NPRM: Proposed New Listings for Mental Impairments

Craig Jarvis

Kohler is a new decision in the 2nd circuit

http://tinyurl.com/79rvbr

It gives some real teeth to 404.1520a, and in doing so is changing my thinking about how mental conditions must be evaluated.

In the past, there has been some heated debate on this board as to the proper role of step two in the sequential analsys. I think the general thought has been that it is really only a prefunctory analysis, and that it really only has to amount to a real analysis if the ALJ is going to conclude that there are no severe impairment. As a matter of practice, the proponents of this argument (JOA in particular) argue against the listing of severe impairments because of the hazards of then tripping over oneself in the RFC finding by finding no limitations that would related to a condition that was found to be severe.

My position has been that step 2 represents, not only a legal rule, but a logical step in a rational analysis. A person must decide that an impairment has some affect before one can then say what the degree of the affect is. My own argument has been to treat step 2 as the time at which this logical step is addressed, so that the rational analysis is fully articulated. This likely to result in less errors.

Kohler says essentially that with respect to mental impairments, the ALJ must do a pyschatric review technique analysis. Much of the PRT is obvioulsy related to step 3. However, it has some consequnces for step 2 as well. As part of the PRT the ALJ must assign a specific conclusion as to the severity of the mental impairments with respect to each of the four relevant psychological realms (none to extreme; or 0 to four or more).

This is potentially quite powerful. The biggest problem with respect to mental impairments is saying what a "moderate" impairment means. The CE forms that I see are are invariably contradictory on this point. For everyone with "moderate" impairments, they say, almost without exception, the person has a "moderate" limitation is understanding or completing complex instructions, which in the narrative evaluation then becomes limitation to doing only 1-3 step task. They will also invariably say that the claimant has a "moderate" limitation in completely a normal workday and workweek, which in the narrative then becomes an ability to complete a normal workday and work week. This makes no sense.

We know that at step 2, "moderate" means severe. Now we have a powerful argument, at least, in the second circuit that the ALJ must give a rational explanation of what "moderate" (or "severe") means when that is then translated to functional limitations in an RFC finding. No more of this moderate limitation in completing a normal workweek equates to an ability to complete a normal workweek.

JOA · Joined: 13 May 2004 Posts: 2021

Dear Craig:

I offer a different reading of Kohler as rather pedestrian.

The Kohler court's rather pedestrian holding is that absent some showing of harmless error, a decision in a case marked by a medically determinable mental impairment must include the same specific findings contemplated under 20 CFR 404.1520a and 416.920a. The language it quotes from these regs about the required "specific finding as to degree of limitation" is about a very crude kind of specificity. For three out of the four "paragraph B" criteria, this can be no more specific than none, mild, moderate, marked, and extreme.

The Kohler court's narrow focus on the special technique omits any comment about one of our favorite topics of disagreement, over whether step 2 ought to be an exhaustive listing of every impairment that might individually count as severe. Thus, except for the special circumstance of a medically determinable mental impairment, it offers no support for your step 2 laundry list approach. And although the Kohler court mentioned the DDS SSA 4734 checklist in passing (564 F.3rd at 264-265), the court said nothing about this checklist ought to be considered. What's more, I also don't see that the Kohler court had anything to say about just what's meant by "moderate."

I invite you to show me what I've missed about these things.

I have pasted below what I read as the central holding for Kohler. It doesn't take much of a leap to read the last sentence of the quoted paragraph as suggesting, maybe even strongly, that the Kohler court would look to see some kind of fit between the paragraph B ratings and the finding on mental residual functional capacity. But just how tight a fit would this need to be? I'm not seeing that the Kohler court said anything at all about this.

Because the paragraph B criteria are about broad areas of functioning, and because the specific findings required are so crude, it's easy to see a wide range of possibilities for what SSR 96-8p refers to as "a more detailed assessment by itemizing various functions contained in the broad categories . . . ." Generally speaking, a paragraph B moderate covers the entire range of functioning above what's consistent with a non-severe impairment and what's below that contemplated by the Listing of Impairments. Any particular "moderate" might be a high moderate, a low moderate, or somewhere in between. Maybe like east northeast by west southwest.

Here's that paragraph from Kohler:

Flatlander · Joined: 11 Nov 2008 Posts: 135

I view the Kohler as requiring the ALJ and Appeals Council to have all the information contained in the PRTF in the decision, not just a summary of the limitations in the 4 broad areas. This is what the regs say. It is summarized nicely in the FedReg (65 FR 50745-83, Aug. 21, 2000). I've spent the past week or so going over this FedReg with a fine tooth comb. It is required reading.

65 FR 50747

Final Secs. 404.1520a(b) and 416.920a(b), ``Use of the technique,'' provide basic information about the application of the technique. They explain that we must first evaluate the evidence to determine whether an individual has a medically determinable mental impairment(s), demonstrated by pertinent symptoms, signs, and laboratory findings. If we determine that an individual has a medically determinable mental impairment(s), we must specify the symptoms, signs, and laboratory findings substantiating its presence. Then, we will rate the degree of functional limitation resulting from that impairment(s) and record our findings as set out in Secs. 404.1520a(c) and (e) and 416.920a(c) and (e).

50757-58
The technique is a systematic process adjudicators apply when evaluating an individual's mental impairment(s). The PRTF (i.e., the form itself) should not be confused with application of the technique; the form simply documents application of the technique with a checklist of our conclusions.

Administrative law judge and Appeals Council decisions include a more detailed explanation of the findings and conclusions reached, supported by a narrative rationale. The decisions under these final rules must include, among other things, the pertinent findings and conclusions required in the application of the technique. Consequently, requiring that a PRTF be appended to an [Page 50758]administrative law judge or Appeals Council decision would only repeat information already required in the decision under these final rules, and renders the PRTF redundant.
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Always try to have a medical source complete an evaluation based upon POMS DI 25020.010.B.3.a-n: Mental Abilities Critical For Performing Unskilled Work. Assuming the matter isn't decided on the listings and goes to the RFC, the decision will have to address the evaluation and the weight it was given. (The RFC assessment must always consider and address medical source opinions and must explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved. SSR 96-8p.)

second circuit Flatlander

Craig Jarvis · Posted: Mon Jan 05, 2009 03:46 pm Post subject:

JOA: I am not claiming that Kohler is legal support for a laudry list approach to step two. What I am claiming is that with respect to mental impairments, it gives support to an argument that the more careful, two-step approach to the RFC analysis is required. It also gives some ammunition for what is the most common strategy for denying, especially with respect to mental impairments: the RFC by omission.

Flatlander points out that the technique, if properly executed, requires a good deal of explanation. It is the requirement for explanation that is helpful.

How often have we seen this case: A younger claimant has a mental impairment; an MC, CE or ME says that that the claimant has "moderate" impairments in two of the four mental realms and goes on to find several moderate impairments in a MRFC. However, the MC, CE or ME goes on to conclude that the claimant can complete 1-3 step tasks, concentrate for 2-hour periods; although they have some social problems can interact appropriately with co-workers and supervisors, and can complete a normal workday. The ALJ relies on the MC, CE or ME, to conclude that the claimant has a "severe" mental impairment, adopts the the MC, CE or ME RFC and denies the claim.

This factual scenario happens more often than it should. Certainly, one could attack it without Kohler, but as I see it, Kohler will help crack the fallacy in this reasoning by explicitly requiring the ALJ to engage in a PRT.

How does Kohler help crack this case? First, this is what we know about what "severe" means:

JOA · Joined: 13 May 2004 Posts: 2021

Craig:

I'm still thinking of Kohler as pedestrian in the sense that it doesn't say anything new. I have five reasons for this, all based on SSA regulations and rulings. You picked out the first two in your response:

1. 20 CFR 404.1520a(d)(1) tells us that paragraph B "moderates" are ratings that generally indicate a severe impairment.

2. 20 CFR 404.1521 tells us that an impairment is severe only if it affects the ability to engage in basic work activities.

3. SSA might have defined basic mental work activities in terms of broad areas, like the ability to carrying out all kinds of instructions. At least up to now, it hasn't done this. It has instead presented basic work activities in terms of simple instructions and in other ways consistent with unskilled work. (See also SSR 85-15 about this.)

4. The last paragraph at 12.00A speaks of how an assessment of RFC "complements the functional evaluation necessary for paragraphs B and C . . . ." To be a complement of RFC, the paragraph B/C ratings have to fit with RFC, somehow, some way.

5. Paragraph B3 moderates are a particular point of contention, about concentration, persistence, or pace. Section 12.00B.3 of the Listing of Impairments talks about the paragraph B3 area of functioning. The fourth paragraph in this section includes a statement that "[d]eficiencies that are apparent only in performing complex procedures or tasks would not satisfy the intent of this paragraph B criterion." I've not found a way to read this except as meaning that a B3 "moderate" can't be taken as fully expressed--as the complement of--a finding on MRFC that only precludes dealing with complex instructions.

I'm just not seeing that the Kohler court added anything to this. That's what I mean by calling it pedestrian.

Perhaps you might say that DDS's routinely find a severe mental impairment while at the same time assessing mental RFC in a way that sure looks like its for the full range of unskilled work. I might perhaps agree. I might even mutter "Mental Health Association of Minnesota" under my breath. But I will still be surprised if Kohler changes DDS practice.

But what about ALJs and the AC? I think I'm going to reserve public comment on this.

Craig Jarvis · Posted: Mon Jan 05, 2009 06:16 pm Post subject:

I think that we are largely talking past each other. I don't disagree with anything you have said, except that I do disagree with characterizing Kohler as pedestrian. I think that it will make my job significantly easier. First, it frames these issues in a way that is easily understood by a federal court magistrate/judge, for whom SS appeals are probably on the bottom of the list of importance. Second,how many ALJ decisions come aross your desk that comply with 404.1520a? My guess is not a lot. Certainly Kohler opens the possibility for harmless error analysis in the federal court, but for me it shines a light on a regulation that, for the most part, is not being complied with, in a way that makes these issues understandable to a federal court magistrate/judge. To me that is a significant development.