The Social Security Administration is revising the criteria in the Listing of Impairments (listings) used to evaluate claims involving mental disorders in adults and children under titles II and XVI of the Social Security Act (Act).
If you have filed a claim for Social Security disability benefits alleging that your mental health affects your ability to work, you might be interested to know about some major changes in the way mental impairments are evaluated.
These changes have been in the works for over 13 years.
Thousands of professionals and government employees have worked together on this project. These new rules could have an impact on whether your claim for Social Security Disability benefits is approved. These rules might make you rethink what you discuss with your therapist and psychiatrist.
Brief history of the new rules that will be effective January 17, 2017.
- On March 17, 2003, the Social Security Administration published an Advance Notice of Proposed Rulemaking (ANPRM) (68 FR 12639).
- On August 19, 2010, the Social Security Administration published a Notice of Proposed Rulemaking (NPRM) (75 FR 51336).
- On November 17, 2010, the 90-day public comment period ended. 2,245 comments were submitted by national medical organizations, advocacy groups, legal services organizations, national groups representing claimants' representatives, a national group representing disability examiners in the State agencies that make disability determinations for us, individual State agencies, and other members of the public.
- On November 24, 2010, the comment period was reopened for 15 days to clarify and seek additional public comments about an aspect of the proposed definitions of the terms “marked” and “extreme” in sections 12.00 and 112.00 of the listings (75 FR 71632).
- On September 26, 2016, the Social Security Administration published the final Revised Medical Criteria for Evaluating Mental Disorders (81 FR 66137).
- On January 17, 2017, the new rules will become effective.
What cases will be affected by the new rules?
Beginning on January 17, 2017, these rules will be used in any case in which the Social Security Administration makes a determination or decision.
What if my case is pending in a federal court?
Federal courts will review Social Security Administration decisions entered before January 17, 2017, using the rules that were in effect at the time of the decisions.
What if my case is remanded by a federal court after January 17, 2017?
If a court reverses a final Social Security Administration decision and remands a case for further administrative proceedings after January 17, 2017, the new final rules will apply to the entire period at issue in a decision made by the Social Security Administration after the court's remand.
Why are the rules changing?
The Social Security Administration conducts an ongoing review of all listings.
Many of the mental disorders listing criteria were revised to use the diagnostic features for the corresponding categories of mental disorders in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition1 (DSM-5).
What are the major changes?
The Social Security Administration provided this explanation of the changes that apply to many or all of the listings:
- The final rules update the titles of listings 12.02, 12.03, 12.04, 12.06, 12.07, 12.08, 12.11, and 12.15 to reflect the terms the APA uses to describe the categories of mental disorders in the DSM-5.
- All final listings (except for 12.05 and 112.05) include “paragraph A criteria” that are similar to our prior rules.
We kept the paragraph A criteria in the listings in response to a public comment on the NPRM that identified the benefits of having the criteria. The paragraph A criteria in the final listings reflect the diagnostic criteria of disorders in the DSM-5. Although a claimant must have a medically determinable mental impairment, the claimant does not have to have a diagnosis for his or her mental impairment to satisfy the listing criteria. The medical evidence must demonstrate the required paragraph A criteria are present for us to find that the impairment meets the listing.
- We changed the title of the paragraph B1 criteria to “understand, remember, or apply information,” and the title of the paragraph B3 criteria to “concentrate, persist, or maintain pace.”
The titles are linked by “or” rather than “and” in response to public comments on the NPRM, and to clarify our rules about how we rate a person's degree of functional limitation.
- We changed the title of paragraph B4 to “adapt or manage oneself” in partial response to public comments on the NPRM.
- The final rules revise the paragraph C criteria in listings 12.02, 12.03, 12.04, 12.06, and 12.15.
The paragraph C criteria state that a person must have a medically documented history of the existence of his or her disorder over a period of at least 2 years. This requirement is consistent with our prior rules.
- Final listings 12.07, 12.08, 12.10, 12.11 and 12.13 do not include paragraph C criteria.
We made this change because our medical and psychological experts, and our program experience, indicate that the unique medical situation we identify with the paragraph C criteria typically does not apply to the disorders we evaluate under these listings.
Lawyers!@#%$ How important could it possibly be to use the word “and” instead of “or”?
First, some background:
Many of the mental disorder listings have 3 sets of criteria, referred to as A, B and C.
- The A criteria include the diagnostic features found in the DSM-51.
- The B criteria are mental areas of function, particularly those mental abilities used to perform work activities.
- The C criteria relate to documentation of a “serious and persistent” mental disorder.
Take, for example, listing 12.04 depressive, bipolar, and related disorders:
The A criteria include signs and symptoms such as:
- Depressed mood;
- Diminished interest in almost all activities;
- Appetite disturbance with change in weight;
- Sleep disturbance;
- Observable psychomotor agitation or retardation;
- Decreased energy;
- Feelings of guilt or worthlessness;
- Difficulty concentrating or thinking;
- Thoughts of death or suicide;
- Pressured speech;
- Flight of ideas;
- Inflated self-esteem;
- Decreased need for sleep;
- Involvement in activities that have a high probability of painful consequences that are not recognized; and
- Increase in goal-directed activity or psychomotor agitation.
To satisfy the A criteria you have to have several of these signs or symptoms.
If a claimant’s impairments satisfy the “A” criteria, then the “B” criteria and “C” criteria will be evaluated.
The old “B” criteria:
The claimant’s function was measured using these criteria:
Resulting in at least two of the following:
- Marked restriction of activities of daily living; or
- Marked difficulties in maintaining social functioning; or
- Marked difficulties in maintaining concentration, persistence, or pace; or
- Repeated episodes of decompensation, each of extended duration.
The new “B” criteria:
The claimant’s function will now be measured using these criteria:
Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):
- Understand, remember, or apply information;
- Interact with others;
- Concentrate, persist, or maintain pace;
- Adapt or manage oneself.
To illustrate the new “B” criteria, consider an imaginary co-worker, Jean:
This imaginary co-worker Jean has been through the standard new hire training at a fast food restaurant. Jean learned how to clean the kitchen at the end of a shift, but Jean still gets it wrong every, single night. When the shift supervisor steps in to figure out what’s going wrong, it is clear that Jean understands how to perform a task. When asked, Jean can rattle off the steps; Jean clearly remembers the training. But when it comes to applying the information from the training, Jean is a DISASTER!
The only way Jean can get it right is if a co-worker or the supervisor keeps an eye on Jean and tells Jean what to do next.
You would not want to work with Jean. (You might have actually worked with someone like Jean in a job at some point in your life.)
This imaginary worker illustrates the power of the word “or.”
If you blend all three of the B1 functions together (understand, remember, apply information) and average them, Jean probably DOES NOT have an extreme limitation in this area of function. Jean would not meet the listing criteria if the word “and” were used in the ordinary way it is used in written and spoken language.
Think of rating Jean’s ability to do the three B1 functions as if they were grades on a test:
- Apply information—F
If you average these grades, Jean’s not doing too badly. But if you take the lowest grade of the three functions in this group, Jean fails.
This story attempts to illustrate that Jean probably meets the B1 listing criteria when the word “or” joins the items in the group but probably does not meet the B1 listing criteria when the word “and” is used.
The same “and” “or” analysis applies to the B3 listing criteria (concentrate, persist, maintain pace) and B4 listing criteria (adapt, manage oneself).Esoteric? Technical? Nitpicking? Yes. Critical in many cases? Absolutely!
How does this matter when a claimant talks to a therapist, counselor, or psychiatrist?
Therapists, counselors, and psychiatrists are professionals the Social Security Administration looks to for a description of a claimant’s sign, symptoms, diagnoses, and limitations.
If these medical professionals’ records reveal that the claimant is struggling with “B1” functions (understanding, remembering, applying information) or “B3” functions (concentrating, persisting, maintaining pace) or “B4” functions (adapt, manage oneself) that evidence could help the adjudicator or judge enter a favorable decision and award the claimant disability benefits.
As a Southern Illinois Disability attorney, I can see that this little change in language is going to cause big changes in what types of cases are approved.
When you talk about your mental health issues, be specific, give examples.
If your mental health treatment notes are full of comments like “doing okay on new meds,” “can care for household chores,” or “looking for work,” you are going to have a hard time convincing the adjudicator or judge that your mental impairment interferes with your ability to work. Here are some tips:
- When you see your mental health provider, give clear examples but don’t go overboard.
- Bring a family member or a friend along to explain recent events that show the impact the mental problems have on things that are required in the workplace.
- Ask your Southern Illinois Social Security Disability attorney for tips when it comes to talking to your doctor.
1American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association, 2013.
Joni Beth Bailey is a Southern Illinois Social Security Disability Attorney Representative.