I had a small hand in new Social Security Disability Mental Listings taking effect January 17, 2017

New Social Security Disability Mental Listings will Take Effect on January 17, 2017. These are essentially the “instructions” for finding people disabled under Social Security’s programs.

You can get the full details of the changes from the Federal Register
Document Citation:
81 FR 66137
Page:
66137-66178 (42 pages)
CFR:
20 CFR 404
20 CFR 416
Agency/Docket Number:
Docket No. SSA-2007-0101

My 2010 comments referenced a Zombie Apocalypse to help support changes to Social Security disability.

Not to sound cocky but… I think a can accept a high percentage of the blame for some of the changes (specifically in particular changes to listing 12.05 Intellectual Disorder).

Here is the backstory: way back in 2010 I submitted 4 separate public comments (geek much?) on the then proposed changes. There weren’t really many proposed changes at that time to listing 12.05 (how we evaluate Mental Retardation/Intellectual Disability/ Intellectual Disorder) and I did what I tend to do and I expressed my opinions 😉

I’m going to focus primarily on Intellectual Disability (Intellectual Disorder) for this blog post but may re-visit other changes in the future.

Here are some quotes from the new rules that address comments and changes relevant to this (the text in italics are quotes from Social Security):

Explanation of Listing 12.05, Intellectual Disorder

Final listing 12.05 includes important changes that we explain here. We use listing 12.05 to evaluate claims involving intellectual disability. In the NPRM, we proposed mostly minor revisions to listing 12.05. However, some of the public comments that we received about this listing recommended that we substantively reorganize and change the listing criteria. The commenters criticized the listing structure that we proposed as “inconsistent, redundant and unnecessary.” One commenter observed, “the severity of intellectual disability is written into the diagnosis itself.” The commenters recommended that we simplify the structure and the criteria for listing 12.05 so the listing would guide adjudicators through the process of identifying claimants who have intellectual disability.

In response to these comments, we revised the criteria for listing 12.05. We believe the revisions will continue to accurately and reliably identify claimants who have marked or extreme functional limitations due to intellectual disability. We also believe that the final listing will be clearer to adjudicators and the public. Furthermore, new listing 12.11 will identify claimants with cognitive impairments that result in marked or extreme functional limitations but do not satisfy the definition of intellectual disability. Our reasoning and explanation for those changes is below.

Intellectual Disability

“Intellectual disability” is a diagnosis used by the medical community to identify and describe a certain type and degree of cognitive impairment. The American Psychiatric Association, the American Psychological Association, and the AAIDD are three leading experts within the medical community about what “intellectual disability” is. Those three organizations largely agree about what the three diagnostic criteria, or the three elements, are for intellectual disability. Those three elements, restated here, are: Significant limitations in general intellectual functioning, significant deficits in adaptive functioning, and evidence that the disorder began during the developmental period.

Intellectual Disability Policies Proposed in the NPRM (this was the previous 2010 proposal)

In the NPRM, we proposed to remove the capsule definitions in all of the prior mental disorders listings, including listing 12.05. Like prior listing 12.05, the version of listing 12.05 proposed in the NPRM had four paragraphs, paragraphs A-D. A person’s impairment would meet the listing if it satisfied the criteria in any one of the four paragraphs. As in prior listing 12.05, we proposed to use paragraph A to evaluate claimants whose cognitive impairment prevented them from taking a standardized intelligence test. We proposed to use paragraph B to evaluate claimants who had an IQ score of 59 or lower. We proposed to use paragraph C to evaluate claimants with an IQ score of 60 through 70 with another severe physical or mental impairment. We proposed to use paragraph D to evaluate claimants with an IQ score of 60 through 70 and marked degree of limitation in two of the four proposed areas of mental functioning that were typically included in “paragraph B” of the other mental disorders listings.

Although proposed listing 12.05 did not have a capsule definition like prior listing 12.05, the proposed listing required that a claimant have significantly subaverage general intellectual functioning, deficits in adaptive functioning, and evidence that the disorder initially manifested during the developmental period. The beginning of each lettered paragraph required that a claimant have intellectual disability “as defined in [proposed] 12.00B4” before stating the listing criteria specific to that paragraph. Proposed section 12.00B4a stated, “This disorder is defined by significantly subaverage general intellectual functioning with significant deficits in adaptive functioning initially manifested before age 22.” Therefore, the version of listing 12.05 proposed in the NPRM was similar to prior listing 12.05, but it did not include a capsule definition, and it moved the three elements of the medical definition of intellectual disability into the introductory text.

Intellectual Disability in Final Listing 12.05

However, the public comments that we received in response to the NPRM, as described above, made clear to us that the reorganized criteria that we proposed in the NPRM was still Start Printed Page 66155insufficient. In response to these comments, we reorganized the listing criteria in these final rules to reflect the three elements of the medical definition of intellectual disability.

Final listing 12.05 does not include a capsule definition. The listing has only two paragraphs, and we will allow a claim under the listing when the criteria in either paragraph are satisfied. Each paragraph contains the three elements of the medical definition of intellectual disability. Therefore, the listing is now very similar to the DSM-5 and AAIDD definitions for intellectual disability.

We will use final listing 12.05A to evaluate the claims of people whose cognitive impairment prevent them from taking a standardized intelligence test that would measure their general intellectual functioning. Listing 12.05A has three subparagraphs; there is one subparagraph for each element of the medical definition of intellectual disability. The first subparagraph requires that a claimant lack the cognitive ability to participate in standardized testing of intellectual functioning. Stated differently, if a claimant is not able to take an IQ test, this is sufficient evidence that the claimant has “significantly subaverage general intellectual functioning” as required by the listing.

The second subparagraph requires that a claimant be dependent on others to care for basic personal needs. If a claimant relies on others for such basic tasks, this is sufficient evidence that a claimant has “significant deficits in adaptive functioning” as required by the listing.

The last subparagraph requires evidence that demonstrates or supports the conclusion that the disorder began prior to age 22. For our program purposes, we use age 22 as the benchmark to establish that the disorder began during the developmental period.[16] If a claimant’s impairment satisfies the requirements in all three subparagraphs, we will find that the claimant’s impairment meets the criteria for listing 12.05A.

We will use final listing 12.05B to evaluate the claims of people who are able to take a standardized intelligence test. Like final listing 12.05A, final listing 12.05B has three subparagraphs; there is one subparagraph for each element of the medical definition of intellectual disability. The first subparagraph requires a claimant to have obtained either: A full scale IQ score of 70 or below, or a full scale IQ score of 71 through 75 accompanied by a verbal or performance IQ score of 70 or below. Stated differently, if a claimant’s IQ scores meet either of these requirements, there is sufficient evidence that the claimant has “significantly subaverage general intellectual functioning” as required by the listing.

The second sub-paragraph requires that a claimant have extreme limitation of one, or marked limitation of two, of the four “paragraph B” areas of mental functioning (see 12.00E1, 2, 3, and 4). We use the same paragraph B criteria and severity ratings to evaluate a person’s current adaptive functioning under listing 12.05 that we use to evaluate the functioning of a person using all of the other mental disorders listings in this body system. We use the paragraph B areas of mental functioning to evaluate a person’s abilities to acquire and use conceptual, social, and practical skills.[17] If a claimant has “extreme” limitation of one, or “marked” limitation of two, of the paragraph B criteria, this is sufficient evidence that a claimant has “significant deficits in adaptive functioning” as required by the listing.

The last sub-paragraph requires evidence that demonstrates or supports the conclusion that the disorder began prior to age 22. If a claimant’s impairment satisfies the requirements in all three sub-paragraphs, we will find that the claimant’s impairment meets the criteria for listing 12.05B.

The revised criteria in final listings 12.05A and B respond to the public comments that suggested that we simplify the listing structure by guiding adjudicators through the process of identifying claimants who have intellectual disability. Importantly, and as noted above, the mental disorders listings are function-driven, not diagnosis-driven, and the final listing criteria reflect this approach.

“inconsistent, redundant and unnecessary.”
Amusingly, the “inconsistent, redundant and unnecessary” quote came from me as well as a few other things. Currently the listing has 12.05A, 12.05B, 12.05C and 12.05D,

I proposed a different structure to the listing including getting rid of the secondary impairment reflected in 12.05C. My proposal included just 12.05A and 12.05B. What is fun is that they ended up doing something similar to my proposal of just having a new 12.05A and a new 12.05B (though the final wording is a bit different than what I proposed). Here for fun I’m going to reprint all 4 of my comments (yes, I ended up making 4 instead of just 1).

For your reading pleasure with links to where they still appear in the public record:
Comment from Finnerty, Todd, Todd Finnerty, Psy.D. undefined
Attachment Title : Comment from Finnerty, Todd, Todd Finnerty, Psy.D.
Public Submission Posted: 08/23/2010 ID: SSA-2007-0101-0002
Organization: Todd Finnerty, Psy.D. Submitter Name: Todd Finnerty
Comment Period Closed
https://www.regulations.gov/document?D=SSA-2007-0101-0002

Comment from Finnerty, Todd, PsychContinuingEd.com
This is my 3rd comment, please also refer to my other comments primarily related to needed changes in the intellectual disability listings (12.05 & 12.05) and the need to “focus on…
Public Submission Posted: 11/04/2010 ID: SSA-2007-0101-0245
Organization: PsychContinuingEd.com Submitter Name: Todd Finnerty
Comment Period Closed
https://www.regulations.gov/document?D=SSA-2007-0101-0245

Nov 17, 2010 11:59 PM ET
Comment from Finnerty, Todd, Todd Finnerty, Psy.D. undefined
Attachment Title : Comment from Finnerty, Todd, Todd Finnerty, Psy.D.
Public Submission Posted: 09/14/2010 ID: SSA-2007-0101-0003
https://www.regulations.gov/document?D=SSA-2007-0101-0003

Nov 17, 2010 11:59 PM ET
Comment from Finnerty, Todd, PsychContinuingEd.com
This is my 4th and final comment and is focused on the PRTF, please also see my previous comments. I am a psychologist and these comments are made in my private capacity. The PRTF…
Public Submission Posted: 11/04/2010 ID: SSA-2007-0101-0247
Organization: PsychContinuingEd.com Submitter Name: Todd Finnerty
Comment Period Closed
https://www.regulations.gov/document?D=SSA-2007-0101-0247

Comments from Todd Finnerty, Psy.D.
August 20, 2010
I am a psychologist. These comments are offered in my private capacity.

There are a number of great proposals made in the Proposed Rules published for Docket No. SSA-2007-0101 (Revised Criteria for Evaluating Mental Disorders).

In making revisions, the SSA should follow the guiding principles of simplification, flexibility and functioning. Changes related to these principles have a good chance of benefiting claimants, and the proposed changes do indeed follow these principles in many instances. Changes involving simplification can decrease the amount of time it takes to communicate a decision by eliminating redundancies in the mental health adjudicative process while focusing on functional factors which will help evaluate work related ability. Flexibility is an important principle due to the number of and changing nature of the underlying disorders. While the listings are based on DSM-IV-TR categories, significant revisions can be expected with the DSM-5 which is due for official publication in May, 2013.

I am in full agreement with the removal of the A criteria as the A criteria are redundant with the need to establish an MDI. They also are not comprehensive enough to cover all mental disorders which may be considered for a listing or which may arise out of the upcoming DSM-5. The resulting simplification can lead to additional time and cost-savings through the removal of the requirement to complete a PRTF. I applaud the proposal to remove the requirement for completion of a PRTF.

I applaud the proposed changes to the B criteria as well as the use of the C criteria for most listings. I agree with the removal of listing 12.09. 12.09 should have only been viewed as a theoretical listing and not one to be met, as we are instructed to rate limitations in the absence of 12.09 factors when possible or to essentially give the claimant the benefit of the doubt if this is not possible. In the instance where we had sufficient evidence to meet listing 12.09, a not severe or PRTF & MRFC based on remaining limitations from other impairments could have been performed with the evidence. Likewise, SSA should consider whether similar factors may be at work when predicting “Will not last” decisions making a “Will not last” finding on psych less common, in that we should have sufficient evidence to offer an assessment of their limitations at 12 months and communicate the finding in this manner.

Many of the proposed listing changes do arise out of consideration for these principles. However, the proposed changes to listing 12.05 fail to effectively harness the full power of the suggested principles of simplification, flexibility and functioning. This would be a missed opportunity to educate those involved in the adjudicative process as well as increase the efficiency and accuracy of decisions involving an MDI on listing 12.05.

Intellectual Disability
I disagree with the proposed change of “Mental Retardation” to “Intellectual Disability/Mental Retardation (ID/MR).” Given that the field, including the DSM-5, is moving away from the MR term and that the last “comprehensive revision” of the listings were done in 1985 and 1990, I recommend the complete removal of the term in headings and simply using “Intellectual Disability.” This will also save SSA the costs of later removing it completely from listing titles. There is no need for a long transition period where both terms are used simultaneously as the title of the listing, particularly when the reason for the removal is “negative connotations” associated with the MR term. Issues with familiarity with the term can be addressed by a brief narrative that could contain the term. In addition, the public will also benefit from the education generated by the SSA ‘taking sides” and choosing to use the Intellectual Disability term as opposed to presenting two equivalent terms despite admitting that one has “negative connotations.” The SSA will likely face similar issues with the many proposed name changes for DSM-5 and can not possibly incorporate every historical term that the public may or may not be familiar with in the title of their listings. The word “intellectual” is not a new one, nor are the listings requirements for IQ testing and adaptive behaviors. Just as many of the other listings have seen a simplification to an understandable narrative template this listing can as well. The American Association of Mental Retardation is now the American Association of Intellectual and Developmental Disabilities. The new DSM-5 for 2013 will remove the term Mental Retardation in favor of Intellectual Disability. The SSA should not be any further behind on this issue than it already is.

While SSA is to be commended for their proposed clarification of evidence required from the developmental period as well as an increased focus on adaptive behaviors, I also do not feel that the proposed rules go far enough in their revision of the 12.05 listings. While the proposed rules note that listing 12.05 is to be used only for intellectual disabilities, they continue to include a listing structure that is inconsistent, redundant and unnecessary.

The proposed rules note in the Federal Register that “We agreed with commenters who suggested that we use the definitions of “”marked”” and “”Extreme”” limitations” from the childhood disability recommendations (pg. 51338). Essentially by definition of an intellectual disability, an intellectual disability would involve marked limitations based on the proposed definition. An intellectual disability involves intellectual deficits which are 2 standard deviations below the mean and adaptive behavior deficits which are 2 standard deviations below the mean. On pg. 51342, the proposed rules suggest that we describe a “Marked” limitation as 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.”

Therefore, the Intellectual Disability listing essentially indicates a need for 2 standard deviations on cognitive and adaptive behaviors to qualify as an MDI considered under the listing. Why is there a need for an evaluation of B criteria at all if our definition of marked limitations is cognitive and adaptive functioning below 2 standard deviations? The B criteria are redundant with the need to establish an MDI on 12.05 which would by definition involve marked adaptive behaviors.

If we are to use the provided definition of a marked limitation, the proposed changes to listing 12.05 do not go far enough. If someone satisfies the outlined criteria for an intellectual disability and an MDI on 12.05, by definition they meet our definition for a marked limitation. The rest is wasted adjudicative effort and introducing the potential for error. I recommend listing 12.05 simply guide adjudicators on the process of establishing an Intellectual Disability MDI with the assessment of both intellectual functioning and adaptive behaviors.

This suggests that evaluating for secondary impairments for 12.05 C would also be unnecessary.
One additional concern that can be brought up about listing 12.05 C as it stands is the potential for age discrimination. A wide range of etiologies of global cognitive deficit/ intellectual disability are recognized and can lead to an MDI relevant to listing 12.05. However, the listings currently require an onset prior to age 22 as it defines the developmental period. This would appear reasonable given how we conceptualize Intellectual Disability (though the DSM-IV-TR uses age 18 and an onset after age 18 but before 22 could lead to satisfying the listing but not the MR diagnosis from DSM-IV-TR). It is conceivable based on the structure of the listings however that one claimant could have an onset of global cognitive delay consistent with 12.05 and a secondary impairment and be a grant with an onset at age 21 and 11 months, however this same claimant could be a denial if the onset occurred just a short time later after their 22nd birthday. While the individual may have acquired “MR range” cognitive functioning and lost the ability to function adaptively to the point where they would fall 2 standard deviations below the mean, the construction of the listing does not automatically recognize this as a marked limitation despite the proposed definition of a marked limitation. If we assume they are not markedly limited as the listing allows, we could also assess for a secondary impairment if the onset is prior to age 22. This same person a short time later after age 22 would not have the same benefit of this assumption/expedient. Therefore this assumption and expedient should either also be included for global cognitive delay under listing 12.02 given that the major difference in some circumstances could hypothetically be age of onset, or we should simply recognize listing 12.05 C as an unnecessary, inconsistent communication that an MDI may meet our definition of Intellectual Disability as 2 standard deviations below the mean yet not meet our definition of a marked limitation as 2 standard deviations below the mean.

Concluding remarks

The SSA’s timing in reviewing the listing is an important one. The new edition of the DSM-5 in 2013 will bring in a terminology change to Mental Retardation as well as a number of other changes already in draft form at DSM5.org. The revised ICD will closely follow this in time. Simplifying and focusing on functioning has made a number of dramatic improvements and allowed for flexibility in dealing with changes to come in the field. However, this process must be further extended to the proposals for listing 12.05 if definitions are to be viewed as consistent with each other (ex: marked) and for the benefits of simplification to be truly realized and redundancies eliminated.

Thank you,
Todd Finnerty, Psy.D.

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These comments are an addendum to my previous comments also made in my private capacity and already in the public record. This is an outline of suggested changes to the proposed wording for listing 12.05.

The proposed inclusion of “Significant” in relation to adaptive functioning for 12.05 does little to clarify the indication that listing 12.05 is “only for” Intellectual Disability/Mental Retardation (as opposed to Borderline Intellectual Functioning). This should be revised to adaptive behaviors which are at least 2 or more standard deviations below the mean (consistent with the drafted criteria for Intellectual Disability under DSM-5 and would better reflect the desired increase in focus on adaptive behaviors consistent with current trends set by the AAIDD). Doing so would also allow for increased simplification of the listing and make it easier to align the listing with the proposal to use 2 standard deviations as a definition of a marked impairment (see pg 51342).

The requirement for having a valid MDI on listing 12.05 necessitates intellectual functioning 2 standard deviations below the mean. The proposed definition of marked suggests 2 standard deviations is a marked impairment. The proposed revisions to the B criteria includes the criterion “understand, remember and apply information.” It’s reasonable to assume that given these definitions of intellectual disability and a marked limitation each being 2 standard deviations below the mean, a valid MDI on 12.05 would automatically be a marked limitation on this B criterion domain.

The requirement for having an MDI on listing 12.05 also necessitates adaptive behaviors which are 2 standard deviations below the mean. The proposed definition of marked suggests 2 standard deviations is a marked impairment. The proposed revisions to the B criteria include “manage oneself” (as well as social functioning and concentrating which could also reflect domains of adaptive behavior deficits). Its reasonable to assume that given these definitions of intellectual disability and a marked limitation each being 2 standard deviations below the mean, a valid MDI on 12.05 would indicate adaptive behaviors which would be a marked limitation on one or all of these B criteria.

This makes the C (secondary impairment) and D (evaluating B criteria) listings under 12.05 unnecessary and potentially harmful (See Todd Finnerty, Psy.D.’s previous comments for additional discussion on this).

Dr. Finnerty’s Proposed Listing 12.05:

12.05 Intellectual Disability (formerly MR)

A. Intellectual Disability (formerly MR) originating prior to age 22 and as defined in 12.00B4, with mental incapacity evidenced by dependence upon others for personal needs (for example, toileting, eating, dressing, or bathing) and inability to follow directions, such that the use of standardized measures of intellectual functioning is precluded.

or

B. Intellectual Disability (formerly MR) originating prior to age 22 and as defined in 12.00B4, with a valid IQ score of 70 or less (as defined in 12.00B4d) on an individually administered standardized test of general intelligence having a mean of 100 and a standard deviation of 15 (see 12.00D4) along with concurrent deficits in adaptive functioning of at least two or more standard deviations below the mean.

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This is my 3rd comment, please also refer to my other comments primarily related to needed changes in the intellectual disability listings (12.05 & 12.05) and the need to “focus on functioning.” I am a psychologist; these comments are made in my private capacity.

In regards to standardized testing, the science certainly supports that in many instances it can add a valuable piece to a clinical interview which might otherwise be informed only by clinical judgment which may or may not always be sufficient or accurate. Psychological testing is a separate issue from defining disability based on statistics (ex: marked limitations defined as functioning that is two standard deviations below the mean). While certainly it is easy to see how adaptive behavior scales and IQ testing can help in determining disability in this instance of an intellectual disability, it is hard to conceptualize how functioning 2 standard deviations below the mean assists us in instances like bipolar disorder, PTSD, etc. When applied to these problems it is noted that the 2 standard deviations definition may not be much more useful than defining a marked limitation as the point on a scale between moderate and extreme. It is noted however that coming up with a useful definition of disability and a marked limitation which fits every situation is not an enviable task.

The most amusing example I can think of on this is that we could measure a zombie (of horror film fame) as functioning 2 standard deviations below the mean- but if a huge percentage of the population became infected and turned in to Zombies- we would simply need new norms and they would no longer be functioning as 2 standard deviations below the mean- but there functioning would still be bad enough to prevent them from getting along with their coworkers without trying to eat them.

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This is my 4th and final comment and is focused on the PRTF, please also see my previous comments. I am a psychologist and these comments are made in my private capacity.

The PRTF has outlived its usefulness. While the psychiatric review technique process is generally not problematic, the psychiatric review technique form creates problems and causes needless delays in claims. It also creates a drain on agency resources by having to spend time w/ quality reviews on how the form is completed & training on things like- which listing is BIF coded on, 12.02 or 12.05? This despite the fact that in truth there is no real listing for BIF and many diagnoses could be applied to more than one listing depending on the specifics of the case.

Now is the crucial moment to reap the time saving benefits of eliminating the PRTF. We will need to go through the costs of changing the PRTF with the proposed revisions and the change in wording for intellectual disability, we might just as well extend the cost savings by eliminating the PRTF and need to revise the PRTF. We can easily use the 416 and MRFC much as a physical portion of a claim uses the 416 and RFC, and psychologists already use the blue book for listings on child claims with the 538.

In regards to the PRTF, lets save ourselves the time, money and aggravation of re-doing a form that causes more problems than it solves. It is my pleasure to suggest to you that we say thank you to the PRTF for its service, but still go ahead and show it the door..

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Okay, so those were my comments.

Here is what listing 12.05 while look like this January:

12.05  Intellectual disorder (see 12.00B4), satisfied by A or B:
A. Satisfied by 1, 2, and 3 (see 12.00H):

1. Significantly subaverage general intellectual functioning evident in your cognitive inability to function at a level required to participate in standardized testing of intellectual functioning; and

2. Significant deficits in adaptive functioning currently manifested by your dependence upon others for personal needs (for example, toileting, eating, dressing, or bathing); and

3. The evidence about your current intellectual and adaptive functioning and about the history of your disorder demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22.

OR

B. Satisfied by 1, 2, and 3 (see 12.00H):

1. Significantly subaverage general intellectual functioning evidenced by a or b:

a. A full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence; or

b. A full scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below on an individually administered standardized test of general intelligence; and

2. Significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:

a. Understand, remember, or apply information (see 12.00E1); or

b. Interact with others (see 12.00E2); or

c. Concentrate, persist, or maintain pace (see 12.00E3); or

d. Adapt or manage oneself (see 12.00E4); and

3. The evidence about your current intellectual and adaptive functioning and about the history of your disorder demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22.

Thanks,

Todd

P.S. don’t forget to check out my newsletter and lots of referral sources at http://www.reviewsandIMEs.com