[Federal Register Volume 75, Number 226 (Wednesday, November 24, 2010)]
[Proposed Rules]
[Pages 71632-71635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29577]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2007-0101]
RIN 0960-AF69


Revised Medical Criteria for Evaluating Mental Disorders

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking; limited reopening of comment 
period.

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SUMMARY: We are reopening for a limited purpose the comment period for 
the notice of proposed rulemaking (NPRM) that we published in the 
Federal Register on August 19, 2010 (75 FR 51336). We are reopening the 
comment period for 15 days to clarify and to seek additional public 
comment about an aspect of the proposed definitions of the terms 
``marked'' and ``extreme'' in sections 12.00 and 112.00 of our Listing 
of Impairments (listings). We are reopening the comment period to 
accept comments about that issue

[[Page 71633]]

only. We will not consider comments on any other aspects of the 
proposed listings for mental disorders that we receive during this 
reopened comment period.

DATES: To ensure that your comments are considered, we must receive 
them no later than December 9, 2010.

ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, mail. Do not submit the same comments multiple times or 
by more than one method. Regardless of which method you choose, please 
state that your comments refer to Docket No. SSA-2007-0101 so that we 
may associate your comments with the correct regulation.
    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly urge 
you not to include in your comments any personal information, such as 
Social Security numbers or medical information.
     Internet: We strongly recommend that you submit your 
comments via the Internet. Please visit the Federal eRulemaking portal 
at http://www.regulations.gov. Use the Search function to find docket 
number SSA-2007-0101. The system will issue a tracking number to 
confirm your submission. You will not be able to view your comment 
immediately because we must post each comment manually. It may take up 
to a week for your comment to be viewable.
     Fax: Fax comments to (410) 966-2830.
     Mail: Address your comments to the Office of Regulations, 
Social Security Administration, 107 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at http://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 
below.

FOR FURTHER INFORMATION CONTACT: Cheryl A. Williams, Office of Medical 
Listings Improvement, Social Security Administration, 6401 Security 
Boulevard, Baltimore, Maryland 21235-6401, (410) 965-1020. For 
information on eligibility or filing for benefits, call our national 
toll-free number, 1-800-772-1213, or TTY 1-800-325-0778, or visit our 
Internet site, Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.
    We are reopening until December 9, 2010 the comment period on one 
aspect of our proposed rules to revise our mental disorders listings: 
Definitions we provide for the terms ``marked'' and ``extreme'' that 
refer to standardized testing. In light of the public comments we have 
received on this aspect of our proposed rules, we have decided to 
provide more background about these proposals, to clarify our intent, 
and to request additional public comment on only this clarification. We 
have received many letters and facsimile messages from members of the 
public who appear to have misunderstood the background and purpose of 
these proposals. We believe that it will be helpful to these and other 
commenters if we provide more information and more time to comment on 
this issue.

Background

    In this section and the sections that follow, we will review what 
our current rules say, the history of those rules and how we developed 
them, and how they relate to the proposed rules. As we will show, in 
most instances the proposed rules would not be new, especially for 
children with mental disorders who claim disability benefits under the 
supplemental security income (SSI) program. We developed the rules with 
input from both medical experts and advocates for people who have 
mental disorders. We do not intend the proposed rules to have the 
effect of encouraging our adjudicators to purchase testing; rather, 
they are alternative criteria that we use to help define our terms for 
assessing severity under the listings. The proposed rules would also 
not directly affect adults or children who are already receiving 
disability benefits from us.
    Under our current mental disorders listings, each listing (except 
listings 12.05 and 12.09) consists of a statement describing the 
disorder(s) addressed by the listing (a ``capsule definition''), 
paragraph A criteria (a set of medical findings), and paragraph B 
criteria (a set of four impairment-related functional limitations).\1\ 
In general, we will find that an adult is disabled under the current 
mental disorders listings if he or she has a mental disorder that meets 
the capsule definition and the paragraph A criteria of a listing, and 
the disorder results in ``marked'' limitations in two of the four 
paragraph B criteria. We define the term ``marked'' for adults in 
current Sec.  12.00C as follows:
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    \1\ There are additional functional criteria, which we refer to 
as the paragraph C criteria, in current listings 12.02, 12.03, 
12.04, and 12.06. We do not discuss those criteria here.

    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 
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sustained basis.

We also cross-refer to current Sec. Sec.  404.1520a and 416.920a in our 
regulations, which indicate that ``marked'' is more than moderate and 
less than extreme. We repeat a variation of this definition of 
``marked'' in additional sections under Sec.  12.00C. For example, in 
Sec.  12.00C1, we state: ``We do not define `marked' by a specific 
number of activities of daily living in which functioning is impaired, 
but by the nature and overall degree of interference with function.'' 
We follow this statement with an example that refers generally to 
``serious'' difficulties in daily activities.
    Except for very minor language changes, we have had this definition 
of ``marked'' in our adult mental disorders listings since 1985.\2\ The 
1985 adult mental disorders listings were also the first listings in 
which we established a standard of listing-level severity based on 
``marked'' limitations in two broad areas of functioning. Since that 
time, however, we have issued other listings and rules that use a 
``two-marked standard'' or otherwise refer to ``marked'' limitations.
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    \2\ 50 FR 35038, 35066 (August 28, 1985).
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    Over the last 20 years, we have refined and expanded our definition 
of the term ``marked'' in response to questions from our adjudicators 
and the public and based on expert input. We first expanded the 
definition of ``marked'' in revised childhood mental disorders listings 
we published in 1990.\3\ Although we have made minor language changes, 
the definition of ``marked'' in our childhood disability rules, which 
we developed with information we received from a panel of experts, has 
been substantively the same since we first published it. The current 
childhood rule provides:
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    \3\ 55 FR 51208 (December 12, 1990).

    Where ``marked'' is used 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

[[Page 71634]]

degree of limitation is such as to interfere seriously with the 
ability to function (based upon age-appropriate expectations) 
independently, appropriately, effectively, and on a sustained basis. 
When standardized tests are used as the measure of functional 
parameters, a valid score that is two standard deviations below the 
norm for the test will be considered a marked restriction.\4\
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    \4\ Listings, Sec.  112.00C.

We incorporated this definition by reference for the policy of 
functional equivalence when we first established that policy in 
1991.\5\ In 1997, following the enactment of Public Law 104-193, we 
published separate definitions of the terms ``marked'' and ``extreme'' 
for the purposes of determining functional equivalence. We also 
provided several alternative definitions, including a definition that 
provided that ``[w]hen standardized tests are used as the measure of 
functional abilities, a valid score that is two standard deviations or 
more below the norm for the test (but less than three standard 
deviations)'' would establish a marked limitation. Our 1997 rules also 
provided that ``[w]hen standardized tests are used as the measure of 
functional abilities, a valid score that is three standard deviations 
or more below the norm for the test'' would establish an extreme 
limitation.\6\
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    \5\ See, in general, 56 FR 5534 (February 11, 1991).
    \6\ 20 CFR 416.926a(c)(3) (1997).
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    When we first published this rule in 1997, we explained that the 
definitions of ``marked'' and ``extreme'' were ``not new, but are based 
on longstanding policy in the regulations and interpretations we have 
used in our internal instructions and training.''\7\
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    \7\ 62 FR 6408, 6414 (February 11, 1997).
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    As in 1991, the rules for SSI children we published in 1997 were 
interim final rules with a request for public comment. When we 
published the final rules in 2000,\8\ we explained in the preamble that 
``we asked a number of individual experts for information as we 
formulated these final rules. The experts included pediatricians, 
psychologists, and other pediatric specialists, and individual 
advocates for children with disabilities who have expert knowledge 
about the SSI program.''\9\ The final rules we published in 2000 
contained specific definitions of the terms ``marked'' and ``extreme'' 
that are consistent with the rules we proposed in our August 2010 NPRM, 
including the provisions that:
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    \8\ 65 FR 54747 (September 11, 2000).
    \9\ Ibid.
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     We will find that a person has a ``marked'' limitation 
when he or she has a valid score that is two standard deviations or 
more below the mean, but less than three standard deviations, and
     ``Marked'' limitation is the equivalent of the functioning 
we would expect to find on standardized testing with scores that are at 
least two, but less than three, standard deviations below the mean.
    The current functional equivalence rule is identical to the rule we 
published in 2000.\10\ We also provide a definition of ``extreme'' with 
criteria similar to those in the definition of ``marked'' but at a 
higher level of severity.
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    \10\ 20 CFR 416.926a(e)(2).
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    When we published the current definition of ``marked'' for 
functional equivalence, we explained in the preamble of the final 
rules:

    In addition to retaining the other definitions of ``marked'' 
from the interim final rules, we also added a new one explaining 
that ``marked'' is the equivalent of functioning we would expect to 
find on standardized testing with scores that are at least two, but 
less than three, standard deviations below the mean. This includes 
in our rules a longstanding instruction from the training manual we 
provided to our adjudicators when the interim final rules were 
implemented. (Childhood Disability Training, SSA Office of 
Disability, Pub. No. 64-075, March 1997.)\11\
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    \11\ 65 FR at 54757.
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What the Proposed Rules Say

    Immediately before we define the terms ``marked'' and ``extreme,'' 
we provide the following general guidance in proposed Sec.  12.00D1:

1. General

    a. When we rate your limitations using the paragraph B mental 
abilities, we consider only limitations you have because of your mental 
disorder.
    b. To do most kinds of work, a person is expected to use his or her 
mental abilities independently, appropriately, effectively, and on a 
sustained basis.
    c. Marked or extreme limitation of a paragraph B mental ability 
reflects the overall degree to which your mental disorder interferes 
with your using that ability independently, appropriately, effectively, 
and on a sustained basis in a work setting. It does not necessarily 
reflect a specific type or number of activities, including activities 
of daily living, that you have difficulty doing. In addition, no single 
piece of information (including test scores) can establish whether you 
have marked or extreme limitation of a paragraph B mental ability. (See 
12.00D4.) [Emphasis added.]
    d. Marked or extreme limitation of a paragraph B mental ability 
also reflects the kind and extent of supports you receive and the 
characteristics of any highly structured setting in which you spend 
your time that enable you to function as you do. The more extensive the 
supports or the more structured the setting you need to function, the 
more limited we will find you to be. * * *
    The proposed rule defining ``marked'' limitation for adults says:

2. What We Mean by ``Marked'' Limitation

    a. Marked limitation of a paragraph B mental ability means that the 
symptoms and signs of your mental disorder interfere seriously with 
your using that mental ability independently, appropriately, 
effectively, and on a sustained basis to function in a work setting. 
Although we do not require the use of such a scale, marked would be the 
fourth point on a five-point rating scale consisting of no limitation, 
slight limitation, moderate limitation, marked limitation, and extreme 
limitation.
    b. Although we do not require standardized test scores to determine 
whether you have marked limitations, we will generally find that you 
have marked limitation of a paragraph B mental ability when you have a 
valid score that is at least two, but less than three, standard 
deviations below the mean on an individually administered standardized 
test designed to measure that ability and the evidence shows that your 
functioning over time is consistent with the score. (See also 12.00D4.) 
[Emphasis added.]
    c. Marked limitation is also the equivalent of the level of 
limitation we would expect to find on standardized testing with scores 
that are at least two, but less than three, standard deviations below 
the mean.\12\
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    \12\ Propose Sec.  12.00D2, 75 FR at 51356. Again, there is a 
similar definition of ``extreme'' in the next paragraph on the same 
page.
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    Proposed Sec. Sec.  12.00D4a and D4c say, as pertinent to this 
reopened NPRM:

4. How We Consider Your Test Results

    a. We do not rely on any IQ score or other test result alone. We 
consider your test scores together with the other information we have 
about how you use the mental abilities described in the paragraph B 
criteria in your day-to-day functioning.
* * * * *
    c. Generally, we will not find that a test result is valid for our 
purposes when the information we have about your functioning is of the 
kind typically used by medical professionals to determine that the test 
results are not the best measure of your day-to-day functioning. If 
there is a material inconsistency between your test results

[[Page 71635]]

and other information in your case record, we will try to resolve it. * 
* *
* * * * *
    (Emphasis added). We provide similar definitions of the terms 
``marked'' and ``extreme'' in the listings section for children, with 
criteria appropriate to childhood.

Why are we providing a limited reopening of the public comment period?

    In response to the NPRM, we received many public comments that 
seemed to misunderstand our current policy, what changes we were 
proposing, and how the proposals might affect adults and children. We 
believe that much of the confusion was caused by our failure to provide 
sufficiently detailed information about our current policies and where 
our proposals came from. We apologize for that omission, which we have 
corrected in this notice.
    Although we received a wide variety of comments, we are reopening 
the public comment period on a limited basis to specifically address 
the misunderstanding of our current and proposed policy regarding the 
use of standardized tests. We are requesting public comment only on 
this issue in light of the clarification we are providing in this 
notice.
    Many commenters focused on two aspects of our proposed rule: (1) A 
definition of ``marked'' based on a standardized test score that is two 
standard deviations below the mean; and, (2) a separate definition of 
``marked'' based on functioning that would be the equivalent of such a 
score if there were a standardized test. As discussed above, neither of 
these proposals represents new policy; both are based on our 
longstanding rules. However, some commenters said that our proposal 
would encourage our adjudicators to use standardized tests. Many said 
that we should drop all reference to standardized tests in the mental 
illness sections of the proposed rules and that the change would reduce 
the number of children and adults with serious mental disorders who 
qualify for disability benefits. Some who are already beneficiaries or 
who have family members who are beneficiaries were concerned that they 
would lose their benefits.
    We did not intend for, and do not believe that, our proposed rules 
would do any of these things. The childhood mental disorders listings 
have contained a provision defining ``marked'' limitation as a score 
that is two standard deviations below the mean on a standardized test 
for 20 years. We developed those rules with information we received 
from a group of mental health experts. We did not propose to change 
that provision or the way we determine disability in children with 
serious mental disorders. We proposed only to extend the provision to 
adults since it has worked well in childhood claims.
    The proposed rules for adults and children do not state that 
adjudicators should obtain standardized tests, encourage them to do so, 
or indicate that there are standardized tests for all serious mental 
disorders. Rather, our proposed rules state only that if a person has a 
standardized test and the scores are two standard deviations below the 
mean, the test will show that the person has a ``marked'' limitation. 
Consistent with our current childhood rules, the proposed rules also 
state that adjudicators must not rely on the results of standardized 
tests alone but must consider all of the evidence in the person's case 
record.
    Since the beginning of 2001, our functional equivalence regulation 
has contained an alternative rule defining ``marked'' limitation for 
children based on functioning that would be consistent with a score on 
a standardized test that is two standard deviations below the mean, if 
there were such a test. As with the provision for actual scores from an 
actual test, the rule provides that we will find that the child has a 
marked limitation if the child is functioning at that level. The 
regulation section, like the proposed rule for the mental disorders 
listings, also provides other definitions for the term ``marked.'' We 
began using this regulation in 1997, 13 years ago. The number of awards 
of children who apply for SSI has not fallen since that time.\13\ Given 
this experience, we believe that it was appropriate to include the rule 
in both the adult and child mental disorders listings.
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    \13\ You may look up our award data for children under SSI by 
year in the SSI Annual Statistical Report, available at: http://www.socialsecurity.gov/policy/docs/statcomps/ssi_asr/2009/ssi_asr09.pdf.
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    Perhaps most importantly, it appeared that many commenters did not 
understand that we do not deny a person's claim merely because his or 
her impairment(s) does not meet or medically equal the criteria of our 
listings. As under our current rules, adults with mental disorders who 
cannot perform their past work or a significant number of jobs in the 
national economy considering their age, education, and work experience 
would still be able to qualify under other rules we have for finding 
persons disabled.
    We also want to make clear that we do not reexamine the entitlement 
of beneficiaries when we revise listings. When we periodically perform 
continuing disability reviews to determine if beneficiaries are still 
disabled, we continue to use the same listing section we used to make 
our most recent favorable decision.\14\ Thus, beneficiaries who 
qualified under a current listing would continue to qualify as long as 
their impairments continued to meet or medically equal the current 
listing.
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    \14\ See 404.1594(c)(3)(i), 416.994(b)(2)(iv)(A), and 
416.994a(b)(2).
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    In light of the importance of this issue and the widespread 
misunderstanding of our proposed rules, we are reopening the comment 
period for the limited purpose of allowing interested persons to 
provide any additional comments they may have on our proposed policy 
regarding the use of standardized tests.

Michael J. Astrue,
Commissioner of Social Security.
[FR Doc. 2010-29577 Filed 11-23-10; 8:45 am]
BILLING CODE 4191-02-P