The National Organization of Social Security Claimants Representatives (NOSSCR) has posted its comments on the proposed changes to Social Security's Mental Impairment Listings. Here are a few excerpts:
II. “B” Criteria Issues ...
[W]e have a significant concern about the language change in paragraph B3, which also applies to the newly proposed paragraph B1. As discussed below, SSA should use the word “or,” rather than “and.”
The NPRM [Notice of Proposed Rule-Making] proposes to change paragraph B to read as follows:
B. Marked limitations of two or extreme limitation of one of the following mental abilities:”
1. “Ability to understand, remember, and apply information”;
2. “Ability to interact with others”;
3. “Ability to concentrate, persist, and maintain pace”; and
4. “Ability to manage oneself.”
In the preamble to the NPRM, SSA explains the change from “or” to “and,” stating that it is not a substantive change from current policy, “but only a clarification of the overall requirement” ...
We are concerned that changing “or” to “and” in the actual listing could be misinterpreted as a change in policy that would set a higher standard so that a claimant would be required to demonstrate limitation in each of the three components of the proposed B1 or B3 criteria. We do not believe that this is what SSA intends by the proposed change in light of the statement above in the preamble ...
C. Use of standardized test scores and “standard deviations”
SSA proposes to incorporate provisions from the childhood SSI functional equivalence regulation, 20 C.F.R. § 416.926a(e), regarding the definition of “marked” and “extreme.” See 75 Fed. Reg. at 51342. This results in SSA defining “marked” and “extreme” in terms of standardized testing and standard deviations below the mean. Under this change, an individual could be found to have a “marked limitation” in one of the paragraph B criteria with a 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. The individual could be found to have an “extreme limitation” with a score that is three standard deviations below the mean. ...
This is a flawed approach which should not be used in the listings for either adults or children with mental health disorders because, to date, no standardized instruments have been developed which measure the specific functions in the B criteria and are widely accepted by professionals in the field of assessment. ...
V. Listing 12.05: Intellectual Disability/Mental Retardation (ID/MR) ...
Claimants’ representatives know first-hand that some adjudicators will ignore or give less weight to IQ test scores if the adjudicators subjectively believe that the claimant’s functioning is inconsistent with the test score, even if there is no basis for rejecting the validity of the test score. We question this practice. The proposed criteria could support the practice of some state agencies and ALJs who deny cases because the claimant can cook, take care of personal needs, care for children, or shows some other skill or strength.
Comments on the NPRM must be filed by November 17.
2 comments:
It seems that using "and" instead of "or" in B1 or B3 would set a higher standard for claimants?
For example, if "and" is used under B1, the claimant would have to demonstrate that his/her ability to understand, remember AND apply information was limited. If OR was used, he/she would only have to demonstrate that his/her ability to understand, remember OR apply information was limited.
I'm not a lawyer, but the plain meaning seems to me to be the opposite. It depends on whether the "and" (or "or" in its place) applies to the "ability" or the "limitation of the ability" - I think the former makes a lot more sense, since "limitation" is in a different part of the sentence. If this is correct, then "or" sets a higher standard.
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