May 24, 2016

Final Mental Regs Coming

     The Social Security Administration has submitted Revised Medical Criteria for Evaluating Mental Disorders final regulations to the Office of Management and Budget (OMB). These had appeared in the Federal Register as proposed regulations on August 19, 2010.
     Below are some excerpts from the proposed regulations.  I've added comments in brackets:
  • The proposed paragraph B3 criterion is the same as the current paragraph B3 criterion, “maintaining concentration, persistence, or pace,” except that we propose to change “or” to “and.” This would not be a substantive change in the paragraph B3 criterion, but only a clarification of the overall requirement. [Going from a requirement of meeting one criteria to a requirement of meeting three criteria is not a substantive change?]
  • One of the provisions from §416.926a(e) that we are including in this definition explains 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. ... A person whose functioning is two standard deviations below the mean is in approximately the second percentile of the population; that is, about 98 percent of the population functions at a higher level. [Social Security is trying to put a 2% cap on the percentage of the population that can be found disabled by mental illness? About 1.1% of the population suffers from schizophrenia. About 1-3% of the population suffers from mental retardation. If we are limiting the listings to the bottom 2% of the population in terms of mental functioning, we are talking about a group that is either in long term care or is not far from needing it.]
  • Currently, we have an interagency agreement with the Clinical Research Center to explore the possibility of using International Classification of Functioning domains in predicting disability. [Sounds like Social Security is looking for some simple testing instrument to determine disability.]
  • ID/MR [Intellectual Disability/Mental Retardation] is often demonstrated by evidence from the period before age 22. However, when we do not have evidence from that period, we will still find that you have ID/MR if we have evidence about your current functioning and the history of your impairment that is consistent with the diagnosis, and there is no evidence to indicate an onset after age 22.
  • In 12.05C, the term “severe” has the same meaning as in §§404.1520(c) and 416.920(c). Your additional impairment(s) must cause more than a slight or minimal physical or mental functional limitation(s); it must significantly limit your physical or mental ability to do basic work activities, as we explain in those sections of our regulations and §§404.1521 and 416.921. The limitation(s) must be separate from the limitations caused by your ID/MR; for example, limitation in your ability to respond appropriately to supervision and coworkers that result from another mental disorder or in your physical ability to walk, stand, or sit. If your additional impairment(s) is not "severe" as defined in our regulations, your ID/MR will not meet 12.05C even if your additional impairment(s) prevents you from doing your past work because of the unique features of that work. [Wait a minute! Are we trying to redefine what is meant by the term "severe impairment" so that something can prevent past work but not be severe -- using the mental impairment listings to redefine an important concept that appears elsewhere in the regulations? Please tell me that Social Security does not really want to reopen the non-severe impairment can of worms.]
     There's no way of knowing what modifications Social Security has made before submitting final regulations to OMB. Normally, Social Security makes no more than minor changes in wording. It's always been my impression that absent overwhelming outside pressure Social Security only tries to please its internal audience when it writes regulations.

1 comment:

Anonymous said...


I think you are missing the import of the requirement that the additional 12.05C impairment must cause separate limitation(s) from the ID/MR in addition to causing limitation that meets the usual definition for "severe impairment."

Thus, another impairment could be severe, and could cause some really nasty limitations (preventing past relevant work); however, if those limitations are not unique from those imposed by also-present MR or ID, the impairment would not satisfy 12.05C.