Federal Register, Volume 75 Issue 160 (Thursday, August 19, 2010)

[Federal Register Volume 75, Number 160 (Thursday, August 19, 2010)]
[Proposed Rules]
[Pages 51335-51368]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-20247]

[[Page 51335]]

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Part II

Social Security Administration

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20 CFR Parts 404 and 416

Revised Medical Criteria for Evaluating Mental Disorders; Proposed Rule

Federal Register / Vol. 75, No. 160 / Thursday, August 19, 2010 /
Proposed Rules

[[Page 51336]]

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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 (NPRM).

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SUMMARY: We propose to revise the criteria in the Listing of
Impairments (listings) that we use to evaluate claims involving mental
disorders in adults and children under titles II and XVI of the Social
Security Act (Act). We also propose to remove certain sections of our
regulations and incorporate some of their provisions into other
sections of our regulations. The proposed revisions reflect our
adjudicative experience, advances in medical knowledge, recommendations
from a report we commissioned, and comments we received from experts
and the public in response to an advance notice of proposed rulemaking
(ANPRM) and at an outreach policy conference.

DATES: To ensure that your comments are considered, we must receive
them no later than November 17, 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, 137 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.

Why are we proposing to revise the listings for mental disorders?

We have not comprehensively revised section 12.00 of the listings--
the mental disorders body system for adults (persons who are at least
18 years old)--since we published it in the Federal Register on August
28, 1985.\1\ We last published final rules that comprehensively revised
section 112.00--the mental disorders listings for children (persons
under age 18)--on December 12, 1990.\2\
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\1\ 50 FR 35038 (1985).
\2\ 55 FR 51208 (1990).
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Although the 1985 and 1990 listings were significant advancements
in our rules at the time we published them, they were based in part on
prior editions of the American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders (DSM).\3\ We have also gained
considerable adjudicative experience in the decades since we published
those adult and child listings.
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\3\ The 1985 adult listings were based in part on the third
edition of the DSM (the DSM-III), and the 1990 childhood listings
were based in part on the revised third edition (the DSM-III-R).
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We published some updates to the mental disorders listings in 2000.
Those updates improved the rules, but did not comprehensively revise or
update them.\4\
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\4\ On July 18, 1991, we published an NPRM and proposed to
update and revise many of the rules for adults that we published in
1985 and some of the childhood rules that we published in 1990; we
also proposed in Sec. Sec. 404.1520a and 416.920a new rules for
evaluating mental disorders in children. 56 FR 33130. On August 21,
2000, we published final rules for only some of the provisions we
proposed in the NPRM. 65 FR 50746, corrected at 65 FR 60584. We
explained in the preamble to that notice that medical changes and
changes in the law since the time we published the NPRM required us
to review some of our proposed revisions and to defer action on
those proposed revisions. We also published minor revisions to the
childhood mental disorders listings on February 11, 1997, and
September 11, 2000, because of changes in the law. 62 FR 6408 and 65
FR 54747.
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We are now proposing to update and revise the listings for mental
disorders to reflect our adjudicative experience and the advances in
medical knowledge, treatment, and methods of evaluating mental
disorders that have occurred since we last revised them
comprehensively. As we explain below, the proposed rules also reflect
recommendations from a report we commissioned, comments we received in
response to an ANPRM, and information from a policy conference we held
about mental disorders in the disability programs.

How did we develop these proposed rules?

In addition to our adjudicative experience and review of advances
in medical knowledge, treatment, and methods of evaluating mental
disorders, we asked experts and the public to provide us with
information that helped us develop the proposals.
1. In 2000, we commissioned a report from the National Research
Council (NRC), Mental Retardation: Determining Eligibility for Social
Security Benefits (NRC report), published in 2000.\5\ The primary focus
of the report was on persons who have mental retardation in what is
called the ``mild'' range in the current edition of the DSM, the
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition,
Text Revision (DSM-IV-TR); \6\ that is, with intelligence quotient (IQ)
scores from 50-55 to approximately 70. The NRC committee:
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\5\ Citation in the References section at the end of this
preamble.
\6\ Complete citation in the References section of this
preamble.
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Examined the scientific bases regarding intelligence and
adaptive behavior, the relationship between them, and the assessment of
both;
Examined differential diagnosis; and
Searched the related literature.
2. We published an ANPRM in the Federal Register on March 17,
2003.\7\ We informed the public that we were planning to update and
revise the rules

[[Page 51337]]

we use to evaluate mental disorders and invited interested persons and
organizations to send us comments and suggestions for updating and
revising the mental disorders listings. We also asked for comments on
the NRC report.\8\ We received almost 500 letters and e-mails in
response to the notice, many from persons who have mental disorders or
who have family members with such disorders. We also received comments
from medical experts, advocates, and our adjudicators.\9\
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\7\ 68 FR 12639 (2003).
\8\ 68 FR at 12640.
\9\ If you would like to read the comments, you can find them on
our Internet site at: https://s044a90.ssa.gov/apps10/erm/rules.nsf/
Rules+Closed+To+Comment. Click on the link for ``0960-AF69: Revised
Medical Criteria for Evaluating Mental Disorders.''
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3. We hosted a policy conference called ``Mental Disorders in the
Disability Programs'' in Washington, DC, on September 23 and 24, 2003.
At this conference, we received comments and suggestions for updating
and revising our rules from physicians who treat patients with mental
disorders, other professionals and advocates who work with persons who
have mental disorders, and adjudicators who make disability
determinations and decisions for us in the State agencies and in our
Office of Disability Adjudication and Review.
Although we are not summarizing or formally responding to most of
the comments we received, many of the changes we propose reflect those
comments.

How are the current mental disorders listings structured, and what do
they require?

For most of the listed mental disorders, the current listings are
in three, or sometimes four, parts.\10\ The first part of every mental
disorder listing is a brief introductory paragraph that provides a
general diagnostic description of the disorder(s) covered by the
listing. The second part of most of these listings contains ``paragraph
A'' criteria, which are the specific symptoms, signs, and laboratory
findings that substantiate the presence of particular mental disorders.
An impairment cannot meet a mental disorder listing unless it satisfies
the diagnostic description and the paragraph A criteria of that
listing. The third part of most mental disorder listings contains
``paragraph B'' criteria, which for adults describe impairment-related
functional limitations that are incompatible with the ability to
work.\11\ The paragraph B criteria provide descriptions of the four
areas of functioning that we use to establish the severity of a
person's mental disorder. A mental disorder is of listing-level
severity if it satisfies two of the paragraph B criteria.\12\
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\10\ In the adult listings, the exceptions are listings 12.05
(mental retardation) and 12.09 (substance addiction disorders).
\11\ At the end of this preamble, we provide information about
two projects we have underway that may help us to better identify
the requirements of work in the future. While the outcome of these
projects may affect rules that we may propose in the future, we
believe that these long-term projects do not affect our decision to
proceed with these proposed rules now.
\12\ We use different paragraph B criteria in the childhood
listings to describe functional limitations in children of varying
ages.
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Some listings \13\ also include a fourth part, which we call
``paragraph C'' criteria. The paragraph C criteria are alternatives to
paragraph B for establishing the severity of certain chronic mental
disorders. In the paragraph C criteria, we recognize that psychosocial
supports, treatment, or both may control the more obvious symptoms and
signs of a chronic mental disorder, so that a person may not appear to
be as limited as he or she actually is. The paragraph C criteria
provide a way for finding listing-level disability in persons whose
impairments do not meet the current paragraph B criteria, but who
cannot tolerate the stress of work.
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\13\ Adult listings 12.02, 12.03, 12.04, and 12.06. There are no
current childhood mental disorders listings with paragraph C
criteria, but we can use the adult paragraph C criteria in
appropriate child cases. See the seventh paragraph of current
112.00A.
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What major revisions are we proposing?

We propose to revise both the content and the structure of the
adult and childhood mental disorders listings. The proposed mental
disorders listings do not include an introductory diagnostic paragraph
or a set of specific paragraph A diagnostic criteria. Instead, a person
would need only show that he or she has a mental disorder that:
(1) Is covered by one of the ten listing categories, and
(2) Except for certain listings under 12.05, results in marked
limitations of two or extreme limitation of one of four paragraph B
``mental abilities'' or satisfies the paragraph C criteria.
We are also proposing to:
Broaden most of the current listing categories to include
more mental disorders.
Add listings.
Provide new paragraph B criteria.
Revise the paragraph C criteria and extend them to all of
the mental disorders listing categories except proposed listings 12.05
and 112.05.
Clarify our definitions of the terms ``marked'' and
``extreme.''
As we have already noted, some of the proposed revisions reflect
comments and recommendations we received from persons who responded to
the ANPRM and from others who attended the 2003 conference. Some of the
proposed revisions based on comments and recommendations include:
Some commenters recommended that we include all mental disorders
described in the most recent version of the DSM. We agreed with the
commenters that the listings should include more mental disorders than
they do now, but we did not agree that we should include all mental
disorders. Some mental disorders are unlikely to result in functional
limitations of listing-level severity or meet the duration requirement,
and some are otherwise inappropriate for inclusion in our listings.
Instead, we propose to broaden most of the current listing categories
and to add some new listings.
The proposed new paragraph B criteria reflect comments from several
mental health advocates who recommended that we provide criteria for
evaluating a person's functioning in work-related terms. These
advocates thought that we should: (1) Look at the impact of an
impairment across domains of functioning critical for an adult to
function in competitive employment, (2) create criteria that reflect a
person's lack of skills in managing life and work, and (3) consider
whether the person has the capacity to exercise independent judgment
and truly care for himself or herself in a meaningful way without
structure. We would also use the same criteria for children beginning
at age 3, although in terms appropriate to childhood functioning.\14\
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\14\ For children under age 3, we are proposing to add a new
listing with paragraph B criteria that largely reflect the same
mental abilities that we propose in the paragraph B criteria for
children beginning at age 3 and for adults, but in terms appropriate
for children in this age group. Thus, we would establish a fairly
seamless continuum of evaluation from birth into adulthood.
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We also agreed with several commenters who recommended that we add
a criterion for ``extreme'' limitation in paragraph B, so that a
person's mental disorder can meet a listing with either ``extreme''
limitation in only one of the paragraph B criteria or ``marked''
limitation in two. We already have such criteria for children from
birth to age 3 in the current listings, but not for older children or
adults. We agreed with commenters who suggested that we use

[[Page 51338]]

the definitions of ``marked'' and ``extreme'' limitations that are in
Supplemental Security Income (SSI) childhood disability regulations
that we had recently issued.
We are also proposing to revise the paragraph C criteria based in
part on comments that our current requirement for a medically
documented 2-year history is unclear given the 1-year duration
requirement in the definition of disability. We also agreed with
commenters who recommended that we change the criterion in paragraph C
for ``decompensation'' to ``deterioration'' because the former term is
not appropriate in all cases. It refers to a state of extreme
deterioration, often leading to hospitalization. We also agreed with a
recommendation to add paragraph C criteria to the other mental
disorders listings since the criteria could apply to other types of
mental disorders. The only exception is under listings 12.05 and
112.05, where we do not believe it is necessary.
Finally, we agreed with a recommendation to expand and clarify our
rules to recognize that non-physician professional sources, such as
therapists and social workers, are often the mental health providers
who can best provide a person's history and longitudinal evidence about
functioning; that is, the person's functioning over time. The
commenters noted that such a change would realistically reflect the way
that mental health care is provided to most persons with chronic mental
impairments.

What other significant revisions are we proposing?

We also propose to:
Remove Sec. Sec. 404.1520a and 416.920a, Evaluation of
Mental Impairments. However, we would incorporate some of the
provisions of these rules into other sections of our regulations.
Expand, update, and reorganize the introductory text of
the listings.
Change the term ``Mental Retardation'' to ``Intellectual
Disability/Mental Retardation (ID/MR).''
Remove listings 12.09, Substance Addiction Disorders, and
112.09, Psychoactive Substance Dependence Disorders.
Revise the heading of listing 112.11 from ``Attention
Deficit Hyperactivity Disorder'' to ``Other Disorders Usually First
Diagnosed in Childhood or Adolescence.'' This proposed listing would
still include attention-deficit/hyperactivity disorder, but would also
include tic disorders, now in current listing 112.07 (Somatoform,
Eating, and Tic Disorders), and other mental disorders we do not
currently list. We would also add listing 12.11 to cover these
disorders in adults.
Add a separate listing 112.13 for eating disorders in
children, now covered by listing 112.07, and listing 12.13 to cover
these disorders in adults.
Add listing 112.14, Developmental Disorders of Infants and
Toddlers (Birth to Attainment of Age 3), and remove current listing
112.12, Developmental and Emotional Disorders of Newborn and Younger
Infants (Birth to attainment of age 1).

Proposed 12.00--Introductory Text to the Adult Mental Disorders
Listings

The following is a detailed description of the changes we are
proposing to the introductory text.

Proposed 12.00A--What are the mental disorders listings, and what do
they require?

Proposed 12.00A1

In this section, we name the ten proposed listing categories. These
categories generally reflect major diagnostic categories in the DSM-IV-
TR. We propose to change the names of six current listing categories,
to remove a listing, and to add two listings, as shown in the table
below.

------------------------------------------------------------------------
Current listing category Proposed listing category
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12.02 Organic Mental Disorders......... 12.02 Dementia and Amnestic and
Other Cognitive Disorders.
12.03 Schizophrenic, Paranoid and Other 12.03 Schizophrenia and Other
Psychotic Disorders. Psychotic Disorders.
12.04 Affective Disorders.............. 12.04 Mood Disorders.
12.05 Mental Retardation............... 12.05 Intellectual Disability/
Mental Retardation (ID/MR).
12.06 Anxiety Related Disorders........ 12.06 Anxiety Disorders.
12.07 Somatoform Disorders............. 12.07 Somatoform Disorders.
12.08 Personality Disorders............ 12.08 Personality Disorders.
12.09 Substance Addiction Disorders.... [Removed--see proposed 12.00H].
12.10 Autistic Disorder and Other 12.10 Autism Spectrum
Pervasive Developmental Disorders. Disorders.
12.11 Other Disorders Usually
First Diagnosed in Childhood
or Adolescence.
12.13 Eating Disorders.
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Proposed 12.00A2

In this section, we explain the structure of the mental disorders
listings and how a person's impairment can meet a listing. The standard
for meeting a listing based on ``marked'' limitations of two of the
paragraph B mental abilities is the same as in the current mental
disorders listings. The standard for meeting a listing based on
``extreme'' limitation of one mental ability would be new in the
listings. Under current Sec. Sec. 404.1520a(c)(4) and 416.920a(c)(4),
however, a mental disorder that results in ``extreme'' limitation
medically equals a listing. Under these rules, ``extreme'' limitation
``represents a degree of limitation that is incompatible with the
ability to do any gainful activity,'' which other rules explain is the
standard of severity in the listings. Sections 404.1525(a) and
416.925(a). For this reason, our proposal to add a criterion for
``extreme'' limitation in the mental disorder listings would simplify
our rules, allowing for a finding that an impairment meets, rather than
equals, a listing.
In paragraph A2b(ii) of this section, we explain that, whenever we
use the phrase ``the paragraph B criteria'' or ``paragraph B'' in the
introductory text, we mean the paragraph B criteria of every mental
disorder listing except listing 12.05. We are including this statement
because listing 12.05 also has a paragraph B, but it is somewhat
different from the ``paragraph B'' criteria common to all of the other
listings. We include a similar statement regarding the paragraph C
criteria in proposed 12.00A2c, where we briefly explain those criteria.

Proposed 12.00A3

In this section, we explain how a person's ID/MR meets proposed
listing 12.05.

Proposed 12.00B--How do we describe the mental disorders listing
categories?

In this new section, we describe the listing categories we use in
the mental disorders listings. We then provide examples of symptoms and
signs that

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persons with disorders in each category may have. We also give examples
of specific mental disorders in each category except listing 12.05,
which covers only ID/MR. The information in the description of each
category is not all-inclusive. We provide only basic information about
some of the most commonly occurring mental disorders as examples of the
kinds of disorders that we evaluate under each listing category.
The descriptions in 12.00B are similar to the current introductory
diagnostic paragraphs and the paragraph A criteria, but we are not
simply moving the introductory diagnostic paragraphs and the current
paragraph A criteria from the listings into the introductory text.
While the evidence must show that the person has a mental disorder in
one of the listing categories, the mental disorder does not have to
match one of the examples in proposed 12.00B. We will find that any
mental disorder meets one of these listings when it can be included in
one of the listings categories and satisfies the other criteria of the
appropriate listing for that mental disorder.
The sections of proposed 12.00B do not require explanation, except
for proposed 12.00B1 and 12.00B4.

Proposed 12.00B1--Dementia and Amnestic and Other Cognitive Disorders
(12.02)

In the DSM-IV-TR, this category is called ``Delirium, dementia, and
amnestic and other cognitive disorders.'' We do not include the term
``delirium'' because delirium will generally not meet the 12-month
duration requirement.
In proposed 12.00B1c, we include traumatic brain injury (TBI) as an
example of a mental disorder we can evaluate under proposed listing
12.02. We continue to include a reference to 11.00F in the neurological
section of our listings, as we do in current 12.00D10, to ensure that
our adjudicators give full consideration to both the neurological and
mental limitations resulting from TBI.

Proposed 12.00B4--Intellectual Disability/Mental Retardation (ID/MR)
(12.05)

Proposed Name Change

As we noted earlier, we propose to change the name ``Mental
Retardation'' to ``Intellectual Disability/Mental Retardation (ID/
MR).'' The term ``mental retardation'' has taken on negative
connotations over the years, is offensive to many persons, and results
in misunderstandings about the nature of the disorder and the persons
who have it. The term ``intellectual disability'' is now widely used
internationally and is gradually replacing ``mental retardation'' in
the United States.
For these reasons, and consistent with many other organizations, we
are proposing to introduce the term ``intellectual disability'' in
these listings.\15\ Even though ``mental retardation'' is offensive to
many persons, we are not proposing to remove it from our listings at
this time; rather, we refer to ``intellectual disability'' and ``mental
retardation'' together as the same disorder.\16\ We have a number of
reasons for doing this, including the following:
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\15\ For more information about the use of new terms to replace
``mental retardation,'' please refer to the 2002 report, ``Usage of
the Term `Mental Retardation': Language, Image and Public
Education,'' available on our Web site at http://www.socialsecurity.gov/disability/MentalRetardationReport.pdf.
Complete citation in the References section of this preamble.
\16\ We are also proposing to introduce the abbreviation ``ID/
MR,'' so we will not be using the phrase ``mental retardation'' as
often as we do now.
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Although the term ``mental retardation'' is gradually
being replaced in the United States, it is still widely used and
familiar to most persons.
The DSM-IV-TR and some other leading clinical practice
manuals still use the term.
Many medical reports, school records, and other documents
that are included in case files contain the term.
A number of Federal and State benefit programs still use
the term.
Also, since we recognize that not everyone in the United States is
familiar with the term ``intellectual disability,'' we want to be clear
in these rules that we evaluate only what some persons still call
``mental retardation'' under listing 12.05 and not other forms of
cognitive impairments, such as learning disorders (which we would
evaluate under proposed listing 12.11).

Proposal To Require ``Significant'' Deficits in Adaptive Functioning To
Demonstrate ID/MR

The introductory diagnostic paragraph in current listing 12.05 does
not describe a level of severity for deficits of adaptive functioning.
In proposed 12.00B4a, which describes the characteristics of ID/MR, we
would require ``significant'' deficits of adaptive functioning. Major
associations that provide diagnostic criteria for mental retardation
generally refer to ``significant'' deficits or limitation.
The most recent edition of the American Association on Intellectual
and Developmental Disabilities (AAIDD) manual states:

For the diagnosis of intellectual disability, significant
limitations in adaptive behavior should be established through the
use of standardized measures normed on the general population,
including people with disabilities and people without disabilities.
On these standardized measures, significant limitations in adaptive
behavior are operationally defined as performance that is
approximately 2 standard deviations below the mean of either (a) one
of the following three types of adaptive behavior: conceptual,
social, or practical, or (b) an overall score on a standardized
measure of conceptual, social, and practical skills. * * * \17\
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\17\ American Association on Intellectual and Developmental
Disabilities, Intellectual Disability: Definition, Classification,
and Systems of Supports, 11th Edition, Washington, DC (2010), page
43.

The American Psychological Association's Manual of Diagnosis and
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Professional Practice in Mental Retardation states:

Significant limitations in adaptive functioning are determined
from the findings of assessment by using a comprehensive, individual
measure of adaptive behavior. For adaptive behavior measures, the
criterion of significance is a summary index score that is two or
more standard deviations below the mean for the appropriate norming
sample or that is within the range of adaptive behavior associated
with the obtained IQ range sample in the instrument norms. * * * For
adaptive behavior measures that provide factor or summary scores,
the criterion of significance is multidimensional; that is, two or
more of these scores lie two or more standard deviations below the
mean for the appropriate norming sample or lie within the range of
adaptive behavior associated with the intellectual level consistent
with the obtained intelligence quotient, as indicated by the
instrument norms.\18\
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\18\ Jacobson, John W., and Mulick, James A., eds., Manual of
Diagnosis and Professional Practice in Mental Retardation, American
Psychological Association, Washington, DC (1996), page 13.

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The DSM-IV-TR states:

The essential feature of mental retardation is significantly
subaverage intellectual functioning (Criterion A) that is
accompanied by significant limitations in adaptive functioning in at
least two of the following skills areas: communication, self-care,
home living, social/interpersonal skills, use of community
resources, self-direction, functional academic skills, work,
leisure, health, and safety (Criterion B).\19\
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\19\ American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition, Text
Revision, (DSM-IV-TR), Washington, DC (2000), page 41.

Therefore, the proposed requirement for ``significant'' deficits in
adaptive functioning is generally consistent with the diagnostic
criteria used in the clinical community.

Proposed Clarification of Our Rule on the Developmental Period for ID/
MR

In the introductory paragraph of listing 12.05, we explain that a
person's

[[Page 51340]]

mental retardation must be manifested during the ``developmental
period; [that is,] * * * before age 22.'' We propose to simplify this
language by removing our reference to the ``developmental period'' and
referring only to the period before age 22. The proposed change would
not be substantive since the phrase ``developmental period'' means the
period before the person attained age 22.
Also, in proposed 12.00B4c, we explain that ID/MR initially
manifested before age 22 is often demonstrated by evidence from that
period, but that, when we do not have such evidence, we will still find
that a person has ID/MR if the current evidence and the history of the
impairment are consistent with the diagnosis ``and there is no evidence
to indicate an onset after age 22.'' The quoted language is a
clarification of our rules. In the current introductory paragraph of
listing 12.05, we provide that the evidence must demonstrate ``or
support[ ]'' onset of the impairment before age 22. We added this
language in 2000 to better explain what we mean by evidence
demonstrating that the disorder was initially manifested before age
22,\20\ but we have received questions indicating that our intent is
still not clear. Therefore, we are proposing to clarify the provision
even further.
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\20\ In explaining the change, we said:
We have always interpreted [the word ``manifested''] 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.''
65 FR at 50772, August 21, 2000.
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In proposed 12.00B4d, we would continue to include our rule that we
accept the lowest IQ score on a test that provides more than one score
(for example, a verbal, performance, and full scale IQ in a Wechsler
series test). For a number of reasons, the NRC recommended that we
change our rule to consider only the composite or ``total'' score (such
as full scale IQ).\21\ We decided not to propose the change at this
time because we believe it is unnecessary and keeping our current rule
will help us to adjudicate some cases more quickly than we would if we
accepted the NRC recommendation. We are putting more emphasis in these
rules on the need to confirm the validity of test results with other
evidence, especially of a person's day-to-day functioning. We are also
clarifying that a person must have ``significant'' deficits of adaptive
functioning. The approach in these proposed rules is more in keeping
with modern definitions of ID/MR, especially in the 2010 edition of the
AAIDD manual, which emphasizes the ``multidimensional'' aspects of
defining ID/MR.\22\ We also know from our case reviews that only a
relatively few claimants who qualify under current listing 12.05 do not
have ID/MR, and we believe that the improvements we are making in these
proposed rules will make our determinations and decisions even more
accurate. Thus, we believe that, properly applied, the proposed rules
will correctly identify persons who have the disorder.
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\21\ See, for example, the NRC report, pages 31 and 108.
\22\ See especially Chapter 4 regarding the role of intelligence
testing in diagnosing ID/MR.
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In proposed 12.00B4e, we would clarify a number of provisions about
listing 12.05C:
We explain that the other physical or mental impairment
must be a ``severe'' impairment, as defined in our regulations. We also
explain that we do not count impairments that are not ``severe'' even
if they prevent a person from doing past relevant work. Both of these
provisions are in the fourth paragraph of current 12.00A.
Current listing 12.05C provides that the other impairment
must ``impos[e] an additional and significant work-related limitation
of functioning.'' (Emphasis added.) We propose to clarify this
provision by specifying that the limitation(s) caused by the other
physical or mental impairment must be separate from the limitations
caused by the ID/MR.

Proposed 12.00C--What are the paragraph B criteria?

In this section, we describe the four paragraph B criteria that we
propose to use to assess a person's impairment-related limitation in
functioning in the mental disorder listings. The proposed paragraph B
criteria are the mental abilities an adult uses to function in a work
setting; that is, the abilities to:
Understand, remember, and apply information (paragraph
B1);
Interact with others (paragraph B2);
Concentrate, persist, and maintain pace (paragraph B3);
and
Manage oneself (paragraph B4).
We based the proposed criteria in part on critical work-related
limitations and abilities that we consider at other steps in the five-
step sequential evaluation process that we use to determine disability
in adults. We also propose to use an approach for evaluating
limitations similar to the approach we use in determining functional
equivalence for children under SSI. We would consider how a mental
disorder affects the person's underlying mental abilities and, thus,
results in limitations in functioning. In addition, we have tailored
the criteria to children using terms appropriate to childhood
functioning. We believe this approach provides a seamless set of
severity criteria in the proposed listings from childhood into
adulthood.\23\
---------------------------------------------------------------------------

\23\ As we have already noted, and explain later in detail, we
provide a somewhat different set of paragraph B criteria for
children who have not attained age 3. However, those criteria are
related to the proposed paragraph B criteria we would use for all
other children and for adults.
---------------------------------------------------------------------------

We are not proposing to change the types of evidence we would
consider when we rate the severity of a person's limitations under the
proposed paragraph B criteria. We know that most persons are not
working when they apply for benefits; so, we must use information from
their medical and other sources about how they function in their daily
activities in order to draw conclusions about the functional
limitations they would have in a work setting. This is essentially the
same thing we do when we determine at step 2 of the sequential
evaluation process that a person is limited in the ability to do basic
work activities and when we assess residual functional capacity (RFC)
for steps 4 and 5.

Proposed 12.00C1--Understand, Remember, and Apply Information
(Paragraph B1)

In this section, we define the proposed paragraph B1 criterion and
give examples of when a person uses this ability to perform work
activities. We explain later in this preamble why we are proposing to
remove the current paragraph B1 criterion, ``activities of daily
living.''

Proposed 12.00C2--Interact With Others (Paragraph B2)

In this section, we define the proposed paragraph B2 criterion and
give examples of when a person uses this ability to relate to and work
with supervisors, co-workers, and the public in a work setting. This
criterion is related to, but would replace, the current paragraph B2
criterion, ``social functioning.'' We propose to remove some of the
information in current 12.00C2 because it is not as useful in the
context of the proposed B2 criterion as it is for the current
criterion. For example, we propose to remove the current examples of
limitation and strength in social functioning because we are proposing
to focus on the mental abilities needed to work. In the proposed rule,
we include examples of

[[Page 51341]]

what a person is expected to do when using the mental ability to
interact with others in a work setting; for example, cooperating with
co-workers or accepting criticism from a supervisor. An evaluation of
the effects of a mental disorder on a person's mental ability to
interact with others entails, among other things, a judgment of whether
the person would be able to cooperate and accept criticism.
We would remove other information in current 12.00C2 about social
functioning because we include it and give it more general application
elsewhere in the proposed introductory text. For example, current
12.00C2 refers to social functioning as the ``capacity to interact
independently, appropriately, effectively, and on a sustained basis
with other people,'' and explains that ``[w]e 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.'' These two general statements apply to the rating of
impairment-related limitations for all the paragraph B criteria, not
just social functioning. Therefore, in these proposed rules, we revise
the statements slightly and include them in proposed 12.00D, where we
define ``marked'' and ``extreme'' limitations for all four of the
paragraph B mental abilities.

Proposed 12.00C3--Concentrate, Persist, and Maintain Pace (Paragraph
B3)

The proposed paragraph B3 criterion is the same as the current
paragraph B3 criterion, ``maintaining concentration, persistence, or
pace,'' except that we propose to change ``or'' to ``and.'' This would
not be a substantive change in the paragraph B3 criterion, but only a
clarification of the overall requirement. In a work setting, just as a
person is expected to understand, remember, and apply information, he
or she is also expected to be able to concentrate, persist, and
maintain pace.
We propose to move some of the information in current 12.00C3 to
other sections of the proposed introductory text because the
information includes useful guidance that applies to all of the
proposed paragraph B criteria. For example, there is detailed
information about clinical examinations, psychological testing, mental
status examinations, and work evaluation, but we would consider these
types of evidence when we assess limitations in the other paragraph B
criteria too. For this reason, we propose to provide all the guidance
about the medical and nonmedical evidence we may consider under these
listings in proposed 12.00G, What evidence do we need to evaluate your
mental disorder?
We include information from the fifth paragraph of current 12.00C3
about ``marked'' limitation in proposed 12.00D1c. We also elaborate on
what we mean by using a mental ability independently, appropriately,
effectively, and on a sustained basis to function in a work setting.

Proposed 12.00C4--Manage Oneself (Paragraph B4)

The proposed paragraph B4 criterion would include aspects of
functioning that we currently consider when we assess RFC, such as the
ability to respond to demands and changes in the workplace. It reflects
the critical role that self-management plays in being able to function
independently, appropriately, effectively, and on a sustained basis in
a work setting. It also includes the aspects of the current paragraph
B1 criterion (activities of daily living) that deal with health and
safety, as described in current 12.00C1.

Proposal To Remove the Current Paragraphs B1 and B4 Criteria

We propose to remove the current paragraph B1 criterion, activities
of daily living (ADLs), because limitations in ADLs are the
manifestation of limitations of any one, several, or sometimes all, of
the four mental abilities in these proposed rules. For example, a
person may have difficulty using public transportation or shopping
(both of which are examples of ADLs in current 12.00C1) because of
limitation of the ability to understand, remember, and apply
information, the ability to interact with others, or both. These ADLs
may also be limited by problems with the ability to concentrate or
persist, or with the ability to manage oneself. Therefore, we do not
believe that limitations in ADLs should be considered in a single
separate area. Rather, we would use information about how the person
functions in his or her ADLs, together with other information in the
case record, to determine how the proposed four mental abilities are
affected by the person's mental disorder. Since these abilities are
necessary to function in a work setting, we would then be able to more
realistically determine a person's capacity for work, even in
situations in which he or she is not working or has never worked.
We describe the current paragraph B4 criterion--repeated episodes
of decompensation, each of extended duration--in current 12.00C4 as
``exacerbations or temporary increases in symptoms or signs accompanied
by a loss of adaptive functioning.'' We also explain that loss of
adaptive functioning is manifested by difficulties in performing ADLs
(current paragraph B1), maintaining social relationships (current
paragraph B2), or maintaining concentration, persistence, or pace
(current paragraph B3). Therefore, we seldom use the paragraph B4
criterion because we define it in terms of the first three current
paragraph B criteria. This same redundancy would exist if we kept the
paragraph B4 criterion with the proposed criteria.
We recognize that most mental disorders are subject to periods of
exacerbation; therefore, in proposed 12.00G6, we continue to require
adjudicators to consider temporary increases in symptoms and signs and
their effect on a person's functioning over time when they rate
limitations of the proposed paragraph B criteria. In the proposed
paragraph C criteria, we would also continue to factor in a history of
episodes of deterioration, as we explain below.

Proposed 12.00D--How do we use the paragraph B mental abilities to
evaluate your mental disorder?

In this section, we propose to consolidate a provision that is in
current 12.00A with guidance about rating impairment severity that
appears in several different sections of current 12.00C. For example,
in current 12.00C1, C2, and C3, we explain ``We do not define `marked'
by a specific number of activities [or behaviors or tasks] in which
functioning is impaired, but by the nature and overall degree of
interference with function.'' Instead of stating it three times, we
include this guidance in a single section, proposed 12.00D1c. We also
propose to include guidance from our childhood disability rules that is
applicable to evaluating mental disorders in adults and children.

Proposed 12.00D1

In this section, we provide general information about the paragraph
B mental abilities. For example, we explain that:
``Marked'' or ``extreme'' limitation reflects the overall
degree to which a mental disorder interferes with a person's use of an
ability and does not necessarily reflect a specific type or number of
activities that a person has difficulty doing.
No single piece of information (including test scores) can
establish whether a person has marked or extreme limitation.
We consider the kind and extent of supports a person
receives and the characteristics of any highly structured

[[Page 51342]]

setting in which the person spends time in order to function.
In proposed 12.00D1d, we state that the more extensive the supports
or the more structure a person needs in order to function, the more
limited we will find the person to be. This is a principle that we use
in the childhood disability rules, and it is applicable to adults as
well.\24\
---------------------------------------------------------------------------

\24\ See, for example, Sec. Sec. 416.924a(b)(5)(ii) and
(b)(5)(iv); Social Security Ruling (SSR) 09-1p, ``Title XVI:
Determining Childhood Disability Under the Functional Equivalence
Rule--The `Whole Child' Approach'' (74 FR 7527 (2009)), available
at: http://www.socialsecurity.gov/OP_Home/rulings/ssi/02/SSR2009-01-ssi-02.html; and SSR 09-2p, ``Title XVI: Determining Childhood
Disability--Documenting a Child's Impairment-Related Limitations''
(74 FR 7625 (2009)), available at: http://www.socialsecurity.gov/OP_Home/rulings/ssi/02/SSR2009-02-ssi-02.html.
---------------------------------------------------------------------------

Proposed 12.00D2--What We Mean By ``Marked'' Limitation

The proposed definition of ``marked'' limitation generally
corresponds to the definitions in current 12.00C and 112.00C. We also
incorporate provisions from Sec. 416.926a, the regulation for
functional equivalence for children, which provides a more detailed
definition of the term than we do in the current mental disorders
listings and which we propose to apply to adults.
One of the provisions from Sec. 416.926a(e) that we are including
in this definition explains 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. We added this provision to our functional equivalence rules
in 2000\25\ to codify guidance that we had given to our adjudicators
during training.\26\ We believe that this guidance is also useful for
understanding the term as we apply it to adults and children under the
mental disorders listings. A person whose functioning is two standard
deviations below the mean is in approximately the second percentile of
the population; that is, about 98 percent of the population functions
at a higher level. It is also a meaningful concept to many mental
health professionals.
---------------------------------------------------------------------------

\25\ 65 FR 54747, 54757.
\26\ Childhood Disability Training, SSA Office of Disability,
Pub. No. 64-075, March 1997.
---------------------------------------------------------------------------

We are not including in these proposed rules the description of
``marked'' as ``more than moderate but less than extreme'' from current
12.00C and 112.00C. Instead, we propose to use an explanation based on
the language describing the rating scale for the Psychiatric Review
Technique (PRT) in current Sec. Sec. 404.1520a(c)(4) and
416.920a(c)(4) as a frame of reference to help define the terms
``marked'' and ``extreme.'' The rules for the PRT describe ``marked''
as the fourth point on a five-point rating scale--none, mild, moderate,
marked, and extreme. In the proposed rules, we explain that we do not
require our adjudicators to use such a scale, but that ``marked'' would
be the fourth point on a scale of ``no limitation, slight limitation,
moderate limitation, marked limitation, and extreme limitation.'' With
this guideline, it is unnecessary to also state that ``marked'' falls
between ``moderate'' and ``extreme.'' We use the word ``slight''
instead of ``mild'' to make clear that it is at a level consistent with
an impairment that is not ``severe,'' as we explain the term in SSR 85-
28,\27\ and to preserve guidance that is consistent with the provision
in current Sec. Sec. 404.1520a(d)(1) and 416.920(a)(d)(1).
---------------------------------------------------------------------------

\27\ SSR 85-28, ``Titles II and XVI: Medical Impairments That
Are Not Severe,'' available at http://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR85-28-di-01.html.
---------------------------------------------------------------------------

Proposed 12.00D3--What We Mean By ``Extreme'' Limitation

The proposed definition of ``extreme'' limitation is based on the
definition in Sec. 416.926a(e), and is in terms that are related to
our definition of ``marked.'' For example, while ``marked'' limitation
can generally be shown by a score on a standardized test that is at
least two, but less than three, standard deviations below the mean,
``extreme'' limitation can generally be shown by a score that is at
least three standard deviations below the mean. As we do in Sec.
416.926a(e), we also explain that, while ``extreme'' is the rating we
give to the worst limitations, it does not necessarily mean a total
lack or loss of ability to function. Similarly to proposed 12.00D2, we
also propose to provide a guideline based on Sec. Sec. 404.1520a(c)(4)
and 416.920a(c)(4) that describes ``extreme'' as the last point on a
five-point rating scale.

Proposed 12.00D4--How We Consider Your Test Results

In this proposed section, we would clarify how we intend for our
adjudicators to consider test scores under listing 12.05 or any other
listing; that is, that the other objective medical evidence and the
other evidence about the effects of a mental disorder on a person's
functioning must be consistent with the score. There continues to be
confusion about the extent to which we rely on IQ scores in listing
12.05 or whenever we assess mental abilities or functioning with IQ
tests or other kinds of tests.
We based the language of the proposed rule on our policy for
considering test results when we determine disability in children under
SSI. Sections 416.924a(a)(1)(ii) and 416.926a(d)(4). This general
policy is applicable to our evaluation of test results in claims of
adults and children with mental disorders as well; so, we are proposing
to incorporate it in the mental disorders listings. We include similar
policy statements in our current mental disorders listings. In current
12.00D5c, we state, ``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.''
(Emphasis added.) In current 12.00D6a, we state, ``[S]ince 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''
(emphasis added).\28\ We believe, however, that the language in the
childhood regulations is clearer and more comprehensive.
---------------------------------------------------------------------------

\28\ In current 12.00D5b, we also state that ``a report of test
results should include both the objective data and any clinical
observations'' that corroborate the data. This is another current
rule that provides that we must consider whether the person's
functioning is consistent with the test score, although in this case
it is in a clinical setting. Since we are proposing to remove the
detailed guidance about testing that is in current 12.00D, we are
proposing a new section 12.00B4d in the introductory text that will
continue to address this issue for IQ testing in ID/MR.
---------------------------------------------------------------------------

Proposed 12.00E--What are the paragraph C criteria, and how do we use
them to evaluate your mental disorder?

Both the current and proposed paragraph C criteria are alternative
severity criteria for situations in which a person has achieved only
marginal adjustment, and the symptoms and signs of his or her mental
disorder are diminished because of psychosocial supports or treatment.
The current paragraph C criteria for listings 12.02, 12.03, and 12.04
require a ``Medically documented history of a [specified chronic mental
disorder] of at least 2 years' duration that has caused more than a
minimal limitation of [the] ability to do basic work activities, with
symptoms or signs currently attenuated by medication or psychosocial
support.'' They also require one of three criteria described, in part,
as:

[[Page 51343]]

Repeated episodes of decompensation, each of extended
duration (C1);
A residual disease process that has resulted in marginal
adjustment (C2); or
A current history of 1 or more years' inability to
function outside a highly supportive living arrangement (C3).
We incorporate the same three criteria in the proposed rules, but
we have simplified their content and application. For example, rather
than counting the episodes of decompensation as required by current
12.00C4,\29\ we simply require that the person have:
---------------------------------------------------------------------------

\29\ Three episodes within 1 year, or an average of once every 4
months, each lasting for at least 2 weeks.
---------------------------------------------------------------------------

A ``serious and persistent'' mental disorder with
continuing treatment, psychosocial support, or a highly structured
setting that diminishes the symptoms and signs of the disorder
(proposed C1); and
Marginal adjustment (proposed C2) as described in proposed
12.00E2c.
The description of marginal adjustment in proposed 12.00E2c
includes essentially all of the current criteria, but is broader and,
we believe, more accurate. We explain that marginal adjustment reflects
a person's fragile existence in his or her environment, with minimal
capacity to adapt to changes in the environment or demands that are not
already part of his or her daily life. We believe that this approach
more realistically reflects the nature of serious and persistent mental
disorders.
The current paragraph C criterion for listing 12.06 ``reflects the
uniqueness of agoraphobia'' (in current 12.00F) and requires the
``complete inability to function independently outside the area of
one's home.'' We continue to include this criterion under proposed
listing 12.06C by providing in proposed 12.00E2c that ``marginal
adjustment'' includes the inability to function ``outside your home.''
For accuracy and clarity, we propose to use the term ``serious and
persistent mental disorders'' instead of ``chronic mental
impairments,'' as in current 12.00E. As used in the DSM-IV-TR, the word
``chronic'' is a ``specifier'' of certain mental disorders and provides
information about the duration of certain diagnostic criteria. The
duration varies by the disorder, and not all disorders have a
``chronic'' specifier. For example, the DSM-IV-TR uses ``chronic'' as a
specifier for Posttraumatic Stress Disorder when symptoms last at least
3 months, but for a major depressive episode when the full criteria
have been continuously met for 2 years. We are proposing to use a
completely separate term from the DSM-IV-TR so there is no confusion.
We also believe that the proposed term is more descriptive of what we
intend by the paragraph C criteria.
The term ``serious and persistent mental disorders,'' is also
similar to the terms ``serious and persistent mental illness,'' (SPMI),
``serious mental illness,'' and other descriptions used widely in
Federal and State statutes and regulations, and in other areas related
to mental health treatment and services. These terms generally refer to
the same kinds of serious, chronic illnesses for which we intend the
paragraph C criteria; for example, schizophrenia, bipolar disorder,
major depressive disorder, agoraphobia, panic disorder, and
posttraumatic stress disorder. We do not propose to adopt the exact
term ``SPMI'' or any specific definition from other sources because
there is no standard definition for the term, and some definitions
would be narrower than we intend.\30\
---------------------------------------------------------------------------

\30\ For example, in 2003, the President's New Freedom
Commission on Mental Health defined ``adults with a serious mental
illness'' as ``persons age 18 and over, who currently or at any time
during the past year, have had a diagnosable mental, behavioral, or
emotional disorder of sufficient duration to meet diagnostic
criteria specified within DSM-III-R that has resulted in functional
impairment which substantially interferes with, or limits one or
more major life activities.'' (Citation in the References section of
this preamble. Footnotes omitted.) For our disability determination
purposes, the 12-month duration requirement in the Act applies
instead of the various duration requirements in the DSM specific to
different mental disorders.
---------------------------------------------------------------------------

In proposed 12.00E2a, we explain that a ``serious and persistent
mental disorder'' is established by a medically documented history of
the existence of the disorder over a period of at least 1 year. In
order to satisfy the proposed paragraph C criteria, a person with a
serious and persistent mental disorder must satisfy two additional
criteria. He or she:
Must be in continuing treatment, have psychosocial
supports, or be in a highly structured setting (paragraph C1); and
Must have achieved ``only marginal adjustment'' as defined
in paragraph C2.
These two provisions describe a very serious impairment. Anyone who
has a mental disorder that has persisted for at least 1 year and that
satisfies the paragraph C1 and C2 criteria will by definition have a
``serious and persistent mental disorder.''
To ensure that we make allowances based on the paragraph C criteria
as quickly as possible, we would also provide in proposed 12.00E1 that
our adjudicators can apply the paragraph C criteria without first
considering whether the mental disorder satisfies the paragraph B
criteria. Also, in proposed 12.00E2c, we use the word ``deterioration''
instead of ``decompensation'' in response to the public comments we
have already described.

Proposed 12.00F--How do we consider psychosocial supports, highly
structured settings, and treatment when we evaluate your functioning?

This section includes some of the information in the fourth
paragraph of current 12.00C3 and current 12.00E, F, G, and H. We
provide a greatly expanded list of examples of psychosocial supports
and highly structured settings in proposed 12.00F2 and guidance about
the effects of treatment in proposed 12.00F3. These changes respond to
comments from several sources who recommended that the proposed rules
should reflect the fact that controlling a person's symptoms with
medications and community supports does not eliminate the underlying
mental disorder and that we should not interpret evidence of a person's
active involvement in a supported work setting by itself to mean that
the person is not disabled.

Proposed 12.00G--What evidence do we need to evaluate your mental
disorder?

Proposed 12.00G corresponds to the information in current 12.00D1
through D3; however, we have expanded the information from the current
rules and reorganized it in what we believe is a more user-friendly
format.
We have not included text corresponding to current 12.00B, Need for
medical evidence, because the information in that section is
unnecessary, appears in other regulations, or appears in other
provisions of these proposed rules.\31\ Also, the last two sentences of
current 12.00B explain that symptoms and signs cluster together to
constitute recognizable mental disorders described in the listings, and
that the symptoms and signs may be intermittent or continuous. We
believe this information is too general to be helpful and would be
unnecessary in these proposed rules given the information we provide in
proposed 12.00B. We also provide guidance about mental disorders that
are subject to exacerbations and

[[Page 51344]]

remissions--that is, that can be intermittent--in proposed 12.00G6.
---------------------------------------------------------------------------

\31\ For example, the rule in current 12.00B that we must
establish the existence of a medically determinable impairment that
meets the duration requirement also appears in Sec. Sec. 404.1508,
404.1509, 404.1520, 416.908, 416.909, and 416.920 of our
regulations.
---------------------------------------------------------------------------

Likewise, we do not include the rule in the first paragraph of
current 12.00D that the medical evidence must be sufficiently complete
and detailed as to symptoms, signs, and laboratory findings to permit
an independent determination. We already have a provision that says
essentially the same thing. Sections 404.1513(e) and 416.913(e).

Proposed 12.00G1--General

Proposed 12.00G1 explains that we need evidence to assess the
existence and severity of a person's mental disorder and its effects on
the person's ability to function in a work setting. We also include
guidance about the evidence we need from acceptable medical sources
\32\ and other sources and include references to our basic rules on
evidence and symptoms.
---------------------------------------------------------------------------

\32\ ``Acceptable medical sources'' are physicians, licensed or
certified psychologists, and certain other types of medical sources
who can provide evidence to establish the existence of a medically
determinable impairment. Sections 404.1513(a) and 416.913(a).
---------------------------------------------------------------------------

As we note below, we are proposing to remove current 12.00D4, which
describes mental status examinations. However, we have included a
sentence in proposed 12.00G1 that is based on the last sentence of
current 12.00D4. The current sentence provides that the individual
facts of a case determine the specific areas of mental status that must
be emphasized during a mental status examination. We propose to revise
that statement so that it applies to all evidence, not just mental
status examinations; that is, to provide that individual case facts
determine the type and extent of evidence we need to make our
determination or decision. This will help to clarify that we do not
need, and will not ask for, evidence from all of the sources we
describe in 12.00G in every case.

Proposed 12.00G2--Evidence From Medical Sources

In proposed 12.00G2, we reorganize and expand the information in
current 12.00D1a and incorporate information from current 12.00D1c to
explain that we will consider all relevant evidence from the person's
physician or psychologist and from other medical sources who are not
``acceptable medical sources,'' such as therapists and licensed
clinical social workers. We include information about other medical
sources under the heading, ``Evidence from medical sources,'' rather
than ``Other information,'' as in current 12.00D1c, because we consider
these sources to be kinds of ``medical sources'' under Sec. Sec.
404.1513(d)(1) and 416.913(d)(1) of our regulations. While only certain
persons, such as physicians and licensed or certified psychologists,
are ``acceptable medical sources,'' we agreed with commenters who said
that we should emphasize the role that other medical sources can play
in our disability evaluations. For this reason, we also provide that
evidence from other medical sources can be ``especially helpful'' to
our assessment of the severity of mental disorders and their effects on
functioning. This provision is consistent with guidance we provide in
SSR 06-3p.\33\
---------------------------------------------------------------------------

\33\ SSR 06-3p, ``Titles II and XVI: Considering Opinions and
Other Evidence from Sources Who Are Not `Acceptable Medical Sources'
in Disability Claims; Considering Decisions on Disability by Other
Governmental and Nongovernmental Agencies,'' 71 FR 45593 (2006).
Also available at: http://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR2006-03-di-01.html.
---------------------------------------------------------------------------

We also provide an expanded list of the types of evidence that may
be available from medical sources. The list includes the information in
current 12.00D1a regarding cultural background and sensory, motor, and
speaking abnormalities that may affect our evaluation of a person's
mental disorder. Finally, we do not include information from current
12.00D1a that only repeats provisions of our other regulations.
We propose to remove current 12.00D4, which discusses the mental
status examination in detail. Current 12.00D4 does not provide any
rules for our adjudicators to apply, and the elements of the mental
status examination are more thoroughly and effectively described in
standard psychiatric and psychological textbooks. We also provide
guidance about the elements of mental status examinations in the
booklet, Consultative Examinations: A Guide for Health
Professionals.\34\ In the proposed rules, we list the mental status
examination as one aspect of the evidence we typically expect from
medical sources.
---------------------------------------------------------------------------

\34\ SSA Pub. No. 64-025, November 1999. Available at: http://www.socialsecurity.gov/disability/professionals/greenbook/index.htm.
---------------------------------------------------------------------------

We also propose to remove current 12.00D11, which describes the
documentation needed for specific anxiety disorders. Although the
paragraph uses words that are specific to anxiety disorders, it does
not require anything that we would not ordinarily require to evaluate
other mental disorders. For example, it requires information about a
typical reaction, and if there are panic attacks, a description of the
nature, frequency, and duration of the attacks, the precipitating and
aggravating factors, and the functional limitations that result. This
is a description of how we evaluate any impairment that is subject to
exacerbations, and we would consider the same kinds of information in
evaluating any such mental disorder. It is also similar to our rules
for evaluating symptoms in Sec. Sec. 404.1529 and 416.929. Likewise,
the information in the paragraph about descriptions of a person's
anxiety reaction from medical and other sources is already covered by
other rules, including proposed 12.00G, in which we would provide
extensive information about the kinds of evidence we may obtain from
medical and other sources.

Proposed 12.00G3--Evidence From You and Persons Who Know You

Proposed 12.00G3 corresponds to current 12.00D1b and the second
sentence of current 12.00D1c. In the proposed rule, we have simplified
the language and removed unnecessary statements.

Proposed 12.00G4--Evidence From School, Vocational Training, Work, and
Work-Related Programs

Proposed 12.00G4 generally corresponds to the last sentences of
current 12.00D1c and 12.00D3, but we propose to add information about
school evidence and to expand the information about vocational training
and work-related programs. We also explain that we will consider
information from work attempts or current work activity when we need it
to show the severity of a person's mental disorder and how it affects
his or her ability to function.

Proposed 12.00G5--Evidence From Psychological and Psychiatric Measures

We propose to remove the detailed information on psychological
testing in current 12.00D5 through D9 because most of this information
is educational and procedural, and tests are constantly being revised
and updated. Instead, we would provide general and policy-related test
information in an SSR.\35\ Therefore, in this section we would explain
only in general terms how we consider the results of psychological and
psychiatric measures.
---------------------------------------------------------------------------

\35\ However, we are proposing to include a provision that
explains how we decide whether an IQ test score is ``valid'' in
proposed 12.00B4d and general guidance for considering test results
in proposed 12.00D4.
---------------------------------------------------------------------------

Proposed 12.00G6--Need for Longitudinal Evidence

Proposed 12.00G6 generally corresponds to current 12.00D2, although
we have slightly expanded the

[[Page 51345]]

provisions and changed some of the terms we use. In 12.00G6a, we
explain that we will consider how a person functions longitudinally,
taking into consideration any periods of exacerbation or remission. We
explain that we will not make a determination based solely on periods
of exacerbation or remission, but will consider all factors related to
these occurrences and any other relevant evidence so that we understand
how a person functions over time.
Proposed 12.00G6b is new. It explains that, if a person has a
serious mental disorder, we would expect there to be evidence of its
effects on his or her functioning over time, even if the person does
not have an ongoing relationship with the medical community. Such
evidence could come, for example, from family members, neighbors, or
former employers.
Proposed 12.00G6c generally corresponds to the fourth paragraph of
current 12.00C3. It explains that a person's ability to function in an
unfamiliar or one-time situation, such as a consultative examination,
does not necessarily show how he or she will be able to function in a
work setting under the stresses of a normal workday and workweek on a
sustained basis.
Proposed 12.00G6d is new. It explains how we consider the effects
of stress. We based the proposed provisions on guidance in SSR 85-
15.\36\ Although this SSR is specifically about evaluating disability
at step 5 of the sequential evaluation process, its guidance about
stress is also relevant to other steps of the process.
---------------------------------------------------------------------------

\36\ SSR 85-15, ``Titles II and XVI: Capability To Do Other
Work--The Medical-Vocational Rules As a Framework for Evaluating
Solely Nonexertional Impairments,'' available at: http://www.socialsecurity.gov/OP_Home/rulings/di/02/SSR85-15-di-02.html.
---------------------------------------------------------------------------

Proposed 12.00H--How do we evaluate substance use disorders?

We propose to add this section because we are also proposing to
remove listing 12.09, Substance addiction disorders, for reasons we
explain later in this preamble. We explain the requirement in the Act
and our regulations \37\ that, if we find a person disabled and there
is medical evidence establishing a substance use disorder, we must
determine whether the disorder is a contributing factor material to the
determination of disability. We also include a reference to our rules
for this policy. Sections 404.1535 and 416.935.
---------------------------------------------------------------------------

\37\ Sections 223(d)(2)(C) and 1614a(3)(J) of the Act;
Sec. Sec. 404.1535 and 416.935 of the regulations. In drafting this
rule, we also considered whether to propose revisions and updates to
Sec. Sec. 404.1535 and 416.935. We decided that, if we propose
revisions to those rules, we should do so in a separate NPRM.
---------------------------------------------------------------------------

12.00I--How do we evaluate mental disorders that do not meet one of the
mental disorders listings?

Although this proposed section would be new to the mental disorders
listings, it is in large part similar to guidance we provide in other
body systems; for example, 4.00I3 (Cardiovascular System), 8.00H (Skin
Disorders), and 13.00F (Malignant Neoplastic Diseases). We also explain
that a mental disorder may cause a physical impairment(s) and how we
would evaluate such an impairment(s). We include an example of a
cardiovascular impairment that results from an eating disorder to
clarify the guidance in current 12.00D12 (Eating Disorders), which
reminds adjudicators to consider the physical consequences of eating
disorders.

12.01 Category of Impairment, Mental Disorders

Proposal To Remove the Introductory Paragraphs and Paragraph A Criteria

We believe that the current paragraph A criteria in each listing
(except for current listing 12.05) are too prescriptive; they omit from
the listings mental disorders that we often see in disability claims.
The proposal to remove the paragraph A criteria would make the listings
more comprehensive by including any and all mental disorders that can
be identified within a listing category. By including such disorders,
we would address questions from our adjudicators about which listings
to use to evaluate some mental disorders not described by the current
paragraph A criteria. The proposed change would also make the mental
disorders listings consistent with many of our other listings. For
example, we have a number of musculoskeletal and neurological listings
that describe categories of impairments rather than specific diagnoses.
As in the proposed mental disorders listings, listing-level severity in
these listings is shown by limitations of functioning.
The proposed changes would also respond in part to the many
commenters on the ANPRM who suggested specific mental disorders that we
should add to the current listings. While adding names of specific
mental disorders to the listings would broaden their scope somewhat, it
could still omit some mental disorders within each listing category.
The proposed rules allow us to include the disorders the commenters
asked us to add and more.
The proposed change would also simplify our adjudication of some
allowances by reducing the number of cases in which we must make more
labor-intensive determinations of medical equivalence. For example,
because of the paragraph A criteria, we do not list dysthymic disorder
and cyclothymic disorder in current listing 12.04; when these
relatively common mental disorders are of listing-level severity, we
must make a finding of medical equivalence to listing 12.04 and explain
why they medically equal the listing. Under the proposed rules, if a
person with one of these disorders has limitations in functioning that
satisfy the paragraph B or paragraph C criteria, the disorder would
meet listing 12.04.
In drafting these proposed rules, we were mindful of possible
concerns that the listings would no longer provide specific criteria
that adjudicators could identify in order to establish the existence of
a specific mental disorder under a listing. For example, we considered
whether our adjudicators might need to refer to the DSM more often and
whether administrative law judges (ALJs) might have to use more medical
experts at hearings. We do not believe that the proposed rules should
be a cause for these kinds of concerns because our adjudicators already
make determinations about the nature of mental disorders apart from the
issue of ``meeting'' listings, and the proposed listings put less
emphasis on the need to establish a specific diagnosis than the current
rules do. In this regard, adjudicators would only continue to do what
they do now: we do not believe that they will need to consult the DSM
or that ALJs will need medical expert testimony with greater
frequency.\38\ The major difference will be that, after determining the
existence and nature of the mental disorder, our adjudicators will not
then have to make findings about whether there is evidence
demonstrating specific paragraph A criteria prescribed in each of the
current listing categories. This change will simplify our current
rules.
---------------------------------------------------------------------------

\38\ The DSM also includes many diagnoses that are characterized
as ``NOS'': Not Otherwise Specified. Partly because of these
diagnoses, we expect that there will be fewer issues about whether a
person has a particular kind of mental disorder that requires
additional development or rationale to explain the finding about the
nature of the disorder.
---------------------------------------------------------------------------

Proposed Changes to Specific Listings in This Body System

Proposed Listing 12.05

We propose to make minor editorial revisions in current listing
12.05. As we show in the chart below, current listing 12.05 starts with
an introductory paragraph that provides our diagnostic description of
mental retardation. The

[[Page 51346]]

current listing also includes four sets of severity criteria
(paragraphs A through D). If a person's mental disorder satisfies the
diagnostic description in the introductory paragraph and any one of the
four sets of criteria, we find that it meets the listing. As with all
of the other mental disorders listings, we propose to remove the
introductory paragraph of listing 12.05. Unlike in the other listings,
however, we would incorporate by reference two of the elements of the
diagnostic description (``significantly subaverage general intellectual
functioning'' and ``significant deficits of adaptive functioning'')
into each of the proposed listings by requiring that a person
demonstrate ID/MR ``as defined in 12.00B4.'' Although we have clarified
the current listing on several occasions--both in the listing itself
and in other instructions--there continues to be some confusion about
whether a person's impairment must satisfy the definition of ``mental
retardation'' in the introductory paragraph of listing 12.05 and what
that definition means. We hope to lessen that confusion by including a
reference to the definition within each section of listing 12.05.
Below is a chart comparing current listing 12.05 with our proposed
changes:

------------------------------------------------------------------------
Current listing 12.05 Proposed listing 12.05
------------------------------------------------------------------------
12.05 Mental retardation: Mental 12.05 Intellectual Disability/
retardation refers to significantly Mental Retardation (ID/MR)
subaverage general intellectual satisfying A, B, C, or D.
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.
The required level of severity for this
disorder is met when the requirements
in A, B, C, or D are satisfied.
A. Mental incapacity evidenced by A. ID/MR as defined in 12.00B4,
dependence upon others for personal with mental incapacity
needs (e.g., toileting, eating, evidenced by dependence upon
dressing, or bathing) and inability to others for personal needs (for
follow directions, such that the use example, toileting, eating,
of standardized measures of dressing, or bathing) and
intellectual functioning is precluded; inability to follow
OR..................................... directions, such that the use
of standardized measures of
intellectual functioning is
precluded.
OR
B. A valid verbal, performance, or full B. ID/MR as defined in 12.00B4,
scale IQ of 59 or less; with a valid IQ score of 59 or
OR..................................... less (as defined in 12.00B4d)
on an individually
administered standardized test
of general intelligence having
a mean of 100 and a standard
deviation of 15 (see 12.00D4).
OR
C. A valid verbal, performance, or full C. ID/MR as defined in 12.00B4,
scale IQ of 60 through 70 and a with a valid IQ score of 60
physical or other mental impairment through 70 (as defined in
imposing an additional and significant 12.00B4d) on an individually
work-related limitation of function; administered standardized test
OR..................................... of general intelligence having
a mean of 100 and a standard
deviation of 15 (see 12.00D4)
and with another ``severe''
physical or mental impairment
(see 12.00B4e).
OR
D. A valid verbal, performance, or full D. ID/MR as defined in 12.00B4,
scale IQ of 60 through 70, resulting with a valid IQ score of 60
in at least two of the following: through 70 (as defined in
1. Marked restriction of activities of 12.00B4d) on an individually
daily living; or. administered standardized test
2. Marked difficulties in maintaining of general intelligence having
social functioning; or. a mean of 100 and a standard
3. Marked difficulties in maintaining deviation of 15 (see 12.00D4),
concentration, persistence, or pace; resulting in marked limitation
or. of at least two of the
4. Repeated episodes of decompensation, following mental abilities:
each of extended duration.. 1. Ability to understand,
remember, and apply
information (see 12.00C1).
2. Ability to interact with
others (see 12.00C2).
3. Ability to concentrate,
persist, and maintain pace
(see 12.00C3).
4. Ability to manage oneself
(see 12.00C4).
------------------------------------------------------------------------

Proposed listing 12.05D corresponds to current listing 12.05D, but
refers to the proposed paragraph B criteria instead of the current
paragraph B criteria. Otherwise, it is the same as the current listing.

Proposal To Remove Current Listing 12.09

We propose to remove current listing 12.09, Substance Addiction
Disorders, because it is a reference listing. Reference listings refer
to criteria in other listings and are redundant because we use the
other listings to evaluate disability. For example:
An impairment meets current listing 12.09A by meeting the
criteria for any listing under 12.02 for organic mental disorders.
An impairment meets current listing 12.09F by meeting the
criteria in listing 5.05 for chronic liver disease.
In both cases, claimants who qualify under these listings would
still qualify under the listings to which they cross-refer, provided
that their substance use disorders are not material to our
determination of disability. We have been removing reference listings
from all of the body systems as we revise them, and the changes we are
proposing in this NPRM would be consistent with that approach.\39\
---------------------------------------------------------------------------

\39\ Examples of relatively recent such changes include the
``Revised Medical Criteria for Evaluating Digestive Disorders,'' 72
FR 59398 (October 19, 2007), and the ``Revised Medical Criteria for
Evaluating Immune System Disorders,'' 73 FR 14570 (March 18, 2008).
---------------------------------------------------------------------------

If we remove listing 12.09, we would also remove the fifth
paragraph of current 12.00A, because it explains how listing 12.09 is
structured. As we have already noted, however, we are proposing a new
section 12.00H that would briefly state our policy on how, in our
disability determinations, we consider the effects of substance use
disorders. The proposed section would also provide a cross-reference to
our rules for determining whether a substance use disorder is a
contributing factor material to disability. Sections 404.1535 and
416.935.

Proposed Listings 12.11 and 12.13

Proposed listing 12.11, Other Disorders Usually First Diagnosed in
Childhood or Adolescence, is based on the first diagnostic category in
the DSM-IV-TR and would correct some omissions in our current listings.

[[Page 51347]]

Proposed listing 12.13, Eating Disorders, would provide a listing for
adults that corresponds to a childhood listing we have had since 1990.
We agreed with several commenters on the ANPRM who asked us to add a
listing for eating disorders in adults since we use childhood listings
only for persons who are under age 18 (including persons who are nearly
age 18), but persons age 18 and older also have these disorders. As a
consequence of this proposed change, we would also remove most of the
guidance we now provide in 12.00D12 because we would no longer need it.
Under our current listings, adjudicators can find that the
disorders we would cover under proposed listings 12.11 and 12.13
medically equal a listing. Thus, the principal effect of adding these
listings would be to streamline our processing of cases that involve
these impairments.

Proposed 112.00--Introductory Text to the Childhood Mental Disorders
Listings

We repeat much of the introductory text of proposed 12.00 in the
introductory text of proposed 112.00. This is because the same basic
rules for evaluating mental disorders in adults also apply to mental
disorders in children from birth to the attainment of age 18. Because
we have already described these provisions above, the following
discussions describe only those provisions that are unique to the
childhood rules or that require further explanation. We describe only
the major provisions pertinent to 112.00. For example, we do not
explain:
References to ``children'' instead of adults;
References to a child's ability to do age-appropriate
activities, as opposed to an adult's ability to function in a work
setting;
References to the functional equivalence provision at step
3 of the sequential evaluation process for children instead of steps 4
and 5 of the process for adults; and
Examples for children that are different from the examples
we provide for adults, such as the information about the listing
categories in 12.00B and 112.00B.
As a result of replacing all of current 112.00A with text that is
the same as, or similar to, proposed 12.00A and B, we would remove the
following provisions, among others:
The second paragraph of current 112.00A, which explains
that there are certain diagnostic categories applicable only to
children and that the presentation of mental disorders in children
differs significantly from the signs and symptoms of the same disorders
in adults. These explanations in the current rules ensure that
adjudicators appropriately evaluate medically determinable mental
disorders in children. In the proposed rules, we describe such
differences more specifically in proposed 112.00B; for example, we
include examples of early childhood eating disorders (proposed listing
112.13) that are not appropriate for the adult listing. We also provide
age-appropriate paragraph B criteria for infants and toddlers in
proposed 112.00I.
The seventh paragraph of current 112.00A, which explains
why we do not include separate paragraph C criteria in current listings
112.02, 112.03, 112.04, and 112.06. We would not need this paragraph
because we are now proposing to include the same paragraph C criteria
in the childhood listings that we propose for the adult rules.

Proposed 112.00I

In proposed 112.00I of the introductory text--How do we use 112.14
to evaluate developmental disorders of infants and toddlers from birth
to attainment of age 3?--we include the same kinds of information for
infants and toddlers as we do for older children in the other sections
of the introductory text. For example, we describe ``developmental
disorders'' and define the four proposed paragraph B criteria for
infants and toddlers and the terms ``marked'' and ``extreme'' for this
age group.\40\ We also include information about how we consider
supports an infant or toddler receives.\41\
---------------------------------------------------------------------------

\40\ We define the terms ``marked'' and ``extreme'' as they
apply to infants and toddlers in proposed 112.00I4c, d, e, and f.
The definitions generally reflect those in the functional
equivalence regulation.
\41\ We also address issues related to developmental disorders
in proposed 112.00G, the section on evidence.
---------------------------------------------------------------------------

In proposed 112.00I2, we describe only the broad characteristics of
developmental disorders rather than specific characteristics of any
particular medically determinable impairment that would be identified
as a developmental disorder. Unlike the proposed adult listing
categories and the other proposed child listing categories--which
include related kinds of mental disorders under each listing category--
proposed listing 112.14 would include several kinds of unrelated
disorders; for example, pervasive developmental disorders,
developmental coordination disorder, and ``developmental delay.'' We
believe that any summary of the symptoms and signs associated with the
various disorders we would evaluate under proposed listing 112.14,
however brief, would be too lengthy.
In proposed 112.00I6, we would expand our rules for deferring a
determination for infants, now in current 112.00D2. The provisions
recognize that young infants typically experience some irregularities
in observable behaviors (such as sleep cycles, attending to faces, and
self-calming), which can make it difficult to document the presence,
severity, or duration of a developmental disorder(s). In some cases,
deferring our determination allows us to obtain a longitudinal medical
history and, if necessary, standardized developmental testing. The rule
in proposed 112.00I6a addresses full-term infants who have not attained
age 6 months, while proposed 112.00I6b addresses infants who were born
prematurely. We also propose to update the rule for premature infants
to reflect our rules in Sec. 416.924b(b) for adjusting age for
prematurity.
Current 112.00D2 provides that we may defer adjudication for full-
term infants until they are 3 months old and to an unspecified older
age for premature infants. We propose to change this rule to say that,
when we must defer adjudication in these claims, we will wait until the
child is at least 6 months old regardless of whether he or she was born
full term or prematurely. We would use chronological age for full-term
infants and corrected chronological age for premature infants. Based on
our adjudicative experience and the information we obtained when we
developed these proposed rules, we believe that 3 months is inadequate
to establish whether some infants have listing-level developmental
disorders. However, we also explain in proposed 112.00I6c that we will
not always defer adjudication. There will be many cases in which we can
determine that an infant younger than age 6 months has a developmental
disorder that meets or medically equals proposed listing 112.14 or a
listing in another body system or a combination of impairments that
functionally equals the listings. There will also be cases in which we
can determine that a child is not disabled before age 6 months. We
would defer adjudication only when it appears that an infant has a
significant developmental delay but we need to wait so that we can get
adequate evidence to be sure of our determination.

[[Page 51348]]

112.01 Category of Impairment, Mental Disorders

The proposed childhood listing categories are the same as the adult
categories, except that we are also proposing new listing 112.14 for
children from birth to the attainment of age 3. As a consequence of
this new listing, we would also remove listing 112.12, which is for
children from birth to the attainment of age 1. As we noted earlier, we
describe only those provisions that are unique to the childhood rules.

Proposed Listing 112.05

Proposed listing 112.05 is the same as proposed listing 12.05. As
in all the other proposed listings, we are making changes to remove
references to children under age 3 because of our new proposed listing
112.14, which is for all children from birth to the attainment of age
3.
Current listing 112.05 has six paragraphs, designated A through F.
We propose to remove listings 112.05A and F so that listings 112.05 and
12.05 are the same. Current listings 112.05B, C, D, and E correspond to
current adult listings 12.05A, B, C, and D. As we have already
explained, we are proposing to keep current listings 12.05A, B, C, and
D with minor changes we have already described, and we would do the
same for children, redesignating the listings so they have the same
letters; for example, current listing 112.05B would become listing
112.05A and current listing 112.05E would become listing 112.05D. There
are also minor differences between the proposed child and adult rules
because we need to use language specific to children.
We would remove current listing 112.05A and F because we do not
believe we need them. Current listing 112.05A would be redundant of
other proposed listings. A child age 3 or older with ID/MR has a mental
disorder that meets this listing with ``marked'' limitations in at
least two of the current paragraph B functional criteria for children.
Under proposed 112.05B, a child with ID/MR with a valid IQ of 59 or
less would have an impairment that meets the listing without reference
to the paragraph B functional criteria.\42\ Under proposed 112.05D, a
child with ID/MR with an IQ of 60 to 70 and ``marked'' limitations in
two of the proposed paragraph B criteria would have an impairment that
meets that listing.\43\ Thus, proposed listings 112.05B and D would
cover any child with ID/MR who could qualify under current listing
112.05A.
---------------------------------------------------------------------------

\42\ This redundancy occurs in the current listing too.
\43\ Although the rule is less clear, this redundancy also
occurs in the current listing. Current listing 112.05E requires a
``valid'' IQ of 60-70, which means that the child must have a
``marked'' limitation in the first paragraph B criterion for
children, ``cognitive/communicative function.'' The rest of current
listing 112.05E requires a ``marked'' limitation in one of the three
remaining paragraph B criteria.
---------------------------------------------------------------------------

Current listing 112.05F is a variation on current listing 112.05D,
the listing for children who have ID/MR with an IQ of 60-70 and another
``severe'' physical or mental impairment. Instead of requiring an IQ of
60-70, current listing 112.05F requires that the child have a
``marked'' limitation of the first paragraph B criterion, ``cognitive/
communicative function.'' In our adjudicative experience, we do not see
cases of children whose impairments meet this listing. In the unlikely
event that we receive a claim in which a child appears to have ID/MR
but has not had IQ testing, we will purchase IQ testing to determine
whether the impairment meets proposed listing 112.05C unless we can
find that the child is disabled on some other basis, such as under our
rules for functional equivalence in Sec. 416.926a.

Proposal To Remove Listing 112.09

Current listing 112.09, Psychoactive Substance Dependence
Disorders, is different from current listing 12.09 in that it is not a
reference listing; rather, it consists of an introductory paragraph and
paragraph A and B criteria. We are proposing to remove it because
children with substance use disorders must satisfy the same requirement
that applies to substance use disorders in adults; that is, if we find
that a child is disabled, we must also determine whether the child's
substance use disorder is a contributing factor material to our
determination of disability. Section 416.935. When we find that a child
is disabled because of a substance use disorder that meets listing
112.09, the substance use disorder is always material to the
determination of disability, and a child cannot qualify for benefits
based on a mental disorder that meets listing 112.09.

Proposed Listing 112.14--Developmental Disorders of Infants and
Toddlers

We propose to replace current listing 112.12, Developmental and
Emotional Disorders of Newborn and Younger Infants (Birth to attainment
of age 1), with a new listing 112.14, Developmental Disorders of
Infants and Toddlers, that we will use to evaluate these disorders in
children from birth to the attainment of age 3. We would no longer have
separate criteria for children from age 1 to the attainment of age 3 in
the other mental disorders listings because we would evaluate all
mental disorders for children in that age group under proposed listing
112.14.

How We Evaluate Children From Birth to Age 3 Under the Current Listings

Current listing 112.12 includes four areas for rating severity in
children from birth to age 1: Cognitive/communicative functioning;
motor development; apathy, over-excitability, or fearfulness; and
social interaction. We evaluate the mental disorders of children age 1
to the attainment of age 3 under the same listings as for older
children; that is, current listings 112.02 through 112.11. However, we
provide separate severity criteria for this age group and only three
paragraph B criteria: Motor development, cognitive/communicative
function, and social function.
Children in both groups (birth to the attainment of age 1 and age 1
to the attainment of age 3), can qualify under the current listing by
showing extreme limitation of one paragraph B criterion or marked
limitations of two. For both age groups, we define the severity ratings
in terms of the attainment of developmental milestones: for extreme
limitation, the attainment of development or functioning at a level
generally acquired by children no more than one-half the child's
chronological age, and for marked limitation, the attainment of
development or functioning at a level generally acquired by children no
more than two-thirds the child's chronological age.

Proposed Listing 112.14

Proposed listing 112.14 is similar in structure to the other
proposed listings for children and adults. It would require a child to
have a developmental disorder that results in extreme limitation in
using one, or marked limitations in using two, developmental abilities
to acquire and maintain the skills a child needs to function age-
appropriately. The four proposed paragraph B criteria for this age
group are:
The ability to plan and control motor movement (paragraph
B1),
The ability to learn and remember (paragraph B2),
The ability to interact with others (paragraph B3), and
The ability to regulate physiological functions,
attention, emotion, and behavior (paragraph B4).
These criteria are similar to the current severity criteria for
both age groups and describe the developmental

[[Page 51349]]

abilities typically assessed in children from birth to age 3.
The proposed paragraph B1 criterion would serve the same
function as the ``motor'' criteria for children from birth to age 1 in
current listing 112.12B and age 1-3 in current listing 112.02B1a.
The proposed paragraph B2 criterion would address
abilities covered in ``cognitive/communicative functioning'' in current
listings 112.12A and 112.02B1b.\44\
---------------------------------------------------------------------------

\44\ In those two listings, for children from birth to age 3 for
whom standardized intelligence testing may not be appropriate
because of the child's young age or condition, we can use evidence
about the child's communication as an alternative to, or proxy for,
evidence about the child's cognitive functioning, which is the focus
of the area of ``cognitive/communicative functioning.''
---------------------------------------------------------------------------

The proposed paragraph B3 criterion would address the
ability covered in ``social function'' in current listings 112.12D and
112.02B1c.
The proposed paragraph B4 criterion would address the
problems with self-regulation in current listing 112.12C, ``Apathy,
over-excitability, or fearfulness, demonstrated by an absent or grossly
excessive response to visual, auditory, or tactile stimulation.''
The fourth proposed paragraph B criterion would also allow us to
consider more developmental issues than we now do under listing
112.12C. It reflects recent literature regarding early child
development.\45\
---------------------------------------------------------------------------

\45\ See the References section of this preamble.
---------------------------------------------------------------------------

We are proposing to evaluate infants and toddlers in a single age
grouping for several reasons. We believe that, from the perspective of
medical evaluation and diagnosis, the developmental period of birth to
the attainment of age 3 is better viewed as a continuum rather than two
distinct age groups. We also believe that it is more appropriate to
consider children age 1-3 in terms of their development and
``developmental disabilities'' or ``developmental disorders,'' not of
the mental disorder categories that we propose to use for older
children and adults. Medical and health care professionals in the field
of infant and early childhood mental health have not reached consensus
on appropriate mental disorder diagnoses for this age group. Except in
cases involving the most profound and obvious impairments, many
pediatricians and developmental specialists prefer to wait until a
child is age 3 or older before making a definitive diagnosis; in cases
of children who are under age 3, we often see a diagnosis of
``developmental delay.''
We propose to use the term ``developmental disorders'' instead of
the term in current listing 112.12, ``emotional and developmental
disorders,'' because we believe it is sufficiently broad to encompass
all aspects of a young child's development, including emotional
disorders.
The proposed paragraph B developmental abilities for children from
birth to age 3 are also related to the proposed paragraph B mental
abilities for children ages 3-18:
The ability to learn and remember corresponds to the
paragraph B1 criterion for children age 3-18, the ability to
understand, remember, and apply information.
The ability to interact with others is the same as the
paragraph B2 criterion for children age 3-18.
The ability to regulate physiological functions,
attention, emotion, and behavior corresponds to the proposed paragraphs
B3 and B4 criteria for children age 3-18. We would combine these
abilities under one criterion to reflect clinical practice and the fact
that the abilities are differentiated less well in children from birth
to age 3. When a child attains age 3, we would assess his or her
ability to regulate attention under the proposed B3 criterion for
children age 3 and older (the ability to concentrate, persist, and
maintain pace) and the child's ability to regulate physiological
functions, emotion, and behavior under the proposed B4 criterion for
such children (the ability to manage oneself).

Why are we proposing to remove Sec. Sec. 404.1520a and 416.920a,
Evaluation of Mental Impairments?

In the 1985 rules, we introduced the PRT as an adjudicative tool
for evaluating disability in adults due to mental disorders.\46\
Sections 404.1520a and 416.920a. The purpose of the technique was to
help our adjudicators organize and evaluate all the findings in the
case to ensure fair and equitable disability evaluations. There was
concern at the time that the new listings were novel and complex, so in
conjunction with the publication of the new adult mental disorder
listings in 1985, we also mandated in the regulations the use of a
``standard document,'' called the Psychiatric Review Technique Form or
``PRTF'' (SSA-2506-BK), to ensure that adjudicators at all levels of
administrative review would properly apply the new listings.
---------------------------------------------------------------------------

\46\ We never extended the use of the PRT to children.
---------------------------------------------------------------------------

We are now proposing to remove these sections because we believe
that we will no longer need the PRT if we publish the proposed
listings. Although not exclusively for applying the listings, the PRT
is mostly related to the use of the listings, and the changes we are
proposing would make the PRT less useful in this regard. For example,
most pages of the PRTF restate the paragraph A diagnostic criteria from
the current listings, and we do not have such criteria in the proposed
listings.\47\ Our adjudicators can record the other findings associated
with the PRT and the PRTF (for example, how they rate the paragraph B
criteria and whether an RFC assessment is needed) on other documents.
In fact, in 2000 we removed the requirement for ALJs and the Appeals
Council to complete the PRTF because they already explain in their
decisions how they apply the PRT rules.\48\ We also plan to provide
standard electronic decision templates at all levels of review, and
these templates will document the findings in mental disorder
determinations and decisions at each of the relevant steps of our
process for determining disability. We already use such templates in
decisions at the hearing level of our administrative review
process.\49\
---------------------------------------------------------------------------

\47\ It would also not be useful to have a form that repeats the
examples and summary guidance in proposed 12.00B since the examples
and summaries are primarily informational. As we explained earlier
in this preamble, proposed 12.00B generally provides only examples
to illustrate the kinds of mental disorders that are included in the
listing categories.
\48\ 65 FR at 50757-58.
\49\ The system of templates used at the hearing level is called
``Findings Integrated Templates,'' or FIT. You can read about FIT
at: http://www.socialsecurity.gov/appeals/fit/.
---------------------------------------------------------------------------

There are provisions of Sec. Sec. 404.1520a and 416.920a that we
are proposing to keep in the same or similar form in other sections of
these proposed rules, as follows:
1. In current Sec. Sec. 404.1520a(e)(1) and 416.920a(e)(1), we
provide that State agency medical and psychological consultants have
the overall responsibility for assessing the medical severity of mental
impairments. We also provide that a State agency disability examiner
may assist in preparing the PRTF; however, the medical or psychological
consultant with overall responsibility for assessing the mental
impairment must review and sign the document to attest that it is
complete and that he or she is responsible for its content. We also
provide rules requiring disability hearing officers, ALJs, and the
Appeals Council (when the Appeals Council makes a decision), to
document how they applied the PRT in their determinations and
decisions.
We believe that, with appropriate changes to reflect the removal of
the

[[Page 51350]]

PRT and PRTF, the provisions in Sec. Sec. 404.1520a(e)(1) and
416.920a(e)(1) would still be useful if we put them in terms that apply
to our adjudication of cases involving mental disorders under these
proposed listings and at other steps of the sequential evaluation
process. For example, instead of providing that State agency disability
examiners may assist medical and psychological consultants in preparing
the PRTF, we would provide that State agency disability examiners may
assist in reviewing the claim and preparing documents that contain the
medical portion of the case review and any applicable RFC assessment.
The proposed revisions are in Sec. Sec. 404.1503, 404.1615, 416.903,
and 416.1015 and would apply to both adults and children.
2. In current Sec. Sec. 404.1520a(e)(3) and 416.920a(e)(3), we
provide that, if an ALJ:
Requires the services of a medical expert to assist in
applying the PRT, but
Such services are not available,

the ALJ may return the case to the State agency for completion of a
PRTF under the provisions of Sec. Sec. 404.941 and 416.1441. Although
we would no longer have a PRT or PRTF under these proposed rules, we
propose to include a provision in Sec. Sec. 404.941 and 416.1441 that
would let ALJs continue to ask State agency medical and psychological
consultants to evaluate claims involving mental disorders when they
need the services of a medical expert and no expert is available.
We would not keep the guidance in Sec. Sec. 404.1520a(d)(1) and
416.920a(d)(1) about ratings that indicate that a mental disorder is
``not severe'' because we would no longer have the PRT and its rating
system. We also believe that the guidance is unnecessary since it
provides only that persons who have no limitations or only mild
limitations probably have impairments that are ``not severe.'' This
guidance only restates in language specific to mental disorders what
our other rules already provide. See, for example, Sec. Sec.
404.1520(c), 404.1521, 416.920(c), and 416.921 of our regulations.
If we remove Sec. Sec. 404.1520a and 416.920a, we would also
remove current 12.00I, ``Technique for reviewing evidence in mental
disorders claims to determine the level of impairment severity,'' in
the introductory text to the current listings.

Other Proposed Changes

Throughout these proposed rules, we make nonsubstantive editorial
changes to update medical terminology in the introductory text and the
listings and to make their structure and language simpler and clearer.
We also designate all paragraphs in the proposed rules with letters or
numbers to make it easier to refer to them, and provide headings for
all of the major sections and many of the subsections.
We also propose to make a number of conforming changes in other
body systems that would reflect the changes in the proposed mental
disorders listings, specifically, the respiratory system for adults
(3.00), multiple body systems for adults and children (10.00 and
110.00), neurological for adults (11.00), and immune disorders for
children (114.00) \50\ In addition, we propose to add a new section
111.00F to provide our policy for evaluating traumatic brain injury
(TBI) in the childhood listings. The information is essentially the
same as in current 11.00F.
---------------------------------------------------------------------------

\50\ Some of these changes would remove reference listings (or
portions of reference listings) that cross-refer to the mental
disorders listings. Reference listings are listings that are met by
satisfying the criteria of other listings. The reference listings
for mental disorders are redundant because we evaluate mental
effects of impairments using the listings in 12.00 and 112.00. We
have been removing reference listings from all of the body systems
as we revise them, and the changes we are proposing in this NPRM are
consistent with that approach. Examples of recent such changes
include the ``Revised Medical Criteria for Evaluating Digestive
Disorders,'' 72 FR 59398 (October 19, 2007), and the ``Revised
Medical Criteria for Evaluating Immune System Disorders,'' 73 FR
14570 (March 18, 2008).
---------------------------------------------------------------------------

Each of the current listings in 114.00--the immune disorders system
for children--includes criteria that cross-refer to the functional
criteria in current listings 112.02 and 112.12. We are proposing to
remove these listing criteria without replacement. According to our
data, we almost never use them, and in some cases, we have never used
them. For example, from fiscal year (FY) 2003 through FY 2007, only two
children were allowed under the functional listing for human
immunodeficiency virus (HIV) infection at the initial level of
adjudication. We added functional criteria to all of the other child
immune system listings beginning in June 2008, but in FY 2009, only 13
children qualified at the initial level under those new listings.\51\
---------------------------------------------------------------------------

\51\ We published the functional criteria for the other listings
in the immune body system in March 2008, and the rules became
effective June 16, 2008. 73 FR 14570. From June 16, 2008, through
September 30, 2009, we found that only 21 children qualified under
the immune listings containing functional criteria, including the
HIV listing.
---------------------------------------------------------------------------

Under the current 114.00 listings, we use the functional criteria
in the childhood mental disorders listings to evaluate both physical
and mental limitations that result from immune system disorders. We
believe that, because of the nature of the changes we are proposing in
these mental disorders listings, it would no longer be appropriate to
incorporate the criteria in the childhood mental disorders listings by
reference if we publish the proposed rules as final rules. Moreover,
children with claims for SSI can qualify under our rules for functional
equivalence to the listings, which consider their functional
limitations in domains that we designed to cover all childhood physical
and mental functioning. The very small number of children who qualify
under the functional criteria in the immune disorders listings would
still be able to qualify under our functional equivalence criteria.
We are not proposing a similar change to the adult listings for
immune disorders in 14.00. Each of those listings also contains
criteria for evaluating functioning, but we do not cross-refer to the
adult mental disorders listings; rather, we include specific functional
criteria within each of the adult listings. Also, we do not have
functional equivalence rules for adults.
Finally, we propose to update a provision in Sec. 416.934. Section
416.934 provides a list of impairment categories that employees in our
field offices may use to make findings of presumptive disability in SSI
claims without obtaining any medical evidence.\52\ Section 416.934(h)
applies to claimants who are at least 7 years old. It uses the outdated
term ``mental deficiency.'' It also refers to allegations that a child
``is unable to attend any type of school.''
---------------------------------------------------------------------------

\52\ We may make SSI payments based on presumptive disability or
presumptive blindness when there is a high degree of probability
that we will find a claimant disabled or blind when we make our
formal disability determination at the initial level of our
administrative review process. 20 CFR 416.931.
---------------------------------------------------------------------------

We propose to revise Sec. 416.934(h) to:
Reduce the lower age limit from age 7 to age 4,
Refer to ID/MR and other cognitive impairments, and
Remove the statement about inability to attend school and
replace it with a new requirement.

The proposed new requirement is an allegation of a complete inability
to independently perform basic self-care activities (such as toileting,
eating, dressing, or bathing) made by another person who files on
behalf of the claimant. We based the proposed criterion on proposed
listings 12.05A and 112.05A, but it is somewhat different than the
listing criterion, which does not necessarily require a ``complete''
inability to perform basic self-care activities. We proposed this

[[Page 51351]]

criterion because the regulation section has a very narrow and specific
purpose: to allow employees in our field offices, who do not make
disability determinations and will not be reviewing medical evidence
for these cases, to authorize presumptive disability payments while the
State agency is determining whether the claimant is disabled.
We propose to reduce the lower age limit to age 4 because we
believe that age 7 is too high, and age 4 is the lowest age at which we
can confidently permit our field office employees to accept the
allegation in the proposed rule.
These proposed rule changes apply only to our field office
employees. State agencies will still be able to authorize presumptive
disability payments, in appropriate cases, for children under age 4 and
for children and adults who do not have a complete inability to perform
basic self-care activities. Under Sec. 416.933 of our regulations,
which we are not proposing to change, State agencies may authorize
presumptive disability payments whenever they determine that the
evidence they already have reflects a high degree of probability that a
person is disabled.

What other projects are we doing to determine the requirements of work?

These proposed rules include criteria that refer to the
requirements of work. We are also conducting two long-term projects
that we expect will help us to better determine the requirements of
work. While the outcome of these projects may affect rules that we may
propose in the future, we believe that these long-term projects do not
affect our decision to proceed with these proposed rules now. We would
welcome your comments regarding the proposed regulatory changes to the
listing of mental impairments in light of the projects we have
underway.
We are working to develop an occupational information
system (OIS), tailored to our disability programs, which will replace
our use of the Dictionary of Occupational Titles. The goal of the
research and development underway for the OIS Development Project is to
provide occupational information that our adjudicators can use to
evaluate disability claims at steps 4 and 5 of the sequential
evaluation process. The OIS Development Project must conduct research
regarding the requirements of work in terms of physical and mental-
cognitive function that we consider in our residual functional capacity
assessments of disability claimants.\53\ As the results of the OIS
Development Project may inform our criteria regarding the physical and
mental-cognitive functioning required to do substantial gainful
activity, the research may also inform related criteria for gainful
work articulated in our Listing of Impairments.
---------------------------------------------------------------------------

\53\ To provide independent advice and recommendations on these
plans and activities, we convened a discretionary advisory
committee, the Occupational Information Development Advisory Panel
(Panel), which was established under the Federal Advisory Committee
Act of 1972, as amended. This Panel began meeting in February 2009
and delivered its first report in September 2009. Among other
recommendations, this report recommends that we adopt specific
domains of mental-cognitive functioning that are critical to the
evaluation of a claim for disability benefits. These domains are
different than those contained in this proposed rule. The Panel's
report, in its entirety, can be accessed at http://www.ssa.gov/oidap/index.htm; the recommended mental-cognitive domains and data
elements are located on pages 41 and 42 of this report.
---------------------------------------------------------------------------

Our evaluation of disability often involves both medical
and functional criteria. The Clinical Research Center at the National
Institutes of Health has been involved in extensive research concerning
the impact of functional limitations on rehabilitation outcomes.
Currently, we have an interagency agreement with the Clinical Research
Center to explore the possibility of using International Classification
of Functioning domains in predicting disability. Modern concepts of
disability emphasize the gap between personal abilities and
environmental demands. Therefore, it is crucial to characterize a
claimant's functional abilities, work-related requirements, as well as
key aspects of his or her workplace, home, and community environments
in order to assess the potential for substantial gainful activity more
comprehensively.

What is our authority to make rules and set procedures for determining
whether a person is disabled under the statutory definition?

Under the Act, we have full power and authority to make rules and
regulations, and to establish necessary and appropriate procedures to
carry out such provisions. Sections 205(a), 702(a)(5), and 1631(d)(1).

How long would these proposed rules be effective?

If we publish these proposed rules as final rules, they will remain
in effect for 5 years after the date they become effective, unless we
extend them or revise and issue them again.

Clarity of These Proposed Rules

Executive Order 12866, as amended, requires each agency to write
all rules in plain language. In addition to your substantive comments
on these proposed rules, we invite your comments on how to make them
easier to understand.
For example:
Have we organized the material to suit your needs?
Are the requirements in the rules clearly stated?
Do the rules contain technical language or jargon that is
not clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rules easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rules easier to
understand?

When will we start to use these rules?

We will not use these rules until we evaluate public comments and
publish final rules in the Federal Register. All final rules we issue
include an effective date. We will continue to use our current rules
until that date. If we publish final rules, we will include a summary
of those relevant comments we received along with responses and an
explanation of how we will apply the new rules.

Regulatory Procedures

Executive Order 12866

We have consulted with the Office of Management and Budget (OMB)
and determined that these proposed rules meet the requirements for a
significant regulatory action under Executive Order 12866. Thus, they
were subject to OMB review.
We believe these proposed rules are not economically significant
within the meaning of Executive Order 12866; however, we invite public
comment on the cost impact of the rules.

Regulatory Flexibility Act

We certify that these proposed rules would not have a significant
economic impact on a substantial number of small entities because they
would affect only individuals. Thus, a regulatory flexibility analysis
as provided in the Regulatory Flexibility Act, as amended, is not
required.

Paperwork Reduction Act

These rules do not create any new, or affect any existing,
collections and, therefore, do not require Office of Management and
Budget approval under the Paperwork Reduction Act.

[[Page 51352]]

References

American Association on Intellectual and Developmental
Disabilities, Intellectual Disability: Definition, Classification, and
Systems of Supports, 11th Edition, Washington, DC (2010).
American Association on Mental Retardation, Mental Retardation:
Definition, Classification, and Systems of Supports, 10th Edition,
Washington, DC (2002).
American Association on Mental Retardation, press release dated
November 2, 2006, available at http://www.aaidd.org/content_1314.cfm.
American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders, Fourth Edition, Text Revision, (DSM-IV-TR),
Washington, DC (2000).
Braddock, David L. and Robert L. Schalock, eds., Adaptive Behavior
and Its Measurement: Implications for the Field of Mental Retardation,
American Association on Intellectual and Developmental Disabilities
(1999).
DeGangi, Georgia, Pediatric Disorders of Regulation in Affect and
Behavior: A Therapist's Guide to Assessment and Treatment, Academic
Press, San Diego (2000).
DelCarmen-Wiggins, Rebecca, and Alice Carter, eds., Handbook of
Infant, Toddler, and Preschool Mental Health Assessment, Oxford
University Press, New York (2004).
Division of Mental Health and Prevention of Substance Abuse, World
Health Organization, ICD-10 Guide for Mental Retardation (1996)
(available at: http://www.who.int/mental_health/media/en/69.pdf).
Division of Mental Health, World Health Organization, Assessment of
People with Mental Retardation, (1992) (available at: http://whqlibdoc.who.int/hq/1992/WHO_MNH_PSF_92.3.pdf).
Eisenberg, Nancy, ed., Contemporary Topics in Developmental
Psychology, John Wiley & Sons, New York (1987).
Jacobson, John W., and James A. Mulick, eds., Manual of Diagnosis
and Professional Practice in Mental Retardation, American Psychological
Association, Washington, DC (1996).
Lyon, G. Reid, David B. Gray, James F. Kavanagh, and Norman A.
Krasnegor, eds., Better Understanding Learning Disabilities, Paul H.
Brookes Publishing Company, Baltimore, MD (1983).
Meisels, Samuel J. and Emily Fenichel, eds., New Visions for the
Developmental Assessment of Infants and Young Children, ZERO TO THREE,
National Center for Infants, Toddlers, and Families, Washington, DC
(1996).
National Research Council, Mental Retardation: Determining
Eligibility for Social Security Benefits, National Academy Press (2002)
(available at: http://books.nap.edu/catalog.php?record_id=10295#toc).
Parmenter, T.R. ``Contributions of IASSID to the scientific study
of intellectual disability: The past, the present, and the future.''
Journal of Policy and Practice in Intellectual Disabilities, 1, 71-78,
(2004) (available at: http://www.iassid.org/pdf/Parmenter-Contributions.pdf).
President's New Freedom Commission on Mental Health, Achieving the
Promise: Transforming Mental Health Care in America, Final Report, HHS
Pub. No. SMA-03-3832. Rockville, MD: 2003 (available at: http://www.mentalhealthcommission.gov/reports/FinalReport/toc.html).
Schalock, Robert, et al., ``The Renaming of Mental Retardation:
Understanding the Change to the Term Intellectual Disability,''
Perspectives, Vol. 45, No. 2, 116-124 (April 2007).
Scheeringa, Michael, Chair, ``Research Diagnostic Criteria--
Preschool Age (RDC-PA),'' Task Force on Research Diagnostic Criteria:
Infancy and Preschool, (August 2002) (available at: http://www.infantinstitute.org/WebRDC-PA.pdf).
Schroeder, Stephen R., Martin Gerry, Gabrielle Gertz, and Fiona
Velazquez, ``Usage of the Term `Mental Retardation': Language, Image
and Public Education,'' Center for the Study of Family, Neighborhood
and Community Policy, University of Kansas (June 2002) (available at:
http://www.socialsecurity.gov/disability/MentalRetardationReport.pdf).
Shonkoff, Jack, and Deborah Phillips, eds., From Neurons to
Neighborhoods: The Science of Early Childhood Development, National
Research Council and Institute of Medicine, National Academy Press,
Washington, DC (2000) (available at: http://www.nap.edu/books/0309069882/html/ html/).
Social Security Administration (SSA), Childhood Disability
Training, SSA Office of Disability, Pub. No. 64-075, March 1997.
--Childhood Disability Evaluation Issues, SSA Office of Disability,
Pub. No. 64-076, March 1998.
Strain, Philip S., Michael J. Guralnick, and Hill M. Walker, eds.,
Children's Social Behavior: Development, Assessment, and Modification,
Academic Press, Inc., Orlando, FL (1986).
Task Force on Research Diagnostic Criteria: Infancy and Preschool,
``Research Diagnostic Criteria for Infants and Preschool Children: The
Process and Empirical Support,'' Journal of the American Academy of
Child and Adolescent Psychiatry, 42:12, 1504-1512 (December 2003).
Thelen, Esther, ``Motor Development: A New Synthesis,'' American
Psychologist, Vol. 50, No. 2, 79-95; American Psychological
Association, Inc. (February 1995).
U.S. Department of Health and Human Services, Mental Health: A
Report of the Surgeon General, Rockville, MD: U.S. Department of Health
and Human Services, Substance Abuse and Mental Health Services
Administration, Center for Mental Health Services, National Institutes
of Health, National Institute of Mental Health (1999) (available at:
http://profiles.nlm.nih.gov/NN/B/B/H/S/_/nnbbhs.pdf).
Walker, Otis, Jr., and Chris Plauche Johnson, ``Mental Retardation:
Overview and Diagnosis,'' Pediatrics in Review, Vol. 27, No. 6, 204-212
(June 2006).
Zeanah, Charles H., Jr., ed., Handbook of Infant Mental Health,
Second Edition, Guilford Press, New York, NY, 2000.
Zero to Three, DC: 0-3R, Diagnostic Classification of Mental Health
and Developmental Disorders of Infancy and Early Childhood, Revised
Edition, ZERO TO THREE: National Center for Infants, Toddlers, and
Families, Washington, DC (2005).
These references are included in the rulemaking record for these
proposed rules and are available for inspection by interested persons
by making arrangements with the contact person shown in this preamble.

(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; and 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, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).

Michael J. Astrue,
Commissioner of Social Security.

For the reasons set out in the preamble, we propose to amend
subparts J, P, and Q of part 404 and subparts I, J, and N of part 416
of

[[Page 51353]]

chapter III of title 20 of the Code of Federal Regulations as set forth
below:

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

Subpart J--[Amended]

1. The authority citation for subpart J of part 404 is revised to
read as follows:

Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j),
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42
U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i),
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118
Stat. 509 (42 U.S.C. 902 note).

2. Amend Sec. 404.941 by revising paragraphs (b)(3) and (b)(4),
and adding paragraph (b)(5) to read as follows:

Sec. 404.941 Prehearing case review.

* * * * *
(b) * * *
(3) There is a change in the law or regulation;
(4) There is an error in the file or some other indication that the
prior determination may be revised; or
(5) An administrative law judge requires the services of a medical
expert to assist in reviewing a mental disorder(s), but such services
are unavailable.
* * * * *

Subpart P--[Amended]

3. The authority citation for subpart P of part 404 is revised 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, sec. 202, Pub. L. 108-203, 118 Stat. 509 (42
U.S.C. 902 note).

4. Amend Sec. 404.1503 by redesignating paragraph (e) as paragraph
(e)(1) and adding a new paragraph (e)(2), to read as follows:

Sec. 404.1503 Who makes disability and blindness determinations.

* * * * *
(e) * * *
(2) Overall responsibility for evaluating mental impairments. (i)
In any case 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 the medical severity of your mental
impairment(s). The State agency disability examiner may assist in
reviewing the claim and preparing documents that contain the medical
portion of the case review and any applicable residual functional
capacity assessment. However, our medical or psychological consultant
must review and sign any document(s) that includes the medical portion
of the case review and any applicable residual functional capacity
assessment to attest that these documents are complete and that he or
she is responsible for the content, including the findings of fact and
any discussion of supporting evidence. When a disability hearing
officer makes a reconsideration determination, the disability hearing
officer has overall responsibility for assessing the medical severity
of your mental impairment(s). The determination must document the
disability hearing officer's pertinent findings and conclusions
regarding the mental impairment(s).
(ii) At the administrative law judge hearing and Appeals Council
levels, the administrative law judge or, if the Appeals Council makes a
decision, the Appeals Council has overall responsibility for assessing
the medical severity of your mental impairment(s). The written decision
must incorporate the pertinent findings and conclusions of the
administrative law judge or Appeals Council.

Sec. 404.1520a [Removed]

5. Remove Sec. 404.1520a.
6. Amend appendix 1 to subpart P of part 404 as follows:
a. Revise item 13 of the introductory text before part A.
b. Revise the last sentence of section 3.00H of part A.
c. Revise listing 3.10 of part A.
d. Revise the fourth sentence of section 10.00A2 of part A.
e. Revise the third sentence in the first undesignated paragraph of
section 11.00E of part A.
f. Add a new undesignated sixth paragraph to section 11.00E of part
A.
g. Revise the introductory paragraph of section 11.00F of part A of
appendix 1.
h. Revise 11.09 of part A.
i. Revise 11.17 of part A.
j. Revise 11.18 of part A.
k. Revise section 12.00 of part A.
l. Revise the fourth sentence of section 110.00A2 of part B.
m. Add section 111.00F to part B.
n. Revise section 112.00 of part B.
o. Revise the first sentence of section 114.00D6e(ii), remove
section 114.00I, and redesignate section 114.00J as section 114.00I in
part B.
p. Revise 114.02 and 114.03 of part B.
q. Remove the semicolon and the word ``or'' after section 114.04C2,
add a period after section 114.04C2, and remove section 114.04D of part
B.
r. Remove the word ``or'' after section 114.05D and remove section
114.05E of part B.
s. Revise 114.06 of part B.
t. Remove the word ``or'' after section 114.07B and remove section
114.07C of part B.
u. Remove the word ``or'' after section 114.08K and remove section
114.08L of part B.
v. Remove the word ``or'' after section 114.09C and remove section
114.09D of part B.
w. Revise 114.10 of part B.

The revisions read as follows:

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

* * * * *
13. Mental Disorders (12.00 and 112.00): (Insert date 5 years
from the effective date of the final rules).
* * * * *

Part A

* * * * *

3.00 Respiratory System

* * * * *
H. Sleep-related breathing disorders. * * * Mental disorders
affecting cognition that result from sleep-related breathing
disorders are evaluated under 12.02 (Dementia and amnestic and other
cognitive disorders).
* * * * *

3.01 Category of Impairments, Respiratory System

* * * * *
3.10 Sleep-related breathing disorders. Evaluate under 3.09
(chronic cor pulmonale) or 12.02 (Dementia and amnestic and other
cognitive disorders).
* * * * *

10.00 Impairments That Affect Multiple Body Systems

A. What impairment do we evaluate under this body system?

* * * * *
2. What is Down syndrome? * * * Down syndrome is characterized
by a complex of physical characteristics, delayed physical
development, and intellectual disability/mental retardation (ID/MR).
* * *
* * * * *

11.00 Neurological

* * * * *
E. Multiple sclerosis. * * * Paragraph B provides references to
other listings for evaluating visual disorders caused by multiple
sclerosis. * * *
* * * * *
We evaluate mental impairments associated with multiple
sclerosis under 12.00.
* * * * *

[[Page 51354]]

F. Traumatic brain injury (TBI). We evaluate neurological
impairments that result from TBI under 11.02, 11.03, or 11.04, as
applicable. We evaluate mental impairments that result from TBI
under 12.02.
* * * * *
11.09 Multiple sclerosis. With:
* * * * *
B. Visual disorder as described under the criteria in 2.02,
2.03, or 2.04; or
* * * * *
11.17 Degenerative disease not listed elsewhere, such as
Huntington's disease, Friedreich's ataxia, and spino-cerebellar
degeneration. With disorganization of motor function as described in
11.04B.
* * * * *
11.18 Cerebral trauma. Evaluate under 11.02, 11.03, or 11.04, as
applicable.

12.00 Mental Disorders

A. What are the listings, and what do they require?
1. The listings for mental disorders are arranged in 10
categories: Dementia and amnestic and other cognitive disorders
(12.02); schizophrenia and other psychotic disorders (12.03); mood
disorders (12.04); intellectual disability/mental retardation (ID/
MR) (12.05); anxiety disorders (12.06); somatoform disorders
(12.07); personality disorders (12.08); autism spectrum disorders
(12.10); other disorders usually first diagnosed in childhood or
adolescence (12.11); and eating disorders (12.13).
2. Each listing is divided into three paragraphs, designated A,
B, and C. Except for 12.05, the listing for ID/MR, your mental
disorder must satisfy the requirements of paragraphs A and B or
paragraphs A and C in the listing for your mental disorder. See
12.00A3 for the requirements for 12.05.
a. Paragraph A of each listing (except 12.05) requires you to
show that you have a medically determinable mental disorder in the
listing category. For example, for 12.03A, you must have evidence
showing that you have schizophrenia or another medically
determinable psychotic disorder. Paragraph A also includes a
reference to the corresponding section of 12.00B that describes the
listing category; for example, the reference in 12.03A is to
12.00B2, where we provide a general description of schizophrenia and
other psychotic disorders and give examples of disorders in the
category.
b. (i) Paragraph B of each listing (except 12.05) provides the
criteria we use to evaluate the severity of your mental disorder.
These criteria are the mental abilities a person uses to function in
a work setting, and they apply to all of the listings. To satisfy
the paragraph B criteria, your mental disorder must result in
``marked'' limitations of two or ``extreme'' limitation of one of
the mental abilities in paragraph B (see 12.00C, D, and F).
(ii) When we refer to ``paragraph B'' or ``the paragraph B
criteria'' in the introductory text of this body system, we mean the
criteria in paragraph B of every mental disorders listing except
12.05.
c. (i) Paragraph C provides an alternative to the paragraph B
criteria that we can use to evaluate the severity of mental
disorders except those under 12.05. To satisfy the paragraph C
criteria, you must have a serious and persistent mental disorder
under one of those listings that satisfies the criteria in both C1
and C2 (see 12.00E and F).
(ii) When we refer to ``paragraph C'' or ``the paragraph C
criteria'' in the introductory text of this body system, we mean the
criteria in paragraph C of every mental disorders listing except
12.05.
3. To meet 12.05, your ID/MR must satisfy 12.05A, B, or D, or
you must have a combination of ID/MR and another ``severe'' physical
or mental impairment that satisfies 12.05C.
B. How do we describe the mental disorders listing categories?
In the following sections, we provide a brief description of the
mental disorders included in each listing category, followed by
examples of symptoms and signs that persons with disorders in each
category may have. Except for 12.05, we also provide examples of
common mental disorders diagnosed in each category; we do not
provide examples for 12.05 because ID/MR is the only disorder
covered by that listing. Although the evidence must show that you
have a mental disorder in one of the listing categories, your mental
disorder does not have to match one of the examples in this section.
We will find that any mental disorder meets one of these mental
disorders listings when it can be included in one of the listing
categories and satisfies the other criteria of the appropriate
listing.

1. Dementia and Amnestic and Other Cognitive Disorders (12.02)

a. These disorders are characterized by a clinically significant
decline in cognitive functioning.
b. Symptoms and signs may include, but are not limited to,
disturbances in memory, executive functioning (that is, higher-level
cognitive processes; for example, regulating attention, planning,
inhibiting responses, decisionmaking), psychomotor activity, visual-
spatial functioning, language and speech, perception, insight, and
judgment.
c. Examples of disorders in this category include the following.
(i) Dementia of the Alzheimer's type;
(ii) Vascular dementia;
(iii) Traumatic brain injury, or TBI (see also 11.00F); and
(iv) Dementia and amnestic or other cognitive disorders due to
medications, toxins, or a general medical condition, such as human
immunodeficiency virus infection, neurological disease (for example,
multiple sclerosis, Parkinson's disease, Huntington's disease), or
metabolic disease (for example, late-onset Tay-Sachs disease).
d. This category does not include mental disorders that are
included in the listing categories for ID/MR (12.05), autism
spectrum disorders (12.10), and other disorders usually first
diagnosed in childhood or adolescence (12.11).

2. Schizophrenia and Other Psychotic Disorders (12.03)

a. These disorders are characterized by delusions,
hallucinations, disorganized speech, or grossly disorganized or
catatonic behavior, causing a clinically significant decline in
functioning.
b. Symptoms and signs may include, but are not limited to,
inability to initiate and persist in goal-directed activities,
social withdrawal, flat or inappropriate affect, poverty of thought
and speech, loss of interest or pleasure, disturbances of mood, odd
beliefs and mannerisms, and paranoia.
c. Examples of disorders in this category include schizophrenia,
schizoaffective disorder, delusional disorder, and psychotic
disorder due to a general medical condition.

3. Mood Disorders (12.04)

a. These disorders are characterized by an irritable, depressed,
elevated, or expansive mood, or by a loss of interest or pleasure in
all or almost all activities, causing a clinically significant
decline in functioning.
b. Symptoms and signs may include, but are not limited to,
feelings of hopelessness or guilt, suicidal ideation, a clinically
significant change in body weight or appetite, sleep disturbances,
an increase or decrease in energy, psychomotor abnormalities,
disturbed concentration, pressured speech, grandiosity, reduced
impulse control, rapidly alternating moods, sadness, euphoria, and
social withdrawal.
c. Examples of disorders in this category include major
depressive disorder, the various types of bipolar disorders,
cyclothymic disorder, dysthymic disorder, and mood disorder due to a
general medical condition.

4. Intellectual Disability/Mental Retardation (ID/MR) (12.05)

a. This disorder is defined by significantly subaverage general
intellectual functioning with significant deficits in adaptive
functioning initially manifested before age 22.
b. Signs may include, but are not limited to, poor conceptual,
social, and practical skills, and a tendency to be passive, placid,
and dependent on others, or to be impulsive or easily frustrated.
When we evaluate your adaptive functioning, we also consider the
factors in 12.00F.
c. ID/MR is often demonstrated by evidence from the period
before age 22. However, when we do not have evidence from that
period, we will still find that you have ID/MR if we have evidence
about your current functioning and the history of your impairment
that is consistent with the diagnosis, and there is no evidence to
indicate an onset after age 22.
d. We consider your IQ score to be ``valid'' when it is
supported by the other evidence, including objective clinical
findings, other clinical observations, and evidence of your day-to-
day functioning that is consistent with the test score. If the IQ
test provides more than one IQ score (for example, a verbal,
performance, and full scale IQ in a Wechsler series test), we use
the lowest score. When we consider your IQ score, we apply the rules
in 12.00D4.
e. In 12.05C, the term ``severe'' has the same meaning as in
Sec. Sec. 404.1520(c) and 416.920(c). Your additional impairment(s)
must cause more than a slight or minimal physical or mental
functional limitation(s); it must significantly limit your physical
or mental ability to do basic work activities, as we explain in
those sections of our regulations

[[Page 51355]]

and Sec. Sec. 404.1521 and 416.921. The limitation(s) must be
separate from the limitations caused by your ID/MR; for example,
limitation in your ability to respond appropriately to supervision
and coworkers that result from another mental disorder or in your
physical ability to walk, stand, or sit. If your additional
impairment(s) is not ``severe'' as defined in our regulations, your
ID/MR will not meet 12.05C even if your additional impairment(s)
prevents you from doing your past work because of the unique
features of that work.
f. Listing 12.05 is for ID/MR only. We evaluate other mental
disorders that primarily affect cognition in the listing categories
for dementia and amnestic and other cognitive disorders (12.02),
autism spectrum disorders (12.10), or other disorders usually first
diagnosed in childhood or adolescence (12.11), as appropriate.

5. Anxiety Disorders (12.06)

a. These disorders are characterized by excessive anxiety,
worry, apprehension, and fear, or by avoidance of feelings,
thoughts, activities, objects, places, or persons.
b. Symptoms and signs may include, but are not limited to,
restlessness, difficulty concentrating, hyper-vigilance, muscle
tension, sleep disturbance, fatigue, panic attacks, obsessions and
compulsions, constant thoughts and fears about safety, and frequent
somatic complaints. Symptoms and signs associated with trauma may
include recurrent intrusive recollections of a traumatic event, and
acting or feeling as if the traumatic event were recurring.
c. Examples of disorders in this category include panic
disorder, phobic disorder, obsessive-compulsive disorder, post-
traumatic stress disorder (PTSD), generalized anxiety disorder, and
anxiety disorder due to a general medical condition.

6. Somatoform Disorders (12.07)

a. These disorders are characterized by physical symptoms or
deficits that are not intentionally produced or feigned, and that,
following clinical investigation, cannot be fully explained by a
general medical condition, another mental disorder, the direct
effects of a substance, or a culturally sanctioned behavior or
experience.
b. Symptoms and signs may include, but are not limited to, pain
and other abnormalities of sensation, gastrointestinal symptoms,
fatigue, abnormal motor movement, pseudoseizures, and
pseudoneurological symptoms, such as blindness or deafness.
c. Examples of disorders in this category include somatization
disorder, conversion disorder, body dysmorphic disorder, and pain
disorder associated with psychological factors.

7. Personality Disorders (12.08)

a. These disorders are characterized by an enduring, inflexible,
pervasive, and maladaptive pattern of inner experience and behavior
that causes clinically significant distress or impairment in social,
occupational, or other important areas of functioning, and that has
an onset in adolescence or early adulthood.
b. Symptoms and signs may include, but are not limited to,
patterns of distrust, suspiciousness, and odd beliefs; social
detachment, discomfort, or avoidance; hypersensitivity to negative
evaluation; an excessive need to be taken care of; difficulty making
independent decisions; a preoccupation with orderliness,
perfectionism, and control; grandiosity; inappropriate and intense
anger; self-mutilating behaviors; and recurrent suicidal threats,
gestures, or attempts.
c. Examples of disorders in this category include paranoid
personality disorder, schizoid personality disorder, schizotypal
personality disorder, dependent personality disorder, borderline
personality disorder, and obsessive-compulsive personality disorder.

8. Autism Spectrum Disorders (12.10)

a. These disorders are characterized by qualitative deficits in
the development of reciprocal social interaction, verbal and
nonverbal communication skills, and symbolic or imaginative
activity; restricted repetitive and stereotyped patterns of
behavior, interests, and activities; and a history of early
stagnation of skill acquisition or loss of previously acquired
skills.
b. Symptoms and signs may include, but are not limited to,
abnormalities and unevenness in the development of cognitive skills;
unusual responses to sensory stimuli; and behavioral difficulties,
including hyperactivity, short attention span, impulsivity,
aggressiveness, or self-injurious actions.
c. Examples of disorders in this category include autistic
disorder, Asperger's disorder, and pervasive developmental disorder
(PDD).
d. This category does not include mental disorders that are
included in the listing categories for dementia and amnestic and
other cognitive disorders (12.02), ID/MR (12.05), and other
disorders usually first diagnosed in childhood or adolescence
(12.11).

9. Other Disorders Usually First Diagnosed in Childhood or Adolescence
(12.11)

a. These disorders are characterized by onset during childhood
or adolescence, although sometimes they are not diagnosed until
adulthood.
b. Symptoms and signs may include, but are not limited to,
underlying abnormalities in cognitive processing (for example,
deficits in learning and applying verbal or nonverbal information,
visual perception, memory, or a combination of these), deficits in
attention or impulse control, low frustration tolerance, excessive
or poorly planned motor activity, difficulty with organizing (time,
space, materials, or tasks), repeated accidental injury, and
deficits in social skills. Symptoms and signs specific to tic
disorders include sudden, rapid, recurrent, non-rhythmic,
stereotyped motor movement or vocalization; mood lability; and
obsessions and compulsions.
c. Examples of disorders in this category include learning
disorders, attention-deficit/hyperactivity disorder, and tic
disorders, such as Tourette syndrome, chronic motor or vocal tic
disorder, and transient tic disorder.
d. This category does not include mental disorders that are
included in the listing categories for dementia and amnestic and
other cognitive disorders (12.02), ID/MR (12.05), and autism
spectrum disorders (12.10).

10. Eating Disorders (12.13)

a. These disorders are characterized by disturbances in eating
behavior and preoccupation with, and excessive self-evaluation of,
body weight and shape.
b. Symptoms and signs may include, but are not limited to,
refusal to maintain a minimally normal weight or a minimally normal
body mass index (BMI); recurrent episodes of binge eating and
behavior intended to prevent weight gain, such as self-induced
vomiting, excessive exercise, or misuse of laxatives; mood
disturbances, social withdrawal, or irritability; amenorrhea; dental
problems; abnormal laboratory findings; and cardiac abnormalities.
c. Examples of disorders in this category include anorexia
nervosa and bulimia nervosa.
C. What are the paragraph B criteria? The paragraph B criteria
are the mental abilities a person uses to function in a work
setting. They are the abilities to: Understand, remember, and apply
information (paragraph B1); interact with others (paragraph B2);
concentrate, persist, and maintain pace (paragraph B3); and manage
oneself (paragraph B4). In this section, we provide basic
definitions of the four paragraph B mental abilities and some
examples of how a person may use these mental abilities to function
in a work setting. In 12.00D, we explain how we rate the severity of
limitations in the paragraph B mental abilities under these
listings.
1. Understand, remember, and apply information (paragraph B1).
This is the ability to acquire, retain, integrate, access, and use
information to perform work activities. You use this mental ability
when, for example, you follow instructions, provide explanations,
and identify and solve problems.
2. Interact with others (paragraph B2). This is the ability to
relate to and work with supervisors, co-workers, and the public. You
use this mental ability when, for example, you cooperate, handle
conflicts, and respond to requests, suggestions, and criticism.
3. Concentrate, persist, and maintain pace (paragraph B3). This
is the ability to focus attention on work activities and to stay on
task at a sustained rate. You use this mental ability when, for
example, you concentrate, avoid distractions, initiate and complete
activities, perform tasks at an appropriate and consistent speed,
and sustain an ordinary routine.
4. Manage oneself (paragraph B4). This is the ability to
regulate your emotions, control your behavior, and maintain your
well-being in a work setting. You use this mental ability when, for
example, you cope with your frustration and stress, respond to
demands and changes in your environment, protect yourself from harm
and exploitation by others, inhibit inappropriate actions, take your
medications, and maintain your physical health, hygiene, and
grooming.
D. How do we use the paragraph B mental abilities to evaluate
your mental disorder?

[[Page 51356]]

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.)
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. (See 12.00F.)

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.)
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.

3. What We Mean by ``Extreme'' Limitation

a. Extreme limitation of a paragraph B mental ability means that
the symptoms and signs of your mental disorder interfere very
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,
extreme would be the last 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 extreme limitations, we will generally
find that you have extreme limitation of a paragraph B mental
ability when you have a valid score that is at least 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.)
c. ``Extreme'' is the rating we give to the worst limitations;
however, it does not necessarily mean a total lack or loss of
ability to function. It is the equivalent of the level of limitation
we would expect to find on standardized testing with scores that are
at least three standard deviations below the mean.

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.
b. We may find that you have ``marked'' or ``extreme''
limitation when you have a test score that is slightly higher than
the levels we provide in 12.00D2 and D3 if other information in your
case record shows that your functioning in day-to-day activities is
seriously or very seriously limited. We will not find that you have
``marked'' or ``extreme'' limitation in your ability to understand,
remember, and apply information (or in any other ability measured by
a standardized test) unless you have evidence demonstrating that
your functioning is consistent with such a limitation.
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 and other information in your case record, we will try to
resolve it. We use the following guidelines when we consider your
test scores:
(i) The interpretation of the test is primarily the
responsibility of the professional who administered the test. The
narrative report that accompanies the test results should specify
whether the results are deemed to be valid; that is, whether they
are consistent with your medical and developmental history and
information about your day-to-day functioning.
(ii) It is our responsibility to ensure that the evidence in
your case record is complete and to resolve any material
inconsistencies in the evidence. In some cases, we will be able to
resolve an inconsistency with the information already in your case
record. In others, we may need to request additional information;
for example, by recontacting your medical source(s), by purchasing a
consultative examination, or by questioning persons who are familiar
with your day-to-day functioning.
E. What are the paragraph C criteria, and how do we use them to
evaluate your mental disorder?
1. General. We use the paragraph C criteria as an alternative to
paragraph B to evaluate ``serious and persistent mental disorders''
under every mental disorders listing except 12.05. We can use the
paragraph C criteria without first considering whether your mental
disorder satisfies the paragraph B criteria.
2. Paragraph C criteria.
a. To meet the paragraph C criteria, you must have a medically
documented history, over a period of at least 1 year, of the
existence of a serious and persistent mental disorder. Your mental
disorder must also satisfy the criteria in C1 and C2.
b. The criterion in C1 is satisfied when the evidence shows that
continuing treatment, psychosocial support(s), or a highly
structured setting(s) diminishes the symptoms and signs of your
mental disorder. (See 12.00F.)
c. The criterion in C2 is satisfied when the evidence shows that
you have achieved only marginal adjustment despite your diminished
symptoms and signs. ``Marginal adjustment'' means that your
adaptation to the requirements of daily living and your environment
is fragile; that is, you have minimal capacity to adapt to changes
in your environment or to demands that are not already part of your
daily life. Changes or increased demands would likely lead to an
exacerbation of your symptoms and signs and to deterioration in your
functioning; for example, you would be unable to function outside a
highly structured setting or outside your home. Similarly, because
of the nature of your mental disorder, you could experience episodes
of deterioration that require you to be hospitalized or absent from
work, making it difficult for you to sustain work activity over
time.
F. How do we consider psychosocial supports, highly structured
settings, and treatment when we evaluate your functioning?
1. Psychosocial supports and highly structured settings may help
you to function by reducing the demands made on you. However, your
ability to function in settings (including your own home) that are
less demanding, more structured, or more supportive than those in
which persons typically work does not necessarily show how you would
function in a work setting under the stresses of a normal workday
and workweek on a sustained basis. Therefore, we will consider the
kind and extent of supports you receive and the characteristics of
any structured setting in which you spend your time when we evaluate
the effect of your mental disorder on your functioning and rate the
limitation of your mental abilities (see 12.00D).
2. Examples of psychosocial supports and highly structured
settings.
a. You need family members or other persons to monitor your
daily activities and to help you function; for example, you need
family members to remind you to eat, to shop for you and pay your
bills, to administer your medications, or to change their work hours
so you are never home alone.

[[Page 51357]]

b. You participate in a special education program that teaches
you daily living and vocational skills (see 12.00G4).
c. You participate in a psychosocial rehabilitation program,
such as a day treatment or clubhouse program, in which you receive
training in entry-level work skills (see 12.00G4).
d. You participate in a sheltered, supported, or transitional
work program, or in a competitive employment setting with the help
of a job coach or an accommodating supervisor (see 12.00G4).
e. You receive treatment in a day program at a hospital,
community treatment program, or other daily outpatient program.
f. You live in a group home, halfway house, or semi-independent
living program with a counselor or resident supervisor who is there
24 hours a day.
g. You live in a hospital or other institution with 24-hour
care.
h. You live alone and do not receive any psychosocial
support(s); however, you have created a highly structured
environment by eliminating all but minimally necessary contact with
the world outside your living space.
3. Treatment.
a. With treatment, such as medications and psychotherapy, you
may not only have your symptoms and signs reduced, but may be able
to function well enough to work.
b. Treatment may not resolve all of the functional limitations
that result from your mental disorder, and the medications you take
or other treatment you receive for your disorder may cause side
effects that affect your mental or physical functioning; for
example, you may experience drowsiness, blunted affect, or abnormal
involuntary movements.
c. We will consider the effect of any treatment on your
functioning when we evaluate your mental disorder under these
listings.
G. What evidence do we need to evaluate your mental disorder?
1. General. We need evidence to assess the existence and
severity of your mental disorder and its effects on your ability to
function in a work setting. Although we always need evidence from an
acceptable medical source, the individual facts of your case will
determine the extent of that evidence and what evidence, if any, we
need from other sources. For our basic rules on evidence, see
Sec. Sec. 404.1512, 404.1513, 416.912, and 416.913. For our rules
on evidence about a person's symptoms, see Sec. Sec. 404.1529 and
416.929.
2. Evidence from medical sources. We will consider all relevant
medical evidence about your mental disorder from your physician,
psychologist, and other medical sources. Other medical sources
include health care providers, such as physician assistants, nurses,
licensed clinical social workers, and therapists. These other
medical sources can be very helpful in providing evidence to assess
the severity of your mental disorder and the resulting limitation in
functioning, especially if they see you regularly. Evidence from
medical sources may include:
a. Your reported symptoms.
b. Your medical, psychiatric, and psychological history.
c. The results of physical or mental status examinations or
other clinical findings.
d. Psychological testing, imaging studies, or other laboratory
findings.
e. Your diagnosis.
f. The type, dosage, frequency, duration, and beneficial effects
of medications you receive.
g. The type, frequency, duration, and beneficial effects of
therapy or counseling you receive.
h. Any side effects of medication or other treatment that limit
your ability to function (see 12.00F).
i. Your clinical course, including changes in your medication,
therapy, or counseling and the time required for therapeutic
effectiveness.
j. Observations and descriptions of how you function.
k. Any psychosocial support(s) you receive or highly structured
setting(s) in which you are involved (see 12.00F).
l. Any sensory, motor, or speaking abnormalities or information
about your cultural background (for example, language differences,
customs) that may affect an evaluation of your mental disorder.
m. The expected duration of your symptoms and signs and their
effects on your ability to function in a work setting over time.
3. Evidence from you and persons who know you. We will ask you
to describe your symptoms and your limitations if you are able to do
so, and we will use that information to help us determine whether
you are disabled. We will also consider information from persons who
can describe how you usually function from day to day when we need
it to show the severity of your mental disorder and how it affects
your ability to function. This information may include, but is not
limited to, information from your family, other caregivers, friends,
neighbors, or clergy. We will consider your statements and the
statements of other persons to determine if they are consistent with
the medical and other evidence we have.
4. Evidence from school, vocational training, work, and work-
related programs.
a. If you have recently attended or are still attending school
and have received or are receiving special education services, we
will consider information from your school sources when we need it
to show the severity of your mental disorder and how it affects your
ability to function. This information may include, but is not
limited to, Individualized Education Programs (IEPs), education
records, therapy progress notes, and information from your teachers
about how you function in their classrooms and about any special
services or accommodations you receive at school.
b. If you recently attended or are still attending vocational
training classes or if you have attempted to work or are working
now, we will consider information from your training program or
employer when we need it to show the severity of your mental
disorder and how it affects your ability to function. This
information may include, but is not limited to, training or work
evaluations, modifications to your work duties or work schedule, and
any special supports or accommodations you have required or now
require in order to work. If you have worked or are working through
a community mental health program, a sheltered work program, a
supported work program, a rehabilitation program, or a transitional
employment program, we will consider the type and degree of support
you have received or are receiving in order to work.
5. Evidence from psychological and psychiatric measures. We will
consider the results from psychological and psychiatric measures
together with all the other evidence in your case record. Results
from these measures are only part of the evidence we use in our
overall disability evaluation; we will not use these results alone
to decide whether you are disabled. (See 12.00D4.)
6. Need for longitudinal evidence.
a. Many persons with mental disorders experience periods of
worsening of the symptoms and signs of their mental disorders
(exacerbations) and periods of improvement of their symptoms and
signs (remissions). Exacerbations may make it difficult for you to
sustain employment. Therefore, we generally will consider how you
function longitudinally; that is, over time. We will not find that
you are able to work solely because you have a period(s) of
remission, or that you are disabled solely because you have an
exacerbation(s) of your mental disorder. We will consider how often
you have remissions and exacerbations and how long they last, what
causes your mental disorder to improve or worsen, and any other
information that is relevant to our determination about how you
function over time. We will consider longitudinal evidence from
relevant sources over a sufficient period to establish the severity
of your mental disorder over time.
b. If you have a serious mental disorder, you will probably have
evidence of its effects on your functioning over time, even if you
do not have an ongoing relationship with the medical community. For
example, family members, friends, adult day-care providers,
teachers, neighbors, former employers, social workers, peer
specialists, mental health clinics, emergency shelters, law
enforcement, or government agencies may be familiar with your mental
health history.
c. You may function differently and appear more or less limited
in an unfamiliar or one-time situation, such as a consultative
examination, than is indicated by other information about your
functioning over time. Your ability to function during a time-
limited mental status examination or psychological testing, or in
another unfamiliar or one-time situation, does not necessarily show
how you will be able to function in a work setting under the
stresses of a normal workday and workweek on a sustained basis.
d. Working involves many factors and demands that can be
stressful to persons with mental disorders; for example, the
specific work activities involved, the physical work environment,
the work schedule or routine, and the social interactions and
relationships in the workplace. Stress may be caused, for example,
by the demands of getting to work regularly, having your performance

[[Page 51358]]

supervised, or remaining in the workplace for a full day.
(i) Your reaction to stress associated with the demands of work
may be different from another person's; that is, the symptoms and
signs of your mental disorder may be more or less affected by stress
than those of another person with the same mental disorder or
another mental disorder.
(ii) We will consider evidence from all sources about the
effects of stress on your mental abilities, including any evidence
pertinent to the effects of work-related stress. We will also take
into consideration what, if any, psychosocial support(s) or
structure you would need when you experience work-related stress
(see 12.00F).
H. How do we evaluate substance use disorders?
If we find that you are disabled and there is medical evidence
in your case record establishing that you have a substance use
disorder, we will determine whether your substance use disorder is a
contributing factor material to the determination of disability.
(See Sec. Sec. 404.1535 and 416.935.)
I. How do we evaluate mental disorders that do not meet one of
the mental disorders listings?
1. These listings include only examples of mental disorders that
we consider severe enough to prevent you from doing any gainful
activity. If your severe mental disorder does not meet the criteria
of any of these listings, we will also consider whether you have an
impairment(s) that meets the criteria of a listing in another body
system. You may have a separate other impairment(s) or a physical
impairment(s) that is secondary to your mental disorder. For
example, if you have an eating disorder and develop a cardiovascular
impairment because of it, we will evaluate your cardiovascular
impairment under the listings for the cardiovascular body system.
2. If you have a severe medically determinable impairment(s)
that does not meet a listing, we will determine whether your
impairment(s) medically equals a listing. (See Sec. Sec. 404.1526
and 416.926.)
3. If your impairment(s) does not meet or medically equal a
listing, you may or may not have the residual functional capacity to
engage in substantial gainful activity. (See Sec. Sec. 404.1545 and
416.945.) In that situation, we proceed to the fourth, and if
necessary, the fifth steps of the sequential evaluation process in
Sec. Sec. 404.1520 and 416.920. When we assess your residual
functional capacity, we consider all of your physical and mental
limitations. If you have limitations in your ability to perform
work-related physical activities that are secondary to your mental
disorder, we will consider them when we assess your residual
functional capacity. For example, limitations in walking or standing
due to the side effects of medication you take to treat your mental
disorder may affect your residual functional capacity for work
requiring physical exertion. When we decide whether you continue to
be disabled, we use the rules in Sec. Sec. 404.1594 and 416.994.

12.01 Category of Impairments, Mental Disorders

12.02 Dementia and Amnestic and Other Cognitive Disorders, with
both A and B or both A and C.
A. A medically determinable mental disorder in this category
(see 12.00B1).

AND

B. Marked limitations of two or extreme limitation of one of the
following mental abilities:
1. Ability to understand, remember, and apply information (see
12.00C1).
2. Ability to interact with others (see 12.00C2).
3. Ability to concentrate, persist, and maintain pace (see
12.00C3).
4. Ability to manage oneself (see 12.00C4).

AND

C. A serious and persistent mental disorder in this category
(see 12.00E2) with both:
1. Continuing treatment, psychosocial support(s), or a highly
structured setting(s) that diminishes the symptoms and signs of your
mental disorder, and
2. Marginal adjustment, as described in 12.00E2c.
12.05 Intellectual Disability/Mental Retardation (ID/MR)
satisfying A, B, C, or D.
A. ID/MR as defined in 12.00B4, with mental incapacity evidenced
by dependence upon others for personal needs (for example,
toileting, eating, dressing, or bathing) and an inability to follow
directions, such that the use of standardized measures of
intellectual functioning is precluded.

B. ID/MR as defined in 12.00B4, with a valid IQ score of 59 or
less (as defined in 12.00B4d) on an individually administered
standardized test of general intelligence having a mean of 100 and a
standard deviation of 15 (see 12.00D4).

C. ID/MR as defined in 12.00B4, with a valid IQ score of 60
through 70 (as defined in 12.00B4d) on an individually administered
standardized test of general intelligence having a mean of 100 and a
standard deviation of 15 (see 12.00D4) and with another ``severe''
physical or mental impairment (see 12.00B4e).

D. ID/MR as defined in 12.00B4, with a valid IQ score of 60
through 70 (as defined in 12.00B4d) on an individually administered
standardized test of general intelligence having a mean of 100 and a
standard deviation of 15 (see 12.00D4), resulting in marked
limitation of at least two of the following mental abilities:
1. Ability to understand, remember, and apply information (see
12.00C1).
2. Ability to interact with others (see 12.00C2).
3. Ability to concentrate, persist, and maintain pace (see
12.00C3).
4. Ability to manage oneself (see 12.00C4).
12.06 Anxiety Disorders, with both A and B or both A and C.
A. A medically determinable mental disorder in this category
(see 12.00B5).

AND

[[Page 51359]]

AND

C. A serious and persistent mental disorder in this category
(see 12.00E2) with both:
1. Continuing treatment, psychosocial support(s), or a highly
structured setting(s) that diminishes the symptoms and signs of your
mental disorder, and
2. Marginal adjustment, as described in 12.00E2c.
12.11 Other Disorders Usually First Diagnosed in Childhood or
Adolescence, with both A and B or both A and C.
A. A medically determinable mental disorder in this category
(see 12.00B9).

AND

Part B

* * * * *

110.00 Impairments That Affect Multiple Body Systems

A. What kinds of impairments do we evaluate under this body system?

111.00 Neurological

* * * * *
F. Traumatic brain injury (TBI).
1. We evaluate neurological impairments that result from TBI
under 111.02, 111.03, 111.06, and 111.09, as applicable. We evaluate
mental impairments that result from TBI under 112.02.
2. 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. Sometimes, a mental impairment
may appear to improve immediately following TBI and then worsen, or,
conversely, 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.
3. 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.
* * * * *

112.00 Mental Disorders

A. What are the mental disorders listings for children age 3 to
the attainment of age 18, and what do they require? (See 112.00I for
the rules on developmental disorders in children from birth to age
3.)
1. The listings for mental disorders are arranged in 10
categories: Dementia and amnestic and other cognitive disorders
(112.02); schizophrenia and other psychotic disorders (112.03); mood
disorders (112.04); intellectual disability/mental retardation (ID/
MR) (112.05); anxiety disorders (112.06); somatoform disorders
(112.07); personality disorders (112.08); autism spectrum disorders
(112.10); other disorders usually first diagnosed in childhood or
adolescence (112.11); and eating disorders (112.13).
2. Each listing is divided into three paragraphs, designated A,
B, and C. Except for 112.05, the listing for ID/MR, your mental
disorder must satisfy the requirements of paragraphs A and B or
paragraphs A and C in the listing for your mental disorder. See
112.00A3 for the requirements for 112.05.
a. Paragraph A of each listing (except 112.05) requires you to
show that you have a medically determinable mental disorder in the
listing category. For example, for 112.06A, you must have evidence
showing that you have an anxiety disorder, such as obsessive-
compulsive disorder or generalized anxiety disorder. Paragraph A
also includes a reference to the corresponding section of 112.00B
that describes the listing category; for example, the reference in
112.06A is to 112.00B5, where we provide a general description of
anxiety disorders and give examples of disorders in the category.
b. (i) Paragraph B of each listing (except 112.05) provides the
criteria we use to evaluate the severity of your mental disorder.
These criteria are the mental abilities a child uses to do age-
appropriate activities, and they apply to all of the listings. To
satisfy the paragraph B criteria, your mental disorder must result
in ``marked'' limitations of two or ``extreme'' limitation of one of
the mental abilities in paragraph B (see 112.00C, D, and F).

[[Page 51360]]

(ii) When we refer to ``paragraph B'' or ``the paragraph B
criteria'' in the introductory text of this body system, we mean the
criteria in paragraph B of every mental disorders listing except
112.05.
c. (i) Paragraph C provides an alternative to the paragraph B
criteria that we can use to evaluate the severity of mental
disorders except those under 112.05. To satisfy the paragraph C
criteria, you must have a serious and persistent mental disorder
under one of those listings that satisfies the criteria in both C1
and C2 (see 112.00E and F).
(ii) When we refer to ``paragraph C'' or ``the paragraph C
criteria'' in the introductory text of this body system, we mean the
criteria in paragraph C of every mental disorders listing except
112.05.
3. To meet 112.05, your ID/MR must satisfy 112.05A, B, or D, or
you must have a combination of ID/MR and another ``severe'' physical
or mental impairment that satisfies 112.05C.
B. How do we describe the mental disorders listing categories
for children age 3 to the attainment of age 18? In the following
sections, we provide a brief description of the mental disorders
included in each listing category, followed by examples of symptoms
and signs that children with disorders in each category may have.
Except for 112.05, we also provide examples of mental disorders
diagnosed in each category; we do not provide examples for 112.05
because ID/MR is the only disorder covered by that listing. Although
the evidence must show that you have a mental disorder in one of the
listing categories, your mental disorder does not have to match one
of the examples in this section. We will find that any mental
disorder meets one of these mental disorders listings when it can be
included in one of the listing categories and satisfies the other
criteria of the appropriate listing.

1. Dementia and Amnestic and Other Cognitive Disorders (112.02)

a. These disorders are characterized by a clinically significant
decline in cognitive functioning.
b. Symptoms and signs may include, but are not limited to,
disturbances in memory, executive functioning (that is, higher-level
cognitive processes; for example, regulating attention, planning,
inhibiting responses, decisionmaking), psychomotor activity, visual-
spatial functioning, language and speech, perception, insight, and
judgment.
c. Examples of disorders in this category include dementia and
amnestic or other cognitive disorders due to medications, toxins, or
a general medical condition, such as human immunodeficiency virus
infection, neurological disease (for example, multiple sclerosis),
or metabolic disease (for example, lysosomal storage disease, late-
onset Tay-Sachs disease); and traumatic brain injury, or TBI (see
also 111.00F).
d. This category does not include mental disorders that are
included in the listing categories for ID/MR (112.05), autism
spectrum disorders (112.10), and other disorders usually first
diagnosed in childhood or adolescence (112.11).

2. Schizophrenia and Other Psychotic Disorders (112.03)

3. Mood Disorders (112.04)

a. These disorders are characterized by an irritable, depressed,
elevated, or expansive mood, or by a loss of interest or pleasure in
all or almost all activities, causing a clinically significant
decline in functioning.
b. Symptoms and signs may include, but are not limited to,
feelings of hopelessness or guilt, suicidal ideation, a clinically
significant change in body weight or appetite, sleep disturbances,
an increase or decrease in energy, psychomotor abnormalities,
disturbed concentration, pressured speech, grandiosity, reduced
impulse control, rapidly alternating moods, sadness, euphoria, and
social withdrawal. Depending on a child's age and developmental
stage, certain features, such as somatic complaints, irritability,
anger, aggression, and social withdrawal may be more commonly
present than others.
c. Examples of disorders in this category include major
depressive disorder, the various types of bipolar disorders,
cyclothymic disorder, dysthymic disorder, and mood disorder due to a
general medical condition.

4. Intellectual Disability/Mental Retardation (ID/MR) (112.05)

a. This disorder is defined by significantly subaverage general
intellectual functioning with significant deficits in adaptive
functioning.
b. Signs may include, but are not limited to, poor conceptual,
social, and practical skills, and a tendency to be passive, placid,
and dependent on others, or to be impulsive or easily frustrated.
When we evaluate your adaptive functioning, we also consider the
factors in 112.00F.
c. We consider your IQ score to be ``valid'' when it is
supported by the other evidence, including objective clinical
findings, other clinical observations, and evidence of your day-to-
day functioning that is consistent with the test score. If the IQ
test provides more than one IQ score (for example, a verbal,
performance, and full scale IQ in a Wechsler series test), we use
the lowest score. When we consider your IQ score, we apply the rules
in 112.00D4.
d. In 112.05C, the term ``severe'' has the same meaning as in
Sec. 416.924(c). Your additional impairment(s) must cause more than
slight or minimal physical or mental functional limitations. The
limitations must be separate from the limitations caused by your ID/
MR.
e. Listing 112.05 is for ID/MR only. We evaluate other mental
disorders that primarily affect cognition in the listing categories
for dementia and amnestic and other cognitive disorders (112.02);
autism spectrum disorders (112.10), or other disorders usually first
diagnosed in childhood or adolescence (112.11), as appropriate.

5. Anxiety Disorders (112.06)

a. These disorders are characterized by excessive anxiety,
worry, apprehension, and fear, or by avoidance of feelings,
thoughts, activities, objects, places, or persons.
b. Symptoms and signs may include, but are not limited to,
restlessness, difficulty concentrating, hyper-vigilance, muscle
tension, sleep disturbance, fatigue, panic attacks, obsessions and
compulsions, constant thoughts and fears about safety, and frequent
somatic complaints. Symptoms and signs associated with trauma may
include recurrent intrusive recollections of a traumatic event, and
acting or feeling as if the traumatic event were recurring.
Depending on a child's age and developmental stage, other features
may also include refusal to go to school, academic failure, frequent
stomachaches and other physical complaints, extreme worries about
sleeping away from home, being overly clinging, and exhibiting
tantrums at times of separation from caregivers.
c. Examples of disorders in this category include panic
disorder, phobic disorder, obsessive-compulsive disorder, post-
traumatic stress disorder (PTSD), generalized anxiety disorder, and
anxiety disorder due to a general medical condition.

6. Somatoform Disorders (112.07)

7. Personality Disorders (112.08)

[[Page 51361]]

detachment, discomfort, or avoidance; hypersensitivity to negative
evaluation; an excessive need to be taken care of; difficulty making
independent decisions; a preoccupation with orderliness,
perfectionism, and control; grandiosity; inappropriate and intense
anger; self-mutilating behaviors; and recurrent suicidal threats,
gestures, or attempts.
c. Examples of disorders in this category include paranoid
personality disorder, schizoid personality disorder, schizotypal
personality disorder, dependent personality disorder, borderline
personality disorder, and obsessive-compulsive personality disorder.

8. Autism Spectrum Disorders (112.10)

a. These disorders are characterized by qualitative deficits in
the development of reciprocal social interaction, verbal and
nonverbal communication skills, and symbolic or imaginative play;
restricted repetitive and stereotyped patterns of behavior,
interests, and activities; and early stagnation of skill acquisition
or loss of previously acquired skills.
b. Symptoms and signs may include, but are not limited to,
abnormalities and unevenness in the development of cognitive skills;
unusual responses to sensory stimuli; and behavioral difficulties,
including hyperactivity, short attention span, impulsivity,
aggressiveness, or self-injurious actions.
c. Examples of disorders in this category include autistic
disorder, Asperger's disorder, and pervasive developmental disorder
(PDD).
d. This category does not include mental disorders that are
included in the listing categories for dementia and amnestic and
other cognitive disorders (112.02), ID/MR (112.05), and other
disorders usually first diagnosed in childhood or adolescence
(112.11).

9. Other Disorders Usually First Diagnosed in Childhood or Adolescence
(112.11)

a. These disorders are characterized by onset during childhood
or adolescence.
b. Symptoms and signs may include, but are not limited to,
underlying abnormalities in cognitive processing (for example,
deficits in learning and applying verbal or nonverbal information,
visual perception, memory, or a combination of these), deficits in
attention or impulse control, low frustration tolerance, excessive
or poorly planned motor activity, difficulty with organizing (time,
space, materials, or tasks), repeated accidental injury, and
deficits in social skills. Symptoms and signs specific to some
disorders in this category include fecal incontinence or urinary
incontinence. Symptoms and signs specific to tic disorders include
sudden, rapid, recurrent, non-rhythmic, stereotyped motor movement
or vocalization; mood lability; and obsessions and compulsions.
c. Examples of disorders in this category include learning
disorders; attention-deficit/hyperactivity disorder; elimination
disorders, such as developmentally inappropriate encopresis and
enuresis; and tic disorders, such as Tourette syndrome, chronic
motor or vocal tic disorder, and transient tic disorder.
d. This category does not include mental disorders that are
included in the listing categories for dementia and amnestic and
other cognitive disorders (112.02), ID/MR (112.05), and autism
spectrum disorders (112.10).

10. Eating Disorders (112.13)

a. These disorders are characterized by persistent eating of
nonnutritive substances or repeated episodes of regurgitation and
re-chewing of food, or by persistent failure to consume adequate
nutrition by mouth. In adolescence, these disorders are
characterized by disturbances in eating behavior and preoccupation
with, and excessive self-evaluation of, body weight and shape.
b. Symptoms and signs may include, but are not limited to,
failure to make expected weight gains; refusal to maintain a
minimally normal weight or a minimally normal body mass index (BMI);
recurrent episodes of binge eating and behavior intended to prevent
weight gain, such as self-induced vomiting, excessive exercise, or
misuse of laxatives; mood disturbances, social withdrawal, or
irritability; amenorrhea; dental problems; abnormal laboratory
findings; and cardiac abnormalities.
c. Examples of disorders in this category include pica,
rumination disorder, and feeding disorders of early childhood;
anorexia nervosa; and bulimia nervosa.
C. What are the paragraph B criteria for children age 3 to the
attainment of age 18? The paragraph B criteria are the mental
abilities a child uses to do age-appropriate activities. They are
the abilities to: Understand, remember, and apply information
(paragraph B1); interact with others (paragraph B2); concentrate,
persist, and maintain pace (paragraph B3); and manage oneself
(paragraph B4). In this section, we provide basic definitions of the
four paragraph B mental abilities and some examples of how a child
may use these mental abilities to function. In 112.00D, we explain
how we rate the severity of limitations in the paragraph B mental
abilities under these listings.
1. Understand, remember, and apply information (paragraph B1).
This is the ability to acquire, retain, integrate, access, and use
information to perform age-appropriate activities. You use this
mental ability when, for example, you follow instructions, provide
explanations, and identify and solve problems.
2. Interact with others (paragraph B2). This is the ability to
relate to others at home, at school, and in the community. You use
this mental ability when, for example, you initiate and maintain
friendships, cooperate, handle conflicts, and respond to requests,
suggestions, and criticism.
3. Concentrate, persist, and maintain pace (paragraph B3). This
is the ability to focus attention on age-appropriate activities and
to stay on task at a sustained rate. You use this mental ability
when, for example, you concentrate, avoid distractions, initiate and
complete activities, perform tasks at an appropriate and consistent
speed, and sustain an ordinary routine.
4. Manage oneself (paragraph B4). This is the ability to
regulate your emotions, control your behavior, and maintain your
well-being in age-appropriate activities and settings. You use this
mental ability when, for example, you cope with your frustration and
stress, respond to demands and changes in your environment, protect
yourself from harm and exploitation by others, inhibit inappropriate
actions, take your medications, and maintain your physical health,
hygiene, and grooming.
D. How do we use the paragraph B mental abilities to evaluate
mental disorders in children from age 3 to the attainment of age 18?
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. We evaluate your limitations in the context of what is
typically expected of children your age without mental disorders. To
do most age-appropriate activities, a child is expected to use his
or her mental abilities (given age-appropriate expectations)
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 (given age-appropriate expectations)
independently, appropriately, effectively, and on a sustained basis
to do age-appropriate activities. 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 112.00D4.)
d. Marked or extreme limitation of a paragraph B mental ability
also reflects the kind and extent of supports you receive (beyond
the supports that other children your age without mental disorders
typically 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. (See 112.00F and Sec. 416.924a.)
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 (given age-appropriate
expectations) independently, appropriately, effectively, and on a
sustained basis to do age-appropriate activities. 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 112.00D4.)

[[Page 51362]]

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 for your age.
3. What we mean by ``extreme'' limitation
a. Extreme limitation of a paragraph B mental ability means that
the symptoms and signs of your mental disorder interfere very
seriously with your using that mental ability (given age-appropriate
expectations) independently, appropriately, effectively, and on a
sustained basis to do age-appropriate activities. Although we do not
require the use of such a scale, extreme would be the last 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 extreme limitation, we will generally
find that you have extreme limitation of a paragraph B mental
ability when you have a valid score that is at least three standard
deviations below the mean for your age 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 112.00D4.)
c. ``Extreme'' is the rating we give to the worst limitations;
however, it does not necessarily mean a total lack or loss of
ability to function. It is the equivalent of the level of limitation
we would expect to find on standardized testing with scores that are
at least three standard deviations below the mean for your age.
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.
b. We may find that you have ``marked'' or ``extreme''
limitation when you have a test score that is slightly higher than
the levels we provide in 112.00D2 and D3 if other information in
your case record shows that your functioning in day-to-day
activities is seriously or very seriously limited. We will not find
that you have ``marked'' or ``extreme'' limitation in your ability
to understand, remember, and apply information (or in any other
ability measured by a standardized test) unless you have evidence
demonstrating that your functioning is consistent with such a
limitation.
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 and other information in your case record, we will try to
resolve it. We use the following guidelines when we consider your
test scores:
(i) The interpretation of the test is primarily the
responsibility of the professional who administered the test. The
narrative report that accompanies the test results should specify
whether the results are deemed to be valid; that is, whether they
are consistent with your medical and developmental history and
information about your day-to-day functioning.
(ii) It is our responsibility to ensure that the evidence in
your case record is complete and to resolve any material
inconsistencies in the evidence. In some cases, we will be able to
resolve an inconsistency with the information already in your case
record. In others, we may need to request additional information;
for example, by recontacting your medical source(s), by purchasing a
consultative examination, or by questioning persons who are familiar
with your day-to-day functioning.
E. What are the paragraph C criteria, and how do we use them to
evaluate mental disorders in children age 3 to the attainment of age
18?
1. General. We use the paragraph C criteria as an alternative to
paragraph B to evaluate ``serious and persistent mental disorders''
under every mental disorders listing except 112.05. We can use the
paragraph C criteria without first considering whether your mental
disorder satisfies the paragraph B criteria.
2. Paragraph C criteria
a. To meet the paragraph C criteria, you must have a medically
documented history, over a period of at least 1 year, of the
existence of a serious and persistent mental disorder. Your mental
disorder must also satisfy the criteria in C1 and C2.
b. The criterion in C1 is satisfied when the evidence shows that
continuing treatment, psychosocial support(s), or a highly
structured setting(s) diminishes the symptoms and signs of your
mental disorder. (See 112.00F.)
c. The criterion in C2 is satisfied when the evidence shows that
you have achieved only marginal adjustment despite your diminished
symptoms and signs. ``Marginal adjustment'' means that your
adaptation to the requirements of daily living and your environment
is fragile; that is, you have minimal capacity to adapt to changes
in your environment or to demands that are not already part of your
daily life. Changes or increased demands would likely lead to an
exacerbation of your symptoms and signs and to deterioration in your
functioning; for example, you would be unable to function outside a
highly structured setting or outside your home. Similarly, because
of the nature of your mental disorder, you could experience episodes
of deterioration that require you to be hospitalized or absent from
school, making it difficult for you to sustain age-appropriate
activity over time.
F. How do we consider psychosocial supports, highly structured
settings, and treatment when we evaluate the functioning of children
age 3 to the attainment of age 18?
1. Psychosocial supports and highly structured settings may help
you to function by reducing the demands made on you. However, your
ability to function in settings (including your own home) that are
less demanding, more structured, or more supportive than those in
which children typically function does not necessarily show how you
would function in school or other age-appropriate settings on a
sustained basis. Therefore, we will consider the kind and extent of
supports you receive and the characteristics of any structured
setting in which you spend your time (compared to children your age
without mental disorders) when we evaluate the effect of your mental
disorder on your functioning and rate the limitation of your mental
abilities (see 112.00D).
2. Examples of psychosocial supports and highly structured
settings
a. You need family members or other persons to help you in ways
that children your age without mental disorders typically do not
need to function age-appropriately; for example, you need an aide to
accompany you on the school bus to help you control your actions or
to monitor you to be sure you are not being self-injurious or
injurious to others.
b. You receive one-on-one assistance in your classes every day,
or you have a personal aide who helps you daily to function in your
classroom.
c. You are a student in a self-contained classroom or attend a
separate or alternative school where you receive special education
services (see 112.00G4).
d. You are a student in a special education setting that teaches
you daily living skills, vocational skills, or entry-level work to
help you be independent when you become an adult (see 112.00G4).
e. You participate in a sheltered, supported, or transitional
work program or in a competitive employment setting with the help of
a job coach or an accommodating supervisor (see 112.00G4).
f. You receive treatment in a day program at a hospital,
community treatment program, or other daily outpatient program.
g. You live in a group home, halfway house, or semi-independent
living program with a counselor or resident supervisor who is there
24 hours a day.
h. You live in a residential school, hospital, or other
institution with 24-hour care.
3. Treatment
a. With treatment, such as medications and social skills
training, you may not only have your symptoms and signs reduced, but
may be able to function well enough to perform age-appropriate
activities.
b. Treatment may not resolve all of the functional limitations
that result from your mental disorder, and the medications you take
or other treatment you receive for your disorder may cause side
effects that affect your mental or physical functioning; for
example, you may experience drowsiness, blunted affect, or abnormal
involuntary movements.
c. We will consider the effect of any treatment on your
functioning when we evaluate your mental disorder under these
listings.
G. What evidence do we need to evaluate your developmental or
mental disorder?
1. General
a. If you have not attained age 3, we need evidence to assess
the existence and severity of your developmental disorder and its
effects on your ability to acquire and maintain the skills needed to
function age-appropriately. (See 112.00I for guidelines

[[Page 51363]]

about evaluating developmental disorders in infants and toddlers
under 112.14.)
b. If you are age 3 to the attainment of age 18, we need
evidence to assess the existence and severity of your mental
disorder and its effects on your ability to function age-
appropriately.
c. Although we always need evidence from an acceptable medical
source, the individual facts of your case will determine the extent
of that evidence and what evidence, if any, we need from other
sources. For our basic rules on evidence, see Sec. Sec. 416.912 and
416.913. For our rules on evidence about a child's symptoms, see
Sec. 416.929.
2. Evidence from medical sources. We will consider all relevant
medical evidence about your mental disorder from your physician,
psychologist, and your other medical sources. Other medical sources
include health care providers, such as physician assistants, nurses,
licensed clinical social workers, and therapists. These other
medical sources can be very helpful in providing evidence to assess
the severity of your mental disorder and the resulting limitation in
functioning, especially if they see you regularly. Evidence from
medical sources may include:
a. Your reported symptoms.
b. Your medical, developmental, psychiatric, and psychological
history.
c. The results of physical or mental status examinations or
other clinical findings.
d. Psychological testing, developmental assessments, imaging
studies, or other laboratory findings.
e. Your diagnosis.
f. The type, dosage, frequency, duration, and beneficial effects
of medications you receive.
g. The type, frequency, duration, and beneficial effects of
therapy, counseling, or early intervention you receive.
h. Any side effects of medication or other treatment that limit
your ability to function (see 112.00F).
i. Your clinical course, including changes in your medication,
therapy, or counseling and the time required for therapeutic
effectiveness.
j. Observations and descriptions of how you function.
k. Any psychosocial support(s) you receive or highly structured
setting(s) in which you are involved (see 112.00F).
l. Any sensory, motor, or speaking abnormalities or information
about your cultural background (for example, language differences,
customs) that may affect an evaluation of your developmental or
mental disorder.
m. The expected duration of your symptoms and signs and their
effects on your ability to function age-appropriately over time.
3. Evidence from you and persons who know you. We will ask you
to describe your symptoms and your limitations if you are able to do
so, and we will use that information to help us determine whether
you are disabled. We will also consider information from persons who
can describe how you usually function from day to day when we need
it to show the severity of your mental disorder and how it affects
your ability to function. This information may include, but is not
limited to, information from your family, other caregivers, friends,
neighbors, or clergy. We will consider your statements and the
statements of other persons to determine if they are consistent with
the medical and other evidence we have.
4. Evidence from early intervention programs, school, vocational
training, work, and work-related programs.
a. If you receive services in an Early Intervention Program to
help you with your special developmental needs, we will consider
information from your Individualized Family Service Plan (IFSP) when
we need it to show the severity of your developmental disorder.
b. If you receive special education or related services at your
preschool or school, we will consider the information in your
Individualized Education Program (IEP) when we need it to show the
severity of your mental disorder and how it affects your ability to
function. The information may come from classroom teachers, special
educators, nurses, school psychologists, and occupational, physical,
and speech/language therapists. It may include, but is not limited
to, comprehensive evaluation reports, IEPs, education records,
therapy progress notes, information from your teachers about how you
function in their classrooms, and information about any special
education services or accommodations you receive at school.
c. If you have recently attended or are still attending
vocational training classes or if you have attempted to work or are
working now, we will consider information from your training program
or your employer when we need it to show the severity of your mental
disorder and how it affects your ability to function. This
information may include, but is not limited to, training or work
evaluations, modifications to your work duties or work schedule, and
any special supports or accommodations you have required or now
require in order to work. If you have worked or are working through
a community mental health program, a sheltered work program, a
supported work program, a rehabilitation program, or a transitional
employment program, we will consider the type and degree of support
you have received or are receiving in order to work.
5. Evidence from developmental assessments or psychological and
psychiatric measures. We will consider the results from
developmental assessments or from psychological and psychiatric
measures together with all the other evidence in your case record.
Results from these measures are only part of the evidence we use in
our overall disability evaluation; we will not use these results
alone to decide whether you are disabled. (See 112.00D4.)
6. Need for longitudinal evidence.
a. Many children with mental disorders experience periods of
worsening of the symptoms and signs of their mental disorders
(exacerbations) and periods of improvement of their symptoms and
signs (remissions). Exacerbations may make it difficult for you to
function age-appropriately on a sustained basis. Therefore, we
generally will consider how you function longitudinally; that is,
over time. We will not find that you are able to function age-
appropriately solely because you have a period(s) of remission, or
that you are disabled solely because you have an exacerbation(s) of
your mental disorder. We will consider how often you have remissions
and exacerbations and how long they last, what causes your mental
disorder to improve or worsen, and any other information that is
relevant to our determination about how you function over time. We
will consider longitudinal evidence from relevant sources over a
sufficient period to establish the severity of your mental disorder
over time.
b. If you have a serious mental disorder, you will probably have
evidence of its effects on your functioning over time, even if you
do not have an ongoing relationship with the medical community. For
example, family members, friends, day-care providers, teachers,
neighbors, former employers, social workers, mental health clinics,
emergency shelters, law enforcement, or government agencies may be
familiar with your mental health history.
c. You may function differently and appear more or less limited
in an unfamiliar or one-time situation, such as a consultative
examination, than is indicated by other information about your
functioning over time (see Sec. 416.924a(b)(6)). Your ability to
function during a time-limited mental status examination or
psychological testing, or in another unfamiliar or one-time
situation, does not necessarily show how you will be able to
function in a school or other age-appropriate setting on a sustained
basis.
d. Some of your day-to-day activities, or some of the places
where you spend time each day, can be stressful if you have a mental
disorder, making it difficult for you to function as other children
without mental disorders typically do. For example, you may have to
leave your home to go to daycare where the level of activity and
noise is stressful to you; or you may feel stressed when you move
from elementary to middle school, where you have to change
classrooms and settle yourself down to new situations and settings
many times during each day.
(i) Your reaction to stress associated with the demands of your
day-to-day activities may be different from another child's; that
is, the symptoms and signs of your mental disorder may be more or
less affected by stress than those of another child with the same
mental disorder or another mental disorder.
(ii) We will consider evidence from all sources about the
effects of stress on your mental abilities. We will also take into
consideration what, if any, psychosocial support(s) or structure you
would need when you experience stress (see 112.00F).
H. How do we evaluate substance use disorders? If we find that
you are disabled and there is medical evidence in your case record
establishing that you have a substance use disorder, we will
determine whether your substance use disorder is a contributing
factor material to the determination of disability. (See Sec.
416.935.)
I. How do we use 112.14 to evaluate developmental disorders of
infants and toddlers from birth to attainment of age 3?

[[Page 51364]]

1. General. If you are a child from birth to attainment of age 3
with a developmental disorder, we use 112.14 to evaluate your
ability to acquire and maintain the motor, cognitive, social/
communicative, and emotional skills you need to function age-
appropriately. When we rate your impairment-related limitations for
this listing, we consider only limitations you have because of your
developmental disorder. If you have a somatic illness or physical
abnormalities, we will evaluate them under the affected body system;
for example, the musculoskeletal or neurological system.
2. Description of 112.14
a. Developmental disorders are characterized by a delay or
deficit in the development of age-appropriate skills or a loss of
previously acquired skills involving motor planning and control,
learning, relating socially and communicating, and self-regulating.
b. Examples of disorders in this category include feeding and
eating disorders, sensory processing disorder, developmental
coordination disorder, autism and other pervasive developmental
disorders, separation anxiety disorder, and regulatory disorders.
Some infants and toddlers may have a diagnosis of ``developmental
delay.''
c. When we evaluate your developmental disorder, we will
consider the wide variation in the range of normal or typical
development in early childhood. Your emerging skills at the end of
an expected milestone period may or may not indicate developmental
delay or a delay that can be expected to last for 12 months.
3. What are the paragraph B criteria for 112.14?
a. General. The paragraph B criteria are the developmental
abilities that infants and toddlers use to acquire and maintain the
skills needed to function age-appropriately. They are the abilities
to: Plan and control motor movement (paragraph B1); learn and
remember (paragraph B2); interact with others (paragraph B3); and
regulate physiological functions, attention, emotion, and behavior
(paragraph B4). We use these criteria to evaluate limitations that
result from the developmental disorder. In 112.00I3b(i) through
I3b(iv), we provide some examples of how infants and toddlers use
these developmental abilities to function age-appropriately. In
112.00I4, we explain how we rate the severity of limitations in the
paragraph B mental abilities under 112.14.
b. Definitions of the paragraph B developmental abilities
(i) Ability to plan and control motor movement (paragraph B1).
This is the ability to plan, remember, and execute controlled motor
movements by integrating and coordinating perceptual and sensory
input with motor output. Using this ability develops gross and fine
motor skills, and makes it possible for you to engage in age-
appropriate symmetrical or alternating motor activities. You use
this ability when, for example, you walk, pull yourself up to stand,
grasp and hold objects with one or both hands, and go up and down
stairs with alternating feet.
(ii) Ability to learn and remember (paragraph B2). This is the
ability to learn by exploring the environment, engaging in trial-
and-error experimentation, putting things in groups, understanding
that words represent things, and participating in pretend play.
Using this ability develops the skills that help you understand what
things mean, how things work, and how you can make things happen.
You use this ability when, for example, you show interest in objects
that are new to you, imitate simple actions, name body parts,
understand simple cause-and-effect relationships, remember simple
directions, or figure out how to take something apart.
(iii) Ability to interact with others (paragraph B3). This is
the ability to participate in reciprocal social interactions and
relationships by communicating your feelings and intents through
vocal and visual signals and exchanges; physical gestures, contact,
and proximity; shared attention and affection; verbal turn-taking;
and increasingly complex messages. Using this ability develops the
social skills that make it possible for you to influence others (for
example, by gesturing for a toy or saying ``no'' to stop an action);
invite someone to interact with you (for example, by smiling or
reaching); and draw someone's attention to what interests you (for
example, by pointing or taking your caregiver's hand and leading
that person). You use this ability when, for example, you use
vocalizations to initiate and sustain a ``conversation'' with your
caregiver; respond to limits set by an adult with words, gestures,
or facial expressions; play alongside another child; or participate
in simple group activities with adult help.
(iv) Ability to regulate physiological functions, attention,
emotion, and behavior (paragraph B4). This is the ability to
stabilize biological rhythms (for example, by acquiring a sleep/wake
cycle); control physiological functions (for example, by achieving
regular patterns of feeding); and attend, react, and adapt to
environmental stimuli, persons, objects, and events (for example, by
becoming alert to things happening around you and in relation to
you, and responding without overreacting or underreacting). Using
this ability develops the skills you need to regulate yourself and
makes it possible for you to achieve and maintain a calm, alert, and
organized physical and emotional state. You use this ability when,
for example, you recognize your body's needs for food or sleep,
focus quickly and pay attention to things that interest you, cry
when you are hurt but quiet when your caregiver holds you, comfort
yourself with your favorite toy when you are upset, ask for help
when something frustrates you, or refuse help from your caregiver
when trying to do something for yourself.
4. How do we use the 112.14 criteria to evaluate your
developmental disorder?
a. We will find that your developmental disorder meets the
requirements of 112.14 if it results in marked limitations of two or
extreme limitation of one of the paragraph B developmental
abilities.
b. We will evaluate your limitations in the context of what is
typically expected of infants or toddlers your age without
developmental disorders. An infant or toddler is expected to use his
or her developmental abilities to achieve a recognized pattern of
milestones, over a typical range of time, in order to acquire and
maintain the skills needed to function age-appropriately.
c. Marked or extreme limitation of a paragraph B developmental
ability reflects the overall degree to which your developmental
disorder interferes with your using that ability. It does not
necessarily reflect a specific type or number of developmental
skills or activities 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
developmental ability. (See 112.00H4g.)
d. Marked or extreme limitation of a paragraph B developmental
ability also reflects the kind and extent of supports you receive
(beyond the supports that infants or toddlers your age without
developmental disorders typically receive), and the characteristics
of any highly structured settings 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. (See 112.00I5 and Sec. 416.924a.)
e. What we mean by ``marked'' limitation
(i) Marked limitation of a paragraph B developmental ability
means that the symptoms and signs of your developmental disorder
interfere seriously with your using that ability to acquire and
maintain the skills you need to function age-appropriately. 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.
(ii) 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 developmental
ability when you have a valid score that is at least two, but less
than three, standard deviations below the mean on a comprehensive
standardized developmental assessment designed to measure that
ability and the evidence shows that your functioning over time is
consistent with the score.
(iii) Marked limitation is also the equivalent of the level of
limitation we would expect to find on standardized developmental
assessments with scores that are at least two, but less than three,
standard deviations below the mean for your age.
(iv) When there are no results from a comprehensive standardized
developmental assessment in your case record, we can evaluate your
disorder based on a comprehensive clinical developmental assessment;
that is, an assessment of more than one or two isolated skills, with
abnormal findings noted on repeated examinations. We will find
marked limitation of a paragraph B developmental ability if your
skills and functioning on a clinical developmental assessment are at
a level that is typical of children who are more than one-half, but
not more than two-thirds, your chronological age.

[[Page 51365]]

f. What we mean by ``extreme'' limitation
(i) Extreme limitation of a paragraph B developmental ability
means that the symptoms and signs of your developmental disorder
interfere very seriously with your ability to acquire and maintain
the skills that you need to function age-appropriately. Although we
do not require the use of such a scale, extreme would be the last
point on a five-point rating scale consisting of no limitation,
slight limitation, moderate limitation, marked limitation, and
extreme limitation.
(ii) Although we do not require standardized test scores to
determine whether you have extreme limitation, we will generally
find that you have extreme limitation of a paragraph B developmental
ability when you have a valid score that is at least three standard
deviations below the mean on a comprehensive standardized
developmental assessment designed to measure that ability and the
evidence shows that your functioning over time is consistent with
the score.
(iii) ``Extreme'' is the rating we give to the worst
limitations; however, it does not necessarily mean a total lack or
loss of ability to function. It is the equivalent of the level of
limitation we would expect to find on standardized developmental
assessments with scores that are at least three standard deviations
below the mean for your age.
(iv) When there are no results from a comprehensive standardized
developmental assessment in your case record, we can evaluate your
disorder based on a comprehensive clinical developmental assessment;
that is, an assessment of more than one or two isolated skills, with
abnormal findings noted on repeated examinations. We will find
extreme limitation of a paragraph B developmental ability if your
skills and functioning on a clinical developmental assessment are at
a level that is typical of children who are no more than one-half
your chronological age.
g. How we consider your test results. We use the rules in
112.00D4 to evaluate any test results in your case record.
5. How do we consider supports when we evaluate functioning
under 112.14?
a. If you have a developmental delay or your skills are
qualitatively deficient, you may receive support in the form of
early intervention services to help you acquire needed skills or to
improve those that you have.
b. You may receive therapeutic intervention, such as
occupational therapy, from a visiting early childhood specialist or
therapist who sees you in your home or in a structured clinical
setting that is specially designed to enable you to develop specific
skills. You may receive more direct help at home in acquiring skills
than other children your age when, for example, your caregiver
repeatedly models a sequence of physical actions for you to imitate
or spends large amounts of time helping you to calm yourself when
you are upset. Generally, the more direct help or therapeutic
intervention you need to develop skills compared to other infants
and toddlers your age without developmental disorders, the more
limited we will find you to be.
6. Deferral of determination
a. Full-term infants
(i) In the first few months of life, full-term infants typically
display some irregularities in observable behaviors (for example,
sleep cycles, feeding, responding to stimuli, attending to faces,
self-calming), making it difficult to assess the presence, severity,
and duration of a developmental disorder.
(ii) When the evidence indicates that you may have a significant
developmental delay, but there is insufficient evidence to make a
determination, we will defer making a disability determination under
112.14 until you are at least 6 months old. This will allow us to
obtain a longitudinal medical history so that we can more accurately
evaluate your developmental patterns and functioning over time. When
you are at least 6 months old, any developmental delay you may have
can be better assessed, and you can undergo standardized
developmental testing, if indicated.
b. Premature infants. If you were born prematurely, we will
follow the rules in Sec. 416.924b(b) to determine your corrected
chronological age; that is, the chronological age adjusted by the
period of gestational prematurity. When the evidence indicates that
you may have a significant developmental delay, but there is
insufficient evidence to make a determination, we will defer your
case until you attain a corrected chronological age of at least 6
months in order to better evaluate your developmental delay.
c. When we will not defer a determination. We will not defer our
determination if we have sufficient evidence to determine that you
are disabled under 112.14 or any other listing, or that you have a
combination of impairments that functionally equals the listings. In
addition, we will not defer our determination if the evidence
demonstrates that you are not disabled.

J. How do we evaluate mental and developmental disorders that do not
meet one of the mental disorders listings?

1. These listings include only examples of mental and
developmental disorders that we consider severe enough to result in
marked and severe functional limitations. If your severe mental or
developmental disorder does not meet the criteria of any of these
listings, we will also consider whether you have an impairment(s)
that meets the criteria of a listing in another body system. You may
have a separate other impairment(s) or a physical impairment(s) that
is secondary to your mental disorder. For example, if you have an
eating disorder and develop a cardiovascular impairment because of
it, we will evaluate your cardiovascular impairment under the
listings for the cardiovascular body system.
2. If you have a severe medically determinable impairment(s)
that does not meet a listing, we will determine whether your
impairment(s) medically equals a listing. (See Sec. 416.926.) If it
does not, we will also consider whether you have an impairment(s)
that functionally equals the listings. (See Sec. 416.926a.) When we
determine whether your impairment(s) functionally equals the
listings, we consider all of your physical and mental limitations.
If you have limitations in your ability to perform physical
activities that are secondary to your mental or developmental
disorder, we will consider them when we determine whether your
disorder functionally equals the listings. For example, limitations
in walking or standing due to the side effects of medication you
take to treat your mental disorder may affect your age-appropriate
activities requiring physical exertion. When we decide whether you
continue to be disabled, we use the rules in Sec. Sec. 416.994 and
416.994a.

112.01 Category of Impairments, Mental Disorders

112.02 Dementia and Amnestic and Other Cognitive Disorders, with
both A and B or both A and C.
A. For children age 3 to attainment of age 18, a medically
determinable mental disorder in this category (see 112.00B1).

AND

B. Marked limitations of two or extreme limitation of one of the
following mental abilities:
1. Ability to understand, remember, and apply information (see
112.00C1).
2. Ability to interact with others (see 112.00C2).
3. Ability to concentrate, persist, and maintain pace (see
112.00C3).
4. Ability to manage oneself (see 112.00C4).

C. A serious and persistent mental disorder in this category
(see 112.00E2) with both:
1. Continuing treatment, psychosocial support(s), or a highly
structured setting(s) that diminishes the symptoms and signs of your
mental disorder, and
2. Marginal adjustment, as described in 112.00E2c.
112.03 Schizophrenia and Other Psychotic Disorders, with both A
and B or both A and C.
A. For children age 3 to attainment of age 18, a medically
determinable mental disorder in this category (see 112.00B2).

AND

[[Page 51366]]

AND

C. A serious and persistent mental disorder in this category
(see 112.00E2) with both:
1. Continuing treatment, psychosocial support(s), or a highly
structured setting(s) that diminishes the symptoms and signs of your
mental disorder, and
2. Marginal adjustment, as described in 112.00E2c.
112.05 Intellectual Disability/Mental Retardation (ID/MR)
satisfying A, B, C, or D.
A. For children age 3 to the attainment of age 18, ID/MR as
defined in 112.00B4, with mental incapacity evidenced by dependence
upon others for personal needs (grossly in excess of age-appropriate
dependence) and an inability to follow directions, such that the use
of standardized measures of intellectual functioning is precluded.

B. For children age 3 to the attainment of age 18, ID/MR as
defined in 112.00B4, with a valid IQ score of 59 or less (as defined
in 112.00B4d) on an individually administered standardized test of
general intelligence having a mean of 100 and a standard deviation
of 15 (see 112.00D4).

C. For children age 3 to the attainment of age 18, ID/MR as
defined in 112.00B4, with a valid IQ score of 60 through 70 (as
defined in 112.00B4d) on an individually administered standardized
test of general intelligence having a mean of 100 and a standard
deviation of 15 (see 112.00D4) and with another ``severe'' physical
or mental impairment (see 112.00B4e).

D. For children from age 3 to the attainment of age 18, ID/MR as
defined in 112.00B4, with a valid IQ score of 60 through 70 (as
defined in 112.00B4d) on an individually administered standardized
test of general intelligence having a mean of 100 and a standard
deviation of 15 (see 112.00D4), resulting in marked limitation of at
least two of the following mental abilities:
1. Ability to understand, remember, and apply information (see
112.00C1).
2. Ability to interact with others (see 112.00C2).
3. Ability to concentrate, persist, and maintain pace (see
112.00C3).
4. Ability to manage oneself (see 112.00C4).
112.06 Anxiety Disorders, with both A and B or both A and C.
A. For children age 3 to attainment of age 18, a medically
determinable mental disorder in this category (see 112.00B5).

AND

B. Marked limitations of two or extreme limitation of one of the
following mental abilities:
1. Ability to understand, remember, and apply information (see
112.00C1).
2. Ability to interact with others (see 112.00C1).
3. Ability to concentrate, persist, and maintain pace (see
112.00C3).
4. Ability to manage oneself (see 112.00C4).

AND

C. A serious and persistent mental disorder in this category
(see 112.00E2) with both:
1. Continuing treatment, psychosocial support(s), or a highly
structured setting(s) that diminishes the symptoms and signs of your
mental disorder, and
2. Marginal adjustment, as described in 112.00E2c.
112.11 Other Disorders Usually First Diagnosed in Childhood or
Adolescence, with both A and B or both A and C.
A. For children age 3 to attainment of age 18, a medically
determinable mental disorder in this category (see 112.00B9).

AND

[[Page 51367]]

2. Marginal adjustment, as described in 112.00E2c.
112.14 Developmental Disorders of Infants and Toddlers, with
both A and B.
A. For children from birth to attainment of age 3, a medically
determinable developmental disorder in this category (see 112.00I2).

AND

B. Marked limitations of two or extreme limitation of one of the
following developmental abilities:
1. Ability to plan and control motor movement (see
112.00I3b(i)).
2. Ability to learn and remember (see 112.00I3b(ii)).
3. Ability to interact with others (see 112.00I3b(iii)).
4. Ability to regulate physiological functions, attention,
emotion, and behavior (see 112.00I3b(iv)).
* * * * *

114.00 Immune System Disorders

* * * * *
D. How do we document and evaluate the listed autoimmune
disorders?
* * * * *
6. Inflammatory arthritis (114.09).
* * * * *
e. How we evaluate inflammatory arthritis under the listings.
* * * * *
(ii) Listing-level severity is shown in 114.09B and 114.09C2 by
inflammatory arthritis that involves various combinations of
complications of one or more major peripheral joints or involves
other joints, such as inflammation or deformity, extra-articular
features, repeated manifestations, and constitutional symptoms and
signs. * * *
* * * * *

114.01 Category of Impairments, Immune System Disorders

114.02 Systemic lupus erythematosus, as described in 114.00D1.
With involvement of two or more organs/body systems, and with:
A. One of the organs/body systems involved to at least a
moderate level of severity;

AND

B. At least two of the constitutional symptoms and signs (severe
fatigue, fever, malaise, or involuntary weight loss).
114.03 Systemic vasculitis, as described in 114.00D2. With
involvement of two or more organs/body systems, and with:
A. One of the organs/body systems involved to at least a
moderate level of severity;

AND

B. At least two of the constitutional symptoms and signs (severe
fatigue, fever, malaise, or involuntary weight loss).
* * * * *
114.06 Undifferentiated and mixed connective tissue disease, as
described in 114.00D5. With involvement of two or more organs/body
systems, and with:
A. One of the organs/body systems involved to at least a
moderate level of severity;

AND

B. At least two of the constitutional symptoms and signs (severe
fatigue, fever, malaise, or involuntary weight loss).
* * * * *
114.10 Sj[ouml]gren's syndrome, as described in 114.00D7. With
involvement of two or more organs/body systems, and with:
A. One of the organs/body systems involved to at least a
moderate level of severity;

AND

B. At least two of the constitutional symptoms and signs (severe
fatigue, fever, malaise, or involuntary weight loss).

Subpart Q--[Amended]

7. The authority citation for subpart Q of part 404 continues to
read as follows:

Authority: Secs. 205(a), 221, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405(a), 421, and 902(a)(5)).

8. Amend Sec. 404.1615 by adding a new fifth sentence at the end
of paragraph (d) to read as follows:

Sec. 404.1615 Making disability determinations.

* * * * *
(d) * * * See Sec. 404.1503 regarding overall responsibility for
reviewing mental impairments in the State agency.
* * * * *

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

Subpart I--[Amended]

9. The authority citation for subpart I of part 416 is revised to
read as follows:

Authority: Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a),
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and
(p), 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, and 1382h note).

10. Amend Sec. 416.903 by redesignating paragraph (e) as paragraph
(e)(1) and adding a new paragraph (e)(2), to read as follows:

Sec. 416.903 Who makes disability and blindness determinations.

* * * * *
(e) * * *
(2) Overall responsibility for evaluating mental impairments. (i)
In any case 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 the medical severity of your mental
impairment(s). The State agency disability examiner may assist in
reviewing the claim and preparing documents that contain the medical
portion of the case review and any applicable residual functional
capacity assessment or determination about functional equivalence.
However, our medical or psychological consultant must review and sign
any document(s) that includes the medical portion of the case review
and any applicable residual functional capacity assessment or
determination about functional equivalence to attest that they are
complete and that he or she is responsible for the content, including
the findings of fact and any discussion of supporting evidence. When a
disability hearing officer makes a reconsideration determination, the
disability hearing officer has overall responsibility for assessing the
medical severity of your mental impairment(s). The determination must
document the disability hearing officer's pertinent findings and
conclusions regarding the mental impairment(s).
(ii) At the administrative law judge hearing and Appeals Council
levels, the administrative law judge or, if the Appeals Council makes a
decision, the Appeals Council has overall responsibility for assessing
the medical severity of your mental impairment(s). The written decision
must incorporate the pertinent findings and conclusions of the
administrative law judge or Appeals Council.

Sec. 416.920a [Removed]

11. Remove Sec. 416.920a.
12. Revise the heading of Sec. 416.934 and paragraph (h) to read
as follows:

Sec. 416.934 Impairments that may warrant a finding of presumptive
disability or presumptive blindness.

* * * * *
(h) Allegation of intellectual disability/mental retardation or
another cognitive impairment (for example, an autism spectrum disorder)
with complete inability to independently perform basic self-care
activities (such as toileting, eating, dressing, or bathing) made by
another person who files on behalf of a claimant who is at least 4
years old.
* * * * *

Subpart J--[Amended]

13. The authority citation for subpart J of part 416 continues to
read as follows:

Authority: Secs. 702(a)(5), 1614, 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1382c, 1383, and 1383b).

[[Page 51368]]

14. Amend section 416.1015 by adding a new fifth sentence at the
end of paragraph (d) to read as follows:

Sec. 416.1015 Making disability determinations.

* * * * *
(d) * * * See Sec. 416.903 regarding overall responsibility for
reviewing mental impairments in the State agency.
* * * * *

Subpart N--[Amended]

15. The authority citation for subpart N of part 416 continues to
read as follows:

Authority: Secs. 702(a)(5), 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub.
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

16. Amend Sec. 416.1441 by revising paragraphs (b)(3) and (b)(4),
and by adding a new paragraph (b)(5) to read as follows:

Sec. 416.1441 Prehearing case review.