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 u 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. 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, or, 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 or 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 or 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 Disorde rs • 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) of 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 others 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.