiene

• ADL may be used as source of information but is

no longer a B Criterion. 12.00 F.3.

“B” Criteria

• B criteria evaluation will be more comparable

to functional equivalency in child claims.

– Need 2 marked limitations or 1 extreme – 5 point rating scale

• None
• Mild
• Moderate
• Marked
• Extreme
• 12.00F.2.

“B” Criteria

• Definitions

– Mild – functioning slightly limited – Moderate – fair – Marked – seriously limited – Extreme – inability to function on a sustained basis – BUT - extreme does not mean total lack or loss of ability to function

• SSA acknowledges that clinicians may not use the

same definitions or descriptors. 12.00F.3.

“C” Criteria

• Alternative criteria.
• Claimant with marginal adjustment due to psychosocial

supports or treatment.

• Two year documentation required.
• “Serious and persistent” disorder.
• “Decompensation” replaced by “deterioration.”

– Decompensation too extreme

• Minimal capacity to adapt to changes or changed

environment, despite treatment.

• 12.00G.
• 12.00D. (psychosocial support)

“C” Criteria

• C criteria not applicable to these listings-

– 12.07 – Somatic symptom disorder – 12.08 - Personality and impulse control disorders – 12.10 – Autism spectrum Disorder – 12.11 – Neurodevelopmental disorders – 12.13 – Eating disorders

• Per SSA, unique situations in C criteria do not

typically apply to the above.

12.02 – Neurocognitive disorders

• Changed from “Organic Mental Disorders”
• No longer requires 15 point drop in IQ scores
• Includes Alzheimer’s & other dementia, TBI, and substance

induced cognitive disorders

• Requires significant cognitive decline in one or more of

these areas:

– Complex attention – Executive function – Learning and memory – Language – Perceptual-motor – Cognition – 12.00B.1.

12.03 – Schizophrenia Spectrum & Other Psychotic Disorders

• Examples of disorders in this category include:

– Schizophrenia – Schizoaffective disorder – Delusional disorder – Psychotic disorders due to another medical condition – 12.00B.2.

12.04 – Depression, Bipolar, and related disorders

• Examples include:

– Bipolar disorders – Cyclothymic disorder – Major depressive disorder – Persistent depressive disorder (dysthymia)

• “A” Criteria now include only “depressive” and

“bipolar” disorders

– 5 symptoms for depressive – 3 symptoms for bipolar – 12.00B.3.

12.05 Intellectual Disorder

• Name change for disorder

– No diagnosis of mental retardation/intellectual necessary

• Revised with only 2 subparts

– Each subparagraph has 3 subparagraphs.

• 12.00B.4.

12.05 – Significant Sub-average Intellectual Functioning

• First subparagraph requires “significantly sub

average general intellectual functioning”

– 12.05A – meansured by inability to function at cognitive level necessary to participate in standardized IQ testing. – 12.05B – measured by a full scale IQ score of 70 or below OR a full scale score of 71-75 with verbal or performance IQ score (or comparable part score)

• f 70 or below.

– 12.00H.

12.05 – Full Scale IQ Scores

• Change from prior listing 12.05, which relied on

the lowest score in series.

• Per SSA, full scale scores are considered the most

reliable evidence of intellectual disability, i.e., not some other condition that affects cognition.

• Per SSA only ‘qualified specialists, Federal & state

agency medical & psychological experts may conclude hat an IQ score is not an accurate reflection of a claimant’s “general intellectual functioning.”

• 12.00H.b., c., d.

12.05 – Adaptive Functioning

• Second subparagraph requires significant

deficits in adaptive functioning.

• 12.05A – demonstrated by dependence on
• thers for personal needs
• 12.05B – manifested by meeting the B criteria
• 12.00H.3.

12.05 – Adaptive Functioning

• Standardized tests of adaptive functioning not

required – but will be considered if available.

• Ability to engage in everyday tasks will not

necessarily disprove lack of adaptive functioning, e.g., caring for personal needs, preparing simple meals, driving a car.

• Lack of deficits in one area will not negate deficit

in another.

• Work activity does not always disprove deficits.
• 12.00H.3.c., d., e.

12.05 – Prior to Age 22

• Third Subparagraph – requires evidence of

current functioning and history of limits prior to age 22.

• Examples of limits prior to age 22 include:

– School records indicating history of special education – Statements from employers or supervisors – Statements from people who may be able to describe functioning in the past and currently – 12.00H.4.

12.05 – LD and BIF

• Cross-reference to 12.11 Neurodevelopmental

disorders

– Includes specific Learning Disability (LD) and Borderline Intellectual Functioning ( BIF)

• Per SSA, these disorders do not involve the

same nature or degree of sub average intellectual functioning or deficits in adaptive functioning.

• 81 FR 66155.

12.06 – Anxiety and Obsessive- Compulsive disorders

• Were “Anxiety Related Disorders”
• Includes:

– Social anxiety – Panic and generalized anxiety disorders – Agoraphobia – Obsessive-compulsive disorder

• Each disorder ‘characterized” by different

symptoms

• Excludes trauma and stressor related disorders
• 12.00B.5.

12.07 – Somatic symptom and related disorders

• 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

• Examples include:

– Symptom disorder – Illness anxiety disorder – Conversion disorder

• “C” Criteria do not apply
• 12.00B.6.

12.08 – Personality and impulse control disorders

• Examples include:

– Personality disorder – Intermittent explosive disorder

• “C” criteria do not apply
• 112.00B.7.

12.09 & 112.09

• Reference listing for substance Abuse

Disorders eliminated in both adult and children’s lisings.

• 81 FR 66152.

12.10 – Autism Spectrum Disorder

• Name change
• References to Asperger’s removed
• Suggestions to identify ASD as social and

behavioral disorder rather than cognitive rejected

• All four “B” criteria considered
• “C” Criteria do not apply
• 12.00B.8.

12.11 – Neurodevelopmental disorders

• New listing includes disorders characterized by
• nset during the developmental period
• Examples:

– Learning disorder – Borderline intellectual functioning – Tic disorders, such as Tourette Syndrome

• “C” criteria do not apply
• 12.00B.9.

12.13 – Eating Diso5ders

• New Listing

– Previously only considered in childhood listings – “C” Criteria do not apply

• Examples:

– Anorexia nervosa – Bulimia nervosa – Binge-eating disorders – Avoidant/resistive food disorder

• Medical documentation needed of change in

consumption or absorption of food that impairs physical or psychological health

• 12.00B.10.

12.15 – Trauma and stressor related disorders

• New listing

– Disorders previously considered under 12.06 Anxiety – Reflects changes in DSM-5

• 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”

• Specific “A” criteria
• 12.00B.11.

Mental Disorders in Children

• Changes largely mirror changes in adult

listings

• See Section 112.00 12 for “additional

guidance” in calcuating corrected chronological age

112.08 – Personality and Conduct Disorders

• Does NOT include Oppositional Defiant and

impulse control disorders.

• Per SSA, these disorders do not typically result

in marked or extreme limitations in “B” criteria.

• 81 FR 66141.

112.14 – Developmental disorders in infants and toddlers

• New listing
• Replaces 112.12 Developmental and

emotional disorders of newborn and younger infants

• “B” criteria unique to this listing81 FR 66154.

112.15 – Trauma and stress related disorders

• New listing
• Slightly different criteria than adult version
• Alternative diagnosis of Reactive attachment

disorder

• 112.00B.12.