Introduction

The Social Security Administration (SSA) recently updated their regulations for mental health listings, which are criteria SSA administrative law judges (ALJs) use to determine whether claimants’ impairments reach the level that the claimants are disabled under the Social Security Act. [1] The “listings” are the highest level of severity of a disability.  Meeting or equaling a listing criteria can allow an individual to be found disabled based on medical criteria alone, without having to show that there are no fulltime jobs that they are capable of doing.  These new rules became effective January 17, 2017.

Overall, claimants should not be worse off under the new mental health listings than they were before. However, there will still be room for abuse by the SSA.

Functional Limitation Criteria

The functional limitation criteria for the new mental health listings no longer include activities of daily living or periods of decompensation; they now comprise four criteria: [2]

1. Understand, remember or apply information;
2. Interact with others;
3. Concentrate, persist, or maintain pace; and
4. Adapt or manage oneself.  (“Adapt or manage oneself” refers to the abilities to regulate emotions, control behavior, and maintain well-being in a work setting.)

These functional limitation criteria are all measured on the same five-point limitation scale as the functional limitation criteria under the previous mental health listings: none, mild, moderate, marked, and extreme.  As before, a claimant needs to have one extreme limitation or two marked limitations in order to be determined to be disabled.  The new listings provide definitions of none, mild, moderate, marked, and extreme,[3] however the definitions are still somewhat vague and therefore subject to abuse.

Under the new listings, the adjudicator uses the most impaired of the three [a1] listed abilities in each of the first, third, and fourth functional limitation criteria to determine the claimant’s limitation.  The second functional limitation criterion does not have this breakdown of elements.

For example, the first functional limitation criterion is “understand, remember or apply information.”  The new regulations suggest[a2]  that the SSA has a duty, if possible, to determine each of the elements separately, i.e., the claimant’s ability to understand information, ability to remember information, and ability to apply information.  If the SSA determines that the claimant has mild limitations in the ability to understand and remember information, and a marked limitation in the ability to apply information, the functional limitation criteria for the ability to “understand, remember or apply information” is considered “marked” not “mild.”  The listings also require consideration of exacerbations and remissions when evaluating the four functional limitation criteria.

Criteria for “Serious and Persistent Mental Disorders”

As an alternative to the functional limitation criteria, the listings also present criteria to evaluate “serious and persistent mental disorders” with an existence over a period of 2 years or more.[4]   Highly structured settings are mentioned, but so is ongoing medical treatment, mental health therapy, or psychosocial support.  This set of criteria account for “marginal adjustment,” where adaptions to the requirements of daily life are fragile.

The regulations explain that fragility can be shown by periods of “deterioration” requiring hospitalization or absence from work, but do not give specific details as to how many periods are required or how long they must be to show fragility.  The SSA’s responses to comments from the public on the draft regulations explain that “deterioration” is intended to be a less strict standard than “decompensation.”[5] The criteria for evaluating “serious and persistent mental disorders” can still be met if gaps in treatment can attributed to the claimant’s mental disorder making it difficult for the claimant to comply with treatment.

Criteria for Intellectual Disorder [6]

The criteria for meeting a listing due to intellectual disorder have changed considerably.  Previously, if a claimant had either a verbal, performance, or full scale IQ score below 60, the claimant would meet the listing without having to prove limitations in functional criteria.  Also, if a claimant had either a verbal, performance, or full scale IQ score from 60 through 70, they would meet the listing without having to prove limitations in functional criteria if they had just one other serious physical or mental impairment.

Under the new regulations, if a claimant has sufficient IQ to take a test, they must get a full-scale IQ score of “70 or less” and meet the functional limitation criteria in order to meet the listing for intellectual disorder.  Reliance on a verbal or performance IQ score is now more limited than under the old rules.  If the full scale IQ is over 70, a claimant who has verbal or performance IQ score of 70 or less must also have a full-scale IQ score from 71 through 75 and meet the functional limitation criteria in order to meet the listing. If the full scale IQ is over 75, then the claimant does not meet the listing for intellectual disorder, so the evaluator goes to the next step of the sequential analysis to determine whether the claimant is disabled.

Sources of Medical Evidence

One good change in the mental health listings is that ALJs are now permitted to use the opinions of psychotherapists (such as MFTs and LCSWs) when evaluating claimants’ functional limitations.[7] Unfortunately, this comes at the same time the SSA is enacting separate regulations that minimize the “treating source rule,” under which the opinions from a claimant’s treating medical source were given controlling weight unless they failed to meet certain criteria.  Now those regulations no longer mention “controlling” weight for treating source opinions, and focus on evaluating treating source opinions based on superficial inconsistences.[8]  The “treating source rule” is court-created, however, and so long as it is based on the statute (the Social Security Act), it will trump any new regulation stating otherwise. It is likely that this minimization of the “treating source rule” will be challenged in court.

Claimants’ Advocates Are Necessary to the SSA Disability Adjudication Process

Many of the changes in the new mental health listings are based on the most recent (fifth) edition of the Diagnostic and Statistical Manual (DSM 5).[9]   The new criteria in the mental health listings therefore represent the most accurate descriptions of mental impairments possible under current mental health science.  It should be noted, however, that the behavioral sciences are still in early stages of learning about brain chemistry and epigenetics, including the interaction between genes and the environment, in the development of mental disorders.  As a result, even listings based on the most up-to-date behavioral science will unavoidably lead to somewhat vague and subjective criteria.  For this reason, professional claimants’ advocates will be necessary to the SSA disability adjudication process for the foreseeable future.