I-5-4-30.Determining Disability for a Child Under Age 18 — Title XVI
|Inquiries and Additional Questions|
|- QUESTIONS AND ANSWERS|
ISSUED: September 9, 1992; REVISED: March 19, 1993
This Temporary Instruction (TI) discusses, in a question and answer format, Social Security Administration (SSA) policies and procedures for evaluating disability in children who file claims for Supplemental Security Income (SSI) benefits under title XVI of the Social Security Act.
On February 20, 1990, the United States Supreme Court, in the case of Sullivan v. Zebley, 493 U.S. 521 (1990), invalidated the use of a medical “listings-only” approach as a basis for denying SSI childhood disability claims and required the use of an individualized functional assessment of children whose impairments do not meet or equal the severity of listed medical impairments. On February 11, 1991, SSA published in the Federal Register final regulations with a request for comments to comply with the Court's ruling (56 FR 5534).
In February 1991, the Office of Disability began nationwide training on the evaluation of SSI childhood disability claims under the new rules. The Office of Hearings and Appeals began its training in June 1991 with a train-the-trainer session involving both field and Headquarters personnel, followed by local programs throughout the country.
During these training sessions, we asked for questions and comments to be used in preparing additional instructions. After compiling and consolidating the information received, we developed, with the assistance of the Office of Disability, a series of questions and answers to address the issues raised.
III. Implementing Procedures
The attachment provides questions and answers addressing SSA policies and procedures for determining disability for children under the SSI program.
IV. Inquiries and Additional Questions
Field personnel who have questions about this issuance, or who wish to suggest additional questions for a follow-up publication, should telephone their Regional Offices. Regional and Headquarters personnel should contact the Division of Policy, Planning and Evaluation at FTS (703) 305-0254.
SUBSTANTIAL GAINFUL ACTIVITY (SGA)
1. Should we have SGA criteria for children which differ from the criteria used for adults? Work done by children is often quite different than that done by adults (e.g., children usually work part-time and they have lower pay rates), so it seems logical not to use the same evaluating criteria.
The SGA guidelines in the regulations apply to all work, regardless of the age of the person doing that work. Existing guidelines already require that we consider the individual circumstances of each work situation in deciding whether work is SGA. If an individual (adult or child) works part-time, for a low wage or under special conditions, we consider those facts in the assessment. These guidelines were in effect prior to the Supreme Court ruling in Zebley and were not affected by the decision.
(20 CFR § 416.924(c); OHA Childhood Disability Training Manual (TM) Ch. 1, Sect. II. B.)
2. At the second step of the sequential evaluation, does a severe impairment in a child represent the same level of severity as a severe impairment in an adult?
Yes, although the kinds of functioning we examine to determine severity are different. As with adults, a severe impairment in a child is one that causes more than a slight or minimal limitation in the ability to function. In adults, we evaluate disability in relation to the individual's ability to work, so we define a severe impairment in relation to ability to do basic work activities. We define a severe impairment for children in terms of different functions because we evaluate children in relation to other abilities and functions (i.e., ability to function independently, appropriately and effectively in an age-appropriate manner).
(20 CFR § 416.924(d); TM Ch. 1, Sect. II. B. and Ch. 4, Sects. I. and II.)
3. At the childhood disability training, we were told to resolve any doubt about whether the child has a severe impairment (at the second step of the sequential evaluation) in favor of the child (i.e., by finding a severe impairment). Does this action establish a presumption that the claimant has a severe impairment - a presumption which SSA must rebut? Is the “shifting burden of proof” statement, which is used in adult cases decided at the fifth step, required in childhood claims?
The concept of resolving any doubt at the second step in the claimant's favor is not new. It has applied to adult cases for many years (Social Security Ruling 85-28). At the second step of the sequential evaluation, the claimant (adult or child) is responsible for showing the existence of a severe impairment. That responsibility is not affected by the policy of resolving doubt at the second step in the claimant's favor. There is no “presumption” that a claimant has a severe impairment; that determination must be made on a case by case basis.
The burden of proof shifts in adult claims decided at the fifth step to recognize the Secretary's burden, once a claimant establishes that he or she cannot do past work, to show that work exists which the claimant can do. The “shifting burden of proof” concept is based on case law involving adult claims. Because childhood cases are not decided based on the claimant's ability to work, the statement is not required.
MEETS AND EQUALS
4. Who is responsible for deciding equivalence (medical and functional) and making the individualized functional assessment (IFA)?
At the hearings and appeals level, the ALJ or Appeals Council decides medical and functional equivalence and makes the IFA.
(20 CFR § 416.926a(c); TM Ch. 4, Sect. III. E. 3. and Ch. 6, Sect. I. B. 2. c.)
5. Do we still need to obtain and consider a medical judgment on equivalence by a designated physician (even though Social Security Ruling (SSR) 83-19 was rescinded)? In the preamble to the regulations at 56 FR 5545, the second, third and fourth paragraphs seem to eliminate that requirement.
It is OHA's longstanding policy to require ALJs and the AC to obtain opinions on medical equivalence from medical experts. However, because of the kind of equivalence determinations required in childhood disability claims, the ALJ or AC may not need to obtain medical expert opinion to decide the issue of functional equivalence. Of course, the ALJ or AC is not precluded from obtaining medical expert opinion to decide the issue.
6. Why not skip the meets/equals step and just do functional assessments?
The childhood sequential evaluation procedures parallel, to the maximum extent possible, the adult sequential evaluation procedures. The meets/equals step serves the same purpose for children as it does for adults - to screen out the more obvious allowance cases early in the process.
(Regulations Preamble at 55 FR 5538 and 5552; Instructor's Manual Tab I-D, pages 22-32)
7. We make a functional assessment at the third step of the sequential evaluation (functional equals), and then another one at the IFA step. Are they the same thing?
No. Functioning is considered at three different steps in the sequential evaluation of disability for children (i.e., impairment severity, functional equals and the IFA). These evaluations measure function against different standards.
The level of severity necessary to establish disability when evaluating functional equals at the third step is listing level severity. The level of severity necessary to establish disability at the IFA step is less than listing-level. The level of severity necessary to establish a severe impairment at the second step is much less than either of those.
The three functional assessments also measure function differently. If, at the second step, we look at a child's ability to function and determine that he or she has a severe impairment(s), then we must take a more detailed look at functioning when we consider functional equals, and an even more detailed look if we continue on to do an IFA in preparation for the fourth step.
(Instructor's Manual pages 69 and 162)
8. In determining medical equivalence at the third step, does the child's impairment have to be medically related to the listed impairment?
Yes. The determination of medical equivalence has changed only to the extent that a child's claim cannot be denied solely because his or her impairment(s) does not meet or equal the severity of a listed impairment. In evaluating medical equivalence when a particular listing does not apply, we use the most closely analogous listed impairment(s) (comparison listing). If the child's impairment(s) does not meet or medically equal a listed impairment, we then determine whether functional equivalence exists. When determining functional equivalence, the listing we choose for comparison need not be medically related to the child's impairment(s). The point of functional equivalence is to recognize that people are disabled not so much by what is wrong with them (i.e., diagnosis) but by the effects of their impairments (i.e., limitations).
(20 CFR § 416.926a(b) and TM Ch. 4, Sect. II. D.)
9. If finding functional equivalence at the third step based on one of the examples in the regulations (20 CFR § 416.926a(d)), do we cite a specific listing or just the regulatory section? If a listing, which one?
We should cite the regulatory section and either the listing specified in the regulatory section (e.g., 112.12 for § 416.926a(d)(12)) or the most closely related listing.
10. One of the case examples from the training stated that a combination of two marked limitations in the mental impairment listings “B criteria” represents an impairment equal to a listing. Is this always true? If so, what is the authority for this rule?
The “B criteria” in §§ 12.00 and 112.00 of Appendix 1 describe the functional consequences of many mental impairments. If an individual has an impairment(s) not listed in § 12.00 or 112.00, but which produces the disabling functional consequences outlined in Appendix 1 (e.g., marked limitations in two of the “B criteria” categories), then the impairment is of equal severity.
Although the regulations do not explicitly state this principle, it is implicit in 20 CFR § 416.926a(b)(3), which states that “... [i]f the functional limitation(s) resulting from your impairment(s) is the same as the disabling functional consequences of a listed impairment, we will find that your impairment(s) is equivalent to that listed impairment.” (Section 416.926a(d)(7) describes such an impairment.)
11. Based on the answer to the previous question, it appears that the mental impairment “B criteria” can be relevant to a physical impairment. Is this true?. If so, must we now use these “B criteria” to evaluate physical impairments (and combined impairments)?
The mental impairment “B criteria” can be relevant to physical impairments. In determining functional equivalence, we “... compare the functional limitation(s) resulting from ... [the claimant's] ... impairment(s) with the functional consequences of any listed impairment which includes the same functional limitations” (§ 416.926a(b)(3), emphasis added). This does not mean that we must include a complete “B criteria” analysis in every physical-impairment-only case. However, physical impairments can interfere with activities of daily living, personal skills and concentration, persistence and pace and even social skills. The decisionmaker must be alert to the possibility of a physical impairment producing functional limitations the same as those in the mental impairment “B criteria” (which would lead to a finding of functional equivalence).
(§ 416.926a(b); TM Ch. 4, Sect. III. D. 2. c.; Instructor's Manual Tab I-D)
12. Is a premature child one born at “37 weeks gestation or less” or one born at “less than 37 weeks gestation?”
This is an inconsistency in the regulations, which will be corrected when any revisions to the final regulations are published. Until then, we must follow the language exactly as written:
When deciding whether to compute a corrected chronological age, follow the definition in 20 CFR § 416.924b: A premature infant is one who was born at less than 37 weeks gestation.
For purposes of using the special functional equivalence rules, use 37 weeks or less (20 CFR 416.926a(d)(10)).
INDIVIDUALIZED FUNCTIONAL ASSESSMENTS (IFAs)
13. The regulations (at § 416.924c) discuss a total of 5 developmental or functional domains and 2 behaviors which are used (in various combinations) to assess functioning in all children. How were these domains/behaviors established? Are they sufficient to describe all possible limitations in children?
The domains and behaviors used to evaluate a child's impairment(s) use as a frame of reference the terminology and definitions in the childhood mental disorder listings, and are commonly used by many professionals who treat and evaluate children. However, they are by no means standardized - there are other ways of naming the domains/behaviors and of grouping functions. Therefore, the system described in the regulations could have been designed with other headings for grouping and categorizing functioning in children. It was devised to employ the most common and most widely used headings.
The 7 specific categories of domains and behaviors are sufficient to completely describe any child's limitations. They are, by definition, all-inclusive because the first step in doing an IFA is to assess all aspects of a child's functioning - each specific activity, milestone, behavior, limitation or whatever else is appropriate to an understanding of how a child is actually functioning, without regard to what domain or behavior category might apply. (See § 416.924d for a discussion of other factors we will consider in doing an IFA.)
For example, how would you evaluate a child with a sensory impairment that is severe but at less than listing level, specifically, a hearing impairment? The answer is that you would consider in your assessment any limitations of age-appropriate development, functioning or behavior resulting from the impairment, just as you would with any other physical or mental impairment. In a case involving a serious hearing impairment, you would expect to find some limitations in the communicative domain. As was explained in your training, a sensory impairment in an infant may also interfere with the infant's ability to bond with its parents, or result in cognitive or even motor delays. Older children may also have limitations in the social or personal/behavior domains — for instance, at school, where there may also be evidence of learning delays — both in terms of development and age-appropriate functioning. You would also want to know whether the child has a speech or language disorder which significantly affects the clarity and content of his or her speech and which is attributable to the hearing impairment (See Listing 102.08B.3).
How would you evaluate a child with a physical impairment that is severe but at less than listing level, specifically, asthma attacks? The answer is that physical impairments should be assessed under all of the domains/behaviors they affect. If a physical impairment causes a child to be unable to perform age-appropriate self-care skills, the personal/behavioral domain should indicate some limitation. Likewise, if a physical impairment causes a child to be unable to engage in any age-appropriate social activities, this would be documented by indicating a limitation in the social development domain. In other words, a physical impairment could cause limitations in any of the domains or behaviors considered in the IFA, not just the motor domain. Therefore, there is no single answer to the question of which domain to choose when evaluating a given impairment; indeed, a single impairment may cause limitations in more than one domain.
Only after assessing all the child's functions/limitations do we fit them into the age-appropriate domain and behavior categories. In this respect, the IFA is like the residual functional capacity (RFC) assessment in an adult. In assessing RFC, we consider all aspects of how the adult functions, and then describe how much an adult can lift and carry, how long an adult can sit, stand, and walk, how well an adult can get along with coworkers and the public, the kind and amount of stress he or she can tolerate, etc. We make the assessment without regard to whether these abilities and limitations correspond to the specific categories of work - “sedentary,” “light,” “medium,” and so on.
(20 CFR §§ 416.924c and 416.924d; TM Appendix III; and Instructor's Manual pp. 55-57)
14. How do we know what constitutes “age-appropriate” functioning in a particular domain or behavior? Can you provide additional guidelines? To what extent may we rely on our own personal understanding of childhood functioning in deciding what is “normal?”
The OHA Training Manual includes two sections which discuss normal and abnormal development and functioning in children. Handout #8 (pages 149-151) was developed by the Office of Disability based, in part, on the discussions of childhood development, functioning, and behavior in the regulations (§ 416.924c). Appendix III is a paper on early childhood development. The material is intended to provide basic information about childhood functioning to assist the decisionmaker in understanding the evidence he or she will encounter in childhood disability cases. However, these training aids are not authority for findings or conclusions about functioning in a particular case.
Our decisions in a given case, and our findings and conclusions about the child's functioning must be based on the evidence in the record. As usual, we must base our decision on the facts and law and be careful not to substitute our own understanding of medical issues in place of what is shown by the evidence. In the absence of adequate evidence of whether a claimant's functioning is age-appropriate, the ALJ should seek additional medical evidence, including (if appropriate) medical expert (ME) testimony (see next question).
15. Is an ME necessary to document what is “normal” age-appropriate activity?
An ME may be needed if the decisionmaker is unable to determine, based on the evidence already in the record, if the child's functioning is age-appropriate or the extent to which it is inappropriate. This is consistent with current policy on obtaining ME testimony when there is uncertainty about the meaning of the medical evidence.
16. Do we need to call an ME to determine if a child is functioning at a particular percentage or fractional proportion of normal (e.g., 1/2 or 2/3 of chronological age) or standard deviation from normal?
Not necessarily. Medical evaluations of children commonly use these proportional terms to describe development or functioning. If it is necessary in a particular case to determine at what percentage or proportion of normal a child is functioning, and this assessment is not in the available evidence, the ALJ may obtain ME testimony. This is consistent with current policy on obtaining ME testimony when there is need for a medical opinion on functional limitations and abilities.
17. In assessing functioning (either at the second step of the sequential evaluation or when doing the IFA), do we consider socio-economic factors that affect functioning (e.g., educational or cultural deprivation, lack of fluency in the English language, etc.)?
No. As with any functional assessment (including an assessment of residual functional capacity), “... the functional limitations must arise from a medically determinable impairment or combination of impairments.” However, the regulations do not fail to consider certain risk factors on a child's current functioning. In addition, the functional consequences of an impairment should be evaluated without regard to how they might improve in a different household or surroundings.
(Regulations Preamble at 55 FR 5544; See also the discussion of “Risk Factors” at 55 FR 5551)
18. Will the DDSs request assessments of a child's functioning from treating sources at the initial and reconsideration levels?
Yes. As in adult claims, the DDS must request a statement from the claimant's medical source about what the claimant can do despite his or her impairment(s). In the case of a child, the statement will be about the child's ability to function independently, appropriately, and effectively in an age-appropriate manner and to perform age-appropriate daily activities. When necessary, the State agency will request information about functioning from other programs and agencies, e.g., early intervention programs, preschools and schools.
19. Does the list of disabling configurations in Ch. 6, Sec. VI. C. of the training manual function as another listing of impairments?
No. The examples, which are taken directly from the regulations, illustrate the type of impairment(s) generally considered to be of comparable severity to an impairment(s) which would disable an adult. They are not all-inclusive. They describe “... a level of impairment severity that is generally, though not invariably, sufficient to establish comparable severity ...” (emphasis added).
(20 CFR § 416.924e(c) and (d); TM Ch. 6, Sect. VI. C.)
20. When determining disability based on an IFA, is a child under age 16 with “moderate” limitations in three domains always found disabled (as described in § 416.924e(c)(2)(ii))?
Generally, “yes.” As stated in the previous answer, the examples in the regulations at § 416.924e(c) and (d) illustrate the type of impairment(s) generally considered to be of comparable severity to an impairment(s) which would disable an adult.
However, as noted in § 416.924e(b)(2), “[t]he spectrum of limitations that may constitute ”moderate“ impairment in this age group ranges from limitations that may be close to the ”marked“level in severity to limitations that may be close to the ”mild“level and, thus, considerably less limiting.” The evaluation “... requires careful consideration and judgment in each individual case” in order to determine whether the child functions independently, appropriately and effectively in an age-appropriate manner.
21. The decision rationale example in Ch. 6, Sec. VI. E. of the OHA Training Manual does not adequately demonstrate the distinction between a favorable and an unfavorable decision.
The rationale example is intended only to show how to apply the evaluation process in the context of a narrative decision. It is not intended to be representative of a complete or comprehensive evaluation.
22. Is it appropriate to call a vocational expert (VE) in the case of a 16 to 18 year-old to assist in determining whether the child's limitations represent a substantial loss or deficit of capacity to do age-appropriate physical or mental work-related activities?
No. Determining whether the child's limitations represent a substantial loss or deficit of capacity to do age-appropriate physical or mental work-related activities is not a vocational assessment. Determining, for example, if a child's limited ability to interact socially with schoolmates represents a substantial (or minimal, or moderate) loss of capacity to do age-appropriate mental work-related activities requires consideration of medical and legal issues outside the proper scope of VE testimony.
23. Is it appropriate to call a VE in a child's case, and ask whether an adult with the same limitations as the child could work?
No. Although a child must have an impairment of “comparable severity” to one that would disable an adult, we do not compare a child to an adult in order to determine whether the child is disabled. Knowing whether an adult with the same limitations that a child claimant has could work would tell us nothing about the child's ability to function independently, appropriately, and effectively in an age-appropriate manner.
24. Under what circumstance is it appropriate to call a VE in a child's case?
The vocational issues about which a VE testifies have no relevance to determining disability in children including older adolescents, age 16 to attainment of age 18. We determine childhood disability based on a medical/functional analysis of the child's ability to function in an age-appropriate manner, not on an analysis of his or her ability to work (which is a medical/vocational analysis).
(HALLEX I-2-5-50, Instructor's Manual Tab I-A)
25. For purposes of the Zebley regulations, when does a child attain a given age?
An individual attains a given age on the first moment of the day preceding the anniversary of his or her birth corresponding to such age. Therefore, an individual born on June 13, 1974 attains age 18, and becomes an “adult,” on the first moment of June 12, 1992.
26. Are standardized I.Q. tests unreliable for younger children (i.e., children under age 5)?
Not necessarily. I.Q. testing in children is discussed in § 112.00 D of Appendix 1 to Subpart P of Regulations Part 404. Test results obtained at younger ages (i.e., below age 6) are less reliable and valid than tests obtained at older ages. The tests results should be consistent with the child's behavior and daily activities as reflected in the evidence of record, including reports of disability interviews or observations or testimony at a hearing. When there are inconsistencies, further documentation of the child's development and functioning may be needed to resolve these differences.
27. Is there a “tolerance rule” for applying the age categories?
No. The age categories are general guidelines, not absolute divisions. They function as descriptive devices and are a convenient way to describe functioning and the kinds of evidence we would expect to need for children of different ages. Because the guidelines regarding what may constitute a disability in the different age categories are set at the same level of severity, there is no advantage or disadvantage to a child's being “assigned” to one age category or another.
(20 CFR § 416.924b(b); TM Ch. 3, Sect. I.)
28. How do we handle a case in which, during the period at issue, the claimant changes age categories (e.g., the claim was filed when the claimant was 6 months old and he is now age 3)?
Handle these cases the same way we handle an adult case in which the claimant changes age categories during the period at issue. If an adult files as a younger individual, and becomes closely approaching advanced age before the final decision, we decide disability for the period during which the claimant was a younger individual. We also decide disability for the period during which the claimant was closely approaching advanced age. We perform a similar analysis in childhood disability cases. We evaluate the case at each moment that is covered by the application and only stop if we find the claimant disabled (assuming, of course, that there is not a closed period of disability).
The same principle holds true if a child attains age 18 during the relevant period. We first evaluate the claimant as a child. If the evidence results in a finding of disabled under the childhood rules (and the claimant has been continuously disabled since onset) that is the end of the matter. If, when the claimant was still a “child,” he or she was not disabled under the childhood rules, we then continue to evaluate the claim to the present, considering the adult rules when the claimant attains age 18. If the claimant became disabled as an adult, we establish a later onset date.
However, in the second case, we must also be certain that the claimant's condition(s) was somehow worse at the time of this later onset (i.e., after attainment of age 18) than it had been at the time the claimant was a child. The new rules for children are intended to establish disability based on a standard of comparable severity to the adult standard. Therefore, it should not be possible for a claimant who is, for example, 17 years old to be not disabled under the childhood rules, but for the same claimant, with the exact same impairments and functional limitations, to be disabled under the adult rules. (See the additional discussion below with respect to Zebley readjudication cases).
29. Should a child appear and testify at the hearing? Are ALJs expected to question children for competency?
The childhood disability regulations do not change current policy and procedures. They neither require nor preclude a child-claimant's testimony at a hearing. The ALJ should exercise judgment in determining whether to request claimant testimony, and should always allow the child to testify if the child or the child's representative, parent, guardian, etc. so requests.
The fact that a child is a minor, and may, therefore, be considered incompetent to present testimony in formal court proceedings, does not preclude the child from testifying in our proceedings. As in all cases, the credibility of the claimant's testimony must be assessed based on all the evidence.
30. Is it appropriate to remand a child's case to the DDS if the issue of a mental impairment first arises at the hearing level?
The remand provisions in the regulations (20 CFR § 416.920a(d)(1)(iii)) apply to all cases, adult or child, and have not changed. Therefore, if the criteria in the regulations are met, the administrative law judge may decide to remand the case to the State agency.
31. In doing the IFA, is it necessary to make formal, numbered findings on all the related issues?
The decision must address and resolve all the issues relevant to the resolution of whether the claimant is disabled. The numbered findings at the end of the decision should roughly parallel those now used in adult cases. That is, there will be a finding describing the claimant's ability to function (similar to the RFC finding in adult cases), but the full IFA discussion and explanation will only be in the narrative portion of the decision.
32. The training material states that ALJs do not have to complete an IFA form. Is this stated in the regulations?
No. The regulations do not discuss or mention an IFA “form” at any level of adjudication. The Office of Disability developed IFA formats which DDSs can use in the same way they use RFC forms - as a convenient way to summarize their findings.
(20 CFR § 416.924a; TM Ch. 6, Sect. V. D. and E.)
33. Should we admit into the record IFA forms completed by the DDS?
Yes. IFA assessments signed by a DDS physician or psychologist, like RFC assessments, are medical opinion evidence from nonexamining physicians/ psychologists. We admit them into the record and consider them in reaching a decision.
34. If the folder does not contain an IFA by a DDS physician or psychologist, is remand to the DDS warranted?
No. Cases denied at the initial and reconsideration levels at the first or second step of the sequential evaluation will not ordinarily contain an IFA. Because the IFA is an integral part of the disability determination at the fourth step, all cases denied at that step will include an IFA.
In the unlikely event that an IFA was not done in an SSI childhood disability case denied at the fourth step, remand is not appropriate. The regulations do not provide for either remand or case review (“informal remand”) in such a situation, as they do for a case in which a mental impairment was not evaluated by the DDS.
35. What should we do with a pending adult case if the claimant has a prior childhood claim which is being evaluated under the Zebley readjudication procedure at the DDS level? Should we attempt to consolidate the claims?
We should attempt to consolidate the claims and make one decision. (See discussion of Zebley class member adjudication, below.)
36. Will DDSs have pediatric specialists for CEs?
Yes. DDSs have been recruiting a greater number of pediatricians and other appropriate specialists.
Zebley CLASS MEMBER ADJUDICATION
Adjudication of Zebley class member cases is discussed in HALLEX Temporary Instruction 5-4-28, issued February 7, 1992.
37. In Zebley retroactive cases, how do we apply the presumption of retroactive disability?
As you know, the Zebley Stipulation and Order entered March 14, 1991, states that the Secretary will instruct adjudicators to infer that, in the absence of contrary evidence (such as traumatic onset of disability or a new impairment) or contrary medical judgment, a class member is disabled from the date of the first application for children's SSI disability payments which is included within the class period (i.e., on or after January 1, 1980) if he or she has subsequently been found disabled under title II or title XVI as an adult or a child (i.e., denials rendered in a claim at any level on or after January 1, 1980 and denials after January 1, 1980 of a request to reopen a determination or decision if such request to reopen was pending on January 1, 1980). If we find current disability, we must establish disability as of the earliest Zebley application within the class period unless there is contrary evidence (such as a later traumatic/acute onset or a different impairment manifesting itself after the Zebley application date) or a contrary medical judgment (a medical judgment which indicates that, under the new regulations, the impairment, especially a progressive impairment, was not disabling at the time of the earliest application).
If we find current disability, and there is contrary evidence or contrary medical judgment, we must readjudicate the Zebley claim based on all available evidence, including any prior folders and retroactive medical evidence available. (Note that, before issuing any denial determination at the initial or reconsideration level, the DDS must retrieve all prior folders and retroactive medical evidence available. It should not be necessary for hearing offices to do additional searching.)
(Instructor's Manual Tab N; POMS DI 32597.020 A.)
38. What are the rules for reopening?
All Zebley class members will receive a reopened initial determination on the earliest application covered by the court order. Otherwise, the usual rules for reopening (in 20 CFR § 416.1487ff) apply.
When a case comes to the hearings or appeals level, the determination/decision on the earliest application will have been reopened at the initial determination (in effect, making all subsequent childhood claims moot).
(POMS DI 32597.010 B.)
39. How do we evaluate a readjudication case if the claimant attained age 18 subsequent to the date of the application being readjudicated?
First, we decide if the current evidence shows that the claimant is disabled under the adult rules. If so, we then consider whether we can presume that a continuous period of disability existed as of the earliest reopened application date. If we can presume that there has been a continuous period of disability, we need go no further, and a fully favorable decision is appropriate. (Because the new regulations for children are based on the principle of “comparable severity” to impairments that would disable adults, the presumption can be applied even though the decision was made under the adult rules.)
If we must consider evidence from a time at which the claimant was under age 18, (either because the claimant is not currently disabled or because we cannot presume that a continuous period of disability existed), we use the new childhood rules to evaluate the period prior to age 18.
40. Will we receive additional guidelines for handling appeals of retroactive benefit amounts in allowed cases, especially those involving rebuttal of the presumption of eligibility to the average monthly SSI benefit?
The average monthly payment amounts - or flat rates - are set forth in paragraph VII.H.2. of the March 14, 1991 stipulation and order (HALLEX TI 5-4-28, Attachment 1). The procedures for rebutting the flat rates are outlined in POMS SI 02008.007.
Although there is the potential for complex benefit computations due to the length of the retroactive period covered by the application, the method of handling these cases is the same as any other appeal of an SSI benefit amount. Therefore, no additional guidelines are being prepared.
41. How do we do case identification coding if a Zebley case is also in another class action?
The hearing office tracking system (HOTS) is not capable of showing that a case belongs to multiple class actions. We are working on appropriate systems modifications, and will provide instructions as soon as possible.
CONTINUING DISABILITY REVIEWS (CDRs)
42. In evaluating medical improvement, how do we evaluate improvements in functioning which result from adaptations?
We evaluate these the same way we do improvements which result from other medical treatment. If adaptations have produced a decrease in the medical severity of the impairment(s) which was present at the time of the most recent favorable decision (the comparison point decision (CPD)), there has been medical improvement. Of course, we must also consider the degree to which the adaptation(s) enables the child to function and any limitations caused by the adaptation (20 CFR §416.924d(e)).
43. What do we do if, in a CDR case, the child has a new impairment which was not considered in the comparison point decision?
We do the same as we would in an adult case - evaluate medical improvement based only on the impairment(s) which was present (that is, there was medical evidence establishing its existence) at the time of the most recent favorable medical determination/decision. Of course, if we establish that there is medical improvement related to the ability to work, we then consider all the current impairments in determining whether the child is currently disabled. For a child, we say that medical improvement is related to the ability to work when there has been an increase in the ability to function independently, appropriately, and effectively in an age-appropriate manner.
44. In the CDR process, if a child's impairment has not changed since the comparison point, but the child is in a new age category, will a cessation result because the same degree of impairment is considered less disabling at the older age?
No. Section 1614(a)(4) of the Act and § 416.994a of our regulations require that there be a showing of medical improvement. As we do in the adult rules, we define medical improvement under § 416.994a(c) in terms of a “decrease in medical severity. . . based on changes (improvement) in symptoms, signs, or laboratory findings associated with [the child's] impairment(s).” Therefore, if there were no changes in the findings at all, there could not be medical improvement and disability would continue, unless one of the exceptions applies.
If the impact of the impairment(s) on the child's ability to function has changed, this change may be considered when we determine whether there has been medical improvement. Under § 416.994a(c)(2), the terms “symptoms,” “signs,” and “laboratory findings” for children may include abnormalities of physical and mental functioning that were used in making the most recent favorable decision. This is because in children, evidence of various functions can constitute medical findings. Therefore, if there were functions that were considered to be symptoms, signs, or laboratory findings in the comparison point decision, these functions would be considered when determining whether there has been medical improvement.
Even if there is such improvement in functioning, this does not mean that disability has ceased. Any medical improvement must also be “related to the ability to work,” and the child's current impairment(s) must either be “not severe” or not be currently disabling based on an IFA.
As a final matter, the question makes an inaccurate statement about the childhood disability policy. It is never true that “the same degree of impairment is considered less disabling at [an] older age,” as stated in the question. The degree of impairment considered to be disabling does not vary with a child's age; regardless of age, a child will be found disabled (or still disabled) if his or her ability to function in an age-appropriate manner is substantially reduced, as set forth in § 416.924(a). It is important to remember that the age categories in the childhood regulations do not have the same purpose as the age categories in the adult disability regulations. Whereas the age categories in the adult rules can be among the findings that are dispositive of the issue of disability, the age categories in the childhood rules have a different purpose. They function only as convenient devices under which the rules describe the types of functioning to look for in children of that age and the kinds of evidence we would expect to need for those children. There is no advantage — or disadvantage — to a child's being “assigned” to one category or another, and a different result should not occur solely because a child is in one “age category” rather than another. The issue before the ALJ (or the AC) is to determine how the individual child's impairment(s) affects his or her ability to function independently, appropriately, and effectively in an age-appropriate manner.
45. In deciding if medical improvement is related to the ability to work in the case of a child who is in a different age category than he or she was at the comparison point, how do we compare those domains/behaviors which are different in the two age categories? For example, if a child was most recently found disabled as an 11 month old based on an IFA, and is age 5 years at the CDR, the behavioral areas evaluated at those ages are different. Also, what if the individual is an adult when the CDR is done?
The regulations state that, when the comparison point decision (CPD) was based on an IFA, we compare the prior IFA to a new IFA based on the functions relevant to the child's current age. The determination of whether medical improvement is related to the ability to work is not, however, limited to an assessment of changes in a child's functioning by domain. The determination involves a comparison of the child's current overall functioning with his or her functioning as of the CPD.
After finding MI, we use the new IFA to develop a profile of the child's ability to function in the domains or behaviors applicable to his or her current age (or age at the time of the CDR). (Remember, at this point in the process, we still only consider the impairment(s) that was present at the CPD.) We then compare the current IFA, in its totality, with the IFA developed at the CPD and make a judgment regarding whether, overall, there has been an increase in the child's ability to function independently, appropriately and effectively in an age-appropriate manner. If there has been an increase in the child's overall level of functioning, then medical improvement is “related to the ability to work.” Of course, we must then go on to determine whether the child is currently disabled, considering all current impairments, in order to decide if disability continues.
In the case of the 5-year-old child most recently found disabled as an 11-month-old, the functioning that we previously assessed under “responsiveness to stimuli” might, at the CDR, be assessed under “concentration, persistence, and pace” or under the “personal/behavioral” domain. The fact that we do not assess 5-year-olds using a domain called “responsiveness to stimuli” does not mean that we disregard their functioning. Improvements in the child's functioning cannot be ignored simply because the previous domain or behavior category is not used in the child's new age group. It is important that we assess all aspects of a child's functioning - each specific activity, milestone, behavior, limitation or whatever else is appropriate to understanding how a child is actually functioning. Only after itemizing all the specific functions/limitations do we fit them into the domain/behavior categories.
If a child who was found disabled based on an IFA at the comparison point is an adult at the time of the CDR, the determination of whether medical improvement is related to the ability to work depends on the child's age at the CPD date.
If the child was an older adolescent (age 16 to age 18) and the IFA considered work-related activities, we compare the current RFC to the CPD IFA to determine whether medical improvement is related to the ability to work.
If the IFA was based on domains/behaviors (i.e., the child was under age 16 at the CPD date), we do a current IFA as if the person were now a child just under age 18 to compare with the prior IFA. Of course, this “hypothetical” current IFA is only used in evaluating whether medical improvement is related to the ability to work. If there is medical improvement related to the ability to work (or an exception applies) and the individual currently has a severe impairment, we must also do an RFC assessment to determine if the individual is currently disabled.
(The later procedure is not discussed in the regulations or in the training material, but is described in POMS DI 28015.320 A. 6.)
46. Are CDRs scheduled sooner for children allowed under the third step as opposed to those allowed based on an IFA?
No. CDRs are scheduled on the basis of medical reexamination diaries, which are primarily determined by the nature of the claimant's impairment(s).
47. At the initial and reconsideration levels, are the SSA field offices (FOs) and DDSs obtaining additional information about childrens' medical sources, activities, etc.?
Yes. Until recently, the FO obtained a childhood disability interview form SSA-3820, and a supplemental questionnaire (described in POMS DI 11005.032 and 11095.166). They now obtain an SSA-3881, Questionnaire for Children Claiming SSI Benefits (Exhibit A). In addition, the DDSs are required to fully develop evidence about the child's functioning, including information about activities (POMS DI 25205.010).
48. Is there any provision for paying nonmedical sources for evidence?
If requested evidence meets the definition of “medical evidence of record” (which is defined in POMS DI 22505.040 B.1.), we will pay a non-Federal source for it as medical evidence. Medical evidence of record is a document received from a physician, psychologist, clinic, hospital or other provider of medical services for the purpose of documenting a disability claim. We may reimburse non-Federal sources for information which does not meet this definition similarly to the way we reimburse for photocopying services.
49. Should we document unsuccessful attempts to obtain functional assessments?
As with any other request for medical evidence, we should retain documentation of the request in the claims file.
50. Are there legal restrictions to obtaining some types of evidence (e.g., state laws restricting access to school records)? What should we do in such a case? Will we receive additional guidelines on obtaining school records?
There may be instances when a custodian of needed evidence restricts access to its records in some way. If so, we should make a good faith effort to accommodate any special requirements (e.g., by obtaining a special release authorization from the claimant). The regulations require that we make “every reasonable effort” to obtain medical records from the claimant's medical sources (20 CFR § 416.912(d)). Ultimately, it is the claimant's responsibility to provide evidence of his or her impairment (20 CFR § 416.912(c) and 416.916).
For your information, we attach as Exhibit B, a copy of Disability Determination Services Administrators' Letter No. 180, dated August 8, 1991, which contains information about obtaining school records in disabled child claims.
(See also paragraph XI.B. of the March 19, 1991 Stipulation and Order (HALLEX TI 5-4-28, Attachment 1))
51. Will we receive additional guidelines on types of psychological tests appropriate for children?
The childhood mental listings include a discussion of psychological testing in § 112.00D of Appendix 1 to Subpart P of Regulations Part 404.
The Office of Disability's Office of Medical Evaluation recently compiled a list describing commercially available tests which meet our criteria for reliability, validity and appropriate normative data. We attach as Exhibit C a copy of the list, but caution that it should not be used as a basis for requesting specific tests in a consultative examination. As the Associate Commissioner for Disability explained in her transmitting memorandum, the list is intended only for use by medical professionals expert in psychometric evaluation. We provide the list for informational purposes only.
(TM Appendix II)
52. Are we developing forms (similar to current “medical assessment” forms used to record medical source statements about what a claimant can do) for consultants to complete in childhood cases?
We have no plans to do so at this time. We do not believe that it is practical to design a form which would elicit from medical sources the information necessary in childhood disability cases. Assessing functioning in children is much more complex than in adults because it requires consideration of different issues for children of different ages. Even if we designed a form which addressed children of all age groups, such a form would be so complex that it is unlikely medical sources would be willing to devote the time needed to complete the form.
CHILDHOOD MENTAL LISTINGS
53. When evaluating a child's impairment(s) at the third step of the sequential evaluation process (meets/equals), should we still consider both Part A and Part B of the listing of impairments in Appendix 1 of Subpart P of Regulations No. 4?
Yes. The applicability of Parts A and B of the listing of impairments has not changed. Part A applies to individuals age 18 and over and to children under age 18 when the criteria are appropriate. Part B applies only to children under age 18 and should be used first.
Exhibits A - C
Form SSA-3881-BK (Questionnaire for Children Claiming SSI Benefits)