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                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
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###### Social Security Administration

          - 20 CFR Parts 404 and 416
          - [Docket No. SSA-2007-0101]
          - RIN 0960-AF69

# AGENCY:

Social Security Administration.

# ACTION:

Notice of proposed rulemaking; limited reopening of comment period.

# SUMMARY:

                        We are reopening for a limited purpose the comment period for the notice of proposed rulemaking (NPRM) that we published in the                         **Federal Register**                         on August 19, 2010 (75 FR 51336). We are reopening the comment period for 15 days to clarify and to seek additional public comment about an aspect of the proposed definitions of the terms “marked” and “extreme” in sections 12.00 and 112.00 of our Listing of Impairments (listings). We are reopening the comment period to accept comments about that issue                               ( print page 71633)                            only. We will not consider comments on any other aspects of the proposed listings for mental disorders that we receive during this reopened comment period.                    

# DATES:

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

# ADDRESSES:

You may submit comments by any one of three methods—Internet, fax, mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2007-0101 so that we may associate your comments with the correct regulation.

*Caution:*                         You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information.                    
      -  Internet:                          We strongly recommend that you submit your comments via the Internet. Please visit the Federal eRulemaking portal at                          http://www.regulations.gov . Use the                          Search                          function to find docket number SSA-2007-0101. The system will issue a tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week for your comment to be viewable.                    
      -  Fax:                          Fax comments to (410) 966-2830.                    
      -  Mail:                          Address your comments to the Office of Regulations, Social Security Administration, 107 Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.                    

                        Comments are available for public viewing on the Federal eRulemaking portal at                         *http://www.regulations.gov*                         or in person, during regular business hours, by arranging with the contact person identified below.                    

# FOR FURTHER INFORMATION CONTACT:

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

# SUPPLEMENTARY INFORMATION:

## Electronic Version

                    The electronic file of this document is available on the date of publication in the                     **Federal Register**                     at                     *http://www.gpoaccess.gov/​fr/​index.html*.                

We are reopening until December 9, 2010 the comment period on one aspect of our proposed rules to revise our mental disorders listings: Definitions we provide for the terms “marked” and “extreme” that refer to standardized testing. In light of the public comments we have received on this aspect of our proposed rules, we have decided to provide more background about these proposals, to clarify our intent, and to request additional public comment on only this clarification. We have received many letters and facsimile messages from members of the public who appear to have misunderstood the background and purpose of these proposals. We believe that it will be helpful to these and other commenters if we provide more information and more time to comment on this issue.

## Background

In this section and the sections that follow, we will review what our current rules say, the history of those rules and how we developed them, and how they relate to the proposed rules. As we will show, in most instances the proposed rules would not be new, especially for children with mental disorders who claim disability benefits under the supplemental security income (SSI) program. We developed the rules with input from both medical experts and advocates for people who have mental disorders. We do not intend the proposed rules to have the effect of encouraging our adjudicators to purchase testing; rather, they are alternative criteria that we use to help define our terms for assessing severity under the listings. The proposed rules would also not directly affect adults or children who are already receiving disability benefits from us.

                    Under our current mental disorders listings, each listing (except listings 12.05 and 12.09) consists of a statement describing the disorder(s) addressed by the listing (a “capsule definition”), paragraph A criteria (a set of medical findings), and paragraph B criteria (a set of four impairment-related functional limitations).[1]                                          In general, we will find that an adult is disabled under the current mental disorders listings if he or she has a mental disorder that meets the capsule definition and the paragraph A criteria of a listing, and the disorder results in “marked” limitations in two of the four paragraph B criteria. We define the term “marked” for adults in current § 12.00C as follows:                

Where we use “marked” as a standard for measuring the degree of limitation, it means more than moderate but less than extreme. A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis.

We also cross-refer to current §§ 404.1520a and 416.920a in our regulations, which indicate that “marked” is more than moderate and less than extreme. We repeat a variation of this definition of “marked” in additional sections under § 12.00C. For example, in § 12.00C1, we state: “We do not define `marked' by a specific number of activities of daily living in which functioning is impaired, but by the nature and overall degree of interference with function.” We follow this statement with an example that refers generally to “serious” difficulties in daily activities.

                    Except for very minor language changes, we have had this definition of “marked” in our adult mental disorders listings since 1985.[2]                                          The 1985 adult mental disorders listings were also the first listings in which we established a standard of listing-level severity based on “marked” limitations in two broad areas of functioning. Since that time, however, we have issued other listings and rules that use a “two-marked standard” or otherwise refer to “marked” limitations.                

                    Over the last 20 years, we have refined and expanded our definition of the term “marked” in response to questions from our adjudicators and the public and based on expert input. We first expanded the definition of “marked” in revised childhood mental disorders listings we published in 1990.[3]                                          Although we have made minor language changes, the definition of “marked” in our childhood disability rules, which we developed with information we received from a panel of experts, has been substantively the same since we first published it. The current childhood rule provides:                

                        Where “marked” is used as a standard for measuring the degree of limitation[,] it means more than moderate but less than extreme. A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the                               ( print page 71634)                            degree of limitation is such as to interfere seriously with the ability to function (based upon age-appropriate expectations) independently, appropriately, effectively, and on a sustained basis. When standardized tests are used as the measure of functional parameters, a valid score that is two standard deviations below the norm for the test will be considered a marked restriction.[4] 

                    We incorporated this definition by reference for the policy of functional equivalence when we first established that policy in 1991.[5]                                          In 1997, following the enactment of Public Law 104-193, we published separate definitions of the terms “marked” and “extreme” for the purposes of determining functional equivalence. We also provided several alternative definitions, including a definition that provided that “[w]hen standardized tests are used as the measure of functional abilities, a valid score that is two standard deviations or more below the norm for the test (but less than three standard deviations)” would establish a marked limitation. Our 1997 rules also provided that “[w]hen standardized tests are used as the measure of functional abilities, a valid score that is three standard deviations or more below the norm for the test” would establish an extreme limitation.[6] 

                    When we first published this rule in 1997, we explained that the definitions of “marked” and “extreme” were “not new, but are based on longstanding policy in the regulations and interpretations we have used in our internal instructions and training.”[7] 

                    As in 1991, the rules for SSI children we published in 1997 were interim final rules with a request for public comment. When we published the final rules in 2000,[8]                                          we explained in the preamble that “we asked a number of individual experts for information as we formulated these final rules. The experts included pediatricians, psychologists, and other pediatric specialists, and individual advocates for children with disabilities who have expert knowledge about the SSI program.”[9]                                          The final rules we published in 2000 contained specific definitions of the terms “marked” and “extreme” that are consistent with the rules we proposed in our August 2010 NPRM, including the provisions that:                
    - We will find that a person has a “marked” limitation when he or she has a valid score that is two standard deviations or more below the mean, but less than three standard deviations, and
    - “Marked” limitation is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.

                    The current functional equivalence rule is identical to the rule we published in 2000.[10]                                          We also provide a definition of “extreme” with criteria similar to those in the definition of “marked” but at a higher level of severity.                

When we published the current definition of “marked” for functional equivalence, we explained in the preamble of the final rules:

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

## What the Proposed Rules Say

Immediately before we define the terms “marked” and “extreme,” we provide the following general guidance in proposed § 12.00D1:

### 1. General

a. When we rate your limitations using the paragraph B mental abilities, we consider only limitations you have because of your mental disorder.

                    b. To do most kinds of work, a person is expected to use his or her mental abilities independently, appropriately, effectively,                     *and*                     on a sustained basis.                

                    c. Marked or extreme limitation of a paragraph B mental ability reflects the overall degree to which your mental disorder interferes with your using that ability independently, appropriately, effectively,                     *and*                     on a sustained basis in a work setting. It does not necessarily reflect a specific type or number of activities, including activities of daily living, that you have difficulty doing.                     *In addition, no single piece of information (including test scores) can establish whether you have marked or extreme limitation of a paragraph B mental ability.*                     (                    *See*                     12.00D4.) [Emphasis added.]                

d. Marked or extreme limitation of a paragraph B mental ability also reflects the kind and extent of supports you receive and the characteristics of any highly structured setting in which you spend your time that enable you to function as you do. The more extensive the supports or the more structured the setting you need to function, the more limited we will find you to be. * * *

The proposed rule defining “marked” limitation for adults says:

### 2. What We Mean by “Marked” Limitation

                    a.                     *Marked limitation*                     of a paragraph B mental ability means that the symptoms and signs of your mental disorder interfere                     *seriously*                     with your using that mental ability independently, appropriately, effectively,                     *and*                     on a sustained basis to function in a work setting. Although we do not require the use of such a scale, marked would be the fourth point on a five-point rating scale consisting of no limitation, slight limitation, moderate limitation, marked limitation, and extreme limitation.                

                    b.                     *Although we do not require standardized test scores to determine whether you have marked limitations, we will generally find that you have marked limitation of a paragraph B mental ability when you have a valid score*                     that is at least two, but less than three, standard deviations below the mean on an individually administered standardized test designed to measure that ability and the evidence shows that your functioning over time is consistent with the score. (                    *See*                     also 12.00D4.) [Emphasis added.]                

                    c. Marked limitation is also the equivalent of the level of limitation we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.[12] 

Proposed §§ 12.00D4a and D4c say, as pertinent to this reopened NPRM:

### 4. How We Consider Your Test Results

                    a.                     *We do not rely on any IQ score or other test result alone.*                     We consider your test scores together with the other information we have about how you use the mental abilities described in the paragraph B criteria in your day-to-day functioning.                

* * * * *

                    c. Generally, we will not find that a test result is valid for our purposes when the information we have about your functioning is of the kind typically used by medical professionals to determine that the test results are not the best measure of your day-to-day functioning. If there is a material inconsistency between your test results                           ( print page 71635)                        and other information in your case record, we will try to resolve it. * * *                

* * * * *

(Emphasis added). We provide similar definitions of the terms “marked” and “extreme” in the listings section for children, with criteria appropriate to childhood.

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

In response to the NPRM, we received many public comments that seemed to misunderstand our current policy, what changes we were proposing, and how the proposals might affect adults and children. We believe that much of the confusion was caused by our failure to provide sufficiently detailed information about our current policies and where our proposals came from. We apologize for that omission, which we have corrected in this notice.

Although we received a wide variety of comments, we are reopening the public comment period on a limited basis to specifically address the misunderstanding of our current and proposed policy regarding the use of standardized tests. We are requesting public comment only on this issue in light of the clarification we are providing in this notice.

Many commenters focused on two aspects of our proposed rule: (1) A definition of “marked” based on a standardized test score that is two standard deviations below the mean; and, (2) a separate definition of “marked” based on functioning that would be the equivalent of such a score if there were a standardized test. As discussed above, neither of these proposals represents new policy; both are based on our longstanding rules. However, some commenters said that our proposal would encourage our adjudicators to use standardized tests. Many said that we should drop all reference to standardized tests in the mental illness sections of the proposed rules and that the change would reduce the number of children and adults with serious mental disorders who qualify for disability benefits. Some who are already beneficiaries or who have family members who are beneficiaries were concerned that they would lose their benefits.

We did not intend for, and do not believe that, our proposed rules would do any of these things. The childhood mental disorders listings have contained a provision defining “marked” limitation as a score that is two standard deviations below the mean on a standardized test for 20 years. We developed those rules with information we received from a group of mental health experts. We did not propose to change that provision or the way we determine disability in children with serious mental disorders. We proposed only to extend the provision to adults since it has worked well in childhood claims.

                    The proposed rules for adults and children do not state that adjudicators should obtain standardized tests, encourage them to do so, or indicate that there are standardized tests for all serious mental disorders. Rather, our proposed rules state only that                     *if*                     a person has a standardized test and the scores are two standard deviations below the mean, the test will show that the person has a “marked” limitation. Consistent with our current childhood rules, the proposed rules also state that adjudicators must not rely on the results of standardized tests alone but must consider all of the evidence in the person's case record.                

                    Since the beginning of 2001, our functional equivalence regulation has contained an alternative rule defining “marked” limitation for children based on functioning that would be consistent with a score on a standardized test that is two standard deviations below the mean, if there were such a test. As with the provision for actual scores from an actual test, the rule provides that we will find that the child has a marked limitation if the child is functioning at that level. The regulation section, like the proposed rule for the mental disorders listings, also provides other definitions for the term “marked.” We began using this regulation in 1997, 13 years ago. The number of awards of children who apply for SSI has not fallen since that time.[13]                                          Given this experience, we believe that it was appropriate to include the rule in both the adult and child mental disorders listings.                

Perhaps most importantly, it appeared that many commenters did not understand that we do not deny a person's claim merely because his or her impairment(s) does not meet or medically equal the criteria of our listings. As under our current rules, adults with mental disorders who cannot perform their past work or a significant number of jobs in the national economy considering their age, education, and work experience would still be able to qualify under other rules we have for finding persons disabled.

                    We also want to make clear that we do not reexamine the entitlement of beneficiaries when we revise listings. When we periodically perform continuing disability reviews to determine if beneficiaries are still disabled, we continue to use the same listing section we used to make our most recent favorable decision.[14]                                          Thus, beneficiaries who qualified under a current listing would continue to qualify as long as their impairments continued to meet or medically equal the current listing.                

In light of the importance of this issue and the widespread misunderstanding of our proposed rules, we are reopening the comment period for the limited purpose of allowing interested persons to provide any additional comments they may have on our proposed policy regarding the use of standardized tests.

Michael J. Astrue,

Commissioner of Social Security.

# Footnotes

1.                             There are additional functional criteria, which we refer to as the paragraph C criteria, in current listings 12.02, 12.03, 12.04, and 12.06. We do not discuss those criteria here.                    
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2.                             50 FR 35038, 35066 (August 28, 1985).                    
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3.                             55 FR 51208 (December 12, 1990).                    
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4.                                 Listings, § 112.00C.                        
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5.                                                     *See,*                         in general, 56 FR 5534 (February 11, 1991).                    
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6.                             20 CFR 416.926a(c)(3) (1997).                    
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7.                             62 FR 6408, 6414 (February 11, 1997).                    
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8.                             65 FR 54747 (September 11, 2000).                    
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9.                                                     *Ibid.*
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10.                             20 CFR 416.926a(e)(2).                    
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11.                                 65 FR at 54757.                        
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12.                             Propose § 12.00D2, 75 FR at 51356. Again, there is a similar definition of “extreme” in the next paragraph on the same page.                    
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13.                             You may look up our award data for children under SSI by year in the                         *SSI Annual Statistical Report,*                         available at:                         *http://www.socialsecurity.gov/​policy/​docs/​statcomps/​ssi_​asr/​2009/​ssi_​asr09.pdf.*
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14.                                                     *See*                         404.1594(c)(3)(i), 416.994(b)(2)(iv)(A), and 416.994a(b)(2).                    
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[FR Doc. 2010-29577 Filed 11-23-10; 8:45 am]

BILLING CODE 4191-02-P