Winning or losing a Social Security Disability claim often comes down to these 5 words--and they haven’t been clearly defined in over 30 years!
New rules for evaluating mental disorders shine a little light on the meanings of these important words.
Social Security disability attorneys know that the Social Security rules and regulations do not define some of the most important words in the disability evaluation process.
Judges and adjudicators often see the evidence differently than the claimants and their attorneys. They deny a case because they find that the claimant has only moderate limitations instead of marked or severe.
Since these critical words are not defined in the regulations that guide the disability evaluation process, Social Security disability attorneys have to work with clues instead of definitions, for example, the Social Security Administration explains: “Where we use ‘marked’ as a standard for measuring the degree of limitation, it means more than moderate but less than extreme.” See 12.00C of the Listing of Impairments.
New rules compiled by the Social Security Administration’s Office of Medical Policy attempt to illuminate these murky waters in the disability evaluation process by acknowledging:
“…we have used the words 'mild,' 'moderate,' 'marked,' and 'extreme' under our prior rules for many years. Although we did not provide definitions for most of these terms until now, the definitions in final 12.00F are consistent with how our adjudicators have understood and used those words in our program since we first introduced the rating scale in 1985.” 81 FR 66137, 66147.
Excited about the new definitions? Prepare to be underwhelmed.
Here are the new definitions contained in the new rules that go into effect on January 17, 2017:1
“12.00 F2. The five-point rating scale. We evaluate the effects of your mental disorder on each of the four areas of mental functioning based on a five-point rating scale consisting of none, mild, moderate, marked, and extreme limitation. To satisfy the paragraph B criteria, your mental disorder must result in extreme limitation of one, or marked limitation of two, paragraph B areas of mental functioning. Under these listings, the five rating points are defined as follows:
- No limitation (or none). You are able to function in this area independently, appropriately, effectively, and on a sustained basis.
- Mild limitation. Your functioning in this area independently, appropriately, effectively, and on a sustained basis is slightly limited.
- Moderate limitation. Your functioning in this area independently, appropriately, effectively, and on a sustained basis is fair.
- Marked limitation. Your functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited.
- Extreme limitation. You are not able to function in this area independently, appropriately, effectively, and on a sustained basis.”
81 FR 66137, 66164.
Did that help? Not so much.
Now we need definitions of “fair” and “slightly limited” and “seriously limited”!
Social Security Disability attorneys and claimants might have to wait another 30 years for the meanings of these words.
On one issue, the new rules are very helpful.
In my experience as a Southern Illinois Social Security Disability attorney (representing claimants for 15 years in approximately 1,000 hearings) some judges see the word “mild” in a diagnostic test and automatically conclude that it means that there will be only “mild” limitations associated with that impairment. I have argued that this reasoning is not reliable.
I was pleased to find that the new rules clarify that the meanings of the words “mild” and “moderate” when used by clinicians and in the diagnostic criteria of the DSM-5 are not always the same as the meanings of those words when they are used in the Listing of Impairments.
Public comments for over 13 years raised concern that adjudicators might confuse a clinician's use of the term “mild” or “moderate” in diagnosing the stage of a person's mental disorder as a description of the person's level of functioning with respect to the paragraph B criteria. Those comments were adopted in the new rules.
The new paragraph 12.00 F(3) of the rules explains:
“The medical evidence may include descriptors regarding the diagnostic stage or level of your disorder, such as 'mild' or 'moderate.' Clinicians may use these terms to characterize your medical condition. However, these terms will not always be the same as the degree of your limitation in a paragraph B area of mental functioning.” 81 FR 66137, 66164.
These new rules make it clearer than ever that claimants in Southern Illinois need an experienced, dedicated Southern Illinois Social Security Disability representative.
It will take judges and adjudicators some time to adjust to the new rules. Some claimants will lose their claims because they do not have excellent representation at the hearing. If you have read this blog and are still thinking about representing yourself at your disability hearing, I strongly encourage you to read the following articles before making your decision:
- Famous Last Words—“I’ve got this! I don’t need an attorney at my Social Security disability hearing!”
- How a Social Security Disability Attorney Can Keep You From Sabotaging Your Own Claim—Part 1
- It Took the Social Security Administration 13 Years to Make These Changes to the Mental Disorders Listings
Joni Beth Bailey is a Southern Illinois Disability attorney.