[Federal Register Volume 65, Number 162 (Monday, August 21, 2000)]
[Rules and Regulations]
[Pages 50746-50783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19648]



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Part II





Social Security Administration





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20 CFR Parts 404 and 416



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Revised Medical Criteria for Evaluating Mental Disorders and Traumatic 
Brain Injury; Final Rules



Rescission of Social Security Acquiescence Rulings 92-3(4), 93-1(4) and 
98-2(8); Notice

  Federal Register / Vol. 65, No. 162 / Monday, August 21, 2000 / Rules 
and Regulations  

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulation Nos. 4 and 16]
RIN 0960-AC74


Revised Medical Criteria for Evaluating Mental Disorders and 
Traumatic Brain Injury

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: These rules revise our regulations for evaluating mental 
impairments. They also change some of the provisions of our Listing of 
Impairments (the Listings) that we use to evaluate mental disorders in 
adults. We also are adding guidance to the adult neurological listings 
regarding the evaluation of traumatic brain injury. In addition, the 
rules make technical changes to the adult digestive listings and the 
childhood mental disorders listings. We expect that these rules will 
clarify the intent and purpose of the listings for evaluating mental 
disorders, and will simplify our adjudication of claims involving 
mental impairments. These rules also recognize the sometimes 
unpredictable course of traumatic brain injury, and will improve our 
adjudication of claims involving traumatic brain injuries.

DATES: These rules are effective September 20, 2000.

FOR FURTHER INFORMATION CONTACT: Deborah Barnes, Social Insurance 
Specialist, Office of Disability, Social Security Administration, 3-B-8 
Operations Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
(410) 965-4171, email [email protected], or TTY (410) 966-5609. 
For information on eligibility, claiming benefits, or coverage of 
earnings, call our national toll-free number, 1-800-772-1213 or TTY 1-
800-325-0778.

SUPPLEMENTARY INFORMATION:

Background

    Title II of the Act provides for the payment of disability benefits 
to three groups of individuals: Workers insured under the Act; children 
of insured workers; and widows, widowers, and surviving divorced 
spouses of insured workers. Title XVI of the Act provides for 
supplemental security income (SSI) payments on the basis of disability 
to adults and to children. For individuals claiming title II disability 
benefits and for adults claiming SSI disability payments, 
``disability'' means the inability to do any substantial gainful 
activity (SGA). We will consider a child claiming SSI disability 
payments ``disabled'' if he or she has an impairment(s) that causes 
``marked and severe functional limitations.'' Under both title II and 
title XVI, disability must be by reason of a medically determinable 
physical or mental impairment or combination of impairments that can be 
expected to result in death or that has lasted or can be expected to 
last for a continuous period of at least 12 months.
    The Listings describe, for each of the major body systems, examples 
of impairments we consider severe enough to prevent an adult from doing 
any gainful activity, or that cause marked and severe functional 
limitations in a child. The Listings are divided into part A and part 
B. We apply the medical criteria in part A when we assess the claims of 
adults. We may also use the criteria in part A when we evaluate SSI 
childhood disability claims if the disease processes have a similar 
effect on both adults and children. However, when we evaluate childhood 
disability claims, we first use the criteria in part B; if those 
criteria do not apply, we then use the criteria in part A. (See 
Secs. 404.1525 and 416.925).
    We last published final rules containing comprehensive revisions to 
the adult mental disorders listings in the Federal Register on August 
28, 1985 (50 FR 35038). In the preamble to those rules, we indicated 
that medical advancements in disability evaluation and treatment and 
program experience would require that the mental disorders listings be 
periodically reviewed and updated. We published a Notice of Proposed 
Rulemaking (NPRM) on July 18, 1991 (56 FR 33130), and invited 
interested persons, organizations, and groups to submit their comments 
on the NPRM within 60 days.
    We received over 120 letters from individuals and groups commenting 
on the proposed rules. The commenters generally supported most of the 
proposed changes, but objected to certain aspects of the proposed 
rules.
    We have carefully considered all of the public comments and are 
adopting parts of the proposed rules with modifications. Since we 
published the NPRM, there have been both medical and legislative 
changes that require us to review some of our proposed revisions again. 
For example, the American Psychiatric Association's publication of the 
Fourth Edition of the ``Diagnostic and Statistical Manual of Mental 
Disorders'' (DSM-IV) in May 1994 impacts directly on our proposal to 
incorporate terminology from the DSM Third Edition-Revised (DSM-III-R). 
The changes made to the childhood disability program by Public Law 104-
193, the Personal Responsibility and Work Opportunity Reconciliation 
Act of 1996, affects our proposal to extend use of the special 
technique for evaluating mental impairment severity to childhood mental 
disorders claims evaluated under part B of the Listings.
    Consequently, we are deferring action on the proposed revisions 
that are not finalized by these regulations. We are not incorporating 
DSM-III-R terminology or establishing a new psychoactive substance 
dependence listing (listing 12.09) with its own paragraph A diagnostic 
criteria and paragraph B functional criteria. We are reassessing this 
latter proposal as a result of the provisions of Public Law 104-121 
that prohibit eligibility for disability benefits when drug addiction 
or alcoholism (DAA) is a contributing factor material to the 
determination of disability. We are not incorporating the ``capsule 
definition'' into the paragraph A diagnostic criteria of each listing, 
although we have addressed the relevance of the capsule definition in 
these final rules. We are not providing definitions of the scale points 
in Secs. 404.1520a and 416.920a or expanding application of the special 
technique we use to evaluate adult mental disorders to the childhood 
mental disorders listings. Finally, we are not adding criteria to 
listing 12.07 to address eating and tic disorders.
    In these final rules, we are revising the third and fourth 
paragraph B functional criteria in each listing. We are adding 
paragraph C functional criteria to listings 12.02 (Organic Mental 
Disorders) and 12.04 (Affective Disorders). We are standardizing at two 
the number of paragraph B criteria that an impairment must satisfy to 
meet a listing. In Secs. 404.1520a and 416.920a, we are modifying the B 
criteria rating scales and the requirements for documenting application 
of the technique at all review levels. We also are deleting certain 
provisions that address issues that already are covered in other 
regulations. We are adding a new paragraph F in the introductory text 
to the neurological listings that discusses the evaluation of traumatic 
brain injury. We also are making changes to and reorganizing the 
introductory text to the mental disorders listings.
    We discuss below the significant differences between the proposed 
rules and final rules. We also respond to the significant public 
comments on these final rules. We will consider the public comments we 
received on the proposed revisions that we are not finalizing by

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these regulations as we reassess those proposals.
    The revised adult mental disorders listings (and other listings) in 
these rules will be effective until July 2, 2001, unless they are 
extended by the Commissioner or revised and promulgated again.

Explanation of the Final Rules

Sections 404.1520a and 416.920a Evaluation of Mental Impairments

    We revised and clarified our rules in these sections on the 
procedure we use to evaluate the severity of mental impairments. We 
made revisions in response to public comments, to clarify the proposed 
language, and for technical reasons. However, the final rules do not 
include our proposal to expand application of the technique to include 
evaluation of mental impairment severity under the childhood mental 
disorders listings. The final rules also do not provide definitions for 
the scale points, as we proposed. As in the NPRM, we use the term 
``technique'' throughout these sections to facilitate our discussion of 
this procedure.
    Final Secs. 404.1520a(a) and 416.920a(a), ``General,'' are 
essentially the same as in the prior rules, except for editorial 
changes that reflect our decision not to apply the technique to 
childhood mental disorders claims evaluated under part B of the 
Listings.
    Final Secs. 404.1520a(b) and 416.920a(b), ``Use of the technique,'' 
provide basic information about the application of the technique. They 
explain that we must first evaluate the evidence to determine whether 
an individual has a medically determinable mental impairment(s), 
demonstrated by pertinent symptoms, signs, and laboratory findings. If 
we determine that an individual has a medically determinable mental 
impairment(s), we must specify the symptoms, signs, and laboratory 
findings substantiating its presence. Then, we will rate the degree of 
functional limitation resulting from that impairment(s) and record our 
findings as set out in Secs. 404.1520a(c) and (e) and 416.920a(c) and 
(e).
    In the final rules, we simplified proposed Secs. 404.1520a(b)(1) 
and 416.920a(b)(1), which contained a number of sentences addressing 
different issues. Final Secs. 404.1520a(b)(1) and (b)(2) and 
416.920a(b)(1) and (b)(2), which describe the basic technique, contain 
the first four sentences of proposed Secs. 404.1520a(b)(1) and 
416.920a(b)(1), with minor editorial changes.
    We deleted the fifth sentence of proposed Secs. 404.1520a(b)(1) and 
416.920a(b)(1) because it was redundant of the fourth sentence. We also 
deleted the seventh sentence, which referred to the evaluation of 
childhood mental impairments. We incorporated the sixth sentence, which 
describes how we rate the degree of functional limitation, in final 
Secs. 404.1520a(c) and 416.920a(c).
    We incorporated the four sentences in proposed 
Secs. 404.1520a(b)(2), with some revisions, in final 
Secs. 404.1520a(c)(3) and (4) and 416.920a(c)(3) and (4). Final 
Secs. 404.1520a(b)(2) and 416.920a(b)(2) now state that we must rate 
the degree of limitation in accordance with final Secs. 404.1520a(c) 
and 416.920a(c) and record our findings as set out in final 
Secs. 404.1520a(e) and 416.920a(e).
    We deleted proposed Secs. 404.1520a(b)(3) and 416.920a(b)(3) in 
which we had defined the rating scale points for each of the first 
three functional areas. We also deleted proposed Secs. 404.1520a(b)(4) 
through (7) and 416.920a(b)(4) through (7) in their entirety, since 
they addressed rating scale points for assessing the degree of 
limitation for childhood mental impairments evaluated under part B of 
the Listings.
    As we explain in more detail in the public comments section of this 
preamble, we expanded final Secs. 404.1520a(c) and 416.920a(c), 
``Rating the degree of functional limitation,'' to respond to many 
comments we received about the technique. In final 
Secs. 404.1520a(c)(1) and 416.920a(c)(1), we explain that the 
assessment of functional limitations is a complex and highly 
individualized process requiring consideration of multiple issues. We 
stress that in addition to symptoms, signs, and laboratory findings, we 
consider other factors, such as the effects of chronic mental 
disorders, structured settings and the effects of medication and other 
treatment. We also stress that we must consider the individual's 
functioning over time.
    We provide further detail about these principles in final 
Secs. 404.1520a(c)(2) and 416.920a(c)(2). The first sentence explains 
that when we rate the degree of functional limitation, we consider the 
extent to which the individual's impairment or combination of 
impairments interferes with the ability to function independently, 
appropriately, effectively, and on a sustained basis. The second 
sentence explains that we will consider factors including the quality 
and level of the individual's overall performance, any episodic 
limitations, the amount of supervision or assistance required, and the 
settings in which the individual can function. The third sentence 
provides a cross-reference to 12.00C through 12.00H of the introductory 
text to the adult mental disorders listings for more information about 
the factors we consider.
    Final Secs. 404.1520a(c)(3) and 416.920a(c)(3) are based on the 
first sentence of proposed Secs. 404.1520a(b)(2) and 416.920a(b)(2). 
They list the four functional areas we consider (activities of daily 
living; social functioning; concentration, persistence, or pace; and 
episodes of decompensation) when we employ the technique.
    Final Secs. 404.1520a(c)(4) and 416.920a(c)(4) explain that we will 
use a five-point scale (none, mild, moderate, marked, and extreme) when 
we rate the degree of limitation in the first three functional areas 
(i.e., all but ``episodes of decompensation''). We also include the 
statement from the last sentence of Secs. 404.1520a(b)(3) and 
416.920a(b)(3) of the prior rules, which we had included in the NPRM. 
However, we revised the statement in response to comments. Instead of 
providing that the last two points of the five-point rating scale 
represent degrees of limitation that are incompatible with the ability 
to do a work-related function, the final rules provide that the last 
point of the scale represents a degree of limitation that is 
incompatible with the ability to do any gainful activity. We explain 
our reasons for this change in the public comments section of this 
preamble.
    Final Secs. 404.1520a(d) and 416.920a(d), ``Use of the technique to 
evaluate mental impairments,'' correspond to prior Secs. 404.1520a(c) 
and 416.920a(c) and proposed Secs. 404.1520a(c) and 416.920a(c). In the 
final rules, we revised the language that related to proposed changes 
in the rating scale points and deleted proposed Secs. 404.1520a(c)(2) 
and 416.920a(c)(2) in their entirety.
    Final Secs. 404.1520a(d)(2) and 416.920a(d)(2), which explain how 
we determine whether an impairment meets or is equivalent in severity 
to a mental listing, correspond to prior Secs. 404.1520a(c)(2) and 
416.920a(c)(2) and proposed Secs. 404.1520a(c)(3) and 416.920a(c)(3). 
In response to a comment, the final rules contain the first sentence of 
prior Secs. 404.1520a(c)(2) and 416.920a(c)(2), slightly edited. The 
sentence explains that we will determine whether an impairment meets or 
is equivalent in severity to a listing if we first determine that the 
individual has a severe impairment(s). We also revised the second 
sentence slightly for context.
    Final Secs. 404.1520a(d)(3) and 416.920a(d)(3) correspond to prior 
Secs. 404.1520a(c)(3) and 416.920a(c)(3)

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and proposed Secs. 404.1520a(c)(4) and 416.920a(c)(4). These sections 
explain that we will make a residual functional capacity (RFC) 
assessment whenever an individual has a severe impairment or 
combination of impairments that neither meets nor is equivalent in 
severity to any listing. In the NPRM, we had replaced the reference to 
a ``residual functional capacity'' assessment with a more generic 
reference to a functional assessment in order to include children. Also 
in response to a comment, we further revised the sentence proposed in 
the NPRM and deleted the last phrase (``when appropriate to the 
category of claim being assessed''). The phrase suggested that in some 
cases we would not do RFC assessments of individuals who have severe 
impairments that neither meet nor are equivalent in severity to any 
listed impairment. In fact, we always do RFC assessments in these 
circumstances.
    Final Secs. 404.1520a(e) and 416.920a(e), ``Documenting application 
of the technique,'' correspond to prior Secs. 404.1520a(d) and 
416.920a(d), ``Preparation of the document,'' and proposed 
Secs. 404.1520a(d) and 416.920a(d). The final rules, like the NPRM, 
explain that we must complete a standard document showing the 
application of the technique in each case at the initial and 
reconsideration levels of the administrative review process. At the 
hearings and appeals levels, administrative law judges and the Appeals 
Council must record the application of the technique in their 
decisions. We revised the heading slightly from the NPRM (from ``this 
technique'' to ``the technique'') for consistency. We also made 
editorial revisions in the two sentences that make up the paragraph.
    In final Secs. 404.1520a(e)(1) and 416.920a(e)(1) (proposed 
Secs. 404.1520a(d)(1) and 416.920a(d)(1)), we clarified the provisions 
addressing the role of the disability examiner in preparing the 
standard document. However, we retained the basic provision, which 
permits the disability examiner to assist the medical or psychological 
consultant in preparing the form. We describe the revisions and our 
response to the comments we received on the proposed rules in the 
public comments section of this preamble. In a technical correction, we 
revised the opening phrase of the first sentence to make it clearer 
that the medical or psychological consultant has overall responsibility 
for assessing medical severity at the reconsideration level except when 
a disability hearing officer makes the determination. When a 
reconsideration determination is made by a disability hearing officer, 
the disability hearing officer has overall responsibility for assessing 
medical severity.
    Final Secs. 404.1520a(e)(2) and 416.920a(e)(2) (proposed 
Secs. 404.1520a(d)(2) and 416.920a(d)(2)), which describe what 
administrative law judges and the Appeals Council must include in their 
decisions to document the technique, are substantively unchanged from 
the NPRM. We made minor editorial corrections and revised the cross-
references to reflect the organization of the final rules.
    We made a number of changes in final Secs. 404.1520a(e)(3) and 
416.920a(e)(3) (proposed Secs. 404.1520a(d)(3) and 416.920a(d)(3)) in 
response to public comments. We proposed revisions to the procedures 
under which administrative law judges may return cases to the State 
agencies. We describe these revisions and our reasons for making them 
in the public comments section of this preamble. We also made minor, 
nonsubstantive editorial revisions in the paragraph.
Appendix 1 to Subpart P--Listing of Impairments
11.00F  Traumatic Brain Injury (TBI)
    As in the proposed rules, the final rules include a new 11.00F in 
the preface to the adult neurological listings that provides guidance 
for the evaluation of cases involving traumatic brain injury (TBI). In 
response to a comment, we changed the heading of the final section from 
the proposed ``Cerebral trauma.''
    TBI cases are evaluated under reference listing 11.18, ``Cerebral 
trauma.'' Final 11.00F recognizes the sometimes unpredictable course of 
TBI during the first few months post-injury. Thus, final 11.00F 
provides three situations for evaluating disability based on 
alternative possible courses. First, it explains that the neurological 
impairment may be so profound following the trauma that it will be 
possible to decide immediately that an individual is disabled. Second, 
it explains that if there is not such a profound initial neurological 
impairment, we will defer adjudication of the claim until we obtain 
evidence of any neurological and mental impairments at least 3 months 
post-injury. Third, if a finding of disability is still not possible at 
3 months post-injury, we will again defer adjudication of the claim 
until we obtain evidence at least 6 months post-injury.
    We made a number of editorial clarifications in final 11.00F, 
partly in response to comments and partly for clarity and precision of 
the final language. None of the changes are substantive. For instance, 
we deleted the word ``listing'' in all but one place to be consistent 
with the style of other paragraphs of the listings. We also replaced 
such phrases as ``make a final adjudication'' and ``favorable 
decision,'' which have other connotations in our program, with more 
accurate phrases, such as ``adjudicate the claim'' and ``finding of 
disability.'' Among other changes, we also revised 11.00F to make it 
clear that an individual with TBI may have a neurological or a mental 
impairment, or both.
    The most extensive editorial revision is to the second paragraph of 
proposed 11.00F, which consisted of ten sentences that addressed more 
than one subject. In final 11.00F, we divided the proposed second 
paragraph into two paragraphs (the second and third paragraphs of final 
11.00F). We also reorganized the sentences of the proposed paragraph so 
that each paragraph addresses one subject. Thus, the second paragraph 
of final 11.00F includes the first, second, third, fifth, sixth, and 
seventh sentences of the NPRM, which describe the variable course of 
TBI. The third paragraph includes the fourth, eighth, ninth, and tenth 
sentences, which explain when we will proceed with adjudication and 
when we will defer adjudication.
12.00  Mental Disorders
    The final listings do not include all of the substantive revisions 
we had proposed. The proposed revisions reflected evolving medical 
knowledge of the characteristics of mental disorders and their 
treatment and management. They also reflected the program experience we 
have gained in monitoring and evaluating the prior listings.
    For example, in the proposed revisions, we had updated the medical 
terms used to describe the major mental disorders and their 
characteristics and symptoms to conform to the nomenclature in the DSM-
III-R published by the American Psychiatric Association. The DSM is 
widely used by psychiatrists, psychologists, and other mental health 
professionals. It provides a common basis for communication and 
facilitates our evaluation of medical reports when we make 
determinations of disability.
    The American Psychiatric Association has an ongoing process to 
update the DSM. The fourth edition of the DSM (DSM-IV) was published in 
May 1994. We decided to publish these final rules without the changes 
we had proposed, rather than further delay them to

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incorporate any additional changes in the terminology and diagnostic 
criteria from the DSM-III-R to the DSM-IV. In the meantime, we are 
reviewing those changes in the DSM-IV that pertain to our listings to 
determine whether we need to revise these final listings at a future 
date.
    We retained one substantive change from the proposed listings; the 
final rules make the requirement for limitations in two of the areas 
under paragraph B the uniform standard for all listings that employ 
paragraph B functional criteria.
    One nonsubstantive change we made from the proposed listings was to 
separate mental retardation and autistic disorder and other pervasive 
developmental disorders into two listings, listings 12.05 and 12.10, 
respectively. We discuss this change in detail in the summary below and 
in the public comments section of this preamble.
    The following is a detailed description of the changes in each 
section.
12.00  Preface

12.00A  Introduction

    Final 12.00A, ``Introduction,'' describes the structure of the 
listings and explains how we apply them. This section also provides 
guidance about the severity of the listings, how we determine 
equivalence, and how we determine residual functional capacity (RFC). 
In the final rules, we updated the list of titles of the listing 
categories to reflect the change in 12.05 and the addition of 12.10. We 
also updated the list of listings with paragraph C criteria. In 
addition, we expanded the discussion regarding the application of the 
paragraph B and C criteria. We now specify that the evaluation of 
functional limitations must be done by applying the paragraph B 
criteria first. We will apply the paragraph C criteria only if we find 
that the paragraph B criteria are not satisfied. Because final listing 
12.09, ``Substance addiction disorders,'' remains a reference listing, 
we restored the description of the listing found in the prior rules. We 
also added a description of the structure of listing 12.05, ``Mental 
retardation,'' because it is the only other listing that does not 
employ the same paragraph A-paragraph B system as the other mental 
disorders listings in all of its sections. However, we clarified the 
proposed description in the final rules in response to public comments 
about the listing itself. The description in the final rules also 
reflects the fact that we removed ``autistic disorder and other 
pervasive developmental disorders'' from listing 12.05 and placed them 
in a separate listing 12.10. We did this both in response to a public 
comment and for consistency with the childhood mental disorders 
listings. We discuss this change in greater detail in the public 
comments section of this preamble.
    We also explain in final 12.00A that the listings contain examples 
of disorders that are considered severe enough to preclude an 
individual from doing any gainful activity. If an impairment does not 
meet the requirements of a listing, we will determine whether the 
individual's impairment(s) is equivalent in severity to a listed 
impairment. We revised the discussion regarding determinations of 
equivalence in the sixth paragraph of final 12.00A because some of the 
comments about proposed listing 12.09 indicated that there could be 
confusion about how we evaluate a medically determinable severe mental 
impairment that does not satisfy all of the paragraph A criteria of a 
particular listing. The last sentence now states that in such cases, 
the assessment of the paragraph B and C criteria is critical to a 
determination of equivalence.

12.00B  Need for Medical Evidence

    Final 12.00B, as in the prior rules, repeats basic principles of 
disability evaluation that are set out in the regulations, but focuses 
specifically on the evaluation of mental disorders. It describes the 
need to establish the existence of a medically determinable impairment 
of the required duration, and defines the terms ``symptoms'' and 
``psychiatric signs.'' It also explains that symptoms and signs 
generally cluster together to constitute the recognizable mental 
disorders described in the listings. This section also provides a 
reminder that symptoms and signs may be intermittent or continuous.
    In response to a comment, we revised the third sentence of proposed 
12.00B to indicate that the specific psychological abnormalities named 
in the sentence are only examples of such abnormalities. The sentence 
does not contain an all-inclusive list. We also revised the examples of 
abnormalities in response to a comment and updated the terminology. We 
also deleted the example of psychiatrists and psychologists as 
appropriate medical sources. We describe all of these changes in the 
public comments section of this preamble.

12.00C  Assessment of Severity

    This section explains how we assess severity under the listings 
using the paragraph B and C functional criteria. It briefly defines the 
term ``marked'' and describes each of the four functional areas in 
detail. Throughout final 12.00C, as in the NPRM, we incorporated 
references to the ability to sustain function. This reflects more 
clearly our longstanding policy that the ability to sustain function is 
essential to the effective performance of the function.
    The opening paragraph of final 12.00C is substantively the same as 
in the prior rules. As in the NPRM, we simplified and clarified it 
without any change in meaning. In response to a comment, we replaced 
the descriptive ``ability to tolerate increased mental demands 
associated with competitive work or other stressful circumstances,'' 
with the more accurate and simpler heading of the fourth functional 
criterion, ``episodes of decompensation,'' in the list of the four 
functional areas. We explain our reasons for this revision in the 
public comments section of this preamble under the comments about 
12.00C4. We also moved the cross-reference to Secs. 404.1520a and 
416.920a to the end of the paragraph.
    Final 12.00C1 describes the first paragraph B criterion, activities 
of daily living. The final paragraph is different from the prior rules 
in only one respect. The example at the end of the second paragraph of 
the section in the prior rules was too narrow; therefore, we had 
revised the example in the NPRM. In response to a comment about that 
revised example, however, we replaced it with a more comprehensive and 
descriptive example.
    Final 12.00C2 describes the second paragraph B criterion, social 
functioning. Except for editorial changes, the final paragraph is the 
same as the prior rules and the NPRM.
    Final 12.00C3 describes the third paragraph B criterion, 
concentration, persistence, or pace. The title of the final paragraph 
does not reflect the change we had proposed in the NPRM, ``Task 
completion.'' However, we made it consistent with Secs. 404.1520a, 
416.920a, and the listings themselves by changing the ``and'' to 
``or.'' The final paragraphs incorporate most of the proposed 
revisions. We also clarified how we assess concentration, persistence, 
or pace in work evaluations.
    The prior paragraph 12.00C3 consisted of eight sentences. We 
simplified final 12.00C3 by dividing the sentences into separate 
paragraphs. In addition, we made a number of revisions in the final 
rules in response to public comments. Besides revising the proposed 
text in response to the comments, we also added two paragraphs to the 
final rules. The

[[Page 50750]]

revisions remove the example of ``everyday household routines'' in the 
first paragraph of proposed 12.00C3, and explain that an individual's 
ability to function in settings other than work settings is important. 
They also provide more information about how we evaluate such 
activities. The revisions provide guidance about the need to consider 
all relevant evidence, and such factors as whether the individual is 
functioning in a structured setting. In addition, we clarified that we 
meant our reference in the first paragraph of proposed 12.00C3 to 
``direct psychiatric examination'' to include clinical examinations 
performed by psychologists. We also restored the three examples of work 
tasks from the prior rules, and we added a reference to ``serial 
threes'' as a test of concentration. We describe all of these changes 
in detail, and our reasons for making them, in the public comments 
section of this preamble.
    Final 12.00C4 describes the fourth paragraph B criterion, and the 
first paragraph C criterion, episodes of decompensation. As in the 
NPRM, we deleted the reference to ``work or work-like settings'' 
because episodes occurring outside these settings can be equally useful 
in assessing an individual's ability to work and because, as a 
practical matter, the information in cases does not often come from 
observations in work or work-like settings.
    We substantially revised final 12.00C4 in response to many public 
comments we received about the section itself and about the paragraph B 
and C criteria in the proposed listings. Final 12.00C4 now contains two 
paragraphs. The first paragraph defines ``episodes of decompensation,'' 
without the proposed phrase, ``causing deterioration.'' We also revised 
the proposed definition to make clear that episodes of decompensation 
are accompanied by a loss of adaptive functioning, instead of stating 
that such episodes ``may include'' loss of adaptive functioning, as we 
had proposed. A new second sentence in the first paragraph explains 
that episodes of decompensation may be demonstrated by an exacerbation 
in symptoms or signs that would ordinarily require increased treatment, 
or a less stressful situation (which can include withdrawal from the 
stressful situation), or a combination of the two. Such an episode may 
be shown by significant alteration in medications, documentation of the 
need for a more structured psychological support system, or other 
relevant information.
    We also added a new second paragraph in final 12.00C4. The first 
sentence introduces and defines the term, ``repeated episodes of 
decompensation, each of extended duration.'' In the final rules, we 
used this term in each of the paragraph B4 and C1 listing criteria 
instead of repeating the requirement, as we had proposed in the NPRM, 
that the episodes of decompensation average three times within 1 year 
or once every 4 months, and each last for at least 2 weeks. We provide 
guidance in the second sentence of this new paragraph for evaluating 
episodes of decompensation that occur less frequently than three times 
in a year or once every 4 months but last longer than 2 weeks, or that 
are of shorter duration but occur more frequently.
    We made all of the changes in final 12.00C4 in response to 
comments. We describe the comments and give our reasons for making 
these changes in the public comments section of this preamble under the 
heading for 12.00C4 and under the heading for listing 12.02, where we 
discuss all of the general comments about the paragraph B4 and C1 
criteria in the listings.

12.00D  Documentation

    As in the NPRM, we greatly expanded final 12.00D from the prior 
rules to provide guidance about several aspects of the documentation of 
claims involving mental disorders. We made many changes in the final 
rules in response to comments, most of which we describe in the public 
comments section of this preamble.
    In response to the comments, we reorganized and simplified the 
final section. Proposed 12.00D contained 24 paragraphs, none of which 
had headings, or number or letter designations. As a result, the 
proposed section was somewhat cumbersome and some of the comments 
indicated to us that it needed an internal structure.
    Proposed 12.00D addressed a number of different topics that all 
fall under the heading, ``Documentation,'' but are otherwise separate 
topics. The first four and one-half paragraphs of the proposed section 
discussed general issues associated with the development of claims: 
Requirements to obtain medical evidence to establish the existence of a 
medically determinable impairment; the value of information from the 
individual and others who know the individual; the need to establish a 
longitudinal record because of variations in functioning; the relevance 
of work; and the purchase of consultative examinations employing 
psychometric testing. From the middle of the proposed fifth paragraph 
through the proposed eighteenth paragraph, we provided technical 
discussions about psychological testing, including two paragraphs 
devoted to neuropsychological testing. The nineteenth through twenty-
fourth paragraphs primarily discussed issues related to the 
documentation of particular disorders.
    Aside from the fact that reference to the numerous unnumbered 
paragraphs in the section was difficult, our proposal grouped together 
different topics without any indication that they addressed more-or-
less distinct subjects. This unstructured organization confused some 
commenters about our intent in several areas. Therefore, in response to 
the comments, we provided headings and number or letter designations 
for each of the paragraphs wherever we believed that they would help 
clarify the rules. The final rules are structured as follows.
    The opening paragraph of final 12.00D is based on the first 
paragraph of prior 12.00D and the first paragraph of proposed 12.00D 
and includes new provisions that we added in response to a comment. The 
paragraph provides general guidance that the documentation in a claim 
must include sufficient evidence to establish the existence of a 
medically determinable mental impairment(s), to assess the degree of 
functional limitation the impairment(s) imposes, and to project the 
probable duration of the impairment(s). It also provides a cross-
reference to Secs. 404.1512 and 416.912, which define the term 
``evidence'' and describe the various individuals, institutions, and 
agencies that can provide evidence. These regulatory sections also 
explain the efforts we will make to assist individuals in obtaining 
existing evidence or in developing evidence (such as through a 
consultative examination) for their claims.
    The remainder of the opening paragraph of final 12.00D provides 
three reminders of longstanding policies in our regulations that we 
apply to all individuals, not just those with mental impairments. 
First, the medical evidence must be sufficiently complete and detailed 
to permit an independent determination. Second, we should consider 
information from other relevant sources (including nonmedical sources) 
in determining how an individual's medically determinable impairment(s) 
affects his or her ability to function. Third, we will consider all 
relevant evidence in the case record.
    Final 12.00D1, ``Sources of evidence,'' is divided into three 
parts. Final 12.00D1a, ``Medical evidence,'' explains that we must have 
evidence from an acceptable medical source showing that an individual 
has a medically

[[Page 50751]]

determinable mental impairment. It further provides that we will make 
every reasonable effort to obtain all relevant and available medical 
evidence about an individual's mental impairment. It also explains 
that, whenever possible, and appropriate, medical source evidence 
should reflect the source's consideration of information from the 
individual and other concerned persons who are aware of the 
individual's functioning. In accordance with standard clinical 
practice, any medical source assessment of an individual's mental 
functioning should take into account sensory, motor, or communication 
abnormalities and the individual's cultural and ethnic background. 
These provisions are based on the third sentence of the first paragraph 
and part of the last sentence of the third paragraph of proposed 
12.00D, but are significantly expanded and revised.
    Final 12.00D1b, ``Information from the individual,'' corresponds to 
the first two sentences of the second paragraph of proposed 12.00D, 
which we revised in response to comments. It now explains that 
individuals with mental impairments can often provide accurate 
descriptions of their limitations, but recognizes that some individuals 
may not be willing or able to fully describe their limitations. 
Therefore, we must carefully examine statements from each individual to 
determine if they are consistent with the other evidence of record and 
to determine whether we need additional information about the 
individual's functioning from the individual or from other sources.
    Final 12.00D1c, ``Other information,'' corresponds to the third and 
fourth sentences of the second paragraph and the last sentence of the 
third paragraph of proposed 12.00D. It explains how we consider 
information from other health care providers, records from work 
evaluations and rehabilitation progress notes, and lay sources, such as 
family members.
    Final 12.00D2, ``Need for longitudinal evidence,'' corresponds to 
most of the third paragraph of proposed 12.00D. We explain that an 
individual's level of functioning may vary considerably over time, so 
that functioning at a specific time--regardless of whether it is 
adequate or poor--may not be an accurate indicator of the overall 
severity of the individual's impairment(s). This section explains that 
proper evaluation of the impairment(s) must take into account any 
variations in the level of functioning. It also explains that it is 
vital to obtain evidence from relevant sources over a sufficiently long 
period to establish impairment severity. Apart from minor editorial 
revisions, the final paragraph is unchanged from the NPRM.
    Final 12.00D3, ``Work attempts,'' corresponds to the fourth 
paragraph of proposed 12.00D. In response to a comment, we added a 
sentence reminding adjudicators to consider the degree to which an 
individual requires special supports, such as those provided through 
supported employment or transitional employment programs, in order to 
work. Otherwise, the substance of the final paragraph is unchanged from 
the NPRM.
    Final 12.00D4, ``Mental status examination,'' is a new paragraph 
that we added in response to a comment. It describes the components of 
mental status examinations and the circumstances under which such 
examinations are performed.
    Final 12.00D5, ``Psychological testing,'' consists of three 
paragraphs. Final 12.00D5a corresponds to the third sentence of the 
fifth paragraph of proposed 12.00D. It explains the reference to ``a 
standardized psychological test'' in these listings and what we mean by 
the term ``qualified'' specialist. We also divided the proposed 
sentence into two sentences and clarified our intent.
    Final 12.00D5b provides guidance about the general kinds of 
information one can expect to elicit from psychological tests. It 
begins with a sentence that is based on the last sentence of the fifth 
paragraph of proposed 12.00D, which we revised in response to a 
comment. We now state that psychological tests elicit a range of 
``responses,'' rather than ``behaviors.'' The paragraph finishes with 
the provisions from the first two sentences of the ninth paragraph of 
proposed 12.00D. These sentences explain that other information can be 
obtained from psychological testing, such as information from the 
specialist's observations about the individual's ability to do the 
test.
    Final 12.00D5c is the same as the sixth paragraph of proposed 
12.00D except for minor editorial changes. It provides technical 
information about the salient characteristics of a good test. The 
section also reminds adjudicators about the need to note and resolve 
any discrepancies between formal test results and the individual's 
customary behavior and daily activities.
    Final 12.00D6, ``Intelligence tests,'' consists of five paragraphs, 
designated 12.00D6a through 12.00D6e. These paragraphs incorporate 
various provisions from the fifth, eighth through eleventh, fifteenth, 
and sixteenth paragraphs of the proposed rules. These provisions of the 
proposed rules specifically concerned intelligence testing and properly 
should have been grouped together. In the course of reorganizing the 
provisions, we also revised them to simplify and clarify the rules.
    We made several substantive changes throughout 12.00D6 in response 
to comments. We address the substantive changes in the public comments 
section of this preamble.
    In 12.00D6d we made some technical changes. First, we added an 
introductory sentence which indicates that it is usually preferable to 
use IQ measures that are wide in scope and test both verbal and 
performance abilities. Then, we deleted the word ``nonverbal,'' which 
had been in the eighth paragraph of the proposed rules, and also 
deleted the reference to ``the Raven Progressive Matrices'' and added a 
reference to the ``Test of Nonverbal Intelligence, Third Edition (TONI-
3).''
    In addition, in final 12.00D6e, we made technical changes from the 
proposed rules. The final paragraph combines provisions from the 
fifteenth and sixteenth paragraphs of proposed 12.00D. These paragraphs 
discussed exceptions to formal standardized psychological testing and 
contained language that we copied from the fifteenth and sixteenth 
paragraphs of 112.00D in the childhood mental listings. In reviewing 
the sixteenth paragraph, we noted technical inaccuracies that had to be 
corrected. In the proposed rules, we referred to the ``Scale of Multi-
Cultural Pluralistic Assessment (SOMPA),'' and called it a ``culture-
free'' test. A more appropriate term is ``culture-fair.'' The SOMPA, 
however, is a test for children age 5 to 11 years 11 months old; 
therefore, reference to it is not appropriate in the adult rules. 
Moreover, the SOMPA battery of tests includes an age-appropriate 
Wechsler scale of intelligence. Since the Wechsler scales are English-
language tests, they are not culture-fair. As such, their inclusion as 
part of the SOMPA makes that battery of tests not culture-fair, and 
therefore inappropriate for inclusion in the sixteenth paragraph of 
112.00D of the childhood rules.
    Also, the proposed sixteenth paragraph did not convey our intended 
meaning. The provision that required testing in an individual's 
principal language would have inadvertently ruled out consideration of 
the results of testing not done in the individual's principal language 
that happened to be part of the existing medical evidence. It also 
would have ruled out the possibility of testing a bilingual

[[Page 50752]]

individual in English, even if the individual has sufficient fluency in 
English as a second language. Further, the paragraph allowed for 
testing through a translator in some circumstances, even though this 
would introduce a variable that might compromise the results of the 
test. This was not our intent.
    For all these reasons, we deleted the second through sixth 
sentences of the proposed sixteenth paragraph. Because the remaining 
paragraph was so similar to the proposed fifteenth paragraph, we 
combined the fifteenth and sixteenth paragraphs under one heading in 
final 12.00D6e. The paragraph addresses exceptions to formal 
standardized testing, including exceptions to standardized testing in 
the individual's own language. We still retain reference to the Leiter 
International Performance Scale-Revised and a discussion of individuals 
whose culture and background are not principally English-speaking in 
final 12.00D6d; therefore, there is no need to repeat the reference and 
discussion in final 12.00D6e.
    Also, the fifteenth and sixteenth paragraphs of 112.00D of the 
childhood listings included some of the same wording that was 
problematic in the proposed adult rules. For this reason, and to 
maintain consistency between part A and part B, we replaced the 
fifteenth and sixteenth paragraphs in 112.00D with the same wording 
found in final 12.00D6d and 12.00D6e, revised slightly to make 
reference to children.
    In final 12.00D7, ``Personality measures and projective testing 
techniques,'' we combined and simplified the provisions in the twelfth 
and fourteenth paragraphs of the proposed rules. The paragraph 
addresses standardized personality measures (such as the Minnesota 
Multiphasic Personality Inventory-Revised, or MMPI-II) and projective 
types of techniques (such as the Rorschach and Thematic Apperception 
Test, or TAT). For reasons we explain in the public comments section of 
this preamble, we deleted the proposed discussion devaluing these two 
types of tests. This deletion includes the discussion of the ``limited 
applicability'' of personality measures, and the statement that 
projective tests are not useful for program purposes. We now state that 
these tests may provide useful data for evaluating several types of 
mental disorders. In addition, we acknowledge that such test results 
may be useful for disability evaluation when corroborated by other 
evidence.
    Final 12.00D8, ``Neuropsychological assessments,'' incorporates 
paragraphs seventeen through twenty of proposed 12.00D. We deleted the 
last two sentences of the proposed eighteenth paragraph of the NPRM in 
response to comments. In the last sentence of the first paragraph, 
which corresponds to the last sentence of the seventeenth paragraph of 
proposed 12.00D, we changed the word ``professionals'' to 
``specialist,'' consistent with the terminology in final 12.00D5. We 
also deleted the phrase, ``and applying its findings in the disability 
decisionmaking process,'' because we have other regulations that 
address the qualifications of our medical and psychological 
consultants. We also reorganized and simplified the remaining 
provisions somewhat, but did not make substantive changes.
    Final 12.00D9, ``Screening tests,'' corresponds to the thirteenth 
paragraph of proposed 12.00D. For reasons we explain in the public 
comments section of this preamble, we deleted the second and third 
sentences of the proposed paragraph. We also simplified the remaining 
language without making any substantive changes.
    Final 12.00D10, 12.00D11, and 12.00D12 address three specific types 
of impairments. Final 12.00D10, ``Traumatic brain injury (TBI),'' 
corresponds to the twenty-second paragraph of proposed 12.00D. We 
expanded the statement we proposed, which referred only to the 
``evaluation'' guidelines in 11.00F, to refer to the ``documentation 
and evaluation'' guidelines in 11.00F. We also made minor editorial 
changes, including a different heading for this paragraph. We describe 
our reason for making this change above, under the heading for 11.00F.
    Final 12.00D11, ``Anxiety disorders,'' corresponds to the twenty-
third paragraph of proposed 12.00D. The final and proposed paragraphs 
are nearly identical. We changed ``testimony'' to ``statements'' in the 
last sentence of the final paragraph.
    Final 12.00D12, ``Eating disorders,'' corresponds to the twenty-
fourth paragraph of proposed 12.00D. We made a technical clarification 
in the last sentence of the final paragraph. The sentence in the NPRM 
indicated that when the primary functional limitation is physical, any 
mental manifestations ``must'' also be considered in addition to the 
physical manifestations of the impairment. In the final paragraph, we 
added a clause to the end of the sentence providing an exception for 
the situation in which a fully favorable determination or decision is 
possible based on the physical findings alone. In such a case, we would 
not need to consider the individual's mental manifestations because we 
will have already found him or her disabled. Otherwise, there is no 
substantive change from the NPRM in the final paragraph.
    Finally, we deleted four of the proposed paragraphs. We deleted the 
nineteenth and twentieth paragraphs because they addressed the 
evaluation of declines in cognition from premorbid functioning, a 
reference to the paragraph A7 criterion in listing 12.02. We are 
deferring adding these two paragraphs until we reassess the proposed 
changes to the A criteria of the listings. We deleted the seventh 
paragraph in response to a comment that pointed out that the paragraph 
could have been misinterpreted to preclude consideration of testing 
that did not demonstrate all of the salient characteristics of a ``good 
test.'' We deleted the twenty-first paragraph (which was also the ninth 
paragraph of prior 12.00D) because it could have been misleading in the 
context of the new rules. The paragraph explained that when the 
individual's cognitive impairment is such that standard intelligence 
testing is precluded, medical reports and observations by other 
individuals should be obtained to describe the individual's 
functioning. In fact, we may need this kind of evidence regardless of 
the type of impairment involved or whether intelligence testing is 
precluded. We did not want to give the impression that this was the 
only circumstance in which we would gather such evidence, and we have 
other rules that describe the various sources of evidence.

12.00E  Chronic Mental Impairments

    This section provides guidance and reminders for the evaluation of 
chronic mental disorders. Although the substance of the final rules is 
unchanged from the prior rules, we made minor editorial changes for 
clarity and comprehensiveness. We did not receive any comments about 
this section.

12.00F  Effects of Structured Settings

    Final 12.00F explains some of the factors we consider when an 
individual has overt symptomatology that is controlled or attenuated by 
psychosocial factors. We received two favorable comments and one 
suggestion about this provision, which we address in the public 
comments section of this preamble. The final rule is unchanged from the 
NPRM, except for minor editorial changes.

[[Page 50753]]

12.00G  Effects of Medication

    This section provides guidance about how we assess the effects of 
medication when we determine the functional limitations caused by an 
individual's mental impairment(s). In the final rules, we changed the 
terminology to reflect generic names for describing medications used in 
the treatment of mental disorders. As a result, we substituted the more 
common term ``drugs'' for ``psychoactive medications'' in the second 
and third sentences of the first paragraph and the first sentence of 
the second paragraph. Although the prior rules had used 
``neuroleptics'' in the second paragraph, this specific class of drugs 
is subsumed under the broad term, ``drugs.''

12.00H  Effects of Treatment

    This section provides a reminder that treatment may have positive 
effects to the extent that an individual may not be disabled. 
Therefore, the paragraph includes a reminder that treatment ``may or 
may not'' enable an individual to work.
    The final paragraph is substantively unchanged from the prior 
rules. In the NPRM, we proposed simplifying the paragraph and revising 
the parenthetical reference to include 12.02 and 12.04, which now also 
contain paragraph C criteria. In response to a comment about the fourth 
paragraph of proposed 12.00D, we also clarified the second sentence of 
the section to indicate that treatment may or may not assist in the 
achievement of an adequate level of adaptation required for ``sustained 
SGA'' instead of in the ``workplace.'' This is not a substantive 
change, only a clarification; we explain it more fully in the public 
comments section. We pluralized the word ``effect'' in the heading in 
the final rules for accuracy and consistency with the headings of the 
previous sections.

12.00I  Technique for Reviewing Evidence in Mental Disorders Claims To 
Determine the Level of Impairment Severity

    This brief section provides a cross-reference to Secs. 404.1520a 
and 416.920a, which describe the technique that must be followed in 
claims involving mental impairments. Except for minor editorial 
simplification, the section is the same as in the NPRM, with minor 
editorial changes. We did not receive any comments about this section.

12.01  Category of Impairments, Mental

12.02  Organic Mental Disorders

    In final listing 12.02, there are no changes in the paragraph A 
criteria from the prior rules, because we deferred making any of the 
changes we had proposed in the NPRM.
    In the paragraph B criteria of listing 12.02, and all other 
listings that employ paragraph B criteria, we changed the paragraph B3 
criterion (marked difficulties in maintaining concentration, 
persistence, or pace) to parallel the paragraph B1 and B2 criteria. In 
response to a comment that pointed to possible future 
misunderstandings, we simplified the criterion, for reasons we explain 
in the comments and responses section of this preamble. For 
consistency, we made similar changes in a number of places in 112.00.
    We reworded final paragraph B4 to focus on decompensation. (The use 
of the word ``decomposition'' throughout the NPRM was a typographical 
error, although we did receive several comments about it.) As we 
explain under the heading for 12.00C, we defined the paragraph B4 
criterion in the preface at 12.00C4. The paragraph B4 criterion now 
states, ``Repeated episodes of decompensation, each of extended 
duration.''
    We added a new paragraph C to listing 12.02 to evaluate individuals 
with chronic organic mental disorders with symptoms or signs that are 
currently attenuated by medication or psychosocial support. These new 
provisions are similar to paragraph C of listing 12.03. The 
introductory paragraph of listing 12.02C reflects our longstanding 
policy as to what constitutes a ``severe'' impairment under 
Secs. 404.1521, 416.921, 416.924, and Social Security Ruling 85-28. It 
also explains that a ``chronic'' mental disorder is one that has lasted 
for at least 2 years.
    The opening sentence of paragraph C is substantively the same as in 
the NPRM, except for two minor editorial revisions. We revised 
paragraph C1, which in the proposed rules was identical to the 
paragraph B4 criterion, to reflect the changes in final paragraph B4. 
In response to a comment, we added a new paragraph C2 to address 
individuals who have a residual disease process and who do not suffer 
repeated episodes of decompensation, but who are so marginally adjusted 
that even a minimal increase in mental demands or a change in 
environment would be predicted to cause decompensation. As we explain 
in the public comments section, this is a longstanding policy 
interpretation that we intended paragraph C to cover.
    Final paragraph C3, which was paragraph C2 in the NPRM, is 
unchanged, except for minor editorial changes. We based this revision 
on the prior listing 12.03C2 criterion describing a documented 
inability to function outside of a highly supportive living 
arrangement. We did not change the requirement from the proposed rules 
for a documented current history of an inability to function 1 or more 
years, in keeping with the statutory definition of disability, which 
requires that a disability must last for at least 12 months. The prior 
rules required a 2 year history.
    All of the changes in final listing 12.02 were made in response to 
public comments. We provide detailed information about these changes, 
and our reasons for making them, in the public comments section of the 
preamble.

12.03  Schizophrenic, Paranoid and Other Psychotic Disorders

    In the final rules, we revised the opening statement of final 
paragraph C to better reflect the nature of the disorders covered under 
listing 12.03. Final paragraphs C1, C2, and C3 are similar to those 
found in listing 12.02.
    We received only one public comment about the proposed listing. 
Because it was a favorable comment and did not ask us to revise the 
proposed listing, we do not summarize it below.

12.04  Affective Disorders

    Final listing 12.04 incorporates a new paragraph C, similar to the 
paragraph C criteria in listings 12.02 and 12.03. We revised the 
proposed paragraph B and C criteria consistent with the revisions to 
the paragraph B and C criteria we describe for listing 12.02.
    We received only two comments about the proposed listing. One was 
complimentary and one offered a suggested addition to the paragraph A 
criteria of the listing.

12.05  Mental Retardation

    In the final rules, we revised the heading of this listing to limit 
its scope to mental retardation.
    In response to one comment, we expanded the phrase setting out the 
age limit for the ``developmental period.'' The final rules clarify 
that we do not necessarily require evidence from the developmental 
period to establish that the impairment began before the end of the 
developmental period. The final rules permit us to use judgment, based 
on current evidence, to infer when the impairment began. This is not a 
change in interpretation from the prior rules. We discuss this change 
in greater detail in the public comments section of this preamble.

[[Page 50754]]

    In final listing 12.05C, as in the NPRM, we used the word ``an'' 
before the word ``additional'' to clarify that the additional 
impairment must be ``severe'' in order to establish ``an additional and 
significant work-related limitation of function.''
    In the NPRM, we had removed the second clause of prior listing 
12.05D, which referred to autism, and established a new listing 12.05E 
to evaluate autistic disorder and other pervasive developmental 
disorders. In response to a public comment and for consistency with the 
childhood mental disorders listings, we deleted proposed listing 12.05E 
from the final rules and established a new listing 12.10, ``Autistic 
disorder and other pervasive developmental disorders.'' Final listings 
12.05 and 12.10 parallel the childhood mental disorders listings 112.05 
and 112.10. We made this change to clarify the intent of proposed 
listing 12.05; the change does not disadvantage anyone. Those 
individuals diagnosed with both mental retardation and autistic 
disorder (or other pervasive developmental disorders) can be evaluated 
under either listing.
    We also revised the paragraph B3 and B4 criteria in listing 12.05D 
to be consistent with the changes in listing 12.02. We summarize all of 
the comments, explain our responses, and describe the revised language 
in greater detail in the public comments section of this preamble.

12.06  Anxiety Related Disorders

    In final listing 12.06, we made minor editorial changes and 
revisions to the paragraph B criteria, which we describe under the 
heading for listing 12.02.

12.07  Somatoform Disorders

    In final listing 12.07, we deferred adding eating disorders and tic 
disorders as we had proposed in the NPRM.
    As in the NPRM, the final listing requires that an impairment 
satisfy only two of the paragraph B criteria instead of three, as in 
the prior rules. However, we revised the paragraph B criteria in this 
listing, as we explain under the heading for listing 12.02.

12.08  Personality Disorders

    In the final listing, we reduced to two the number of paragraph B 
criteria needed to meet the listing. There are no substantive 
differences between the final paragraph B criteria and the NPRM, other 
than the changes we explain under the heading for listing 12.02.
    We did not receive any comments about listing 12.08 requiring a 
response. We received only favorable comments about our proposal to 
reduce the required number of paragraph B criteria from three to two.

12.10  Autistic Disorder and Other Pervasive Developmental Disorders

    We established this new listing in response to a public comment 
about proposed listing 12.05. Final listing 12.10 parallels listing 
112.10 under the childhood mental disorders listings.
    Final listing 12.10 is met when the requirements in paragraphs A 
and B of the listing are satisfied. The paragraph B criteria, which we 
discuss under the heading for listing 12.02, are the same as those 
found in the other adult mental disorders listings.
112.00  Childhood Mental Disorders Listings
    We made a number of changes throughout 112.00 to make the childhood 
mental disorders listings consistent with the final adult listings. In 
many cases, the revisions are not substantive. In others, our reasons 
for the changes are the same as our reasons for changing the adult 
rules, and we explain them above and in the public comments section of 
this preamble.
    As we explain under the summary of final 12.00D6, we also revised 
the fifteenth and sixteenth paragraphs of 112.00D so that they are the 
same as final 12.00D6d and 12.00D6e, appropriately revised to refer to 
children. In addition, we revised the seventeenth paragraph of 112.00D; 
it is the same as 12.00D8.

Other Changes

    In the NPRM, we had proposed to delete the last sentence in 
paragraph B of 5.00 (Digestive system) in connection with a change we 
had proposed to listing 12.07, ``Somatoform disorders.'' We did not 
receive any comments about this proposal, and, although we did not make 
the proposed change to listing 12.07, we deleted the sentence in these 
final rules.
    In response to a comment about the definition of psychiatric signs 
in the third sentence of proposed 12.00B, we broadened and updated the 
sentence. Because the sentence in 12.00B was based on Secs. 404.1528(b) 
and 416.928(b), we also revised those sections of the regulations and 
the corresponding sentence in 112.00B. The revisions are not 
substantive. We describe them in detail under the public comments about 
proposed 12.00B.
    We revised the seventh paragraph of 112.00A to reflect the addition 
of paragraph C criteria to listings 12.02 and 12.04. We did not 
otherwise change the substance of the paragraph, however, because we 
still believe it is not necessary to include paragraph C criteria in 
the childhood listings.
    We made a technical revision to the second sentence of the eighth 
paragraph of 112.00A to make it consistent with the revisions we made 
to the fourth paragraph of 12.00A.
    In addition, we inserted a new third paragraph in 112.00C which 
explains that, even though the functional criteria for assessing 
limitations in children under age 3 are expressed in terms of 
chronological age, we will follow the rules in Sec. 416.924a(b) when we 
evaluate the claims of infants and toddlers who are born prematurely. 
This technical change makes the discussion of how we assess impairment 
severity in claims involving mental disorders consistent with our other 
childhood disability rules.
    We revised the second, fourth, and fifth sentences of the ninth 
paragraph of 112.00D so they are consistent with the changes we made in 
final 12.00D6c. We discuss all of these changes in the public comments 
section under 12.00D.
    Finally, in addition to changes made in response to the comments 
and the technical changes described above, we made a number of 
nonsubstantive editorial changes throughout the final adult rules. For 
example, we changed some of the provisions from the passive voice to 
the active voice and revised punctuation and capitalization for 
consistency with our other rules. These revisions are only for clarity 
and consistency and do not change the meaning of the language we 
proposed.

Public Comments

    After we published the NPRM in the Federal Register (56 FR 33130) 
on July 18, 1991, we mailed copies to national medical organizations 
and professionals whose responsibilities and interest require them to 
have some expertise in the evaluation of mental impairments. We also 
sent copies to Federal and State agencies (including the State agencies 
that make disability determinations for us) interested in the 
administration of the title II and title XVI disability programs. As 
part of our outreach efforts, we invited comments from mental health 
advocacy groups, as well as from legal service organizations.
    We received over 120 letters containing comments pertaining to the 
changes we proposed. The majority of the comments were from 
psychologists, organizations and groups that represent people 
interested in specific mental impairments, and sources with specialized 
backgrounds in psychiatry. Many of the comments concerned the

[[Page 50755]]

specific diagnostic and severity rating criteria for the proposed 
listings, as well as our proposals to revise the discussion of 
psychological testing in the preface to these listings.
    We carefully considered all of the comments and adopted many of the 
recommendations relevant to the proposed revisions finalized by these 
rules. We provide our reasons for adopting or not adopting the 
recommendations in the summary of the comments and our responses below. 
A few of the comments, however, pertained to Social Security matters 
that were not within the scope of the proposed regulations. We referred 
these comments to the appropriate components of the Social Security 
Administration and do not address them in this preamble.
    Finally, a number of the comments were quite long and detailed. Of 
necessity, we have had to condense, summarize, or paraphrase them. 
Nevertheless, we have tried to present all views adequately and to 
respond to all of the relevant issues raised by the commenters.

Sections 404.1520a and 416.920a Evaluation of Mental Impairments

    Comment: Many commenters expressed concern about the definitions 
for the terms for rating the degree of functional limitation (e.g., 
``moderate,'' ``marked'') in proposed Secs. 404.1520a(b)(3) and (b)(7) 
and 416.920a(b)(3) and (b)(7), which applied to adults and to children 
from age 3 to attainment of age 18. One commenter asserted that in 
attempting to clarify the rating scale points, we had focused on a 
specific range of mental illnesses and lost sight of the need to 
evaluate mental impairments on a longitudinal basis. As a result, the 
commenter believed that the proposed definitions only contemplated 
illnesses that remained constant and failed to consider episodic 
illnesses.
    Several commenters, referring specifically to the proposed 
definitions of ``marked'' limitations, were concerned that the proposed 
rules did not recognize an important principle set out in the opening 
paragraph of 12.00C. That paragraph explains that a ``marked'' 
limitation may arise when several activities or functions are impaired, 
or even when only one is impaired, as long as the degree of limitation 
is such as to interfere seriously with the ability to function 
independently, appropriately, effectively, and on a sustained basis.
    Response: We adopted the comments insofar as they relate to the 
revisions included in these final rules. As noted in the explanation of 
the final rules above, we substantially revised proposed 
Secs. 404.1520a and 416.920a.
    One substantive change we made in response to the comments was to 
delete the proposed scale point definitions and examples from the final 
rules. Instead, we included new language in final Secs. 404.1520a(c)(1) 
and 416.920a(c)(1), expanded final Secs. 404.1520a(c)(2) and 
416.920a(c)(2), and modified the discussion in Secs. 404.1520a(c)(4) 
and 416.920a(c)(4) regarding the last two scale points, ``marked'' and 
``extreme.'' We discuss this latter change, and our reasons for it, 
later in this response.
    We recognize that we consider many factors when we assess an 
individual's functioning. In final Secs. 404.1520a(c)(1) and 
416.920a(c)(1), we expanded the general guidance we had proposed in 
Secs. 404.1520a(b)(1) and 416.920a(b)(1). The final rules clarify that 
we will consider the overall functional effects of an individual's 
impairment(s) longitudinally; i.e., over time. We also explain in the 
opening sentence of final Secs. 404.1520a(c)(1) and 416.920a(c)(1) that 
the assessment of functional limitations is a complex and highly 
individualized process that requires us to consider multiple issues and 
all relevant evidence. In the second sentence, we provide examples of 
some of the factors that may affect an individual's functioning.
    We reinforce these principles in final Secs. 404.1520a(c)(2) and 
416.920a(c)(2). Our intent in these paragraphs is to explain that the 
basic consideration in assessing functional limitations is the extent 
to which an individual's impairment or combination of impairments 
interferes with his or her ability to function independently, 
appropriately, effectively, and on a sustained basis. To reinforce the 
principle that this assessment is not tied to a particular number of 
limited activities, and to address the comments we received, we explain 
that among the factors we will consider is the quality and level of an 
individual's overall functional performance. We also include an 
explicit reference to limitations resulting from episodic illness. 
Finally, to recognize that there are other factors we will consider, we 
provide a cross-reference to several paragraphs in the adult mental 
disorders listings which describe these factors in more detail.
    Given all the factors that we consider in rating the degree of 
functional limitations resulting from an impairment(s), we concluded 
that the rating scale definitions we had proposed were over simplified. 
As a result, we deleted them from these final rules. However, we 
retained and modified the last sentence of proposed 
Secs. 404.1520a(b)(2) and (b)(4)(iii) and 416.920a(b)(2) and 
(b)(4)(iii). This sentence had stated that the last two points on each 
scale represent a degree of limitation that is incompatible with the 
ability to perform the work-related function or (for a child) to 
perform the function in an age-appropriate manner. The last sentence of 
final Secs. 404.1520a(c)(4) and 416.920a(c)(4) now states that the 
``extreme'' scale point represents a degree of limitation that is 
incompatible with the ability to do any gainful activity.
    The final wording changes two things about the meaning of the 
sentence. First, it shifts the focus of the sentence from inability to 
perform particular work-related functions to inability to perform any 
gainful activity. The final rules reflect the listing-level severity 
standard in Secs. 404.1525(a) and 416.925(a). This is a more severe 
standard of disability than is necessary to establish disability at the 
last steps of the sequential evaluation processes for adults. As a 
result, the final rules clarify that an ``extreme'' limitation in any 
one area of functioning means that the individual has an impairment(s) 
of listing-level severity.
    Second, the final rules remove the implication that the next-to-
last scale point, a ``marked'' limitation, can be equated with an 
``extreme'' limitation. Since we shifted the focus of the sentence to 
listing-level severity, and because an individual must have ``marked'' 
limitations in two areas of functioning to be found to have a listing-
level impairment, the revision clarifies the distinction between the 
``marked'' and ``extreme'' degrees of limitation. At least one 
commenter thought this distinction was unclear in the proposed rules.
    Comment: One commenter pointed out that in proposed 
Secs. 404.1520a(b)(2) and 416.920a(b)(2), we stated that the four 
functional areas we use to evaluate the functional limitations of 
adults are ``essential'' to an adult's ability to work. The commenter 
asserted that, while each of these areas may have potential 
applicability to fitness for work, no empirical data exist to 
substantiate their utility in predicting performance on the job.
    Response: We disagree, but accommodated the comment. The American 
Psychiatric Association, under contract to us, conducted an independent 
scientific assessment of the adult mental disorders listings which were 
revised in August 1985. The findings from the assessment, as reported 
in 1987, supported continued use of these four criteria when

[[Page 50756]]

predicting an individual's inability to do any gainful activity.
    Nevertheless, we believe that the language proposed in 
Secs. 404.1520a(b)(2) and 416.920a(b)(2) relating to the assessment of 
adult claims was more of an observation than a substantive rule and did 
not significantly add to the rules. Therefore, we deleted it from the 
final rules. We also clarified the third and fourth paragraphs of final 
12.00A by replacing the word ``work'' with the phrase ``do any gainful 
activity.'' In addition, we deleted the word ``work'' from ``gainful 
work activity'' in the first sentence of the sixth paragraph. This will 
make it clear that the criteria in the listings establish listing-level 
severity, not just the inability to do any substantial gainful 
activity. (The references to ``work'' in the first paragraph of final 
12.00A and elsewhere in the section are still correct in their 
particular contexts.)
    Comment: One commenter recommended that we should continue to 
consider lay statements when assessing an individual's functional 
limitations under the revised rules in Secs. 404.1520a and 416.920a.
    Response: We did not intend to give the impression that we would 
stop considering such evidence. Current Secs. 404.1513(e) and 
416.913(e) acknowledge that information from lay sources may help us to 
understand how an individual's impairment(s) affects his or her ability 
to function. We believe that the extensive revisions to final 
Secs. 404.1520a and 416.920a also make clear that we will consider all 
relevant evidence. These final rules do not change our policy regarding 
the use of lay statements in assessing the severity of mental 
impairments.
    Comment: One commenter thought that the first sentence in proposed 
Secs. 404.1520a(c)(3) and 416.920a(c)(3), regarding determinations of 
equivalence, was inconsistent with our policies on determining 
equivalence. The commenter said that the sentence indicated that the 
only consideration in determining equivalence was to be given to the 
listings themselves, and that this was ``a discredited notion.''
    Response: The comment was unclear to us, but it indicated that some 
of the proposed rules had been misunderstood. For determinations of 
equivalence, we require our adjudicators to identify particular listed 
impairments to which an individual's impairment(s) is equivalent in 
severity. This does not mean that we require the individual to have an 
impairment cited in the listings, only that some justification must 
exist for a finding of equivalence. Thus, a comparison to a particular 
listing must demonstrate that an impairment(s) is equivalent in 
severity. Nevertheless, since this comment demonstrated that the 
language could be unclear, we replaced the proposed sentence with two 
introductory sentences, as we describe in the explanation of final 
Secs. 404.1520a(d)(2) and 416.920a(d)(2).
    We also replaced the potentially misleading phrase, ``equals the 
listings,'' in proposed Secs. 404.1520a(c)(4) and 416.920a(c)(4) with 
the more accurate ``is equivalent in severity to any listing'' in final 
Secs. 404.1520a(d)(3) and 416.920a(d)(3). In addition, we deleted the 
concluding phrase ``when appropriate to the category of claim being 
assessed'' from the sentence. All categories of cases involving a 
severe impairment(s) that neither meets nor is equivalent in severity 
to any listed impairment require an RFC assessment. Finally, we revised 
the first sentence of the sixth paragraph and the last sentence of the 
seventh paragraph of final 12.00A to use similar language to final 
Secs. 404.1520a(d)(2) and 416.920a(d)(2).
    Comment: One commenter asked whether the standard document, the 
``Psychiatric Review Technique'' form (PRTF), will be revised to 
reflect changes in the listings.
    Response: We have revised the original PRTF wherever necessary to 
reflect the revisions we made in the final rules for adults.
    Comment: We received a number of comments about the change in 
proposed Secs. 404.1520a(d)(1) and 416.920a(d)(1), which allowed the 
medical consultant or psychological consultant within the State agency 
to request disability examiners to assist in the completion of the 
PRTF. Two of the comments supported the change, noting that it would 
give State agencies additional flexibility in dealing with workload 
demands. However, most of the comments opposed the change.
    Those who opposed the change gave at least one of the following 
reasons: (1) The proposal violated the Commissioner's (formerly the 
Secretary's) duty under section 221(h) of the Act to make every 
reasonable effort to ensure that the claims of individuals with mental 
impairments are evaluated by qualified psychiatrists or psychologists; 
(2) the proposal represented an arbitrary change in past agency policy; 
and (3) the proposal would lead to less accurate assessments at the 
State agency level, which would be detrimental to individuals with 
mental impairments. Most commenters opposed to the proposal recommended 
that we delete the proposed rule from the final rules.
    Response: We did not adopt the comments that asked us to delete the 
proposed rule. In response to the comments, however, we clarified final 
Secs. 404.1520a(e)(1) and 416.920a(e)(1).
    The final rules now state more clearly that the medical or 
psychological consultant still has the overall responsibility for 
assessing the medical severity of the individual's mental 
impairment(s), even though a disability examiner may assist in 
preparing the PRTF. The medical or psychological consultant must review 
and sign the PRTF to attest that it is complete and that he or she is 
responsible for its content, including the findings of fact and any 
discussion of supporting evidence. The revision makes it clear that the 
change is consistent with sections 221(h) and 1614(a)(3)(H)(i) of the 
Act. These sections of the Act provide that we must make every 
reasonable effort to ensure that a qualified psychiatrist or 
psychologist has completed the medical portion of the case review and 
any applicable RFC assessment in any initial determination in which 
there is evidence that an individual has a mental impairment, and in 
which we make a determination that the individual is not disabled. We 
assess medical severity as part of the medical portion of the case 
review. The initial preparation of all or part of a PRTF by a 
disability examiner assisting the physician or psychologist does not 
constitute part of the medical portion of the case review.
    Allowing disability examiners to assist medical consultants or 
psychological consultants in preparing the PRTF does not change or 
dilute our statutory responsibility to make every reasonable effort to 
use medical or psychological consultants. The rules merely give the 
State agencies the option to utilize the training of their disability 
examiners so that they can use the expertise of their medical and 
psychological consultants as efficiently as possible. Disability 
examiners must be qualified to interpret and evaluate medical reports 
and other evidence relating to an individual's mental impairment(s). 
(See the paragraph following Secs. 404.1615(c)(3) and 416.1015(c)(3).)
    Moreover, the purpose of the statute was to ensure that in cases 
where there is evidence of a mental impairment, we would make every 
reasonable effort to have a qualified psychiatrist or psychologist 
complete the medical portion of the case review and any applicable RFC 
assessment before we make an initial determination that the

[[Page 50757]]

claimant is not disabled. Before Congress enacted sections 221(h) and 
1614(a)(3)(H)(i) of the Act, there were no specific requirements in the 
statute or our regulations concerning the qualifications of medical 
consultants reviewing claims involving mental impairments. Rather, our 
regulations at that time simply stated that disability determinations 
were to be made by a State agency disability team that consisted of a 
medical consultant (a physician) and a disability examiner. Although 
the amendments require us to make every reasonable effort to have a 
qualified psychiatrist or psychologist complete the medical portion of 
the case review, they do not prohibit a disability examiner from 
assisting the medical or psychological consultant in the process.
    These final rules authorize disability examiners to provide the 
same assistance in preparing the PRTF that they now provide to 
consultants in preparing RFC assessments. Disability examiners had been 
assisting State agency consultants in preparing individualized 
functional assessment forms in title XVI childhood cases since 
implementation of the SSI childhood disability rules on February 11, 
1991 (56 FR 5534). Nothing in our experience indicates that this 
assistance had disadvantaged any children in the 6 years between 
publication of those rules and implementation of the new SSI childhood 
disability rules on February 11, 1997 (62 FR 6408). Disability 
examiners also have assisted medical and psychological consultants in 
preparing the childhood disability evaluation form since implementation 
of the new SSI childhood disability rules (Sec. 416.924(g)). Similarly, 
disability examiners have assisted medical and psychological 
consultants in preparing RFC forms since August 1, 1991, when we 
implemented final rules concerning ``Standards for Consultative 
Examinations and Existing Medical Evidence'' (56 FR 36932). In both 
processes, disability examiners have demonstrated their ability to 
provide valuable assistance, and we believe their expertise will be of 
similar benefit to the PRTF process. Based on our experience, and our 
confidence in the qualifications of the State agency disability 
examiners, we do not believe that individuals will be disadvantaged by 
allowing State agencies the option of having disability examiners 
assume similar responsibilities in preparing the PRTF, since the 
medical or psychological consultant retains overall responsibility for 
assessing the medical severity of an individual's mental impairment.
    Comment: One commenter stated that proposed Secs. 404.1520a(d)(1) 
and 416.920a(d)(1) were internally inconsistent because each paragraph 
began with a sentence requiring the medical or psychological consultant 
to perform the evaluation and complete the standard document, yet in a 
later sentence allowed the disability examiner to complete the entire 
document and only required the consultant to sign it. In addition, this 
commenter opined that since Secs. 404.1512(b)(6) and 416.912(b)(6) 
state that the findings of State agency medical and psychological 
consultants are considered ``medical evidence'' at the administrative 
law judge and Appeals Council levels, disability examiner involvement 
in completing the PRTF either should be precluded or identified in some 
fashion, since those recorded findings would not constitute ``medical 
evidence.''
    Response: We clarified final Secs. 404.1520a(e)(1) and 
416.920a(e)(1) in response to the first part of the comment. We agree 
that the proposed rules used the phrase ``complete the standard 
document'' ambiguously to mean ``fill out'' the form in some instances 
and ``finalize'' (as by signature) in others. The final rules remove 
this ambiguity.
    We do not agree with the commenter's second argument. When the 
medical or psychological consultant signs the PRTF, his or her 
signature attests that it is complete and that its entire content 
represents his or her medical findings. Any entries made by a 
disability examiner on the PRTF become the findings of the medical or 
psychological consultant when he or she attests to its completeness and 
its content by signing the form. Accordingly, the administrative law 
judge or the Appeals Council (when the Appeals Council issues a 
decision) will still evaluate these findings using our existing rules 
(Secs. 404.1527(f)(2) and (f)(3), 416.927(f)(2) and (f)(3), and SSR 96-
6p).
    Comment: A few commenters questioned our proposal in 
Secs. 404.1520a(d) and 416.920a(d) of the NPRM (final 
Secs. 404.1520a(e) and 416.920a(e)) to eliminate the use of the PRTF at 
the administrative law judge hearing and Appeals Council levels of the 
administrative review process. One commenter noted that the proposed 
sections appeared to direct administrative law judges to incorporate in 
their written decisions the same information used on the PRTF. This 
commenter believed that the PRTF ought to satisfy the documentation 
requirements. The commenter suggested that we revise the section to 
allow administrative law judges the option of using the PRTF, either in 
the decision or as an attachment to it. Another commenter indicated 
that some administrative law judges may find the PRTF a useful 
checklist and recommended that they be given the discretion to use the 
form and append it to their decisions. Since only decisions that are 
likely to undergo further administrative or judicial review are at 
issue, one commenter suggested requiring the PRTF at least for those 
decisions.
    A few commenters believed that the PRTF has helped to ensure the 
quality and completeness of hearing decisions, that it is a safeguard 
against incomplete review of the evidence, and that it assures 
claimants and advocates that the decision conforms strictly to our 
rules for evaluating mental impairments.
    Response: We did not adopt the comments. The primary purpose of the 
final rules is to describe the technique, as distinct from the form, 
and to require the use of the technique in all determinations and 
decisions at all levels of the administrative review process, including 
the hearings and appeals levels. The technique is a systematic process 
adjudicators apply when evaluating an individual's mental 
impairment(s). The PRTF (i.e., the form itself) should not be confused 
with application of the technique; the form simply documents 
application of the technique with a checklist of our conclusions.
    When we first promulgated these rules in 1985, we believed that 
they were so novel and complex that it would be useful to require all 
adjudicators at all levels of the administrative review process to 
complete the PRTF. At the initial and reconsideration levels, the PRTF 
has proven to be a simple and convenient method of documenting the 
conclusions reached by our medical and psychological consultants when 
applying the technique.
    Even though we apply the same technique at the administrative law 
judge hearing and Appeals Council levels as we do at the initial and 
reconsideration levels, administrative law judge and Appeals Council 
decisions are quite different in form from determinations prepared by a 
State agency. Administrative law judge and Appeals Council decisions 
include a more detailed explanation of the findings and conclusions 
reached, supported by a narrative rationale. The decisions under these 
final rules must include, among other things, the pertinent findings 
and conclusions required in the application of the technique. 
Consequently, requiring that a PRTF be appended to an

[[Page 50758]]

administrative law judge or Appeals Council decision would only repeat 
information already required in the decision under these final rules, 
and renders the PRTF redundant. For this reason, these final rules do 
not require administrative law judges or the Appeals Council to 
complete the form or to attach the form to their decisions, just as we 
do not require them to complete or attach RFC assessment forms to their 
decisions.
    We recognize that administrative law judges and members of the 
Appeals Council may find the PRTF useful as a checklist and for 
organizing information in the record. These final rules do not prohibit 
the use of the form at the hearings and appeals levels to assist the 
decisionmaker in applying the technique and issuing a decision.
    Comment: A few commenters objected to our proposal to delete the 
special administrative law judge remand provision of prior 
Secs. 404.1520a(d)(1)(iii) and 416.920a(d)(1)(iii). Most of these 
commenters thought that we should retain a provision giving 
administrative law judges the option to remand cases to the State 
agencies when new evidence is received at the hearing level that is not 
merely cumulative of evidence already in the case file, or when the 
issue of a mental impairment first arises at the hearing level.
    Two of these commenters, in identical language, said that the 
omission of the prior remand provision would make it ``less likely that 
an administrative law judge would consider new evidence at all.'' The 
same two commenters thought that the deletion of the prior provision 
left it unclear whether administrative law judges would be required to 
evaluate the new evidence without the assistance of the State agency. 
Another commenter said that the deletion of the provision would result 
in the issuance of more decisions without fully developed evidence and 
cause more remands by the Appeals Council and the Federal courts.
    One commenter suggested that we strengthen the prior provision 
instead of deleting it. The commenter provided language for the rules 
that would require administrative law judges to remand cases in most 
instances in which new evidence at the hearing level raised the issue 
of a mental impairment for the first time. Conversely, one commenter 
thought that proposed Secs. 404.1520a(d)(3) and 416.920a(d)(3), which 
provided for remand to the State agency for completion of the standard 
document only when an administrative law judge was unable to obtain the 
services of a medical expert, was too broad. The commenter believed 
that returning a case to the State agency for completion of the 
standard document is very time-consuming and could result in nothing 
more than a second reconsideration. The commenter suggested that we 
revise our regulations to prevent this.
    Two commenters thought the reference to Secs. 404.948(c) and 
416.1448(c) in proposed paragraph (d)(3) was not a substitute for the 
deleted provision. One of these commenters challenged the statement in 
the preamble of the proposed rules (56 FR at 33131) which said that the 
former administrative law judge remand provision could be deleted 
because it covers ``what is already covered in Secs. 404.941, 404.948, 
416.1441, and 416.1448.'' This commenter stated that Secs. 404.948 and 
416.1448 discuss issuing decisions that are fully favorable to the 
claimant without an oral hearing and have no relevance to the issue of 
evidence of a mental impairment first being submitted at the hearing 
level. The commenter also noted that Secs. 404.941 and 416.1441, which 
discuss prehearing case reviews, are pertinent only when additional 
evidence is submitted before a scheduled hearing, so sufficient time 
remains to conduct the review and decide how to address the issues 
involved.
    Response: We understand the commenter's concerns. However, in light 
of our experience, we do not believe that the prior rules allowed more 
flexibility and efficiency in resolving claims. Further, the former 
provisions went beyond their intended scope; i.e., how an 
administrative law judge can get assistance in applying the technique 
when the services of a medical expert are needed but unavailable. 
Although we did not adopt the comments, we clarified final 
Secs. 404.1520a(e)(3) and 416.920a(e)(3).
    We agree with the commenter who observed that the provisions in 
Secs. 404.941, 404.948, 416.1441, and 416.1448 are somewhat different 
from those in Secs. 404.1520a(d)(1)(iii) and 416.920a(d)(1)(iii) of the 
prior rules. All discuss the administrative law judge's return of a 
case to the State agency for further consideration. The return of a 
case to the State agency for a prehearing case review, which is 
described in Secs. 404.941 and 416.1441, does not delay the scheduling 
of a hearing. Under this provision, we may return the case to the State 
agency before the hearing is held, when there is reason to believe that 
a revised determination wholly or partially favorable to the individual 
may result. The State agency can then decide whether or not to revise 
its prior determination. The prehearing case review will not delay the 
scheduled hearing unless the individual agrees. Similarly, the 
administrative law judge remand procedure described in Secs. 404.948(c) 
and 416.1448(c) is also designed for speedy claim resolution. It allows 
an administrative law judge to return a case to the State agency for a 
revised determination without an oral hearing when there is reason to 
believe the revised determination would be fully favorable to the 
individual. In such a case, the individual is notified of the remand 
and afforded the opportunity to object to it.
    In contrast, under the special remand provision in 
Secs. 404.1520a(d)(1)(iii) and 416.920a(d)(1)(iii) of the prior rules, 
in certain instances an administrative law judge could remand a case 
involving a mental impairment to the State agency for completion of the 
standard document and a revised determination. The revised 
determination the State agency could issue upon remand could be 
unfavorable to the individual and the individual would be required to 
request another hearing if he or she wished to pursue his or her claim. 
Ironically, when we proposed the special remand provision in former 
Secs. 404.1520a(d)(1)(iii) and 416.920a(d)(1)(iii) in 1985, most 
commenters opposed it, primarily because they were concerned that it 
would cause undue delay in our decisionmaking (50 FR at 35047).
    In fact, we did not intend for the scope of the prior rules to go 
beyond the established rules in Secs. 404.941, 404.948, 416.1441, and 
416.1448, although such an interpretation of the prior rules was 
possible. Our response to comments to the final rules published in 1985 
shows that we intended the prior sections to be applied within the 
context of our rules on prehearing case reviews and decisions without 
oral hearings, and that it not delay the decisionmaking process. We 
responded: ``We believe the remand procedure is consistent with current 
practice at the hearings level'' and ``[b]ased upon our past experience 
with the need to remand cases, undue delay should not occur in the 
disability decision-making process.'' (50 FR at 35047.) Thus, we did 
not intend to expand the remand procedures in 1985. All we have done in 
final Secs. 404.1520a(e)(3) and 416.920a(e)(3), is to make clear our 
original intent to provide the least time-consuming means of issuing a 
favorable decision.
    We strongly disagree with the comments that suggested the deletion 
of the former administrative law judge remand provision from these 
final rules will result in mental impairment issues first raised at the 
hearing level being

[[Page 50759]]

ignored, inadequately developed, or not fully analyzed by 
administrative law judges. Nor do we agree that this provision will 
result in more remands at the Appeals Council and Federal court levels. 
We believe that our existing rules make it clear that all adjudicators, 
including administrative law judges, are required to consider all 
relevant evidence and to develop the record fully.
    While it is more efficient for an individual to submit evidence 
relating to a new issue at the time he or she files a request for 
hearing, or at least prior to a scheduled hearing, we recognize that 
this does not always occur. Sections 404.936, 404.944, 416.1436, and 
416.1444 provide that an administrative law judge may adjourn, 
postpone, or reopen the hearing at any time before notice of the 
decision is released in order to receive or obtain new and material 
evidence. Presented with insufficient evidence to determine the nature 
and severity of an individual's mental impairment(s), an administrative 
law judge must follow our existing rules and seek additional evidence 
from appropriate sources, regardless of whether we were aware of the 
mental impairment(s) at the time the initial and reconsideration 
determinations were issued.
    Finally, we disagree with the comment indicating that returning the 
case to the State agency for completion of a PRTF will result in 
nothing more than a second reconsidered determination and unnecessary 
delays. We believe the procedures in these rules are no more time-
consuming than the former rules, and in some cases may actually save 
time. Nevertheless, we have clarified final Secs. 404.1520a(e)(3) and 
416.920a(e)(3) by deleting the reference to the remand provisions in 
Secs. 404.948(c) and 416.1448(c), and avoiding the use of the word 
``remand'' since it may imply that the administrative law judge is 
requesting a revised determination in every case. The final rules 
indicate that the State agency will issue a revised determination if a 
decision favorable to the claimant is warranted based on a review of 
the case file, so as not to delay the payment of benefits. Otherwise, 
the State agency will return the case, with a completed PRTF, to the 
administrative law judge, who will proceed with a hearing and issue a 
decision.

11.00F  Traumatic Brain Injury (TBI)

    Comment: Several commenters addressed the proposed rules in 11.00F 
that required deferral of determinations of disability for up to 6 
months in cases of TBI unless a favorable determination could be made 
sooner. Some were pleased with the proposal. One commenter recommended 
that we revise the proposed rules to ensure that all TBI cases are not 
placed in the deferred adjudication categories. Another asked if we 
would add a provision to deny TBI cases at 3 months or earlier if there 
is no allegation or medical evidence of an impairment that is more than 
``not severe.'' Four commenters suggested that we find individuals 
whose cases we defer to be presumptively eligible for disability 
payments, thus giving them access to health care under Medicaid and 
other services for which they might be eligible.
    Response: We did not adopt the comments that asked us to change the 
proposed rules or provide presumptive disability payments to people 
with TBI. We intentionally required evidence at least 6 months post-
injury before we can deny a TBI claim, even when the individual's 
allegation or the immediate posttraumatic medical evidence suggests the 
impairment is ``not severe.'' We decided to allow for the deferral of 
adjudication of such cases because of the variability and uncertainty 
of recovery from TBI. We believe the initial 3-month period for 
deferral (when the individual does not have a profound neurological 
impairment permitting an earlier finding of disability) and, if 
necessary, an additional 3-month period, will allow sufficient time for 
the impairment(s) to stabilize so we can make an accurate projection 
regarding its severity and duration.
    The rule in 11.00F, however, does not prevent us from finding 
disability sooner on the basis of some other impairment. For example, 
if an individual has a serious accident with multiple injuries 
including TBI, the nature and expected course of the additional 
impairment(s) may support a finding of disability within 3 months post-
injury, regardless of any impairment(s) resulting from the brain 
injury.
    Finally, we did not adopt the suggestion to make individuals with 
TBI presumptively eligible for disability payments while adjudication 
of their cases is being deferred. Presumptive disability payments are 
authorized only under title XVI, the SSI program, and would not apply 
to individuals who file claims only under title II. The rules for 
presumptive disability in the SSI program are set out in Secs. 416.931 
through 416.934.
    We are not amending these rules to reflect this comment. As we 
explain in Sec. 416.933, we may make a finding of presumptive 
disability when the evidence reflects a ``high degree of probability'' 
that an individual is disabled. The reason we will defer some 
determinations in TBI cases, however, is that it is not clear whether 
the individuals are disabled because of the variable and uncertain 
nature of their impairments. Thus, the evidence does not reflect the 
requisite degree of probability of disability for presumptive 
eligibility under our rules. The commenter's suggestion that providing 
Medicaid and other medical resources to individuals with TBI may be 
more cost-effective in the long run may be sound, but we have decided 
that in this instance claimants will not have presented evidence 
demonstrating a high degree of probability that they are disabled.
    Comment: One national organization submitted technical medical 
comments about TBI and our proposed rules that it had solicited from 
several professionals. One of the comments included a statement that 
our disability evaluation criteria poorly served individuals with TBI 
and a recommendation that we restructure the criteria so that TBI 
``patients do not fall through the cracks.''
    Response: Many of the comments submitted by the organization 
related to the current neurological listings, rather than the proposed 
revisions to the mental listings. Accordingly, those comments are 
outside the scope of this rulemaking proceeding. We are in the process 
of reviewing the neurological listings criteria and will consider these 
comments as part of that process.
    Some of the comments addressed the prior mental disorders listings, 
and we address most of those comments below. A few were comments about 
criteria in the prior mental listings that we had already proposed to 
change in the NPRM, some in ways very similar to those suggested in the 
comments. We did not summarize those comments below because the 
proposed rules had already addressed their concerns.
    We share the commenter's concern about individuals with TBI. As a 
result, we proposed the new 11.00F in the preface to the neurological 
listings, which includes rules that are unusual in our program because 
they provide for the deferral of adjudication of such claims, even when 
it appears that the individual may not have a significant impairment. 
Furthermore, we added a paragraph to the preface of the mental 
disorders listings that provides a cross-reference to the new guidance 
in 11.00F. This cross-reference reminds adjudicators that cases of TBI 
can be more complex and may involve both mental and physical 
impairments. We

[[Page 50760]]

believe that these provisions of the final rules will help ensure that 
individuals with TBI ``do not fall through the cracks.''
    Although we do not have a comprehensive list of all the various 
neurological and mental impairments that can be associated with TBI, we 
believe that the possible manifestations of TBI are covered in various 
listings in 11.00 (the neurological listings) and 12.00 (mental 
disorders). Indeed, other comments submitted by the organization seemed 
to agree with this conclusion. However, as we have said, we will also 
consider the comments about our current neurological listings as we 
review those listings. Finally, in response to this comment, we revised 
the heading of final 11.00F from the proposed ``Cerebral trauma'' to 
``Traumatic brain injury (TBI)'' to make the subject of the section 
clearer.
    Comment: One commenter noted that listing 12.02, ``Organic mental 
disorders,'' applies to individuals with TBI but suggested that we 
include some types of affective disorders and mood aberrations in the 
listing. The commenter was aware that listing 12.04 expressly covers 
mood disorders, but was concerned that it would not apply to people 
with TBI.
    Response: We did not adopt the comment because listing 12.02A5, 
``Disturbance in mood,'' already includes mood disturbances in the 
listing for organic mental disorders. In addition, even though listing 
11.18 does not refer to listing 12.04 for evaluating an individual with 
cerebral trauma, we can use listing 12.04 to evaluate a claim involving 
TBI if the individual has a medically determinable mood disorder.
    Comment: An individual submitted several comments, a complete 
clinical reference text, and chapter abstracts from a draft book on 
numerous aspects of TBI and related neuropsychological impairments. 
Some comments referred to proposed 11.00F, while others referred to 
other parts of the proposed rules as they relate to TBI. In general, 
the commenter approved of the separate discussion of TBI in proposed 
11.00F, including our recognition of the fact that symptoms evolve over 
time. However, the commenter believed that the DSM-III-R, upon which 
the diagnostic criteria in proposed listing 12.02 were based, did not 
capture the full range of psychopathology associated with TBI. The 
commenter found the term ``organic mental disorders'' vague, overly 
inclusive, and archaic. The commenter recommended that the listing 
specify the etiology of the trauma and the range of dysfunctions as 
determined by modern neuropsychological research and clinical 
experience.
    Response: We thank this commenter for the favorable comments and 
for all the reference materials, which present an excellent discussion 
of many of the problems associated with evaluating TBI. Our goal in 
proposed 11.00F was to provide additional guidance to address these 
problems, and we appreciate that the commenter finds the paragraph 
helpful. With respect to the diagnostic criteria found in listing 
12.02, however, we do not share this commenter's view of the DSM-III-R. 
Nor do we believe that this mental disorder listing, or any other, 
needs to refer specifically to etiology or to the entire range of 
symptoms determined by research and clinical experience.
    As we explained in the preambles to these rules when they were 
proposed (56 FR at 33130) and the final rules revising the childhood 
mental disorders listings (55 FR at 51214, 51215), we used the DSM-III-
R as the basis for the diagnostic criteria in our mental disorders 
listings because this reference manual is widely used and accepted in 
the psychiatric and psychological communities. We believe the common 
understanding it provides makes it the most useful resource for these 
listings. We recognize that some clinicians may prefer greater 
diagnostic specificity than that found in the DSM-III-R (or DSM-IV) or 
these listings. Nevertheless, as we also explained in the preambles, 
the diagnostic criteria in the mental disorders listings are not bound 
by those in the DSM-III-R (or DSM-IV), nor was it our purpose to 
include every mental impairment or every symptom or sign of the 
disorders that are listed. The focus of our disability programs is to 
determine the extent of the functional limitations imposed by a 
medically determinable impairment(s). Hence, instead of attempting to 
catalogue every possible mental impairment, these listings provide 
examples of some of the impairments we consider severe enough to be 
disabling under our program requirements. We do not discount 
impairments that are not listed; we evaluate them using our rules for 
equivalence.
    In selecting the diagnostic criteria for these listings, we employ 
an atheoretical approach with regard to etiology, primarily because our 
program focus is on functional limitations, and etiology is therefore 
of less significance to us. Also, we believe it would be very 
difficult, if not impossible, to obtain evidence relating to the 
pathophysiologic processes of all the mental disorders we evaluate. 
Further, we recognize that etiology may be a controversial area for 
some mental disorders. Thus, its introduction into our criteria might 
prove to be an obstacle to clinicians of varying theoretical 
orientations.
    Comment: The same commenter believed that professionals who make 
disability determinations should be aware of the mechanism of brain 
trauma, its pathophysiological and pathoanatomical effects, and the 
proper documentation (within the scope of their own professions) of 
neurobehavioral impairment and the emotional effects of accidents and 
of being impaired. The commenter recommended that we establish 
specialty qualifications for these professionals, such as special 
neuropsychological training or certification as a Diplomate in Clinical 
Neuropsychology for psychologists.
    Response: We agree that the professionals who make our disability 
determinations should be properly trained to evaluate all types of 
impairments. This includes TBI, with all the factors the commenter 
described. We disagree, however, that we need additional qualifications 
for these professionals. Our current qualification standards for 
medical and psychological consultants are outlined in Secs. 404.1616 
and 416.1016. We do not believe it necessary or practicable to 
establish more stringent standards for those who would evaluate one 
type of impairment. To do so would restrict the pool of qualified 
specialists available to State agencies.
    Nevertheless, we recognize that TBI cases can be difficult to 
evaluate. That is one reason we included 11.00F in these rules. We have 
issued guidance for evaluating these cases in the past, and we will 
issue internal operating guidelines and training material to supplement 
the information in final 11.00F to ensure that all professionals who 
evaluate cases involving TBI have the latest information. We also will 
provide additional guidance to any State agencies requesting 
clarification of specific issues.
    Comment: The same commenter stated that TBI is ``best documented 
through a wide range examination, including a thorough interview.'' The 
commenter pointed out that using single tests in isolation, without 
baseline evidence, is below the standards of acceptable practice 
because test results must be considered in the context of the 
interview, the individual's IQ, and his or her educational and 
vocational background. The commenter also provided detailed information 
about the kinds of evidence that would be necessary to establish a 
thorough record

[[Page 50761]]

in TBI cases and standards for establishing the validity of testing. 
The commenter encouraged the use of documentation supplied by health 
care providers.
    Response: We agree that TBI is best documented by a comprehensive 
examination which includes a thorough interview. We also agree that 
considering single tests in isolation is inappropriate and that all 
test results must be considered in the context of all other evidence to 
establish a complete picture of the individual's impairment and level 
of functioning.
    We also agree that tests should have suitable psychometric 
standards and should be supplemented by useful qualitative procedures. 
For this reason, when we proposed revisions to the mental disorders 
listings, we incorporated existing operating instructions regarding the 
salient characteristics of a good test into the sixth paragraph of 
proposed 12.00D. This paragraph, final 12.00D5c, concludes with a 
sentence which states: ``In considering the validity of a test result, 
we should note and resolve any discrepancies between formal test 
results and the individual's customary behavior and daily activities.''
    Comment: The same commenter expressed concern about the evaluation 
of children with TBI. He noted that an undeveloped and thus resistive 
or disorganized child may not be able to take a conventional 
psychological examination, and this inability to be tested may itself 
be a sign of dysfunction.
    Response: We agree with this commenter's observations. One very 
important policy principle in our rules, which we follow in both 
childhood and adult claims, is that the evaluation of evidence should 
result in an assessment of the individual's functioning on a 
longitudinal basis. We recognize that single examinations and tests may 
or may not accurately reflect an individual's ability to function in 
normal settings. This policy principle is reflected in 112.00D of the 
childhood mental listings, as well as in our rules for evaluating 
disability in children under title XVI, beginning at Sec. 416.924.
12.00  Mental Disorders

12.00B  Need for Medical Evidence

    Comment: One commenter suggested that we expand the definition of 
psychiatric signs in the third sentence of proposed 12.00B to include 
reference to specific abnormalities of ``attention'' and 
``perception.''
    Response: We partially adopted the comment. We modified the 
sentence in final 12.00B to indicate that the specific abnormalities 
cited are examples, not an all-inclusive list, and we revised the 
examples in the section. In response to the comment, we changed the 
example of contact with reality to an example of abnormality of 
perception.
    In selecting examples of psychological abnormalities to include in 
the final definition of psychiatric signs, we did not add 
``abnormalities of attention'' because it is covered by ``abnormalities 
of behavior.'' However, we substituted the suggested ``abnormalities of 
perception'' for our prior reference to ``abnormalities of contact with 
reality'' because ``abnormalities of perception'' is a more specific 
example. We also changed ``abnormalities of affect'' to ``abnormalities 
of mood'' to reflect current diagnostic nomenclature. We added 
abnormalities in ``development'' to the list because some psychological 
abnormalities are first evident in childhood and continue into 
adulthood.
    The third sentence of 12.00B was an exact restatement of the third 
sentence of Secs. 404.1528(b) and 416.928(b), the regulations that 
define the term ``signs,'' and was also repeated in 112.00B of the 
childhood mental listings. Therefore, to reflect the changes in final 
12.00B, we made similar modifications to the definition of psychiatric 
signs in those sections.
    Comment: One commenter was concerned that we cited psychiatrists 
and psychologists as the only examples of appropriate medical sources 
in the third sentence of proposed 12.00B. The commenter said that many 
medical personnel, such as nurses, social workers, and physicians' 
assistants, are qualified to recognize signs of mental impairment. 
Another commenter suggested that we include physiatrists and 
neurologists in the list of examples.
    Response: We accommodated the comments. We agree that no relevant 
source of evidence should be overlooked when developing claims 
involving mental impairments. Our intent in providing the two specific 
examples of appropriate medical sources in proposed 12.00B was not to 
diminish the value of evidence provided by other sources, but to 
identify which of the acceptable medical sources cited in 
Secs. 404.1513(a) and 416.913(a) usually provide evidence in claims 
involving mental impairments. While we could have cited other 
physicians, such as physiatrists and neurologists, in this list of 
examples, we would not have included nurses, social workers, and 
physicians' assistants in the list. The latter are defined as ``other 
sources'' of evidence in Secs. 404.1513(e) and 416.913(e) and are not 
``acceptable medical sources'' who can provide evidence to establish 
the existence of a medically determinable mental impairment. Such 
sources can, however, provide very valuable information about the 
severity of an impairment(s) once the existence of such an impairment 
has been established with evidence from an ``acceptable medical 
source.''
    As a result of these two comments, we again looked at the need to 
provide specific examples of appropriate medical sources in 12.00B. 
Since the purpose of this section of the preface to the listings is to 
discuss the need for medical evidence and not who can supply it, we 
decided it was unnecessary to provide any examples and deleted those we 
had proposed from the third sentence of final 12.00B.
12.00C  Assessment of Severity
    Comment: We received five comments about our proposal to change the 
example of a marked limitation in activities of daily living in the 
second paragraph of proposed 12.00C1. All of the commenters asked us to 
retain the prior example of an individual who is able to cook and clean 
but is too fearful to leave the immediate environment of home and 
neighborhood, saying that it was still useful and appropriate. In 
addition, most did not object to our retaining the proposed example of 
an individual who cannot perform a ``wide range of daily activities * * 
* independently.'' However, one commenter thought that the proposed 
example was too imprecise to be useful.
    Response: We did not adopt the comments asking us to restore the 
prior example, but we have replaced the example in the second paragraph 
of final 12.00C1 with more descriptive text in response to the last 
comment.
    We did not reinstate the example from the prior rules because it 
describes a person with agoraphobia. We agree with the commenters that 
it is still an appropriate example of a marked limitation in activities 
of daily living. Nonetheless, we deleted it because we were concerned 
that, as the sole example, its specificity could result in too narrow 
an interpretation of what constitutes a marked limitation in this area.
    We agree with the last commenter that the example we proposed 
required too many factual assumptions about what constituted 
independence and a ``wide range of daily activities'' to be helpful. 
Therefore, in the final rules, we replaced the proposed example with a 
sentence describing some of the considerations for assessing 
limitations in activities of daily living. We believe that this 
descriptive approach will be

[[Page 50762]]

more helpful than any example providing a single, narrow fact pattern.
    Comment: One commenter suggested that the discussion of task 
completion in proposed 12.00C3 should also address the quality and 
accuracy of the tasks being completed, as well as their timeliness.
    Response: We adopted the comment. In the first sentence of the 
first paragraph of final 12.00C3, we inserted the words ``and 
appropriate'' between the words ``timely'' and ``completion.'' Thus, 
the final sentence defines concentration, persistence, or pace in terms 
of the individual's ability to sustain focused attention and 
concentration of sufficient length to permit the timely and appropriate 
completion of tasks commonly found in work settings.
    We also added a new fifth paragraph to final 12.00C3 similar to the 
paragraphs in 12.00C1 and 12.00C2 that define the term ``marked'' by 
``the nature and overall degree of interference with function.'' The 
new paragraph indicates that we may find a marked limitation in 
concentration, persistence, or pace even though the individual can 
complete many simple tasks if the impairment nonetheless interferes 
seriously with the individual's ability to complete those tasks in 
accordance with quality and accuracy standards. However, the provision 
also states that deficiencies in concentration, persistence, or pace 
that are apparent only in performing complex tasks would not 
necessarily satisfy the intent of the paragraph B3 criterion. An 
individual who is unable to do complex tasks, but who is able to do 
simple tasks independently, appropriately, and effectively, may or may 
not be disabled, and may not have a ``marked'' limitation in 
concentration, persistence, or pace.
    Comment: Several comments addressed the proposal to reverse the 
order of the second and third sentences of prior 12.00C3 and to 
characterize the ability to complete household tasks as an ``example'' 
of a way to assess a person's ability to concentrate under this 
criterion. The commenters pointed out that individuals who cannot 
tolerate work stress may nevertheless be able to complete household 
tasks. Two commenters noted that the proposed example was illogical in 
context because it followed a sentence that explained that difficulties 
in task completion are best observed in ``work and work-like'' 
settings. The commenters believed that the household is not a work-like 
setting. One commenter thought that in the prior rules the reference to 
household routines made sense because it came before the statement 
about the observation of deficiencies in work or work-like situations, 
not after.
    One commenter recommended that we delete the example. The commenter 
noted that the example did not address the fact that households can be 
highly structured and supportive environments and that it was silent 
about the need to evaluate the pace and timeliness of household chores, 
two factors that might indicate an inability to function at a 
competitive level.
    Response: We adopted the comments, although we believe that it is 
important to consider an individual's activities in all settings to 
draw reasonable inferences about his or her abilities to tolerate 
stress in the workplace, especially because not all individuals have 
recent work histories. Thus, we consider the ability to complete tasks 
in other settings when we assess the degree of limitation the 
impairment(s) imposes in this functional domain.
    Nevertheless, we agree with the commenters that the example could 
have been confusing following a sentence about ``work and work-like 
settings.'' We also agree that the ability to do household activities 
does not necessarily correlate with the ability to do work tasks. 
Therefore, we made a number of revisions in the final rules. First, we 
deleted the example of everyday household routines in the first 
paragraph of final 12.00C3, as suggested by the commenter. Second, we 
broadened and clarified the second sentence by deleting the reference 
to ``work-like'' settings and indicating that, while limitations in the 
ability to complete work tasks are best observed in work settings, such 
limitations may also be reflected by limitations ``in other settings.'' 
This will include ``work-like'' and household settings, but is not 
necessarily limited to such settings.
    Third, we also believe that some type of cautionary language is 
needed in this portion of the preface. Thus, we added a new fourth 
paragraph to final 12.00C3 that reminds adjudicators to use great care 
when drawing inferences about an individual's ability to complete tasks 
in work settings based on his or her ability to complete tasks in other 
settings. This discussion notes, among other things, that other 
settings can be highly structured and supportive.
    Comment: Several of the above commenters suggested that we provide 
examples of task completion related to work. Three of the commenters 
asked us to restore the examples of work tasks from the prior rules.
    Response: We adopted the comments. We restored the examples of 
filing index cards, locating telephone numbers, and disassembling and 
reassembling objects in a parenthetical example at the end of the first 
sentence of the third paragraph of final 12.00C3.
    Comment: One commenter recommended that we modify the beginning of 
the last sentence in the first paragraph of proposed 12.00C3, which 
referred to ``direct psychiatric examination,'' to acknowledge that 
psychologists perform clinical evaluations and mental status 
examinations as well as conduct psychological testing. In addition, the 
commenter suggested that we revise the latter part of this sentence to 
address situations in which, due to the nature of the individual's 
disorder or social isolation, additional evidence of the individual's 
ability to complete tasks cannot be obtained to supplement findings 
obtained during a mental status examination or psychological testing 
session.
    Response: We adopted the comments and the substance of the 
suggested revisions. In using the word ``psychiatric,'' we did not 
intend to exclude psychologists who perform clinical examinations. 
Rather, we intended only to distinguish between psychiatric evaluations 
(such as formal mental status examinations) and psychological testing. 
This could have been inferred from the phrase ``mental status 
examination or psychological test data'' in the second clause of the 
sentence, but we agree that the proposed rules could have been clearer. 
To clarify the rules, we revised the third sentence of the first 
paragraph of final 12.00C3 to refer to ``clinical examination'' instead 
of ``direct psychiatric examination.'' The term ``clinical 
examination'' includes formal mental status examinations and other 
``psychiatric'' examinations, as opposed to psychological testing. We 
did not expand the sentence to say ``direct psychological or 
psychiatric examination,'' as suggested by the commenter, because we 
believe that the phrase could be read to mean that psychologists and 
psychiatrists perform different kinds of clinical examinations, not 
that these examinations can be performed either by psychologists or 
psychiatrists, as we believe the commenter intended.
    With regard to the second comment, we deleted the latter part of 
the proposed sentence, including the phrase ``alone should not be 
used,'' and added a new sentence. The fourth sentence of the first 
paragraph of final 12.00C3 explains that whenever possible, we will 
supplement a mental status examination or psychological test data with 
other available evidence. We also emphasized the point in the new 
fourth

[[Page 50763]]

paragraph of final 12.00C3, which stresses that the ability to complete 
tasks must be assessed by the evaluation of all the evidence.
    Comment: Two commenters recommended that we revise the first 
sentence of the second paragraph of proposed 12.00C3 to acknowledge 
that serial threes, as well as serial sevens, are used for the 
assessment of concentration in some individuals.
    Response: We adopted the comment.
    Comment: One commenter suggested we include examples of specific 
psychological tests of intelligence and memory in the last sentence of 
the second paragraph of proposed 12.00C3.
    Response: We did not adopt the comment. The purpose of this section 
of the preface to the listings is to discuss the assessment of the 
third paragraph B criterion, not the various psychological tests that 
may be administered for this purpose.
    Comment: Two commenters took issue with the parenthetical phrase, 
``which may include a loss of adaptive functioning,'' in the second 
sentence of proposed 12.00C4 and in the paragraph B4 and C1 criteria of 
the proposed listings. Both commenters contended that it was 
inappropriate to indicate that deterioration resulting from an episode 
of decompensation ``may include'' a loss of adaptive functioning. One 
of the commenters recommended deleting the phrase because it is 
unnecessary. The other commenter suggested we modify the sentence to 
read ``which may be considered to be a loss of adaptive functioning.''
    Response: We adopted the comments. We revised the first paragraph 
of final 12.00C4 so that it now refers only to ``episodes of 
decompensation.'' We deleted the phrase ``causing deterioration'' and 
the parenthetical statement, ``which may include loss of adaptive 
functioning,'' and instead defined ``episodes of decompensation'' as 
``exacerbations or temporary increases in symptoms or signs accompanied 
by a loss of adaptive functioning.'' We believe these changes better 
characterize the episodic nature of the functional limitations that the 
paragraph B4 and C1 criteria are designed to capture. We did not retain 
the word ``deterioration'' since it is often associated with long-term 
progressive changes in functioning; however, we added a new sentence 
that provides examples of how episodes of decompensation may be 
demonstrated.
    In addition, we deleted the last sentence of proposed 12.00C4, 
which was the same as the last sentence in the prior rules. The 
sentence described some stressors common to work environments, such as 
decisions, attendance, and interactions with supervisors. Because we 
removed the focus of the section from stress in work environments, 
there is no reason to continue to describe work-related stresses in 
this paragraph. Moreover, sometimes the event that triggers the episode 
is not readily discernible, and we are more concerned with the effect 
of the stressor (i.e., decompensation), not its cause at this stage of 
the sequential evaluation process. Of course, when we determine whether 
an impairment is ``severe'' or assess an individual's RFC, we may want 
to know specifically the kinds of stressors and the degree of stress 
that result in exacerbations to determine what an individual is able to 
tolerate in work environments. Nevertheless, the severity level of the 
listings is such that the frequency and severity of the episodes alone 
are sufficient at this step.
    As a result of these changes, we also deleted the words ``which 
cause the individual to deteriorate'' and ``causing deterioration'' 
from the references to episodes of decompensation in final 
Secs. 404.1520a(c)(3) and (c)(4) and 416.920a(c)(3) and (c)(4), the 
second sentence in the introductory paragraph of final 12.00C, and the 
fourth sentence of final 12.00D1a. We made similar changes in the 
paragraph B4 and C1 criteria within each listing.
    Comment: One commenter objected to the removal of the reference to 
withdrawal from the stressful situation found in the first sentence of 
prior 12.00C4. The commenter was concerned that, under stress, many 
individuals will withdraw from the stressful situation rather than stay 
and exhibit a deterioration in their functioning.
    Response: We accommodated the comment in the aforementioned 
revision to the first paragraph of final 12.00C4. We never intended to 
eliminate withdrawal as a possible consequence of an episode of 
decompensation. Rather, as we stated in the preamble to the proposed 
rules (56 FR at 33132), we eliminated the specific reference to it for 
the opposite reason. Withdrawal is just one possible manifestation of 
decompensation; we did not want our revised rules to imply that it is 
the only manifestation we would consider.
    Although we did not restore the word ``withdraw'' in the final 
rules, we built the concept into the revised definition of ``episodes 
of decompensation.'' Thus, in the first sentence of the first paragraph 
of final 12.00C4, we explain that the increase in symptoms or signs is 
``accompanied by loss of adaptive functioning,'' in effect including a 
deterioration in the functional level in a given environment from which 
the individual could withdraw. More explicitly, in the second sentence, 
we further state that ``[e]pisodes of decompensation may be 
demonstrated by an exacerbation in symptoms or signs that would 
ordinarily require increased treatment or a less stressful situation * 
* *.'' The reference to a requirement for ``a less stressful 
situation'' obviously includes withdrawal from the stressful situation.

12.00D  Documentation

    Comment: Two commenters expressed concern about the medical 
documentation requirements in the proposed rules. One commenter, who 
did not refer to any particular provisions, said the proposed rules 
relied excessively on medical personnel and psychiatric records for 
decision making. The commenter expressed concern that many individuals 
with mental impairments receive only cursory evaluation and treatment, 
or even no treatment, and that it is difficult for case managers in the 
State mental health services to obtain more comprehensive reports. 
Moreover, the commenter explained that the medical personnel examining 
such individuals may not be sufficiently familiar with the individuals 
to provide the information we require. The commenter also stated that 
the records of case managers are often scanty and may not provide the 
functional information required to document the paragraph B criteria.
    In a similar comment, the second commenter was concerned that 
proposed 12.00D placed too much reliance on the need to obtain evidence 
from treating sources. The commenter said that many individuals with 
mental impairments have no history of being treated for their mental 
disorders. Thus, this commenter said our emphasis on ``medical'' 
evidence tends to reward those who can afford treatment while 
penalizing poorer individuals. The commenter also noted that many 
individuals do not seek treatment for mental disorders because of the 
social stigma associated with these disorders.
    Response: We clarified the rules in response to the comments. We 
share the concerns raised by both commenters and realize that obtaining 
medical evidence relating to an individual's mental impairment can be 
difficult. Nevertheless, we cannot ignore the specific statutory 
requirements for obtaining medical evidence. Furthermore, we are also 
required to try to obtain medical information from treating sources.

[[Page 50764]]

    Our rules do not, however, require individuals to establish their 
claims solely on the basis of treating source evidence. If an 
individual does not have a treating source, or a treating source is 
unable or unwilling to provide sufficient information for us to make a 
determination or decision, we can purchase one or more consultative 
examinations, if necessary. Other regulations explain how we assist 
individuals in meeting their responsibility to submit evidence to 
support their claims.
    When we evaluate the impact of an individual's impairment(s) on his 
or her functioning, we do not confine our inquiry to the medical 
evidence alone. As we have explained above, various other regulations, 
including final Secs. 404.1520a and 416.920a, make clear that once we 
have established the existence of a medically determinable impairment, 
we consider all evidence in the case record that is relevant to our 
assessment of the individual's ability to function. This includes 
information from both medical and nonmedical sources. Proposed 12.00D 
was consistent with this policy, requiring medical evidence to 
establish the existence of a medically determinable impairment.
    Nevertheless, in response to these and other comments, we 
substantially reorganized and revised final 12.00D to clarify our 
policies, as we discuss in detail in the explanation of the final rules 
in this preamble. Final 12.00D1a still requires medical evidence from 
acceptable medical sources. In combination, however, final 12.00D1, 
12.00D2, and 12.00D3 emphasize that we will use information from all 
sources (medical and nonmedical) to assess the longitudinal picture of 
an individual's impairment(s) and the limitations it imposes.
    Comment: We received a number of comments about the first two 
sentences in the second paragraph of proposed 12.00D concerning the 
usefulness of functional information provided by claimants. One 
commenter said that our statement that the individual ``usually can 
best describe his or her own functional limitations'' was ``naive 
thinking'' and ``unsubstantiated,'' and another commenter stated it was 
``incorrect'' because individuals with brain damage may not be able to 
describe their own impairments. Most of the commenters, however, 
supported the provision, but asked us to clarify or expand it.
    Four commenters recommended that we also require third party 
documentation. One commenter stated that such evidence should be 
obtained in each case to corroborate the individual's allegations. The 
other three commenters viewed third party reports as a means to protect 
claimants who are ``unreliable'' reporters because they are out of 
touch with reality or because they have disorders characterized by 
denial or lack of insight, such as psychoactive substance dependence 
disorders. In addition, one commenter suggested that we describe the 
form and manner in which the claimant's reports will be acceptable and 
delete any statements, such as those in the twelfth paragraph of 
proposed 12.00D, that impugn the value of psychometric measures based 
on self-reports.
    Response: We revised the final rules in response to the comments. 
We believe that obtaining statements from the individuals is important, 
and that, with the exceptions noted by the latter commenters, 
individuals with mental impairments can provide much useful information 
and often are the best sources of information about their impairments. 
In response to the comments, however, we modified the final rules to 
remove the statement that such individuals can ``usually'' best 
describe their functional limitations and provided some of the 
additional guidance requested by the commenters.
    The first sentence of final 12.00D1b, ``Information from the 
individual,'' now states that ``[i]ndividuals with mental impairments 
can often provide accurate descriptions of their limitations.'' We also 
added a new third sentence requiring an attempt to obtain information 
from the individual when the individual is willing and able to provide 
such information.
    This does not mean that we will base our assessments solely on 
self-reports. We will consider the medical and other evidence in 
addition to an individual's statements, and any discrepancies must be 
resolved. This type of assessment process is consistent with standard 
medical practice: Medical sources consider their patients' allegations 
together with the signs they observe and any laboratory findings and 
third-party reports they obtain. Thus, in a new last sentence of the 
paragraph, we provide that statements from the individual must be 
carefully examined in light of all the evidence in the case record to 
determine whether the individual's statements are consistent with the 
other evidence and whether additional information is needed. Such 
information can come from medical or third-party reports, or both. We 
did not make third-party contact a requirement in every case because 
each case is different, and we believe the need for additional evidence 
should be dictated by the facts of each individual case.
    We also agree that not all individuals with mental impairments are 
willing or able to fully or accurately describe the functional 
limitations arising from their impairments. Therefore, we added a new 
fourth sentence to the paragraph stating this policy.
    Beyond these changes, we do not believe it is necessary or even 
possible for these final rules to dictate the form and manner in which 
self-reports will be acceptable. Each case has its own unique set of 
circumstances, and functional information from individuals comes to us 
in a variety of ways. For example, we may obtain information through 
our disability claims forms, through responses given in medical or 
psychological examinations or on standardized psychological tests, 
through telephone contacts, through written correspondence, and through 
detailed testimony at disability hearings at reconsideration and 
administrative law judge hearings.
    Finally, we revised final 12.00D7 to be consistent with final 
12.00D1b and to address concerns about the value of personality 
measures that rely on self-reports. We explain the revisions in a later 
comment and response. We believe the functional information an 
individual supplies should be an essential part of the disability case 
development process. We never intended to impugn the value of 
psychological measures that rely on such information.
    Comment: Two commenters recommended that we discuss the Global 
Assessment of Functioning (GAF) Scale in the introductory paragraphs of 
final 12.00D. They noted that we referred to the GAF scale in the 
preamble to the NPRM (56 FR at 33132) and seemed to encourage its use, 
but then failed to mention it in the proposed rules.
    Response: We did not adopt the comment. We did not mention the GAF 
scale to endorse its use in the Social Security and SSI disability 
programs, but to indicate why the third sentence of the second 
paragraph of proposed 12.00D stated that an individual's medical source 
``normally can provide valuable additional functional information.'' To 
assess current treatment needs and provide a prognosis, medical sources 
routinely observe and make judgments about an individual's functional 
abilities and limitations. The GAF scale, which is described in the 
DSM-III-R (and the DSM-IV), is the scale used in the multiaxial 
evaluation system endorsed by the American Psychiatric Association. It 
does not have a direct

[[Page 50765]]

correlation to the severity requirements in our mental disorders 
listings.
    Comment: Three commenters agreed with our statement in the fourth 
paragraph of proposed 12.00D that information from past employers about 
work attempts, behavior on the job, and the circumstances surrounding 
termination of a work effort is pertinent to determining an 
individual's ability to function in a work setting. However, two of the 
commenters pointed out that many individuals with mental impairments 
are now able to engage in specialized work programs, such as supported 
employment and transitional employment programs, because these programs 
provide significant on-the-job supports. Thus, they noted that an 
individual's success in one of these programs should not automatically 
be equated with the ability to work independently. They recommended 
that we revise the fourth paragraph of proposed 12.00D to instruct 
adjudicators to examine the degree to which an individual in one of 
these types of programs requires specialized supports in order to hold 
a job.
    Response: We adopted the comments and revised final 12.00D3. We 
also modified the second sentence in final 12.00H, ``Effects of 
treatment,'' to emphasize that it is the ability to sustain SGA that 
must be restored. This recognizes that not all work activity fulfills 
our requirements for the performance of SGA.
    Comment: We received many comments, primarily from psychologists 
and organizations of psychologists, but also from several advocates and 
others, about the proposed rules in the fifth, twelfth, thirteenth, and 
fourteenth paragraphs of proposed 12.00D. Many commenters perceived the 
proposed revisions as an attempt to deemphasize, discourage, or even 
preclude the use of psychological testing, especially personality 
measures and projective types of techniques.
    Many of the commenters focused on what they considered to be 
denigrating comments about psychological testing in the proposed rules 
and an apparent change in our policy. Many commenters said that 
psychological testing alone should not be the sole basis of the 
decision, but neither should it be disregarded, because it can provide 
important additional information for a disability evaluation. A number 
of commenters said that, while such testing may not be a substitute for 
some of the findings we require, it often provides objective 
documentation of the basis for the findings. The commenters further 
observed that the same criticisms we made of psychological testing 
could also be made of x rays, CAT scans, EEGs, and other tests that 
document the presence or absence of a condition but may not be 
sufficient as a basis for making a decision. In a similar vein, many 
commenters also discussed the drawbacks of evidence from self-reports, 
clinical examinations, and lay evidence, and again pointed out the need 
to consider all of the relevant evidence. They said that, just as no 
single test should be dispositive, no test should be unacceptable 
either.
    Some commenters discussed the objectivity and value of 
psychological testing. Some said that the tests we had singled out 
satisfy our criteria for a ``good test'' and, therefore, ought to be 
``acceptable.''
    Some commenters pointed out that the first sentence of the proposed 
fifth paragraph (which excluded the purchase of ``consultative 
examinations employing psychometric testing'' unless the required 
documentation of a mental impairment could not be obtained from other 
sources) seemed to be inconsistent with other statements in the adult 
and childhood mental disorders listings. At least one commenter 
questioned the practical utility of the proposed rules, asking how we 
would evaluate a report if it was based on both ``acceptable'' and 
``unacceptable'' tests.
    Some commenters thought that the reason we proposed the rules was 
that we do not always get appropriate information from individuals who 
perform psychological examinations for us. Some thought our 
adjudicators do not always request psychological tests that are 
appropriate for evaluating individual claims. These commenters said 
that instead of narrowing the use of psychological testing, we should 
instead provide more guidance to psychologists and establish standards 
for our adjudicators to determine the kinds of psychological tests to 
request.
    The commenters offered several other arguments for retaining the 
prior rules or making other revisions to the proposed rules, which we 
do not summarize here in view of our response.
    Response: We adopted many of the comments. We never intended to 
denigrate the validity and reliability of psychological testing or to 
reduce it to a subordinate or ``last resort'' position in the 
disability evaluation process. We also did not intend to present an 
unbalanced approach to the relative merits of the contents of the 
evidentiary record. Psychological testing should not be ignored or 
dismissed as being of lesser value to the disability evaluation process 
than any other relevant and available evidence. The results of well-
standardized psychological tests can provide valid and reliable data 
useful to the disability evaluation process.
    In response to the comments, we deleted the first sentence of the 
fifth paragraph of proposed 12.00D. Our intent in proposing the 
sentence was simply to emphasize the need to obtain all available 
information from sources of record before deciding to purchase a 
consultative examination for any other necessary documentation. We did 
not intend to prohibit the use of psychometric testing. This is 
consistent with our general policy on purchasing consultative 
examinations required by the Act and set out in our regulations. (See, 
e.g., Secs. 404.1512(f), 404.1519a(a), 416.912(f) and 416.919a(a)). We 
never intended, here or anywhere else in the proposed rules, to 
relegate psychometric testing to a subordinate role or to use it only 
as a ``last resort.'' We agree, however, that the proposed sentence 
could have given that impression. Since we already have detailed rules 
for the purchase of consultative examinations, there was no need to 
retain or revise the sentence and we deleted it.
    We replaced the proposed twelfth and fourteenth paragraphs (the 
proposed paragraphs that addressed personality measures and projective 
techniques) with final 12.00D7, ``Personality measures and projective 
testing techniques.'' Comments about the twelfth paragraph pointed out 
that tests such as the MMPI fulfill all the salient characteristics of 
a good test under our rules, even though they are based on self-report. 
Other comments noted unclear references, such as the phrase, 
``objective units of functional behavior,'' and the phrase, ``limited 
applicability,'' which one commenter thought could be misinterpreted to 
mean ``useless.'' Comments about the fourteenth paragraph argued that 
projective techniques can also yield valid and reliable data relevant 
for purposes of diagnosis and assessment of functional capacity, 
particularly because conclusions about the impairment are not made 
solely from the results of the projective techniques. Rather, those 
results are integrated with a comprehensive history, mental status 
examination, and objective psychological testing.
    One commenter offered us alternatives for both proposed paragraphs, 
some of which we adopted. Final 12.00D7 addresses both personality 
testing and projective techniques, and explains that they may provide 
useful data for evaluating several types of mental disorders. 
Consistent with the public comments, we also provide that the results 
should be corroborated by other evidence,

[[Page 50766]]

including the results of other psychological tests, information 
obtained in the course of the clinical evaluation, and information from 
all relevant sources. We agree with the commenters that personality 
measures and projective techniques may provide valid and reliable data 
for our purposes. We also agree that the most reliable conclusions are 
drawn about an individual's mental impairment(s) and how it impacts on 
functioning from the overall assessment of all the relevant evidence 
available, including any psychological testing.
    We did not include the second sentence of the twelfth paragraph of 
proposed 12.00D in final 12.00D7. We agree that the negative 
implications about the value of self-reports were inconsistent with 
other statements in the listings about the value of such information. 
Further, we recognize that the history, mental status examination, and 
standardized assessment procedures all rely to some extent on 
information reported by the individual.
    In final 12.00D9, ``Screening tests,'' we revised the proposed 
thirteenth paragraph. We agree with several commenters that the phrase 
``primary evidence'' in the third sentence of the proposed paragraph 
was unclear. We did not intend to prohibit the use of screening tests 
in the proposed rules. Rather, we only intended to indicate that, 
generally, such tests cannot be used apart from further testing, except 
when the response pattern is so obviously atypical as to render further 
testing unnecessary. Therefore, in final 12.00D9, we deleted the 
statements that singled out particular tests and provided that 
screening tests may be useful in uncovering potentially serious 
impairments, but often must be supplemented by other data. Thus, 
screening tests are not generally considered appropriate primary 
evidence for disability determinations. The final paragraph is based on 
the first, fourth, and fifth sentences of the thirteenth paragraph.
    We also believe the restructured and revised provisions about 
psychological testing in final 12.00D clarify our intent with regard to 
its applicability to our disability programs and the issues raised by 
the commenters. We describe the changes, structure, and content of 
these final rules in the explanation of changes section of this 
preamble.
    Comment: Several commenters took issue with our reference to ``a 
psychologist, psychiatrist, or other physician specialist'' in the 
fifth and seventh paragraphs of proposed 12.00D. They contended that 
psychiatrists and other physicians are not qualified to either 
administer or interpret psychological testing. Another commenter asked 
us to define the term ``other physician specialist'' and to provide 
examples.
    Response: We responded to these comments by clarifying the final 
rules to better reflect our intent. We deleted the reference to ``a 
psychologist, psychiatrist, or other physician specialist'' and used 
the terms ``qualified specialist'' and ``specialist'' in final 12.00D5a 
and 12.00D5b. In final 12.00D5a, we defined a ``qualified'' specialist 
as one who is currently licensed or certified in the State to 
administer, score, and interpret psychological tests and who has the 
training and experience to perform the test.
    We recognize that administering and interpreting standardized 
psychological assessment procedures is quite prominent in the training 
of psychologists. We also recognize that training in administering and 
interpreting such instruments is available to other members of the 
medical profession as well. Physicians other than psychiatrists 
(``other physician specialists'') who might receive such training 
include, among others, neurologists and pediatricians. We intended in 
the NPRM to emphasize that we will accept as valid for our program 
purposes any psychological test results administered and interpreted by 
a qualified specialist.
    Comment: One commenter urged us to use the term ``licensed 
psychologist'' throughout the rules to avoid any question as to who is 
a psychologist. Another commenter asked if our requirements would 
preclude the use of tests performed by psychometricians under the 
supervision of licensed psychologists.
    Response: We did not adopt the first comment. We do not believe it 
necessary to refer to ``licensed'' psychologists in these rules since 
we discuss licensing or certification of psychologists in other 
regulations, which explain who qualifies as an acceptable medical 
source. (See Secs. 404.1513 and 416.913).
    Tests performed by properly trained and experienced 
psychometricians who work under the supervision of licensed 
psychologists are acceptable for our program purposes.
    Comment: One commenter suggested inserting the phrase ``or a range 
of responses or behaviors'' in the last sentence of the fifth paragraph 
of proposed 12.00D to acknowledge that some tests elicit a particular 
response or behavior while others elicit a range of responses or 
behaviors.
    Response: We agree that some standardized psychological tests are 
designed to elicit a particular response while others elicit a range of 
responses. However, instead of inserting the suggested phrase, we 
simplified the sentence in final 12.00D5b to state that psychological 
tests are best considered as ``standardized sets of tasks or questions 
designed to elicit a range of responses.'' The word ``response'' would 
include a ``behavior,'' and the phrase ``a range of responses'' can 
refer to a single response or denote a variety of responses.
    We also believe it is important that the discussion of 
psychological testing acknowledge that such testing can provide other 
useful data and that any test reports should include both the objective 
data and any clinical observations. Therefore, final 12.00D5b concludes 
with a slightly edited version of the first two sentences from the 
ninth paragraph of proposed 12.00D.
    Comment: One commenter thought that the explanation of the terms 
``validity'' and ``reliability'' in the sixth paragraph of proposed 
12.00D, which described the salient characteristics of a good test, was 
an excellent clarification of terms. Another commenter, while 
commending our efforts to identify those characteristics, thought that 
the American Psychological Association's ``Standards for Educational 
and Psychological Testing'' (1985) provides more elaborate and relevant 
definitions that apply equally to all assessment techniques. A third 
commenter, while finding no fault with the proposed paragraph, found it 
inconsistent with the statements regarding the use of psychological 
testing in other paragraphs of proposed 12.00D. A fourth commenter 
suggested an alternative for the fourth salient characteristic of a 
good test (``wide scope of measurement'') because the proposed rules 
required that a psychological test measure a broad range of facets or 
aspects of the domain being assessed when, in fact, psychological tests 
provide a sample of an individual's behavior. Another commenter 
recommended that we delete the seventh paragraph of proposed 12.00D 
since it implied that an adjudicator could reject any test results that 
do not satisfy all four of the salient characteristics.
    Response: We did not make any major changes to the four salient 
characteristics in final 12.00D5c. We believe the characteristics are 
sufficiently detailed for our purposes and capture the essence of the 
American Psychological Association's definitions. As we explain in an 
earlier response to

[[Page 50767]]

a comment, we never intended to relegate psychological testing to a 
secondary role. We believe that the revisions to final 12.00D will make 
clear that these characteristics are not inconsistent with our approach 
to psychological testing. We also believe that the description of the 
fourth characteristic in the final rules captures the fourth 
commenter's concerns, when considered with the rest of our discussion.
    We did, however, modify the description of the third 
characteristic, appropriate normative data, by replacing the phrase 
``must be comparable'' with ``can be compared'' and deleting the word 
``recent.'' Both are editorial changes. The former revision makes the 
description of the characteristic easier to read. With the latter 
revision, we want to avoid any implication that these rules set a 
precise time limit on the acceptability of a measure still in common 
use in the psychological community.
    In addition, we deleted the seventh paragraph of proposed 12.00D 
because we agree that it could have been misleading. We did not intend 
that any psychological test results submitted as part of the 
evidentiary record be arbitrarily dismissed as invalid simply because 
they failed to satisfy one or more of the four criteria for a good test 
outlined in final 12.00D5c. We would generally require a test we 
purchase as part of a consultative examination to satisfy all these 
criteria, and we would expect any psychological test results submitted 
by individuals to satisfy all the criteria. We will not, however, 
ignore or reject test results that do not satisfy all the criteria. As 
we explain in final 12.00D1 and in various other places in our 
regulations, we consider all evidence obtained when we make a 
determination. Any inconsistency between test results and other 
evidence would be resolved prior to making a determination.
    Comment: One commenter recommended that, since the eighth paragraph 
in proposed 12.00D related directly to intelligence testing, we should 
place it after the eleventh paragraph of proposed 12.00D.
    Response: We reorganized the rules, as we describe in the 
explanation of changes section of this preamble.
    Comment: One commenter recommended changing ``should'' to ``shall'' 
in the second and third sentences of the ninth paragraph of proposed 
12.00D, the paragraph that explained that psychological testing can 
also provide other useful data aside from the test results. The second 
sentence (now in final 12.00D5b) explained that test results should 
include both the objective data and a narrative description of clinical 
findings. The third sentence (now in final 12.00D6a) explained that 
narrative reports should comment on whether the specialist considered 
the IQ scores to be valid and consistent with the individual's 
developmental history and degree of functional limitation.
    Response: We did not adopt the comment because it would have 
resulted in the same problem that was in the seventh paragraph of the 
proposed rules; it could have suggested that we would reject or ignore 
reports that did not satisfy the description. We used the word 
``should'' to describe what we expect in reports of psychological 
testing. It is, therefore, appropriate in these contexts. In final 
12.00D5b, we substituted the phrase ``any clinical observations'' for 
the proposed phrase ``a narrative description of clinical findings,'' 
to clarify that the report should include the specialist's observations 
about the individual's ability to do the test.
    Comment: One commenter noted that we incorrectly identified the 
standard deviation of the revised Stanford-Binet scales as 15 in the 
tenth paragraph of proposed 12.00D, when it is actually 16.
    Response: We corrected the second sentence in final 12.00D6c by 
changing the example so that it refers to ``the Wechsler series.'' 
Additionally, we made corresponding technical revisions to the ninth 
paragraph of 112.00D.
    Comment: One commenter suggested that intelligence test scores 
should be expressed ``in terms of standard deviations from the mean (as 
not all tests have a mean of 100 and standard deviation of 15) and 
acknowledgement of the standard error of the measurement.''
    Response: We did not adopt the comment. The only rules in these 
listings that require intelligence test scores are in listing 12.05. 
The second sentence of final 12.00D6c explains that the IQ scores in 
listing 12.05 reflect values from tests that are based on a mean of 100 
and that use a standard deviation of 15. The third sentence of final 
12.00D6c provides for the case in which IQs are obtained from 
standardized tests that deviate from a mean of 100 and standard 
deviation of 15 by requiring conversion of the findings on such tests 
to percentile ranks. This allows us to determine the actual degree of 
limitation and to compare the findings with those in the listings.
    Beyond that, we do not believe that it is necessary to revise the 
rules as suggested. The IQ of 59 in final listing 12.05B falls between 
two and three standard deviations below the mean (three standard 
deviations would be an IQ of 55) on such tests, and we do not want to 
lower it to conform to a scheme that relies strictly on standard 
deviations.
    Comment: One commenter noted that we used the term ``mental status 
examination'' in the twelfth paragraph of proposed 12.00D and 
recommended that we define the term in the final rules and include a 
list of required elements.
    Response: We adopted the comment. We added a new final 12.00D4, 
which provides a brief description of the mental status examination and 
its components. The final rules do not provide a formal definition of 
the term ``mental status examination'' because we believe it is widely 
used and commonly understood in the mental health community. The rules 
explain, however, that the mental status examination is performed 
during the course of a clinical interview and is often partly assessed 
while the history is being obtained. We then provide a recitation of 
the elements that generally appear in a report of a comprehensive 
mental status examination.
    Nevertheless, we did not intend to unfairly weigh any particular 
aspect of clinical assessment, or to attempt to dictate the content of 
the clinical evaluation. Therefore, although we added a statement about 
the content of a mental status examination to the final rules, we did 
not make this a ``required'' list of elements. In the last sentence of 
the paragraph, we explain that ``[t]he individual case facts determine 
the specific areas of mental status that need to be emphasized during 
the examination.''
    Comment: One commenter was concerned that the statement in the 
fifteenth paragraph of proposed 12.00D that ``[e]xceptions to formal 
standardized psychological testing may be considered'' where 
appropriate examiners are ``not readily available'' could be subject to 
different interpretations. The commenter encouraged us to revise the 
proposed rules so there would be no possibility that a lack of a 
``readily available'' psychological consultant could be used as a 
reason to fail to obtain the documentation necessary to adequately 
evaluate a claim.
    Response: We adopted the comment. We deleted the word ``readily'' 
in final 12.00D6e. We did not intend to provide a loophole for 
adjudicators to avoid obtaining pertinent information in assessing any 
claim. Our procedure is to send an individual to the nearest 
appropriate resource when the case facts

[[Page 50768]]

warrant this type of development. It was our intent in the proposed 
fifteenth paragraph to address situations in which formal standardized 
psychological testing may be warranted, but is simply not available, 
and other evidence must be relied upon to make a determination.
    Comment: A number of commenters questioned the inclusion of the 
last two sentences in the eighteenth paragraph of proposed 12.00D 
regarding neuropsychological examinations.
    Some commenters were concerned that the sentences would have the 
practical effect of prohibiting the purchase of such tests and would 
discriminate against individuals who lack the resources to obtain the 
tests. Other commenters contended that our rules should place greater 
emphasis on the importance and utility of neuropsychological testing in 
identifying and evaluating cases where brain dysfunction is an issue.
    One commenter said that the discussion of neuropsychological 
testing in the seventeenth paragraph was biased toward the use of the 
Luria-Nebraska and Halstead-Reitan. This commenter urged us to reword 
the discussion to give the examining psychologist the discretion to 
choose the most appropriate test for a given evaluation.
    Another commenter also said that batteries such as the Luria-
Nebraska and the Halstead-Reitan may be less effective than developing 
a suitable battery of tests that are appropriate to the individual's 
needs. This commenter suggested that we amend our guidelines to require 
specific tests of frontal lobe function in cases involving TBI.
    Response: As a result of these comments, we modified the 
seventeenth and eighteenth paragraphs of proposed 12.00D (now combined 
in final 12.00D8).
    We deleted the last two sentences of the proposed eighteenth 
paragraph. Our original intent in including these sentences was not to 
inhibit the use of neuropsychological testing or to somehow 
disadvantage those who do not have the resources to obtain such tests. 
We simply intended to emphasize the highly specialized nature of such 
testing and the need to exhaust all other more direct avenues before 
purchasing such procedures. The rule we proposed about considering the 
purchase of neuropsychological examinations ``only after all other more 
direct avenues of obtaining the needed documentation have been 
exhausted'' was very similar to the guidance in the first sentence of 
Secs. 404.1519a(a)(1) and 416.919a(a)(1). The proposed rule also was 
similar to the rule in Secs. 404.1519f and 416.919f, which states that 
``[w]e will purchase only the specific examinations and tests we need 
to make a determination'' in a case. Since we already have such 
statements in our regulations, we do not believe the preface to the 
adult mental disorders listings needs to focus on our policies for 
purchasing consultative examinations.
    We did not, however, delete the specific references to the Luria-
Nebraska or the Halstead-Reitan. We do not believe the rules we 
proposed, or the final rules, are biased towards the use of these 
batteries. We made it clear that they are only examples of 
neuropsychological tests a qualified specialist may administer. 
Further, as both the proposed and the final rules provide, the 
specialist performing the test may select another battery of tests if 
he or she determines it would be more relevant. To clarify this point, 
we revised the final rules by substituting the words ``suspected brain 
dysfunction'' for ``referral issues'' to emphasize that the case facts, 
not any general preference for one test over another, should dictate 
what batteries are administered.
    We believe this clarification also addresses the last commenter's 
point. We do not believe that the psychometric examination of frontal 
lobe function should be required in every case involving TBI. The areas 
of the brain and function affected by TBI differ according to the 
nature of the injury and the individual injured. When making 
determinations under our disability programs, we assess the need to 
test this specific area on an individual basis.
    Comment: One commenter questioned the relevance and placement of 
the twenty-first paragraph of proposed 12.00D, the last paragraph in 
12.00D of the prior rules. The paragraph gave examples of kinds of 
evidence that should be obtained and considered in cases in which the 
nature of the individual's impairment precludes standardized 
intelligence testing.
    Response: We deleted the paragraph. Our intent in proposing to 
retain this paragraph from the former rules was to emphasize that 
documentation must be provided even in cases in which the cognitive 
impairment is of such magnitude as to preclude any type of 
psychological testing. We realized from the comment, however, that the 
paragraph could have suggested that this was a special case. In fact, 
we require this kind of evidence in other cases involving other 
impairments, even when an individual can be tested. Moreover, we 
believe that the revisions and restructuring of final 12.00D already 
provide more detail about this issue than the prior paragraph. In 
addition, other regulatory provisions give considerable detail about 
various sources of evidence about functioning. Therefore, the proposed 
paragraph is no longer necessary.
    Comment: One commenter recommended that the twenty-second, twenty-
third, and twenty-fourth paragraphs of proposed 12.00D have a separate 
heading.
    Response: We adopted the comment. We provided separate headings for 
each of the last three paragraphs of the proposed rules: ``Traumatic 
brain injury (TBI)'' (final 12.00D10), ``Anxiety disorders'' (final 
12.00D11), and ``Eating disorders'' (final 12.00D12).
    Comment: One commenter, who was concerned that the proposed rules 
meant we would no longer use psychological tests for disability 
evaluations, wondered whether we would continue to use the Wechsler 
Intelligence Scales, the Bayley, and similar tests for disability 
evaluations in childhood cases involving suspected mental retardation.
    Response: As we have explained, we will continue to use appropriate 
psychological tests in our disability evaluations. In any event (except 
as explicitly noted in the NPRM), the revisions to 12.00D would not 
have affected the rules in 112.00D, which continue to require the kinds 
of tests about which the commenter was concerned.
    Comment: One commenter thought that we did not effectively utilize 
the most up-to-date psychological expertise in the proposed rules on 
psychological testing. This commenter and two others urged us to work 
closely with the American Psychological Association in formulating the 
final rules on psychological testing.
    Response: We appreciate the commenters' concerns. We try to utilize 
the most up-to-date knowledge and expertise in all our rules. The 
individual experts who provided input on the proposed rules included 
psychologists with years of training and experience in our disability 
programs, as well as extensive knowledge of psychological testing 
procedures. Representatives of the American Psychological Association 
and many other individuals and representatives of public interest and 
advocacy groups also provided extensive comments on the proposed rules. 
We carefully considered all these comments in promulgating these final 
rules.
    Comment: We received a few comments about matters that went beyond 
the scope of the listings, such as the role psychological consultants 
in the

[[Page 50769]]

State agencies should play in determining which, if any, psychological 
tests should be purchased in developing a claim, the instructions that 
State agencies should provide to consulting examiners from whom we 
purchase tests, and costs of testing.
    Response: Because the comments exceeded the scope of these rules, 
we do not address them here. We will consider any recommendations as we 
formulate our internal procedures and instructions.

12.00F  Effects of Structured Settings

    Comment: We received three comments about proposed 12.00F. Two 
commenters indicated that the revisions we proposed to 12.00F were 
helpful. The third commenter stated that the discussion in this section 
of the preface should relate the paragraph C1 criterion to the 
identical paragraph B4 criterion.
    Response: The intent of the last comment was unclear; therefore, we 
did not change 12.00F. Nevertheless, we clarified the paragraph C 
criteria and their relationship to the fourth paragraph B criterion by 
adding a new paragraph C2 criterion. This revision highlights the 
differences between the two sections, as explained under the comments 
about the paragraphs B4 and C criteria, discussed below.

12.02  Organic Mental Disorders

    Comment: One commenter suggested that the more appropriate and 
clinically meaningful place for the criteria for organic mental 
disorders is in the neurological listings. The commenter stated that, 
although it might be worthwhile to note that an individual exhibits 
symptoms and signs that are consistent with specific categories of 
mental impairments, when these medical findings are the result of a 
traumatic injury to the brain, they should be considered in the context 
of the individual's neurological disorder.
    Response: We did not adopt the comment. As we have explained, the 
diagnostic categories of mental disorders in these listings are based 
on the major categories of mental disorders found in the DSM. We chose 
this reference because it is the most widely used and accepted resource 
in the psychiatric and psychological communities, and its terminology 
is well-known to other medical and health-care professionals outside 
these two communities. Further, the diagnostic classification system 
found in the DSM is compatible with that of the ninth revision of the 
``International Classification of Diseases, Clinical Modification'' 
(the ICD-9-CM), which has been the official system in this country for 
recording all diagnoses and diseases since 1979. Both the DSM and the 
ICD-9-CM categorize organic mental disorders as mental rather than 
neurological.
    The fact that we classify organic mental disorders under the mental 
disorders body system does not mean that we ignore the neurological 
aspects of disorders such as TBI. One of the main reasons we added 
final 11.00F to the preface to the neurological listings and placed a 
cross-reference to it in final 12.00D10 (the 22nd paragraph of proposed 
12.00D) was to ensure that our adjudicators give full consideration to 
both the neurological and mental limitations resulting from TBI.
    Comment: We received many comments about the proposed revisions to 
the paragraph B4 and C1 criteria, first stated in listing 12.02, but 
repeated throughout the proposed listings. One commenter commended our 
efforts to more precisely quantify our standards for evaluating 
episodes of decompensation and another commenter approved of our 
proposal to remove the requirement that the episodes of decompensation 
occur in ``work or work-like settings.'' However, these and other 
commenters were concerned that the proposed criteria would be too 
rigid.
    Some commenters stated that the proposed revisions, which included 
specific time and duration requirements, would substantially increase 
the severity level of each listing. These commenters believed that the 
revisions would thereby preclude numerous favorable determinations or 
decisions that would have been made at the listing step of the 
sequential evaluation process under the prior rules. Two of the 
commenters said that we had not provided any rationale, from either 
research findings or experience, to justify the tightening of this 
standard. One commenter believed that anyone who satisfied the proposed 
paragraph B4 criterion would meet the statutory definition of 
disability, irrespective of the presence or absence of the other 
paragraph B criteria.
    Other commenters stated that the specificity of the proposed 
criteria was unreasonable, did not relate to the reality of mental 
disorders, and did not take into account individual differences. In 
addition, some were concerned that the proposed changes were not 
sensitive to the problems individuals with low incomes and mental 
impairments face, seemed to remove the degree of flexibility necessary 
for the exercise of appropriate clinical judgment, and ignored the fact 
that employers generally will not tolerate an individual's inability to 
function for even short periods of time if the periods of inability 
occur frequently. Like the first group of commenters, these commenters 
believed we had compromised the utility of the criteria because only a 
limited number of individuals could satisfy them. One commenter 
asserted that the proposed criteria were so rigid that no non-
institutionalized individual could meet them, and that no one could 
satisfy them without being found eligible under the other paragraph B 
criteria.
    In addition, one commenter stated that the evaluation of 
decompensation had been reduced to such an overly quantitative scale 
that its qualitative aspects, such as the degree of limitation and its 
interference with the individual's ability to function, were not 
addressed. Another commenter expressed concern that the proposed 
criteria were so specific that they might be enforced too rigidly and 
possibly be viewed as the preeminent rule on evaluating decompensation 
when deciding equivalence or assessing a claim at a later step in the 
sequential evaluation process.
    Three other commenters addressed the documentation requirements of 
the proposed criteria. One commenter believed the rigidity of the 
criteria was incompatible with the principles in the third paragraph of 
proposed 12.00D, which recognize that an individual's level of 
functioning may vary considerably over time. This commenter also 
thought the proposed criteria were unrealistic because mental health 
providers report that they are often unable to distinguish and date 
discrete episodes of decompensation, especially when an individual is 
being treated on an outpatient basis. The other two commenters 
suggested that the adequacy of the evidence required to document the 
decompensation criteria would be dependent upon the individual's 
financial resources. One commenter opined that the criteria would 
discriminate against low-income individuals unless additional funding 
was provided for professionals to observe and record periods of 
decompensation.
    Some commenters recommended retaining the prior rules, saying that 
they more effectively conveyed the concept of decompensation and its 
impact on an individual's ability to retain a job. Others suggested 
that we eliminate the chronological and durational tests for episodes 
of decompensation because the concept of ``repeated episodes'' means 
that the individual's decompensation is regular and recurring, which is 
sufficient to

[[Page 50770]]

make an individual unemployable. Still others suggested that we make 
the criteria more of a relative guide, and either move the word 
``repeated'' back into the first sentence of proposed 12.00C4 or expand 
the criteria to permit different combinations of frequency and 
duration. Similarly, a commenter suggested that we provide a more 
complete explanation of the paragraph B4 criterion to prohibit 
restrictive interpretations, relax the criterion, or possibly even add 
other periods of time that would satisfy the criterion. It was also 
suggested that we incorporate a ``qualitative'' description of the 
criterion into proposed Secs. 404.1520a(b)(2) and 416.920a(b)(2) 
similar to the first sentence of the introductory paragraph of proposed 
12.00C.
    Response: We did not adopt the comments that asked us to drop the 
proposed rules, but we revised the rules in response to the comments. 
We did not intend to tighten the severity requirements of the listings 
when we incorporated specific time and duration requirements in the 
proposed paragraph B4 and C1 criteria. We simply wanted to clarify 
existing regulatory policies and policy interpretations.
    Part of the proposed rules were already inherent in the prior 
regulations, and we have been following a procedure similar to the 
proposed rules since shortly after we published the prior rules. The 
prior rules included a definition of the term ``repeated'' in former 
Secs. 404.1520a(b)(3) and 416.920a(b)(3) (``three or more'' episodes). 
In procedural guidelines we issued in November 1985, we clarified that 
the paragraph B4 criterion would generally be fulfilled if there was 
documentation of ``three significant episodes of * * * decompensation, 
each of which is at least two weeks or longer, during the most recent 
adjudicative year.'' These guidelines also indicated that, ``[i]n 
circumstances in which the individual has more frequent but less marked 
(in terms of duration and effect) episodes of decompensation * * * 
medical judgment must be used to determine if the duration and effect 
are equivalent to that described above.''
    We provided these guidelines because we received questions about 
how to apply the paragraph B4 criterion, and because the questions led 
us to conclude that paragraph B4 was incomplete. Contrary to what some 
of the commenters believed, an individual with repeated, brief episodes 
of exacerbation of symptoms and signs will not necessarily be unable to 
work. For instance, an individual with an anxiety disorder and a job 
considered stressful even to individuals without mental disorders might 
stay home from work for a day or two at a time because of symptoms of 
anxiety on three or four occasions during the course of a year. Even 
though the individual has withdrawn from the stressful situation 
because of an increase in symptoms, he or she clearly would not have a 
listing-level degree of limitation in this area. Indeed, the individual 
would probably be able to continue to do the job and certainly would be 
able to do less stressful work, assuming he or she had no other 
limitations. After promulgating the prior rules, we also received 
questions about the frequency of episodes, such as whether three 
episodes separated by intervals of several years could satisfy the 
listing criterion. That clearly was not the intent of the criterion. 
These kinds of examples and questions illustrated to us the need for 
more specificity in the listing.
    In this regard, we believe that the standard of an average of three 
episodes in a year, or one every 4 months, lasting for 2 weeks each is 
reasonable for listing-level severity. If this standard is met or 
exceeded, it will establish that the paragraph B4 or C1 criteria are 
satisfied. Even if not met, it still serves as a measure of listing-
level severity against which other combinations of frequency and 
duration of episodes may be judged on an individual basis. This 
standard is intentionally set at a high level of severity to correspond 
to the ``marked'' degree of limitation required by the other three 
paragraph B criteria. It also permits us to confidently include at the 
listing level all individuals who manifest the criteria, regardless of 
the nature and severity of the stressors that cause their episodes of 
decompensation or the particular responses (e.g., withdrawal from the 
situation or hospitalization).
    Because the proposed rules and these final rules reflect procedures 
we have been following for more than 14 years, we have significant 
experience with the approach. We believe that this approach has not 
caused the problems predicted by the commenters, will not result in our 
denying more claims, and is not a ``tightening'' of the listings.
    Furthermore, although some individuals may satisfy the paragraph B4 
criterion and at least one other paragraph B criterion, not every 
individual will. For instance, one cannot assume that all individuals 
who withdraw from a stressful situation to avoid exacerbating their 
symptoms for a total of only 6 weeks in the course of a year have 
listing-level impairments; some may not be disabled at all.
    Finally, the criterion is consistent with the guidance in the third 
paragraph of proposed 12.00D (final 12.00D2). Rather, the criterion 
describes a special situation in which an individual's functioning 
varies considerably over time. An individual whose functioning is 
markedly limited more or less continuously when viewed on a 
longitudinal basis (that is, despite temporary variations in the level 
of functioning) would be evaluated under the first three of the 
paragraph B criteria. We intended the fourth criterion to evaluate the 
impairments of individuals who may function relatively well for 
relatively long periods between episodes of decompensation.
    Nevertheless, after we reviewed the comments on our proposed 
changes to the paragraph B4 and C1 criteria, we realized that we could 
have made the proposed rules more comprehensive. Therefore, we made 
several changes. We replaced the lengthy and repetitive proposed 
paragraph B4 and C1 criteria in each listing with the term, ``repeated 
episodes of decompensation, each of extended duration.'' We also added 
a definition of the term to the second paragraph of final 12.00C4. We 
define the term, using the proposed paragraph B4 and C1 criteria, as 
``an average of three episodes within 1 year, or once every 4 months, 
each lasting for at least 2 weeks.'' However, we go on to elaborate 
that judgment must be exercised to determine if episodes of differing 
frequency and duration are comparable in duration and effect to the 
stated criteria and may be substituted for the listed finding in a 
determination of equivalence. This expanded discussion provides for the 
assessment of individuals who have shorter but more frequent episodes, 
or less frequent but longer episodes. We added this discussion because 
it would not be feasible to specify every possible combination of 
frequency and duration of episodes, the level of stressors needed to 
cause exacerbations of an individual's symptoms or signs, and the 
severity of the individual's response. Thus, cases not satisfying the 
specific definition in 12.00C4 must be evaluated on an individualized 
basis using the principle of equivalence.
    In the final rules, we do not specify that the three episodes must 
have occurred during the year prior to adjudication. We now believe 
that to do so would impose an artificial requirement that would be 
based on the eventual date of adjudication, not the true course of the 
impairment. It could also cause unnecessarily complex decisions when 
individuals with adverse determinations appeal, because

[[Page 50771]]

there will be more than one date of adjudication in such cases. In 
addition, it would have made decisions on closed periods of disability 
more difficult to make.
    Unlike our prior regulations, we also do not state that there 
should be three ``or more'' episodes of decompensation. Since three 
episodes are sufficient to establish that the listing criterion is 
satisfied, it naturally follows that more than three episodes would 
also satisfy the criterion. More importantly, we want to convey the 
idea that more frequent episodes of decompensation may establish or 
even exceed listing-level severity, even without satisfying the 2-week 
duration requirement.
    The new second sentence of the first paragraph of final 12.00C4 
(described in an earlier comment and response) is also intended to 
respond in part to those commenters who were concerned about the 
documentation requirements for the paragraph B4 and C1 criteria, and 
the commenter who stated that we had not adequately described the 
qualitative aspects of these criteria. The sentence explains that 
episodes of decompensation may be demonstrated by an exacerbation in 
symptoms or signs that would ordinarily require increased treatment or 
a less stressful situation, or both. Other provisions in the final 
rules, already described, stress the need to consider all of the 
evidence in the record.
    Documenting the precise beginning and ending dates of each episode 
of decompensation is generally unnecessary. As a practical matter, 
sufficient information about these dates can be inferred from medical 
records that show significant alterations in medication or the need for 
other increased treatment, from treating sources statements, or from 
other documentation, including from family and other sources who know 
the individual, that shows the need for a more structured psychological 
support system. We believe that the changes in the final rules, 
together with our ongoing outreach activities, will assist individuals 
with mental impairments to obtain benefits if they are eligible for 
them, regardless of their economic status or the extent of their 
psychosocial support systems.
    Comment: One commenter questioned whether there would be any change 
in the way the paragraph B4 criterion is documented under the revised 
rules because the proposed paragraph B4 and C1 criteria were identical. 
The commenter noted that our operating guidelines for the prior rules 
indicated that the paragraph C1 criterion could be documented either in 
the same manner as the paragraph B4 criterion (i.e., with evidence 
substantiating the occurrence of the required episodes of 
decompensation) or with evidence showing that the disorder had 
``resulted in such marginal adjustment that any increase in mental 
demands or change in the environment would be predicted to cause'' 
episodes of decompensation.
    Response: We responded to the comment by expanding the paragraph C 
rules. The paragraph C criteria differ conceptually from the paragraph 
B criteria. The paragraph C criteria describe chronic mental disorders, 
i.e., disorders that have lasted for at least 2 years, in which there 
may be periods of remission of the individual's symptoms due to the 
effects of medication or psychosocial support with little or no 
improvement in the individual's capacity to function independently on a 
sustained basis. Individuals with such chronic mental disorders may 
experience a progressive change in mental functioning with each episode 
of deterioration or decompensation. This difference is reflected in the 
introductory statement of the paragraph C criteria, which requires the 
presence of a chronic mental disorder of at least 2 years' duration 
that has caused more than a minimal limitation in the ability to do 
basic work activities, with symptoms or signs currently attenuated by 
medication or psychosocial support.
    The paragraph B4 criterion assesses the significance of actual 
episodes of decompensation. A mental disorder need not be chronic to 
satisfy this criterion. However, there must be repeated exacerbations 
in the symptoms or signs, during which there is a loss of adaptive 
functioning. This loss of adaptive functioning is reflected by 
functional limitations in the areas described by the paragraph B1, B2, 
or B3 criteria, which individually need not satisfy the listing-level 
severity requirements.
    We did not change the documentation requirements for the paragraph 
B4 criterion under the final rules. Such documentation will continue to 
be derived from the longitudinal history of the disorder. As a result 
of this comment, however, we added another criterion to paragraph C of 
final listings 12.02, 12.03, and 12.04. This criterion, the final 
paragraph C2 criterion, specifically covers the situation described in 
our existing operating instructions: Individuals with chronic mental 
disorders who may not experience episodes of decompensation because 
their symptoms and signs are attenuated by medical treatment or 
psychosocial support, but whose adjustment is so marginal that any 
increased stress would be predicted to result in such episodes.
    In making this addition, we retained the paragraph C1 criterion. 
The paragraph C1 criterion is now reserved for individuals with chronic 
mental disorders who continue to experience repeated episodes of 
decompensation, even though their symptoms and signs may currently be 
attenuated by treatment. We also redesignated the proposed paragraph C2 
criterion as the final paragraph C3 criterion. This criterion covers 
individuals whose chronic mental disorders have resulted in an 
inability to function outside a highly supportive living arrangement 
for at least 1 year with an indication of continued need for such an 
arrangement.
    Comment: Many commenters favored our proposal to add paragraph C 
criteria to listings 12.02 (Organic mental disorders) and 12.04 
(Affective disorders). Other commenters urged us to add these criteria 
to all of the mental disorders listings that contain paragraph B 
criteria; one commenter singled out listing 12.09 (Substance addiction 
disorders). These commenters maintained that our logic for extending 
the criteria to listings 12.02 and 12.04, i.e., to ``facilitate the 
evaluation process for individuals with chronic disorders in these 
categories'' (56 FR at 33131), also applies to the other listings 
because any mental disorder has the potential for being long-term.
    Response: We did not adopt the comments. We agree that the 
disorders covered by listings 12.07 (Somatoform disorders), 12.08 
(Personality disorders), and 12.09 can become chronic, but they 
generally do not present the same clinical picture as chronic disorders 
covered by listings with paragraph C criteria. Therefore, the disorders 
under these listings would probably not meet the paragraph C criteria, 
and we believe that adding such criteria to final listings 12.07, 
12.08, and 12.09 is unnecessary. We also believe that including 
paragraph C criteria in listing 12.10 is unnecessary. Manifestations of 
autistic and other pervasive developmental disorders are almost always 
lifelong, and chronicity is generally not an issue. In the rare event 
that a disorder covered by listing 12.07, 12.08, 12.09, or 12.10 does 
not satisfy the paragraph B criteria but presents functional 
limitations of the severity described by the paragraph C criteria of 
the other listings, we can make a determination of medical equivalence.
    Comment: Two commenters presented differing views on the 
requirements of the criteria in proposed paragraph C of listings 12.02, 
12.03, and

[[Page 50772]]

12.04. One of the commenters questioned the need for the paragraph C1 
criterion and suggested that we make the paragraph C2 criterion a 
stand-alone criterion. This commenter said that any impairment(s) that 
satisfies the introductory statement of the paragraph C criteria (by 
virtue of a 2-year history of an interference ``with basic work 
activity'') and the paragraph C1 criterion (resulting in repeated 
episodes of decompensation) would also satisfy the paragraph B3 and B4 
criteria. Therefore, the commenter considered the paragraph C1 
criterion superfluous because the fifth sentence of the first paragraph 
of 12.00A requires us to assess the mental impairment(s) under the 
paragraph B criteria before we apply the paragraph C criteria. In 
addition, the commenter stated that the paragraph C2 criterion need not 
be linked to the introductory paragraph, as the criterion's requirement 
for a ``[c]urrent history of 1 or more years' inability to function 
outside a highly supportive living arrangement with an indication of 
continued need for such arrangement'' is, by itself, a sufficient 
predictor of inability to work.
    The other commenter commended us for our proposal to change the 
time requirement in the paragraph C2 criterion from 2 years to 1 year. 
The commenter believed that 1 year's duration for a highly supportive 
living arrangement together with an indication for its continued need 
is sufficient to demonstrate an inability to work.
    Response: We believe there is a continued need for the paragraph C1 
criterion. As we have already noted, the paragraph C1 criterion 
consists of two parts: An introductory statement requiring a medically 
documented history of a chronic mental disorder ``of at least 2 years'' 
duration that has caused more than a minimal limitation of ability to 
do any basic work activity, with symptoms or signs currently attenuated 
by medication or psychosocial support''; and a paragraph requiring 
repeated episodes of decompensation. Thus, while an individual 
satisfying the paragraph C1 criterion will also satisfy the paragraph 
B4 criterion, the paragraph B3 criterion's requirement for ``marked 
difficulties in completing tasks in a timely manner'' may not be 
satisfied.
    Also, we do not agree that the proposed paragraph C2 criterion (the 
final paragraph C3 criterion) should be a stand-alone criterion, 
separate from the introductory paragraph. We include the 2-year 
requirement in the introductory paragraph of the paragraph C criteria 
because the alternative functional criteria are used to facilitate the 
evaluation of claims of individuals who, at the time of adjudication, 
already have chronic mental disorders. In such individuals, the more 
obvious symptoms of their chronic mental disorders may be lessened or 
attenuated by medication or psychosocial support, but the individuals 
remain disabled because the symptoms and signs of their impairments 
will return when they encounter stressful circumstances or leave their 
supportive or supervised environments. The 2-year time requirement in 
the introductory paragraph is taken from the DSM-III-R's definition of 
a chronic mental disorder. We will evaluate individuals who do not have 
chronic mental disorders under the paragraph B criteria.
    We appreciate the favorable comment concerning our proposed 
modification to the prior paragraph C2 criterion. We proposed this 
change to better reflect the original intent of this criterion, which 
describes chronic mental disorders that have resulted in the need for 
structured environments to minimize stress and reduce overt 
symptomatology. We believe that a chronic mental disorder that has 
lasted at least 2 years and that results in a current history of 
inability to function outside a highly supportive environment for at 
least 1 year, with an indication of the continued need for such an 
arrangement, satisfies our definition of disability.

12.05  Mental Retardation

    Comment: One commenter viewed the second paragraph of proposed 
listing 12.05 as requiring evidence of intelligence testing prior to 
age 18. The commenter offered several arguments why this would be 
difficult for adults to establish and why it would be preferable to use 
more recent information.
    Response: We adopted the comment. We did not intend the second 
paragraph of proposed listing 12.05 to require intelligence testing (or 
other contemporary evidence) prior to age 18, but we believe that the 
proposed listing could be misinterpreted, even though it was the same 
as in the prior rules. The proposed listing, as in the prior rules, 
stated that the significantly subaverage general intellectual 
functioning with deficits in adaptive behavior must have been initially 
``manifested'' during the developmental period. We have always 
interpreted this word to include the common clinical practice of 
inferring a diagnosis of mental retardation when the longitudinal 
history and evidence of current functioning demonstrate that the 
impairment existed before the end of the developmental period. 
Nevertheless, we also can see that the rule was ambiguous. Therefore, 
we expanded the phrase setting out the age limit to read: ``i.e., the 
evidence demonstrates or supports onset of the impairment before age 
22.''
    Comment: One commenter objected to our proposed insertion of the 
word ``an'' before ``additional and significant work-related limitation 
of function'' in proposed listing 12.05C and urged us to remove the 
word. The inclusion of the word ``an,'' the commenter said, ``could be 
read to mean that there must be at least one additional factor which in 
itself imposes significant work-related limitation of function''; prior 
listing 12.05C could ``be read to include additional limitations caused 
by a number of factors, some of which might not be significant standing 
alone.''
    Response: We did not adopt the comment. We inserted the word ``an'' 
in listing 12.05C to clarify this rule. We always have intended that 
there be a separate physical or mental impairment apart from the 
claimant's mental retardation that imposes an additional and 
significant work-related limitation of function.
    In addition, the comment made us realize that the phrase 
``significant work-related limitation of function'' might not be clear. 
We always have intended the phrase to mean that the other impairment is 
a ``severe'' impairment, as defined in Secs. 404.1520(c) and 
416.920(c). We have explained this policy previously in our training 
manuals, in Social Security Ruling 98-1p, and in Social Security 
Acquiescence Ruling (AR) 98-2(8). Therefore, in response to this 
comment, we revised the fourth paragraph of final 12.00A, which 
explains how we assess the functional limitations of an additional 
impairment under listing 12.05C. The revised paragraph states that we 
will assess the degree of functional limitation the additional 
impairment imposes to determine if it significantly limits an 
individual's physical or mental ability to do basic work activities; 
``i.e., is a `severe' impairment(s), as defined in Secs. 404.1520(c) 
and 416.920(c).''
    Sections 404.1520(c) and 416.920(c) note that we must base our 
assessment of whether an impairment is severe on the limitations that 
the impairment imposes on the individual's physical and mental 
abilities to do basic work activities. When we do this, we do not 
consider factors such as the individual's age, education, or past work 
experience. Thus, although the other impairment in listing 12.05C may 
not prevent the individual from doing his or her past work, it may 
still cause an ``additional

[[Page 50773]]

and significant work-related limitation of function.'' Conversely, if 
the other impairment prevents the individual from doing his or her past 
work because of the unique features of that work, but does not 
significantly limit the individual's ability to do basic work 
activities, we will find that the impairment does not satisfy the 
``additional and significant work-related limitation of function'' 
requirement in listing 12.05C.
    We make this point because the term ``significant work-related 
limitation of function'' was an issue in Branham v. Heckler, 775 F.2d 
1271 (4th Cir. 1985) and Flowers v. U.S. Department of Health and Human 
Services, 904 F.2d 211 (4th Cir. 1990). We issued an acquiescence 
ruling, AR 92-3(4) (57 FR 8463), partially replaced by AR 93-1(4) (58 
FR 25996), to explain our policies and how we would apply the holdings 
of the United States Court of Appeals for the Fourth Circuit in these 
cases. Similarly, as a result of Sird v. Chater, 105 F.3d 401 (8th Cir. 
1997), which also addressed this issue, we issued an acquiescence 
ruling, AR 98-2(8) (63 FR 9279), to explain our policies and how we 
would apply the holding of the United States Court of Appeals for the 
Eighth Circuit in this case. We believe that these final rules 
sufficiently clarify the regulations at issue in the Fourth Circuit 
holdings in Branham and Flowers, and the Eighth Circuit holding in 
Sird, discussed above. Therefore, we are rescinding AR 92-3(4), AR 93-
1(4), and AR 98-2(8) under the authority of 20 CFR 404.985(e)(4) and 
416.1485(e)(4) concurrently with the effective date of these 
regulations.
    Comment: One commenter questioned the applicability of paragraphs 
D4 and E4 in proposed listing 12.05. The commenter expressed concern 
that these paragraphs, which are identical to the paragraph B4 
criterion for episodes of decompensation in the other listings, are not 
applicable to individuals with the impairments described in listing 
12.05. The commenter pointed out that there is no reference to 
decompensation in the DSM-III-R's discussion of these disorders and 
that the term ``decompensation'' does not really apply to these 
disorders.
    Response: We did not adopt the comment. The criteria in paragraph 
D4 of final listing 12.05 and paragraph B4 of final listing 12.10 take 
into account behavioral manifestations that could occur in individuals 
who have mental retardation or autistic disorder or other pervasive 
developmental disorders under our definition of ``decompensation'' in 
final 12.00C4. Individuals with these disorders usually have their 
lives structured to minimize stressful circumstances. When there are 
disruptions in their environments, their level of adaptive functioning 
may temporarily worsen. Moreover, even if the criterion will rarely 
apply to such individuals, retaining it only provides another method by 
which such individuals can establish that their impairments ``meet'' 
the listing. Retaining it also maintains consistency among all of the 
listings that include ``paragraph B'' criteria.
    Comment: One commenter thought that proposed listing 12.05E, for 
autistic disorder and other pervasive developmental disorders, was 
ambiguous. The commenter said that the difference between it and 
listing 12.05A was not readily apparent.
    Response: We accommodated this comment by deleting proposed listing 
12.05E from the final rules and establishing a new listing 12.10, 
``Autistic disorder and other pervasive developmental disorders.'' 
Final listing 12.05 is now for mental retardation only. When we 
originally included autism in listing 12.05, August 28, 1985 (50 FR 
35050), our rationale was that both mental retardation and autism ``are 
developmental disabilities and the vast majority of autistic people 
have subnormal scores on intelligence testing.'' We included wording in 
the 1985 publication of listing 12.05D ``to address autistic 
individuals who do not have reduced IQ's.'' This wording caused some 
confusion, which we attempted to redress through a technical revision 
to listing 12.05D when we published the revised childhood mental 
disorders listings on December 12, 1990 (55 FR 51230). We further 
attempted to clarify the distinction in the proposed listings 12.05D 
and E. However, the comment indicates this still did not resolve the 
issue.
    As a result, we decided to establish separate listings for these 
disorders consistent with the structure of the childhood mental 
disorders listings. Final listings 12.05 and 12.10 parallel listings 
112.05 and 112.10 and therefore also further our efforts to maintain 
consistency between the adult and childhood mental disorders listings. 
Although many individuals diagnosed with autistic disorder or other 
pervasive developmental disorders may have an associated diagnosis of 
mental retardation, establishing separate listings for these disorders 
in the adult mental disorders listings, as in the childhood mental 
disorders listings, will eliminate the ambiguity of proposed listing 
12.05 and more easily allow for individualized assessments of such 
cases.
    We also modified the two introductory paragraphs of listing 12.05, 
as well as the fourth paragraph of 12.00A, to reflect the fact that 
final listing 12.05 contains only the diagnostic category of mental 
retardation.

Other Comments

General Comments

    Comment: We received many favorable comments on the proposed rules. 
Some of the commenters identified specific aspects of the proposals 
that they endorsed as improvements. Other commenters, without naming 
specific portions of the proposals, stated that the proposals would 
clarify and improve the adjudicative process.
    Response: The endorsement of general or specific aspects of the 
proposals was very useful in the development of the final rules. These 
comments, coupled with the constructive recommendations received from 
other commenters, helped us determine the nature and scope of the 
changes that we needed to make to the proposed rules.

Extend the Comment Period

    Comment: One commenter requested that we extend the time period for 
commenting on the NPRM for an additional 2 months. The commenter was 
concerned that people would be deterred from commenting on the 
proposals because we published them during the summer, when most 
vacations take place, and we provided only a 60-day comment period.
    Response: We usually provide 60-day comment periods on our proposed 
rules. Experience has shown that this is generally a sufficient period 
of time to afford people the opportunity to comment on proposed rules, 
even rules published during the summer. Moreover, in light of the fact 
that we received over 100 separate letters, it was apparent that the 
public was aware of the NPRM. Thus, we did not extend the 60-day 
comment period.

Multiple Personality Disorder

    Comment: One commenter asked us to include a separate listing 
category for multiple personality disorder because it is a 
dissociative, rather than a personality, disorder and there were no 
criteria for it in the proposed listings. The commenter noted that this 
disorder is more common than once thought. Based on personal 
experience, the commenter believed it is at least as common as severe 
tic disorders.
    Response: We did not adopt the comment. As we have stated above, 
the

[[Page 50774]]

adult mental disorders listings are not intended to be all-inclusive, 
but are designed to provide examples of some of the most common major 
mental disorders. This does not mean that an individual with an 
unlisted mental impairment(s) cannot be evaluated using these listing 
criteria. Such an individual may be found disabled if his or her 
impairment(s) is found to be medically equivalent in severity to a 
listed impairment. Disability may also be found at subsequent steps of 
the sequential evaluation process.

Workload, Staffing, and Training

    Comment: One commenter believed the proposed rules would increase 
workloads and require either increased staffing or result in decreased 
productivity. The commenter said that State agencies will need 
considerable lead time to develop and provide training to disability 
examiners and medical consultants. The commenter also said that we, in 
conjunction with the State agencies, will need to develop materials to 
inform the medical community, the public, and advocacy groups about 
these changes.
    Response: We do not believe that the final rules will cause 
increased workloads or necessitate increased staffing. The final rules 
contain relatively few major changes and should be easier to use 
because they include more guidelines than the prior rules and are 
clearer and simpler. Therefore, they should not impact adversely on 
decisionmakers. We believe the improvements in the revised rules will 
quickly offset any temporary decline in productivity that might occur 
as adjudicators become familiar with them.
    With any regulatory change, we consider whether there is a need for 
training and public information. We have already developed, with 
assistance from some State agencies, training and public information 
materials to accompany these final rules. We do not believe, however, 
that the relatively few major changes contained in these rules require 
the kind of training and outreach suggested by the commenter.

Research

    Comment: One commenter suggested that we engage in new research 
endeavors to provide a wider empirical base from which we can draw for 
policy and programmatic decisions. The commenter recommended several 
possible studies.
    Response: We will consider the suggestions made by the commenter as 
we develop future research proposals.

Electronic Versions

    The electronic file of this document is available on the internet 
at http://www.access.gpo.gov/su_docs/aces/aces140.html. It is also 
available on the internet site for SSA (i.e., ``SSA Online'') at http://www.ssa.gov/.

Regulatory Procedures

Executive Order 12866

    The Office of Management and Budget (OMB) has reviewed these final 
in accordance with Executive Order (E.O.) 12866.

Regulatory Flexibility Act

    We certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because they 
affect only individuals' eligibility for program benefits under the 
Act. Therefore, a regulatory flexibility analysis as provided in the 
Regulatory Flexibility Act, as amended, is not required.

Paperwork Reduction Act

    These final regulations will impose no new reporting or 
recordkeeping requirements requiring clearance by the Office of 
Management and Budget (OMB). SSA has OMB clearance to collect 
information in claims evaluated under part A of the Listings, using 
form SSA-2506-BK, Psychiatric Review Technique (OMB No. 0960-0413). 
Organizations or individuals desiring to submit comments on this 
information collection requirement should direct them to the Social 
Security Administration, 6401 Security Boulevard, Baltimore, MD 21235, 
Attention: Reports Clearance Officer, 1-A-21 Operations Building, and 
to the Office of Information and Regulatory Affairs, OMB, New Executive 
Office Building, Room 3208, Washington, D.C. 20503, Attention: Desk 
Officer for SSA.

(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social 
Security--Disability Insurance; 96.002 Social Security--Retirement 
Insurance; 96.004 Social Security--Survivors Insurance; 96.006 
Supplemental Security Income)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, 
Old-Age, Survivors, and Disability Insurance, Reporting and 
recordkeeping requirements, Social Security.

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Supplemental Security Income 
(SSI), Reporting and recordkeeping requirements.

    Dated: April 5, 2000.
Kenneth S. Apfel,
Commissioner of Social Security.

    For the reasons set forth in the preamble chapter III of title 20 
of the Code of Federal Regulations is amended as set forth below.

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950-  )

Subpart P--Determining Disability and Blindness

    1. The authority citation for subpart P of part 404 continues to 
read as follows:

    Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a) 
and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act 
(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i), 
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 
Stat. 2105, 2189.


    2. Section 404.1520a is revised to read as follows:


Sec. 404.1520a  Evaluation of mental impairments.

    (a) General. The steps outlined in Sec. 404.1520 apply to the 
evaluation of physical and mental impairments. In addition, when we 
evaluate the severity of mental impairments for adults (persons age 18 
and over) and in persons under age 18 when Part A of the Listing of 
Impairments is used, we must follow a special technique at each level 
in the administrative review process. We describe this special 
technique in paragraphs (b) through (e) of this section. Using the 
technique helps us:
    (1) Identify the need for additional evidence to determine 
impairment severity;
    (2) Consider and evaluate functional consequences of the mental 
disorder(s) relevant to your ability to work; and
    (3) Organize and present our findings in a clear, concise, and 
consistent manner.
    (b) Use of the technique. (1) Under the special technique, we must 
first evaluate your pertinent symptoms, signs, and laboratory findings 
to determine whether you have a medically determinable mental 
impairment(s). See Sec. 404.1508 for more information about what is 
needed to show a medically determinable impairment. If we determine 
that you have a medically determinable mental impairment(s), we must 
specify the symptoms, signs, and laboratory findings that substantiate 
the presence of the impairment(s) and document our

[[Page 50775]]

findings in accordance with paragraph (e) of this section.
    (2) We must then rate the degree of functional limitation resulting 
from the impairment(s) in accordance with paragraph (c) of this section 
and record our findings as set out in paragraph (e) of this section.
    (c) Rating the degree of functional limitation. (1) Assessment of 
functional limitations is a complex and highly individualized process 
that requires us to consider multiple issues and all relevant evidence 
to obtain a longitudinal picture of your overall degree of functional 
limitation. We will consider all relevant and available clinical signs 
and laboratory findings, the effects of your symptoms, and how your 
functioning may be affected by factors including, but not limited to, 
chronic mental disorders, structured settings, medication, and other 
treatment.
    (2) We will rate the degree of your functional limitation based on 
the extent to which your impairment(s) interferes with your ability to 
function independently, appropriately, effectively, and on a sustained 
basis. Thus, we will consider such factors as the quality and level of 
your overall functional performance, any episodic limitations, the 
amount of supervision or assistance you require, and the settings in 
which you are able to function. See 12.00C through 12.00H of the 
Listing of Impairments in appendix 1 to this subpart for more 
information about the factors we consider when we rate the degree of 
your functional limitation.
    (3) We have identified four broad functional areas in which we will 
rate the degree of your functional limitation: Activities of daily 
living; social functioning; concentration, persistence, or pace; and 
episodes of decompensation. See 12.00C of the Listing of Impairments.
    (4) When we rate the degree of limitation in the first three 
functional areas (activities of daily living; social functioning; and 
concentration, persistence, or pace), we will use the following five-
point scale: None, slight, moderate, marked, and extreme. When we rate 
the degree of limitation in the fourth functional area (episodes of 
decompensation), we will use the following four-point scale: None, one 
or two, three, four or more. The last point on each scale represents a 
degree of limitation that is incompatible with the ability to do any 
gainful activity.
    (d) Use of the technique to evaluate mental impairments. After we 
rate the degree of functional limitation resulting from your 
impairment(s), we will determine the severity of your mental 
impairment(s).
    (1) If we rate the degree of your limitation in the first three 
functional areas as ``none'' or ``mild'' and ``none'' in the fourth 
area, we will generally conclude that your impairment(s) is not severe, 
unless the evidence otherwise indicates that there is more than a 
minimal limitation in your ability to do basic work activities (see 
Sec. 404.1521).
    (2) If your mental impairment(s) is severe, we will then determine 
if it meets or is equivalent in severity to a listed mental disorder. 
We do this by comparing the medical findings about your impairment(s) 
and the rating of the degree of functional limitation to the criteria 
of the appropriate listed mental disorder. We will record the presence 
or absence of the criteria and the rating of the degree of functional 
limitation on a standard document at the initial and reconsideration 
levels of the administrative review process, or in the decision at the 
administrative law judge hearing and Appeals Council levels (in cases 
in which the Appeals Council issues a decision). See paragraph (e) of 
this section.
    (3) If we find that you have a severe mental impairment(s) that 
neither meets nor is equivalent in severity to any listing, we will 
then assess your residual functional capacity.
    (e) Documenting application of the technique. At the initial and 
reconsideration levels of the administrative review process, we will 
complete a standard document to record how we applied the technique. At 
the administrative law judge hearing and Appeals Council levels (in 
cases in which the Appeals Council issues a decision), we will document 
application of the technique in the decision.
    (1) At the initial and reconsideration levels, except in cases in 
which a disability hearing officer makes the reconsideration 
determination, our medical or psychological consultant has overall 
responsibility for assessing medical severity. The disability examiner, 
a member of the adjudicative team (see Sec. 404.1615), may assist in 
preparing the standard document. However, our medical or psychological 
consultant must review and sign the document to attest that it is 
complete and that he or she is responsible for its content, including 
the findings of fact and any discussion of supporting evidence. When a 
disability hearing officer makes a reconsideration determination, the 
determination must document application of the technique, incorporating 
the disability hearing officer's pertinent findings and conclusions 
based on this technique.
    (2) At the administrative law judge hearing and Appeals Council 
levels, the written decision issued by the administrative law judge or 
Appeals Council must incorporate the pertinent findings and conclusions 
based on the technique. The decision must show the significant history, 
including examination and laboratory findings, and the functional 
limitations that were considered in reaching a conclusion about the 
severity of the mental impairment(s). The decision must include a 
specific finding as to the degree of limitation in each of the 
functional areas described in paragraph (c) of this section.
    (3) If the administrative law judge requires the services of a 
medical expert to assist in applying the technique but such services 
are unavailable, the administrative law judge may return the case to 
the State agency or the appropriate Federal component, using the rules 
in Sec. 404.941, for completion of the standard document. If, after 
reviewing the case file and completing the standard document, the State 
agency or Federal component concludes that a determination favorable to 
you is warranted, it will process the case using the rules found in 
Sec. 404.941(d) or (e). If, after reviewing the case file and 
completing the standard document, the State agency or Federal component 
concludes that a determination favorable to you is not warranted, it 
will send the completed standard document and the case to the 
administrative law judge for further proceedings and a decision.

    3. Section 404.1528 is amended by revising the third sentence of 
paragraph (b) to read as follows:


Sec. 404.1528  Symptoms, signs, and laboratory findings.

* * * * *
    (b) * * * Psychiatric signs are medically demonstrable phenomena 
that indicate specific psychological abnormalities, e.g., abnormalities 
of behavior, mood, thought, memory, orientation, development, or 
perception. * * *
* * * * *

    4. Part A of appendix 1 to subpart P is amended as follows:
    a. The introductory text of 5.00, Digestive System, is amended by 
removing the last sentence of paragraph B.
    b. The introductory text of 11.00, Neurological, is amended by 
adding a new paragraph F immediately before listing 11.01.
    c. The introductory text of 12.00, Mental Disorders, including 
paragraphs A through I, is revised.

[[Page 50776]]

    d. Listing 12.02 is amended by revising the second introductory 
paragraph and paragraphs B3 and B4, and adding a new paragraph C.
    e. Listing 12.03 is amended by revising paragraphs B3, B4, and C.
    f. Listing 12.04 is amended by revising the second introductory 
paragraph and paragraphs B3 and B4, and adding a new paragraph C.
    g. Listing 12.05 is amended by revising the first paragraph, 
paragraph C, paragraph D introductory text, and paragraphs D3 and D4.
    h. Listing 12.06 is amended by revising paragraphs B3 and B4.
    i. Listing 12.07 is amended by revising paragraph B introductory 
text, and paragraphs B3 and B4.
    j. Listing 12.08 is amended by revising paragraph B introductory 
text, and paragraphs B3 and B4.
    k. Listing 12.10 is added.
    The revisions and additions read as follows:

Appendix 1 to Subpart P of Part 404--Listing of Impairments

* * * * *

Part A

* * * * *

11.00  Neurological

* * * * *
    F. Traumatic brain injury (TBI). The guidelines for evaluating 
impairments caused by cerebral trauma are contained in 11.18. 
Listing 11.18 states that cerebral trauma is to be evaluated under 
11.02, 11.03, 11.04, and 12.02, as applicable.
    TBI may result in neurological and mental impairments with a 
wide variety of posttraumatic symptoms and signs. The rate and 
extent of recovery can be highly variable and the long-term outcome 
may be difficult to predict in the first few months post-injury. 
Generally, the neurological impairment(s) will stabilize more 
rapidly than any mental impairment(s). Sometimes a mental impairment 
may appear to improve immediately following TBI and then worsen, or, 
conversely, it may appear much worse initially but improve after a 
few months. Therefore, the mental findings immediately following TBI 
may not reflect the actual severity of your mental impairment(s). 
The actual severity of a mental impairment may not become apparent 
until 6 months post-injury.
    In some cases, evidence of a profound neurological impairment is 
sufficient to permit a finding of disability within 3 months post-
injury. If a finding of disability within 3 months post-injury is 
not possible based on any neurological impairment(s), we will defer 
adjudication of the claim until we obtain evidence of your 
neurological or mental impairments at least 3 months post-injury. If 
a finding of disability still is not possible at that time, we will 
again defer adjudication of the claim until we obtain evidence at 
least 6 months post-injury. At that time, we will fully evaluate any 
neurological and mental impairments and adjudicate the claim.
* * * * *

12.00  Mental Disorders

    A. Introduction. The evaluation of disability on the basis of 
mental disorders requires documentation of a medically determinable 
impairment(s), consideration of the degree of limitation such 
impairment(s) may impose on your ability to work, and consideration 
of whether these limitations have lasted or are expected to last for 
a continuous period of at least 12 months. The listings for mental 
disorders are arranged in nine diagnostic categories: Organic mental 
disorders (12.02); schizophrenic, paranoid and other psychotic 
disorders (12.03); affective disorders (12.04); mental retardation 
(12.05); anxiety-related disorders (12.06); somatoform disorders 
(12.07); personality disorders (12.08); substance addiction 
disorders (12.09); and autistic disorder and other pervasive 
developmental disorders (12.10). Each listing, except 12.05 and 
12.09, consists of a statement describing the disorder(s) addressed 
by the listing, paragraph A criteria (a set of medical findings), 
and paragraph B criteria (a set of impairment-related functional 
limitations). There are additional functional criteria (paragraph C 
criteria) in 12.02, 12.03, 12.04, and 12.06, discussed herein. We 
will assess the paragraph B criteria before we apply the paragraph C 
criteria. We will assess the paragraph C criteria only if we find 
that the paragraph B criteria are not satisfied. We will find that 
you have a listed impairment if the diagnostic description in the 
introductory paragraph and the criteria of both paragraphs A and B 
(or A and C, when appropriate) of the listed impairment are 
satisfied.
    The criteria in paragraph A substantiate medically the presence 
of a particular mental disorder. Specific symptoms, signs, and 
laboratory findings in the paragraph A criteria of any of the 
listings in this section cannot be considered in isolation from the 
description of the mental disorder contained at the beginning of 
each listing category. Impairments should be analyzed or reviewed 
under the mental category(ies) indicated by the medical findings. 
However, we may also consider mental impairments under physical body 
system listings, using the concept of medical equivalence, when the 
mental disorder results in physical dysfunction. (See, for instance, 
12.00D12 regarding the evaluation of anorexia nervosa and other 
eating disorders.)
    The criteria in paragraphs B and C describe impairment-related 
functional limitations that are incompatible with the ability to do 
any gainful activity. The functional limitations in paragraphs B and 
C must be the result of the mental disorder described in the 
diagnostic description, that is manifested by the medical findings 
in paragraph A.
    The structure of the listing for mental retardation (12.05) is 
different from that of the other mental disorders listings. Listing 
12.05 contains an introductory paragraph with the diagnostic 
description for mental retardation. It also contains four sets of 
criteria (paragraphs A through D). If your impairment satisfies the 
diagnostic description in the introductory paragraph and any one of 
the four sets of criteria, we will find that your impairment meets 
the listing. Paragraphs A and B contain criteria that describe 
disorders we consider severe enough to prevent your doing any 
gainful activity without any additional assessment of functional 
limitations. For paragraph C, we will assess the degree of 
functional limitation the additional impairment(s) imposes to 
determine if it significantly limits your physical or mental ability 
to do basic work activities, i.e., is a ``severe'' impairment(s), as 
defined in Secs. 404.1520(c) and 416.920(c). If the additional 
impairment(s) does not cause limitations that are ``severe'' as 
defined in Secs. 404.1520(c) and 416.920(c), we will not find that 
the additional impairment(s) imposes ``an additional and significant 
work-related limitation of function,'' even if you are unable to do 
your past work because of the unique features of that work. 
Paragraph D contains the same functional criteria that are required 
under paragraph B of the other mental disorders listings.
    The structure of the listing for substance addiction disorders, 
12.09, is also different from that for the other mental disorder 
listings. Listing 12.09 is structured as a reference listing; that 
is, it will only serve to indicate which of the other listed mental 
or physical impairments must be used to evaluate the behavioral or 
physical changes resulting from regular use of addictive substances.
    The listings are so constructed that an individual with an 
impairment(s) that meets or is equivalent in severity to the 
criteria of a listing could not reasonably be expected to do any 
gainful activity. These listings are only examples of common mental 
disorders that are considered severe enough to prevent an individual 
from doing any gainful activity. When you have a medically 
determinable severe mental impairment that does not satisfy the 
diagnostic description or the requirements of the paragraph A 
criteria of the relevant listing, the assessment of the paragraph B 
and C criteria is critical to a determination of equivalence.
    If your impairment(s) does not meet or is not equivalent in 
severity to the criteria of any listing, you may or may not have the 
residual functional capacity (RFC) to do substantial gainful 
activity (SGA). The determination of mental RFC is crucial to the 
evaluation of your capacity to do SGA when your impairment(s) does 
not meet or equal the criteria of the listings, but is nevertheless 
severe.
    RFC is a multidimensional description of the work-related 
abilities you retain in spite of your medical impairments. An 
assessment of your RFC complements the functional evaluation 
necessary for paragraphs B and C of the listings by requiring 
consideration of an expanded list of work-related capacities that 
may be affected by mental disorders when your impairment(s) is 
severe but neither meets nor is equivalent in severity to a listed 
mental disorder.
    B. Need for medical evidence. We must establish the existence of 
a medically determinable impairment(s) of the required duration by 
medical evidence consisting of

[[Page 50777]]

symptoms, signs, and laboratory findings (including psychological 
test findings). Symptoms are your own description of your physical 
or mental impairment(s). Psychiatric signs are medically 
demonstrable phenomena that indicate specific psychological 
abnormalities, e.g., abnormalities of behavior, mood, thought, 
memory, orientation, development, or perception, as described by an 
appropriate medical source. Symptoms and signs generally cluster 
together to constitute recognizable mental disorders described in 
the listings. The symptoms and signs may be intermittent or 
continuous depending on the nature of the disorder.
    C. Assessment of severity. We measure severity according to the 
functional limitations imposed by your medically determinable mental 
impairment(s). We assess functional limitations using the four 
criteria in paragraph B of the listings: Activities of daily living; 
social functioning; concentration, persistence, or pace; and 
episodes of decompensation. Where we use ``marked'' as a standard 
for measuring the degree of limitation, it means more than moderate 
but less than extreme. A marked limitation may arise when several 
activities or functions are impaired, or even when only one is 
impaired, as long as the degree of limitation is such as to 
interfere seriously with your ability to function independently, 
appropriately, effectively, and on a sustained basis. See 
Secs. 404.1520a and 416.920a.
    1. Activities of daily living include adaptive activities such 
as cleaning, shopping, cooking, taking public transportation, paying 
bills, maintaining a residence, caring appropriately for your 
grooming and hygiene, using telephones and directories, and using a 
post office. In the context of your overall situation, we assess the 
quality of these activities by their independence, appropriateness, 
effectiveness, and sustainability. We will determine the extent to 
which you are capable of initiating and participating in activities 
independent of supervision or direction.
    We do not define ``marked'' by a specific number of different 
activities of daily living in which functioning is impaired, but by 
the nature and overall degree of interference with function. For 
example, if you do a wide range of activities of daily living, we 
may still find that you have a marked limitation in your daily 
activities if you have serious difficulty performing them without 
direct supervision, or in a suitable manner, or on a consistent, 
useful, routine basis, or without undue interruptions or 
distractions.
    2. Social functioning refers to your capacity to interact 
independently, appropriately, effectively, and on a sustained basis 
with other individuals. Social functioning includes the ability to 
get along with others, such as family members, friends, neighbors, 
grocery clerks, landlords, or bus drivers. You may demonstrate 
impaired social functioning by, for example, a history of 
altercations, evictions, firings, fear of strangers, avoidance of 
interpersonal relationships, or social isolation. You may exhibit 
strength in social functioning by such things as your ability to 
initiate social contacts with others, communicate clearly with 
others, or interact and actively participate in group activities. We 
also need to consider cooperative behaviors, consideration for 
others, awareness of others' feelings, and social maturity. Social 
functioning in work situations may involve interactions with the 
public, responding appropriately to persons in authority (e.g., 
supervisors), or cooperative behaviors involving coworkers.
    We do not define ``marked'' by a specific number of different 
behaviors in which social functioning is impaired, but by the nature 
and overall degree of interference with function. For example, if 
you are highly antagonistic, uncooperative, or hostile but are 
tolerated by local storekeepers, we may nevertheless find that you 
have a marked limitation in social functioning because that behavior 
is not acceptable in other social contexts.
    3. Concentration, persistence, or pace refers to the ability to 
sustain focused attention and concentration sufficiently long to 
permit the timely and appropriate completion of tasks commonly found 
in work settings. Limitations in concentration, persistence, or pace 
are best observed in work settings, but may also be reflected by 
limitations in other settings. In addition, major limitations in 
this area can often be assessed through clinical examination or 
psychological testing. Wherever possible, however, a mental status 
examination or psychological test data should be supplemented by 
other available evidence.
    On mental status examinations, concentration is assessed by 
tasks such as having you subtract serial sevens or serial threes 
from 100. In psychological tests of intelligence or memory, 
concentration is assessed through tasks requiring short-term memory 
or through tasks that must be completed within established time 
limits.
    In work evaluations, concentration, persistence, or pace is 
assessed by testing your ability to sustain work using appropriate 
production standards, in either real or simulated work tasks (e.g., 
filing index cards, locating telephone numbers, or disassembling and 
reassembling objects). Strengths and weaknesses in areas of 
concentration and attention can be discussed in terms of your 
ability to work at a consistent pace for acceptable periods of time 
and until a task is completed, and your ability to repeat sequences 
of action to achieve a goal or an objective.
    We must exercise great care in reaching conclusions about your 
ability or inability to complete tasks under the stresses of 
employment during a normal workday or work week based on a time-
limited mental status examination or psychological testing by a 
clinician, or based on your ability to complete tasks in other 
settings that are less demanding, highly structured, or more 
supportive. We must assess your ability to complete tasks by 
evaluating all the evidence, with an emphasis on how independently, 
appropriately, and effectively you are able to complete tasks on a 
sustained basis.
    We do not define ``marked'' by a specific number of tasks that 
you are unable to complete, but by the nature and overall degree of 
interference with function. You may be able to sustain attention and 
persist at simple tasks but may still have difficulty with 
complicated tasks. Deficiencies that are apparent only in performing 
complex procedures or tasks would not satisfy the intent of this 
paragraph B criterion. However, if you can complete many simple 
tasks, we may nevertheless find that you have a marked limitation in 
concentration, persistence, or pace if you cannot complete these 
tasks without extra supervision or assistance, or in accordance with 
quality and accuracy standards, or at a consistent pace without an 
unreasonable number and length of rest periods, or without undue 
interruptions or distractions.
    4. Episodes of decompensation are exacerbations or temporary 
increases in symptoms or signs accompanied by a loss of adaptive 
functioning, as manifested by difficulties in performing activities 
of daily living, maintaining social relationships, or maintaining 
concentration, persistence, or pace. Episodes of decompensation may 
be demonstrated by an exacerbation in symptoms or signs that would 
ordinarily require increased treatment or a less stressful situation 
(or a combination of the two). Episodes of decompensation may be 
inferred from medical records showing significant alteration in 
medication; or documentation of the need for a more structured 
psychological support system (e.g., hospitalizations, placement in a 
halfway house, or a highly structured and directing household); or 
other relevant information in the record about the existence, 
severity, and duration of the episode.
    The term repeated episodes of decompensation, each of extended 
duration in these listings means three episodes within 1 year, or an 
average of once every 4 months, each lasting for at least 2 weeks. 
If you have experienced more frequent episodes of shorter duration 
or less frequent episodes of longer duration, we must use judgment 
to determine if the duration and functional effects of the episodes 
are of equal severity and may be used to substitute for the listed 
finding in a determination of equivalence.
    D. Documentation. The evaluation of disability on the basis of a 
mental disorder requires sufficient evidence to (1) establish the 
presence of a medically determinable mental impairment(s), (2) 
assess the degree of functional limitation the impairment(s) 
imposes, and (3) project the probable duration of the impairment(s). 
See Secs. 404.1512 and 416.912 for a discussion of what we mean by 
``evidence'' and how we will assist you in developing your claim. 
Medical evidence must be sufficiently complete and detailed as to 
symptoms, signs, and laboratory findings to permit an independent 
determination. In addition, we will consider information you provide 
from other sources when we determine how the established 
impairment(s) affects your ability to function. We will consider all 
relevant evidence in your case record.
    1. Sources of evidence.
    a. Medical evidence. There must be evidence from an acceptable 
medical source showing that you have a medically determinable mental 
impairment. See

[[Page 50778]]

Sec. Sec. 404.1508, 404.1513, 416.908, and 416.913. We will make 
every reasonable effort to obtain all relevant and available medical 
evidence about your mental impairment(s), including its history, and 
any records of mental status examinations, psychological testing, 
and hospitalizations and treatment. Whenever possible, and 
appropriate, medical source evidence should reflect the medical 
source's considerations of information from you and other concerned 
persons who are aware of your activities of daily living; social 
functioning; concentration, persistence, or pace; or episodes of 
decompensation. Also, in accordance with standard clinical practice, 
any medical source assessment of your mental functioning should take 
into account any sensory, motor, or communication abnormalities, as 
well as your cultural and ethnic background.
    b. Information from the individual. Individuals with mental 
impairments can often provide accurate descriptions of their 
limitations. The presence of a mental impairment does not 
automatically rule you out as a reliable source of information about 
your own functional limitations. When you have a mental impairment 
and are willing and able to describe your limitations, we will try 
to obtain such information from you. However, you may not be willing 
or able to fully or accurately describe the limitations resulting 
from your impairment(s). Thus, we will carefully examine the 
statements you provide to determine if they are consistent with the 
information about, or general pattern of, the impairment as 
described by the medical and other evidence, and to determine 
whether additional information about your functioning is needed from 
you or other sources.
    c. Other information. Other professional health care providers 
(e.g., psychiatric nurse, psychiatric social worker) can normally 
provide valuable functional information, which should be obtained 
when available and needed. If necessary, information should also be 
obtained from nonmedical sources, such as family members and others 
who know you, to supplement the record of your functioning in order 
to establish the consistency of the medical evidence and 
longitudinality of impairment severity, as discussed in 12.00D2. 
Other sources of information about functioning include, but are not 
limited to, records from work evaluations and rehabilitation 
progress notes.
    2. Need for longitudinal evidence. Your level of functioning may 
vary considerably over time. The level of your functioning at a 
specific time may seem relatively adequate or, conversely, rather 
poor. Proper evaluation of your impairment(s) must take into account 
any variations in the level of your functioning in arriving at a 
determination of severity over time. Thus, it is vital to obtain 
evidence from relevant sources over a sufficiently long period prior 
to the date of adjudication to establish your impairment severity.
    3. Work attempts. You may have attempted to work or may actually 
have worked during the period of time pertinent to the determination 
of disability. This may have been an independent attempt at work or 
it may have been in conjunction with a community mental health or 
sheltered program, and it may have been of either short or long 
duration. Information concerning your behavior during any attempt to 
work and the circumstances surrounding termination of your work 
effort are particularly useful in determining your ability or 
inability to function in a work setting. In addition, we should also 
examine the degree to which you require special supports (such as 
those provided through supported employment or transitional 
employment programs) in order to work.
    4. Mental status examination. The mental status examination is 
performed in the course of a clinical interview and is often partly 
assessed while the history is being obtained. A comprehensive mental 
status examination generally includes a narrative description of 
your appearance, behavior, and speech; thought process (e.g., 
loosening of associations); thought content (e.g., delusions); 
perceptual abnormalities (e.g., hallucinations); mood and affect 
(e.g., depression, mania); sensorium and cognition (e.g., 
orientation, recall, memory, concentration, fund of information, and 
intelligence); and judgment and insight. The individual case facts 
determine the specific areas of mental status that need to be 
emphasized during the examination.
    5. Psychological testing.
    a. Reference to a ``standardized psychological test'' indicates 
the use of a psychological test measure that has appropriate 
validity, reliability, and norms, and is individually administered 
by a qualified specialist. By ``qualified,'' we mean the specialist 
must be currently licensed or certified in the State to administer, 
score, and interpret psychological tests and have the training and 
experience to perform the test.
    b. Psychological tests are best considered as standardized sets 
of tasks or questions designed to elicit a range of responses. 
Psychological testing can also provide other useful data, such as 
the specialist's observations regarding your ability to sustain 
attention and concentration, relate appropriately to the specialist, 
and perform tasks independently (without prompts or reminders). 
Therefore, a report of test results should include both the 
objective data and any clinical observations.
    c. The salient characteristics of a good test are: (1) Validity, 
i.e., the test measures what it is supposed to measure; (2) 
reliability, i.e., the consistency of results obtained over time 
with the same test and the same individual; (3) appropriate 
normative data, i.e., individual test scores can be compared to test 
data from other individuals or groups of a similar nature, 
representative of that population; and (4) wide scope of 
measurement, i.e., the test should measure a broad range of facets/
aspects of the domain being assessed. In considering the validity of 
a test result, we should note and resolve any discrepancies between 
formal test results and the individual's customary behavior and 
daily activities.
    6. Intelligence tests.
    a. The results of standardized intelligence tests may provide 
data that help verify the presence of mental retardation or organic 
mental disorder, as well as the extent of any compromise in 
cognitive functioning. However, since the results of intelligence 
tests are only part of the overall assessment, the narrative report 
that accompanies the test results should comment on whether the IQ 
scores are considered valid and consistent with the developmental 
history and the degree of functional limitation.
    b. Standardized intelligence test results are essential to the 
adjudication of all cases of mental retardation that are not covered 
under the provisions of 12.05A. Listing 12.05A may be the basis for 
adjudicating cases where the results of standardized intelligence 
tests are unavailable, e.g., where your condition precludes formal 
standardized testing.
    c. Due to such factors as differing means and standard 
deviations, identical IQ scores obtained from different tests do not 
always reflect a similar degree of intellectual functioning. The IQ 
scores in 12.05 reflect values from tests of general intelligence 
that have a mean of 100 and a standard deviation of 15; e.g., the 
Wechsler series. IQs obtained from standardized tests that deviate 
from a mean of 100 and a standard deviation of 15 require conversion 
to a percentile rank so that we can determine the actual degree of 
limitation reflected by the IQ scores. In cases where more than one 
IQ is customarily derived from the test administered, e.g., where 
verbal, performance, and full scale IQs are provided in the Wechsler 
series, we use the lowest of these in conjunction with 12.05.
    d. Generally, it is preferable to use IQ measures that are wide 
in scope and include items that test both verbal and performance 
abilities. However, in special circumstances, such as the assessment 
of individuals with sensory, motor, or communication abnormalities, 
or those whose culture and background are not principally English-
speaking, measures such as the Test of Nonverbal Intelligence, Third 
Edition (TONI-3), Leiter International Performance Scale-Revised 
(Leiter-R), or Peabody Picture Vocabulary Test--Third Edition (PPVT-
III) may be used.
    e. We may consider exceptions to formal standardized 
psychological testing when an individual qualified by training and 
experience to perform such an evaluation is not available, or in 
cases where appropriate standardized measures for your social, 
linguistic, and cultural background are not available. In these 
cases, the best indicator of severity is often the level of adaptive 
functioning and how you perform activities of daily living and 
social functioning.
    7. Personality measures and projective testing techniques. 
Results from standardized personality measures, such as the 
Minnesota Multiphasic Personality Inventory-Revised (MMPI-II), or 
from projective types of techniques, such as the Rorschach and the 
Thematic Apperception Test (TAT), may provide useful data for 
evaluating several types of mental disorders. Such test results may 
be useful for disability evaluation when corroborated by other 
evidence, including results from other psychological tests and 
information obtained in the course of the clinical evaluation, from 
treating and other medical sources, other professional health care 
providers, and nonmedical sources. Any inconsistency between test 
results and

[[Page 50779]]

clinical history and observation should be explained in the 
narrative description.
    8. Neuropsychological assessments. Comprehensive 
neuropsychological examinations may be used to establish the 
existence and extent of compromise of brain function, particularly 
in cases involving organic mental disorders. Normally, these 
examinations include assessment of cerebral dominance, basic 
sensation and perception, motor speed and coordination, attention 
and concentration, visual-motor function, memory across verbal and 
visual modalities, receptive and expressive speech, higher-order 
linguistic operations, problem-solving, abstraction ability, and 
general intelligence. In addition, there should be a clinical 
interview geared toward evaluating pathological features known to 
occur frequently in neurological disease and trauma, e.g., emotional 
lability, abnormality of mood, impaired impulse control, passivity 
and apathy, or inappropriate social behavior. The specialist 
performing the examination may administer one of the commercially 
available comprehensive neuropsychological batteries, such as the 
Luria-Nebraska or the Halstead-Reitan, or a battery of tests 
selected as relevant to the suspected brain dysfunction. The 
specialist performing the examination must be properly trained in 
this area of neuroscience.
    9. Screening tests. In conjunction with clinical examinations, 
sources may report the results of screening tests; i.e., tests used 
for gross determination of level of functioning. Screening 
instruments may be useful in uncovering potentially serious 
impairments, but often must be supplemented by other data. However, 
in some cases the results of screening tests may show such obvious 
abnormalities that further testing will clearly be unnecessary.
    10. Traumatic brain injury (TBI). In cases involving TBI, follow 
the documentation and evaluation guidelines in 11.00F.
    11. Anxiety disorders. In cases involving agoraphobia and other 
phobic disorders, panic disorders, and posttraumatic stress 
disorders, documentation of the anxiety reaction is essential. At 
least one detailed description of your typical reaction is required. 
The description should include the nature, frequency, and duration 
of any panic attacks or other reactions, the precipitating and 
exacerbating factors, and the functional effects. If the description 
is provided by a medical source, the reporting physician or 
psychologist should indicate the extent to which the description 
reflects his or her own observations and the source of any ancillary 
information. Statements of other persons who have observed you may 
be used for this description if professional observation is not 
available.
    12. Eating disorders. In cases involving anorexia nervosa and 
other eating disorders, the primary manifestations may be mental or 
physical, depending upon the nature and extent of the disorder. When 
the primary functional limitation is physical, e.g., when severe 
weight loss and associated clinical findings are the chief cause of 
inability to work, we may evaluate the impairment under the 
appropriate physical body system listing. Of course, we must also 
consider any mental aspects of the impairment, unless we can make a 
fully favorable determination or decision based on the physical 
impairment(s) alone.
    E. Chronic mental impairments. Particular problems are often 
involved in evaluating mental impairments in individuals who have 
long histories of repeated hospitalizations or prolonged outpatient 
care with supportive therapy and medication. For instance, if you 
have chronic organic, psychotic, and affective disorders, you may 
commonly have your life structured in such a way as to minimize your 
stress and reduce your symptoms and signs. In such a case, you may 
be much more impaired for work than your symptoms and signs would 
indicate. The results of a single examination may not adequately 
describe your sustained ability to function. It is, therefore, vital 
that we review all pertinent information relative to your condition, 
especially at times of increased stress. We will attempt to obtain 
adequate descriptive information from all sources that have treated 
you in the time period relevant to the determination or decision.
    F. Effects of structured settings. Particularly in cases 
involving chronic mental disorders, overt symptomatology may be 
controlled or attenuated by psychosocial factors such as placement 
in a hospital, halfway house, board and care facility, or other 
environment that provides similar structure. Highly structured and 
supportive settings may also be found in your home. Such settings 
may greatly reduce the mental demands placed on you. With lowered 
mental demands, overt symptoms and signs of the underlying mental 
disorder may be minimized. At the same time, however, your ability 
to function outside of such a structured or supportive setting may 
not have changed. If your symptomatology is controlled or attenuated 
by psychosocial factors, we must consider your ability to function 
outside of such highly structured settings. For these reasons, 
identical paragraph C criteria are included in 12.02, 12.03, and 
12.04. The paragraph C criterion of 12.06 reflects the uniqueness of 
agoraphobia, an anxiety disorder manifested by an overwhelming fear 
of leaving the home.
    G. Effects of medication. We must give attention to the effects 
of medication on your symptoms, signs, and ability to function. 
While drugs used to modify psychological functions and mental states 
may control certain primary manifestations of a mental disorder, 
e.g., hallucinations, impaired attention, restlessness, or 
hyperactivity, such treatment may not affect all functional 
limitations imposed by the mental disorder. In cases where overt 
symptomatology is attenuated by the use of such drugs, particular 
attention must be focused on the functional limitations that may 
persist. We will consider these functional limitations in assessing 
the severity of your impairment. See the paragraph C criteria in 
12.02, 12.03, 12.04, and 12.06.
    Drugs used in the treatment of some mental illnesses may cause 
drowsiness, blunted effect, or other side effects involving other 
body systems. We will consider such side effects when we evaluate 
the overall severity of your impairment. Where adverse effects of 
medications contribute to the impairment severity and the 
impairment(s) neither meets nor is equivalent in severity to any 
listing but is nonetheless severe, we will consider such adverse 
effects in the RFC assessment.
    H. Effects of treatment. With adequate treatment some 
individuals with chronic mental disorders not only have their 
symptoms and signs ameliorated, but they also return to a level of 
function close to the level of function they had before they 
developed symptoms or signs of their mental disorders. Treatment may 
or may not assist in the achievement of a level of adaptation 
adequate to perform sustained SGA. See the paragraph C criteria in 
12.02, 12.03, 12.04, and 12.06.
    I. Technique for reviewing evidence in mental disorders claims 
to determine the level of impairment severity. We have developed a 
special technique to ensure that we obtain, consider, and properly 
evaluate all the evidence we need to evaluate impairment severity in 
claims involving mental impairment(s). We explain this technique in 
Secs. 404.1520a and 416.920a.

12.01  Category of Impairments, Mental

12.02  Organic Mental Disorders: * * *

    The required level of severity for these disorders is met when 
the requirements in both A and B are satisfied, or when the 
requirements in C are satisfied.
* * * * *
    B. * * *
    3. Marked difficulties in maintaining concentration, 
persistence, or pace; or
    4. Repeated episodes of decompensation, each of extended 
duration;

OR

    C. Medically documented history of a chronic organic mental 
disorder of at least 2 years' duration that has caused more than a 
minimal limitation of ability to do basic work activities, with 
symptoms or signs currently attenuated by medication or psychosocial 
support, and one of the following:
    1. Repeated episodes of decompensation, each of extended 
duration; or
    2. A residual disease process that has resulted in such marginal 
adjustment that even a minimal increase in mental demands or change 
in the environment would be predicted to cause the individual to 
decompensate; or
    3. Current history of 1 or more years' inability to function 
outside a highly supportive living arrangement, with an indication 
of continued need for such an arrangement.

12.03  Schizophrenic, Paranoid and Other Psychotic Disorders: * * *

* * * * *
    B. * * *
    3. Marked difficulties in maintaining concentration, 
persistence, or pace; or
    4. Repeated episodes of decompensation, each of extended 
duration;

OR
    C. Medically documented history of a chronic schizophrenic, 
paranoid, or other psychotic disorder of at least 2 years' duration 
that has caused more than a minimal limitation of ability to do 
basic work

[[Page 50780]]

activities, with symptoms or signs currently attenuated by 
medication or psychosocial support, and one of the following:
    1. Repeated episodes of decompensation, each of extended 
duration; or
    2. A residual disease process that has resulted in such marginal 
adjustment that even a minimal increase in mental demands or change 
in the environment would be predicted to cause the individual to 
decompensate; or
    3. Current history of 1 or more years' inability to function 
outside a highly supportive living arrangement, with an indication 
of continued need for such an arrangement.
    12.04  Affective Disorders: * * *
    The required level of severity for these disorders is met when 
the requirements in both A and B are satisfied, or when the 
requirements in C are satisfied.
* * * * *
    B. * * *
    3. Marked difficulties in maintaining concentration, 
persistence, or pace; or
    4. Repeated episodes of decompensation, each of extended 
duration;

OR

    C. Medically documented history of a chronic affective disorder 
of at least 2 years' duration that has caused more than a minimal 
limitation of ability to do basic work activities, with symptoms or 
signs currently attenuated by medication or psychosocial support, 
and one of the following:
    1. Repeated episodes of decompensation, each of extended 
duration; or
    2. A residual disease process that has resulted in such marginal 
adjustment that even a minimal increase in mental demands or change 
in the environment would be predicted to cause the individual to 
decompensate; or
    3. Current history of 1 or more years' inability to function 
outside a highly supportive living arrangement, with an indication 
of continued need for such an arrangement.
    12.05  Mental retardation: Mental retardation refers to 
significantly subaverage general intellectual functioning with 
deficits in adaptive functioning initially manifested during the 
developmental period; i.e., the evidence demonstrates or supports 
onset of the impairment before age 22.
* * * * *
    C. A valid verbal, performance, or full scale IQ of 60 through 
70 and a physical or other mental impairment imposing an additional 
and significant work-related limitation of function;
* * * * *
    D. A valid verbal, performance, or full scale IQ of 60 through 
70, resulting in at least two of the following:
* * * * *
    3. Marked difficulties in maintaining concentration, 
persistence, or pace; or
    4. Repeated episodes of decompensation, each of extended 
duration.
    12.06  Anxiety-Related Disorders: * * *
* * * * *
    B. * * *
    3. Marked difficulties in maintaining concentration, 
persistence, or pace; or
    4. Repeated episodes of decompensation, each of extended 
duration.
* * * * *
    12.07  Somatoform Disorders: * * *
* * * * *
    B. Resulting in at least two of the following:
* * * * *
    3. Marked difficulties in maintaining concentration, 
persistence, or pace; or
    4. Repeated episodes of decompensation, each of extended 
duration.
    12.08  Personality Disorders: * * *
* * * * *
    B. Resulting in at least two of the following:
* * * * *
    3. Marked difficulties in maintaining concentration, 
persistence, or pace; or
    4. Repeated episodes of decompensation, each of extended 
duration.
* * * * *
    12.10  Autistic disorder and other pervasive developmental 
disorders: Characterized by qualitative deficits in the development 
of reciprocal social interaction, in the development of verbal and 
nonverbal communication skills, and in imaginative activity. Often, 
there is a markedly restricted repertoire of activities and 
interests, which frequently are stereotyped and repetitive.
    The required level of severity for these disorders is met when 
the requirements in both A and B are satisfied.
    A. Medically documented findings of the following:
    1. For autistic disorder, all of the following:
    a. Qualitative deficits in reciprocal social interaction; and
    b. Qualitative deficits in verbal and nonverbal communication 
and in imaginative activity; and
    c. Markedly restricted repertoire of activities and interests;

OR
    2. For other pervasive developmental disorders, both of the 
following:
    a. Qualitative deficits in reciprocal social interaction; and
    b. Qualitative deficits in verbal and nonverbal communication 
and in imaginative activity;

AND

    B. Resulting in at least two of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Marked difficulties in maintaining concentration, 
persistence, or pace; or
    4. Repeated episodes of decompensation, each of extended 
duration.
    5. Part B of appendix 1 to subpart P is amended as follows:
    a. The introductory text of 112.00, Mental Disorders, is amended 
as follows:
    i. By revising the second sentence of the third undesignated 
paragraph of 112.00A, the seventh undesignated paragraph of 112.00A, 
the eighth undesignated paragraph of 112.00A, and the third sentence 
of 112.00B;
    ii. By adding a new paragraph between the second and third 
undesignated paragraphs in 112.00C;
    iii. By revising the third sentence of the first paragraph of 
112.00C1b;
    iv. By revising 112.00D; and
    v. By revising the second and third sentences of the first 
undesignated paragraph of 112.00F.
    b. Listing 112.02 is amended by revising paragraph B2d.
    c. Listing 112.05 is amended by revising paragraphs D and F.
    d. Listing 112.10 is amended by revising paragraphs A2 and A2a.

    The revised text is set forth as follows:

Appendix 1 to Subpart P--Listing of Impairments

* * * * *

Part B

112.00  Mental Disorders

    A. * * *
* * * * *
    * * * This is followed (except in listings 112.05 and 112.12) by 
paragraph A criteria (a set of medical findings) and paragraph B 
criteria (a set of impairment-related functional limitations). * * *
* * * * *
    We did not include separate C criteria for listings 112.02, 
112.03, 112.04, and 112.06, as are found in the adult listings, 
because for the most part we do not believe that the residual 
disease processes described by these listings are commonly found in 
children. However, in unusual cases where these disorders are found 
in children and are comparable to the severity and duration found in 
adults, we may use the adult listings 12.02C, 12.03C, 12.04C, and 
12.06C criteria to evaluate such cases.
    The structure of the listings for Mental Retardation (112.05) 
and Developmental and Emotional Disorders of Newborn and Younger 
Infants (112.12) is different from that of the other mental 
disorders. Listing 112.05 (Mental Retardation) contains six sets of 
criteria. If an impairment satisfies the diagnostic description in 
the introductory paragraph and any one of the six sets of criteria, 
we will find that the child's impairment meets the listing. For 
listings 112.05D and 112.05F, we will assess the degree of 
functional limitation the additional impairment(s) imposes to 
determine if it causes more than minimal functional limitations, 
i.e., is a ``severe'' impairment(s), as defined in Sec. 416.924(c). 
If the additional impairment(s) does not cause limitations that are 
``severe'' as defined in Sec. 416.924(c), we will not find that the 
additional impairment(s) imposes an additional and significant 
limitation of function. Listing 112.12 (Developmental and Emotional 
Disorders of Newborn and Younger Infants) contains five criteria, 
any one of which, if satisfied, will result in a finding that the 
infant's impairment meets the listing.
* * * * *
    B. * * * Psychiatric signs are medically demonstrable phenomena 
that indicate specific psychological abnormalities, e.g., 
abnormalities of behavior, mood, thought,

[[Page 50781]]

memory, orientation, development, or perception, as described by an 
appropriate medical source. * * *
    C. * * *
* * * * *
    Generally, when we assess the degree of developmental delay 
imposed by a mental impairment, we will use an infant's or toddler's 
chronological age; i.e., the child's age based on birth date. If the 
infant or toddler was born prematurely, however, we will follow the 
rules in Sec. 416.924a(b) to determine whether we should use the 
infant's or toddler's corrected chronological age; i.e., the 
chronological age adjusted by the period of gestational prematurity.
* * * * *
    1. * * *
    b. * * * Screening instruments may be useful in uncovering 
potentially serious impairments, but often must be supplemented by 
other data. However, in some cases, the results of screening tests 
may show such obvious abnormalities that further testing will 
clearly be unnecessary.
* * * * *
    D. Documentation: 1. The presence of a mental disorder in a 
child must be documented on the basis of reports from acceptable 
sources of medical evidence. See Secs. 404.1513 and 416.913. 
Descriptions of functional limitations may be available from these 
sources, either in the form of standardized test results or in other 
medical findings supplied by the sources, or both. (Medical findings 
consist of symptoms, signs, and laboratory findings.) Whenever 
possible, a medical source's findings should reflect the medical 
source's consideration of information from parents or other 
concerned individuals who are aware of the child's activities of 
daily living, social functioning, and ability to adapt to different 
settings and expectations, as well as the medical source's findings 
and observations on examination, consistent with standard clinical 
practice. As necessary, information from nonmedical sources, such as 
parents, should also be used to supplement the record of the child's 
functioning to establish the consistency of the medical evidence and 
longitudinality of impairment severity.
    2. For some newborn and younger infants, it may be very 
difficult to document the presence or severity of a mental disorder. 
Therefore, with the exception of some genetic diseases and 
catastrophic congenital anomalies, it may be necessary to defer 
making a disability decision until the child attains age 3 months of 
age in order to obtain adequate observation of behavior or affect. 
See, also, 110.00 of this part. This period could be extended in 
cases of premature infants depending on the degree of prematurity 
and the adequacy of documentation of their developmental and 
emotional status.
    3. For infants and toddlers, programs of early intervention 
involving occupational, physical, and speech therapists, nurses, 
social workers, and special educators, are a rich source of data. 
They can provide the developmental milestone evaluations and records 
on the fine and gross motor functioning of these children. This 
information is valuable and can complement the medical examination 
by a physician or psychologist. A report of an interdisciplinary 
team that contains the evaluation and signature of an acceptable 
medical source is considered acceptable medical evidence rather than 
supplemental data.
    4. In children with mental disorders, particularly those 
requiring special placement, school records are a rich source of 
data, and the required reevaluations at specified time periods can 
provide the longitudinal data needed to trace impairment progression 
over time.
    5. In some cases where the treating sources lack expertise in 
dealing with mental disorders of children, it may be necessary to 
obtain evidence from a psychiatrist, psychologist, or pediatrician 
with experience and skill in the diagnosis and treatment of mental 
disorders as they appear in children. In these cases, however, every 
reasonable effort must be made to obtain the records of the treating 
sources, since these records will help establish a longitudinal 
picture that cannot be established through a single purchased 
examination.
    6. Reference to a ``standardized psychological test'' indicates 
the use of a psychological test measure that has appropriate 
validity, reliability, and norms, and is individually administered 
by a qualified specialist. By ``qualified,'' we mean the specialist 
must be currently licensed or certified in the State to administer, 
score, and interpret psychological tests and have the training and 
experience to perform the test.
    7. Psychological tests are best considered as standardized sets 
of tasks or questions designed to elicit a range of responses. 
Psychological testing can also provide other useful data, such as 
the specialist's observations regarding the child's ability to 
sustain attention and concentration, relate appropriately to the 
specialist, and perform tasks independently (without prompts or 
reminders). Therefore, a report of test results should include both 
the objective data and any clinical observations.
    8. The salient characteristics of a good test are: (1) Validity, 
i.e., the test measures what it is supposed to measure; (2) 
reliability, i.e., the consistency of results obtained over time 
with the same test and the same individual; (3) appropriate 
normative data, i.e., individual test scores can be compared to test 
data from other individuals or groups of a similar nature, 
representative of that population; and (4) wide scope of 
measurement, i.e., the test should measure a broad range of facets/
aspects of the domain being assessed. In considering the validity of 
a test result, we should note and resolve any discrepancies between 
formal test results and the child's customary behavior and daily 
activities.
    9. Identical IQ scores obtained from different tests do not 
always reflect a similar degree of intellectual functioning. The IQ 
scores in listing 112.05 reflect values from tests of general 
intelligence that have a mean of 100 and a standard deviation of 15, 
e.g., the Wechsler series. IQs obtained from standardized tests that 
deviate significantly from a mean of 100 and standard deviation of 
15 require conversion to a percentile rank so that the actual degree 
of limitation reflected by the IQ scores can be determined. In cases 
where more than one IQ is customarily derived from the test 
administered, e.g., where verbal, performance, and full scale IQs 
are provided in the Wechsler series, the lowest of these is used in 
conjunction with listing 112.05.
    10. IQ test results must also be sufficiently current for 
accurate assessment under 112.05. Generally, the results of IQ tests 
tend to stabilize by the age of 16. Therefore, IQ test results 
obtained at age 16 or older should be viewed as a valid indication 
of the child's current status, provided they are compatible with the 
child's current behavior. IQ test results obtained between ages 7 
and 16 should be considered current for 4 years when the tested IQ 
is less than 40, and for 2 years when the IQ is 40 or above. IQ test 
results obtained before age 7 are current for 2 years if the tested 
IQ is less than 40 and 1 year if at 40 or above.
    11. Standardized intelligence test results are essential to the 
adjudication of all cases of mental retardation that are not covered 
under the provisions of listings 112.05A, 112.05B, and 112.05F. 
Listings 112.05A, 112.05B, and 112.05F may be the bases for 
adjudicating cases where the results of standardized intelligence 
tests are unavailable, e.g., where the child's young age or 
condition precludes formal standardized testing.
    12. In conjunction with clinical examinations, sources may 
report the results of screening tests, i.e., tests used for gross 
determination of level of functioning. Screening instruments may be 
useful in uncovering potentially serious impairments, but often must 
be supplemented by other data. However, in some cases the results of 
screening tests may show such obvious abnormalities that further 
testing will clearly be unnecessary.
    13. Where reference is made to developmental milestones, this is 
defined as the attainment of particular mental or motor skills at an 
age-appropriate level, i.e., the skills achieved by an infant or 
toddler sequentially and within a given time period in the motor and 
manipulative areas, in general understanding and social behavior, in 
self-feeding, dressing, and toilet training, and in language. This 
is sometimes expressed as a developmental quotient (DQ), the 
relation between developmental age and chronological age as 
determined by specific standardized measurements and observations. 
Such tests include, but are not limited to, the Cattell Infant 
Intelligence Scale, the Bayley Scales of Infant Development, and the 
Revised Stanford-Binet. Formal tests of the attainment of 
developmental milestones are generally used in the clinical setting 
for determination of the developmental status of infants and 
toddlers.
    14. Formal psychological tests of cognitive functioning are 
generally in use for preschool children, for primary school 
children, and for adolescents except for those instances noted 
below.
    15. Generally, it is preferable to use IQ measures that are wide 
in scope and include items that test both verbal and performance 
abilities. However, in special circumstances,

[[Page 50782]]

such as the assessment of children with sensory, motor, or 
communication abnormalities, or those whose culture and background 
are not principally English-speaking, measures such as the Test of 
Nonverbal Intelligence, Third Edition (TONI-3), Leiter International 
Performance Scale-Revised (Leiter-R), or Peabody Picture Vocabulary 
Test--Third Edition (PPVT-III) may be used.
    16. We may consider exceptions for formal standardized 
psychological testing when an individual qualified by training and 
experience to perform such an evaluation is not available, or in 
cases where appropriate standardized measures for the child's 
social, linguistic, and cultural background are not available. In 
these cases, the best indicator of severity is often the level of 
adaptive functioning and how the child performs activities of daily 
living and social functioning.
    17. Comprehensive neuropsychological examinations may be used to 
establish the existence and extent of compromise of brain function, 
particularly in cases involving organic mental disorders. Normally 
these examinations include assessment of cerebral dominance, basic 
sensation and perception, motor speed and coordination, attention 
and concentration, visual-motor function, memory across verbal and 
visual modalities, receptive and expressive speech, higher-order 
linguistic operations, problem-solving, abstraction ability, and 
general intelligence. In addition, there should be a clinical 
interview geared toward evaluating pathological features known to 
occur frequently in neurological disease and trauma, e.g., emotional 
lability, abnormality of mood, impaired impulse control, passivity 
and apathy, or inappropriate social behavior. The specialist 
performing the examination may administer one of the commercially 
available comprehensive neuropsychological batteries, such as the 
Luria-Nebraska or Halstead-Reitan, or a battery of tests selected as 
relevant to the suspected brain dysfunction. The specialist 
performing the examination must be properly trained in this area of 
neuroscience.
* * * * *
    F. * * *
    * * * While drugs used to modify psychological functions and 
mental states may control certain primary manifestations of a mental 
disorder, e.g., hallucinations, impaired attention, restlessness, or 
hyperactivity, such treatment may not affect all functional 
limitations imposed by the mental disorder. In cases where overt 
symptomatology is attenuated by the use of such drugs, particular 
attention must be focused on the functional limitations that may 
persist. * * *

112.01  Category of Impairments, Mental

    112.02 Organic Mental Disorders: * * *
* * * * *
    B. * * *
    2. * * *
    d. Marked difficulties in maintaining concentration, 
persistence, or pace.
* * * * *
    112.05  Mental Retardation: * * *
* * * * *
    D. A valid verbal, performance, or full scale IQ of 60 through 
70 and a physical or other mental impairment imposing an additional 
and significant limitation of function;

OR
* * * * *
    F. * * *
    1. For older infants and toddlers (age 1 to attainment of age 
3), resulting in attainment of development or function generally 
acquired by children no more than two-thirds of the child's 
chronological age in paragraph B1b of 112.02, and a physical or 
other mental impairment imposing an additional and significant 
limitation of function;
OR
    2. For children (age 3 to attainment of age 18), resulting in 
the satisfaction of 112.02B2a, and a physical or other mental 
impairment imposing an additional and significant limitation of 
function.
* * * * *
    112.10  Autistic Disorder and Other Pervasive Developmental 
Disorders: * * *
    A. * * *
* * * * *
    2. For other pervasive developmental disorders, both of the 
following:
    a. Qualitative deficits in the development of reciprocal social 
interaction; and
* * * * *

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart I--Determining Disability and Blindness

    6. The authority citation for subpart I of part 416 continues to 
read as follows:

    Authority: Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c) and 
(d)(1), and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 
1382, 1382c, 1382h, 1383(a), (c), and (d)(1), and 1383b); secs. 4(c) 
and 5, 6(c)-(e), 14(a) and 15, Pub. L. 98-460, 98 Stat. 1794, 1801, 
1802, and 1808 (42 U.S.C. 421 note, 423 note, 1382h note).

    7. Section 416.920a is revised to read as follows:


Sec. 416.920a  Evaluation of mental impairments.

    (a) General. The steps outlined in Secs. 416.920 and 416.924 apply 
to the evaluation of physical and mental impairments. In addition, when 
we evaluate the severity of mental impairments for adults (persons age 
18 and over) and in persons under age 18 when Part A of the Listing of 
Impairments is used, we must follow a special technique at each level 
in the administrative review process. We describe this special 
technique in paragraphs (b) through (e) of this section. Using this 
technique helps us:
    (1) Identify the need for additional evidence to determine 
impairment severity;
    (2) Consider and evaluate functional consequences of the mental 
disorder(s) relevant to your ability to work; and
    (3) Organize and present our findings in a clear, concise, and 
consistent manner.
    (b) Use of the technique. (1) Under the special technique, we must 
first evaluate your pertinent symptoms, signs, and laboratory findings 
to determine whether you have a medically determinable mental 
impairment(s). See Sec. 416.908 for more information about what is 
needed to show a medically determinable impairment. If we determine 
that you have a medically determinable mental impairment(s), we must 
specify the symptoms, signs, and laboratory findings that substantiate 
the presence of the impairment(s) and document our findings in 
accordance with paragraph (e) of this section.
    (2) We must then rate the degree of functional limitation resulting 
from the impairment(s) in accordance with paragraph (c) of this section 
and record our findings as set out in paragraph (e) of this section.
    (c) Rating the degree of functional limitation. (1) Assessment of 
functional limitations is a complex and highly individualized process 
that requires us to consider multiple issues and all relevant evidence 
to obtain a longitudinal picture of your overall degree of functional 
limitation. We will consider all relevant and available clinical signs 
and laboratory findings, the effects of your symptoms, and how your 
functioning may be affected by factors including, but not limited to, 
chronic mental disorders, structured settings, medication, and other 
treatment.
    (2) We will rate the degree of your functional limitation based on 
the extent to which your impairment(s) interferes with your ability to 
function independently, appropriately, effectively, and on a sustained 
basis. Thus, we will consider such factors as the quality and level of 
your overall functional performance, any episodic limitations, the 
amount of supervision or assistance you require, and the settings in 
which you are able to function. See 12.00C through 12.00H of the 
Listing of Impairments in appendix 1 to subpart P of part 404 of this 
chapter for more information about the factors we consider when we rate 
the degree of your functional limitation.
    (3) We have identified four broad functional areas in which we will 
rate the degree of your functional limitation: Activities of daily 
living; social functioning; concentration, persistence, or pace; and 
episodes of

[[Page 50783]]

decompensation. See 12.00C of the Listing of Impairments.
    (4) When we rate the degree of limitation in the first three 
functional areas (activities of daily living; social functioning; and 
concentration, persistence, or pace), we will use the following five-
point scale: None, slight, moderate, marked, and extreme. When we rate 
the degree of limitation in the fourth functional area (episodes of 
decompensation), we will use the following four-point scale: None, one 
or two, three, four or more. The last point on each scale represents a 
degree of limitation that is incompatible with the ability to do any 
gainful activity.
    (d) Use of the technique to evaluate mental impairments. After we 
rate the degree of functional limitation resulting from your 
impairment(s), we will determine the severity of your mental 
impairment(s).
    (1) If we rate the degree of your limitation in the first three 
functional areas as ``none'' or ``mild'' and ``none'' in the fourth 
area, we will generally conclude that your impairment(s) is not severe, 
unless the evidence otherwise indicates that there is more than a 
minimal limitation in your ability to do basic work activities (see 
Sec. 416.921).
    (2) If your mental impairment(s) is severe, we must then determine 
if it meets or is equivalent in severity to a listed mental disorder. 
We do this by comparing the medical findings about your impairment(s) 
and the rating of the degree of functional limitation to the criteria 
of the appropriate listed mental disorder. We will record the presence 
or absence of the criteria and the rating of the degree of functional 
limitation on a standard document at the initial and reconsideration 
levels of the administrative review process, or in the decision at the 
administrative law judge hearing and Appeals Council levels (in cases 
in which the Appeals Council issues a decision). See paragraph (e) of 
this section.
    (3) If we find that you have a severe mental impairment(s) that 
neither meets nor is equivalent in severity to any listing, we will 
then assess your residual functional capacity.
    (e) Documenting application of the technique. At the initial and 
reconsideration levels of the administrative review process, we will 
complete a standard document to record how we applied the technique. At 
the administrative law judge hearing and Appeals Council levels (in 
cases in which the Appeals Council issues a decision), we will document 
application of the technique in the decision.
    (1) At the initial and reconsideration levels, except in cases in 
which a disability hearing officer makes the reconsideration 
determination, our medical or psychological consultant has overall 
responsibility for assessing medical severity. The disability examiner, 
a member of the adjudicative team (see Sec. 416.1015), may assist in 
preparing the standard document. However, our medical or psychological 
consultant must review and sign the document to attest that it is 
complete and that he or she is responsible for its content, including 
the findings of fact and any discussion of supporting evidence. When a 
disability hearing officer makes a reconsideration determination, the 
determination must document application of the technique, incorporating 
the disability hearing officer's pertinent findings and conclusions 
based on this technique.
    (2) At the administrative law judge hearing and Appeals Council 
levels, the written decision issued by the administrative law judge or 
Appeals Council must incorporate the pertinent findings and conclusions 
based on the technique. The decision must show the significant history, 
including examination and laboratory findings, and the functional 
limitations that were considered in reaching a conclusion about the 
severity of the mental impairment(s). The decision must include a 
specific finding as to the degree of limitation in each of the 
functional areas described in paragraph (c) of this section.
    (3) If the administrative law judge requires the services of a 
medical expert to assist in applying the technique but such services 
are unavailable, the administrative law judge may return the case to 
the State agency or the appropriate Federal component, using the rules 
in Sec. 416.1441, for completion of the standard document. If, after 
reviewing the case file and completing the standard document, the State 
agency or Federal component concludes that a determination favorable to 
you is warranted, it will process the case using the rules found in 
Sec. 416.1441(d) or (e). If, after reviewing the case file and 
completing the standard document, the State agency or Federal component 
concludes that a determination favorable to you is not warranted, it 
will send the completed standard document and the case to the 
administrative law judge for further proceedings and a decision.

    8. Section 416.928 is amended by revising the third sentence of 
paragraph (b) to read as follows:


Sec. 416.928  Symptoms, signs, and laboratory findings.

* * * * *
    (b) * * * Psychiatric signs are medically demonstrable phenomena 
that indicate specific psychological abnormalities, e.g., abnormalities 
of behavior, mood, thought, memory, orientation, development, or 
perception. * * *
* * * * *
[FR Doc. 00-19648 Filed 8-18-00; 8:45 am]
BILLING CODE 4191-02-U