I-5-4-51.Schoolcraft v. Shalala

Attachment 1. - Schoolcraft v. Sullivan Stipulation; Approved and Entered by the District Court on October 28, 1994.

1. Standards.

   1. The Social Security Administration (SSA) will issue a Program Circular (hereafter Circular) to clarify the evaluation of claims for disability benefits under Title II or Title XVI of the Social Security Act based in whole or in part on allegations of a substance addiction disorder.

   2. The Circular is reproduced as Attachment 1 and is hereby incorporated in this agreement.

   3. The purpose of the Circular is to clarify, not to supersede, existing regulations and provisions of the Program Operations Manual System (POMS) SSA will distribute the Circular to all adjudicators, quality assurance personnel, and medical and psychological consultants at the Minnesota Disability Determination Services (DDS). SSA will also distribute the Circular to all SSA personnel, including quality assurance personnel, who have any responsibility for overseeing or reviewing decisions made by the DDS. SSA will issue and distribute the circular to the DDS and SSA personnel no later than 45 days after the date on which the parties or their representatives have signed this agreement, and SSA will instruct the DDS to apply the Circular to all claims pending at the DDS on the date the Circular is issued.

   4. SSA represents that it has no present intention to revise the Circular.

   5. SSA agrees that the Circular will remain in effect with respect to the determination by the DDS of all claims filed in Minnesota for disability benefits under Title II or Title XVI of the Social Security Act based in whole or in part of allegations of a substance addiction disorder for a period of two years after the date on which the notice described below in paragraph 5 is posted, unless and until there is an intervening change in federal law or regulations that requires a revision of the Circular.

   6. Notwithstanding paragraph (e) above, SSA agrees that the Circular will be used by the DDS when determining the relief to which Schoolcraft claimants are entitled under paragraphs (2) (a) through (2) (g) below, unless and until there is an intervening change in federal law or regulations that requires revision of the Circular.

2. Relief.

   1. The DDS will review, under the Circular, certain initial and reconsideration determinations denying or terminating disability benefits that were not appealed to the Office of Hearings and Appeals in SSA. This review will be available to all Minnesota residents, hereafter referred to as Schoolcraft claimants, who:

      1. (A)On or after November 20, 1989, and before March 1, 1990, received one or more binding determinations by the DDS denying or terminating disability benefits on medical or vocational grounds, as to which substance addiction was listed as a primary or secondary impairment; or (B) on or after March 1, 1990, and before the date of the issuance of the Circular, received one or more binding determinations by the DDS denying or terminating disability benefits on medical or vocational grounds, (1) as to which substance addiction was listed as a primary or secondary impairment, or (2) which, in accordance with SSA's teletype to DDSs dated February 28, 1990, received listing code 430 because of an allegation of substance addiction; and either

      2. Filed a claim for disability benefits under Title II or Title XVI of the Social Security Act (or both) within one year after the date on which the notice described below in paragraph 5 is posted in Social Security offices and copies made available to the Minnesota Department of Human Services and to counsel for plaintiffs, and are found disabled, if (A) the claim is based in whole or in part on an allegation of substance addiction and allowed on any ground or (B) the claim is allowed and substance addiction is listed as a primary or secondary impairment; or

      3. Filed a claim for disability benefits and were found disabled on or after November 20, 1989 -- if (A) the claim is based in whole or in part on an allegation of substance addiction and allowed on any ground or (B) the claim is allowed and substance addiction is listed as a primary or secondary impairment -- and contact SSA to request review of the prior denial within one year after the date on which the notice described below in paragraph 5 is posted in Social Security offices and copies provided to the Minnesota Department of Human Services and to counsel for the plaintiffs.

   2. The one-year period referred to in paragraphs (a) (ii) and (a) (iii) above is, for an additional period of one year, subject to waiver for good cause -- i.e., if the claimant shows that he or she was out of the State during the entire one-year period.

   3. If a Schoolcraft claimant files a Title II claim that would ordinarily have to be denied on grounds of administrative res judicata based on a final medical or vocational denial or benefit termination, as described in paragraph (a) (i) above, that resulted in the claimant's no longer meeting Title II insured-status requirements, the DDS will review the prior denial or benefit termination in accordance with paragraph (e) below as if the claimant's new application had been allowed. If the DDS determines that the prior denial or benefit termination was made in accordance with the Circular, that prior denial or benefit termination will be given its ordinary preclusive effect.

   4. SSA is not required, in reviewing prior determinations denying or terminating benefits under the Circular, to apply any future amendments to listing 12.09, (20 C.F.R. Subpart P, APP. 1).

   5. The DDS will review the prior determinations by the DDS denying or terminating the disability benefits of Schoolcraft claimants to determine whether the prior determinations were made in accord with the Circular. The DDS will consider whether the determination or the development of evidence did not comply with the requirements of the Circular. If a Schoolcraft claimant has received more than one final prior determination denying or terminating benefits within the relevant time frame, the DDS will review each prior determination.

   6. If the DDS determines that a prior determination denying or terminating benefits did not comply with the requirements of the Circular as specified in paragraph (e) above, it will reopen the prior determination. The DDS will notify the claimant that the prior determination has been reopened and that the claimant may submit new and additional evidence relating to the period for which the prior claim was made. The notice will take the form set forth in Attachment 2. The DDS will gather and develop new evidence in accord with the requirements of the Circular, and will issue a revised determination. The revised determination will be an initial determination under 20 C.F.R. §§ 404.902 and 416.1402 and will be fully appealable. DDS will provide notice of the revised determination to the claimant. The notice will be the standard notice of revised determinations provided by DDS, except that if the revised determination sustains the prior determination, the notice will advise the claimant of the identity and telephone number of counsel for plaintiffs, substantially in the manner set forth in Attachment 3.

   7. If the DDS decides not to reopen the prior determination under paragraph (f) above, it will give the claimant written notice of the decision not to reopen. The notice will take the form set forth in Attachment 3. The claimant may ask the DDS to reconsider its decision not to reopen a prior determination. If, on reconsideration, the decision not to reopen remains unchanged, the claimant may not appeal further.

3. Instructions to DDS. SSA will issue instructions to the DDS to implement the terms of this agreement. SSA will provide counsel for the plaintiffs with a draft of these instructions within 120 days after the date on which the parties sign this agreement. SSA will make a good faith effort to issue final instructions within 45 days of receiving comments and suggestions from counsel for the plaintiffs. The issuance of the instructions, however, is contingent upon, and will occur only after, the District Court enters a judgment dismissing the action in accordance with this agreement. SSA will give counsel for the plaintiffs a copy of the instructions to the DDS, and any subsequent revisions to the instructions. The DDS will not review any prior determinations of Schoolcraft claimants until the instructions have been issued.

4. Data. SSA will, to the extent allowed by privacy laws, provide counsel for plaintiffs with the following data on a quarterly basis, beginning with the first full quarter after the date on which the poster notice described in paragraph (5) below is made available to counsel for plaintiffs:

   1. SSA will provide the following data regarding Schoolcraft claimants for each quarter until DDS has completed review of all prior denials or terminations under paragraph (2) (e) above, not including review of any claims made after expiration of the one-year period pursuant to paragraph (2) (b) above:

      1. the number of persons who have been identified as Schoolcraft claimants pursuant to paragraph (2) (a) ;

      2. of the persons described in (i) above, the number of persons who do not, under paragraph (2) (e) above, require a review of the prior determination denying or terminating benefits described in paragraph (2) (a) (i) because that prior determination changed to an allowance or continuation of benefits in the course of adjudicating a subsequent claim that was allowed;

      3. of the persons described in (i) above, the number of persons who do, under paragraph (2) (e) above, require a review of the prior determination denying or terminating benefits described in paragraph (2) (a) (i);

      4. the number of persons for whom a prior determination denying or terminating benefits described in paragraph (2) (a) (i) has been reviewed under paragraph (2) (e) above;

      5. v. of the persons described in (iv) above, (A) the number of persons for whom the prior determination denying or terminating benefits was changed to an allowance or a continuance of benefits, and (B) the number of persons for whom the prior determination was not so changed;

      6. of the persons described in both paragraph (v) (A) and paragraph (v) (B) above, a further breakdown of the number of persons for whom substance addiction was coded as a primary impairment, the number of persons for whom substance addiction was coded as a secondary impairment, and the number of persons for whom substance addiction was coded as the only impairment;

      7. the number of persons with respect to whom DDS has reconsidered a decision not to change a prior determination denying or terminating benefits described in paragraph (2)(a)(i) to an allowance or continuation of benefits;

      8. of the persons described in paragraph (vii), (A) the number of persons with respect to whom, upon reconsideration, the prior determination was changed to an allowance or a continuance of benefits, and (B) the number of persons with respect to whom, upon reconsideration, the prior determination was not so changed;

      9. of the persons described in both paragraph (viii) (A) and paragraph (viii) (B) above, a further breakdown of the number of persons for whom substance addiction was coded as a primary impairment, the number of persons for whom substance addiction was coded as a secondary impairment, and the number of persons for whom substance addiction was coded as the only impairment.

   2. In addition to the data described in paragraph (a) above, SSA will provide the following data for eight quarters:

      1. the number of initial decisions and the number of reconsideration decisions by the DDS in which substance addiction was coded as a (A) primary or (B) secondary or (C) the only impairment, with a further breakdown indicating the number of initial decisions and the number of reconsideration decisions in categories (A), (B), and (C);

      2. of the number of initial decisions and the number of reconsideration decisions described in (i) above, and for each of the three categories described in (i) above, the number of decisions which allowed benefits and the number of decisions which denied benefits.

5. Notice of Relief Available Under This Agreement.

   1. SSA will develop a poster to notify potential Schoolcraft claimants of their rights under this agreement. SSA will draft the poster, and give counsel for the plaintiffs an opportunity to provide input as to the content and design of the poster.

   2. SSA will display one or more posters in all SSA field and hearing offices and in the DDS offices in Minnesota.

   3. SSA will provide two hundred copies of the poster to counsel for the plaintiffs.

   4. SSA will provide two hundred copies of the poster to the Minnesota Department of Human Services and will ask the Department to distribute the posters to each local welfare office in the State of Minnesota for posting.

   5. SSA will complete the actions described in paragraphs (a) through (d) above within 10 days after the date on which it issues the instructions described in paragraph (3) above.

6. District Court Approval. This agreement is conditioned upon approval of this agreement by the district court. The parties will jointly submit this stipulation to the district court and move for entry of judgment dismissing the action in accordance with this agreement.

7. Attorney's Fees. The parties reserve the question of attorney's fees. The dismissal of this action pursuant to this agreement does not waive any claims for attorney's fees by plaintiffs or any defenses against such claims by defendants, including the defense that plaintiffs are not entitled to fees under 42 U.S.C. 1988. Furthermore, it is the intention of the parties that dismissal of this action pursuant to this agreement will not deprive the district court or the court of appeals of jurisdiction to entertain an application for attorney's fees.

8. Dispute Resolution and Modification of the Agreement. The parties will attempt to resolve any disputes arising under this agreement by negotiation between counsel or their designees. Counsel for the parties may agree to modify this agreement:

9. Admissions. This agreement is not and shall not be construed as an admission by the defendants of the truth of any allegation or the validity of any claim asserted in this action or of the defendants' liability therein, nor is it a concession or an admission of any fault of omission in any act or failure to act, or in any statement, communication, report, instruction, rule, regulation or other document or computer data, record or program made or maintained by the defendants, nor shall this agreement nor any of the terms hereof be offered or received in evidence or in any way referred to in any civil, criminal, or administrative action or proceeding other than such proceedings that arise under or may be necessary to consummate or enforce this agreement, nor shall it be construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the defendants, nor an admission by any party that the consideration given hereunder represents the relief which could be recovered after trial or that the scope of the relief provided in this agreement could be ordered by the District Court without the consent of the defendants.

Three attachments follow and are part of this agreement.

Attachment 2. Published version of the Regional Program Circular, dated August 5, 1994.

SSA Program Circular

Disability

U.S. Department of Health and Human Services/Social Security Administration/Office of Policy

Office of Disability

Division of Medical and Vocational Policy

_____________________________________________________________

_____________________________________________________________

In connection with the Schoolcraft court case, SSA has agreed to reexamine certain prior claims for benefits under title II or title XVI of the Social Security Act (disability benefits) based in whole or in part on allegations of substance addiction disorders. This program circular (PC) is being issued to all adjudicators, quality assurance personnel, and medical and psychological consultants in the Minnesota Disability Determination Services (DDS) to clarify how alcoholism and related drug addiction cases are to be evaluated in Minnesota in light of the settlement agreement in Schoolcraft and the definition of disability contained in the Social Security Act.

Under the law, disability is defined as the inability to do any substantial gainful activity (SGA) by reason of any medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than 12 months, or to result in death. As with any other medical condition, for a substance addiction disorder to be disabling under the law, it must be a medically determinable impairment that meets the duration requirement and produces significant functional limitations that preclude the performance of substantial gainful work, either alone or in combination with other impairments.

We are continuing to evaluate experience from ongoing quality review and operating experience to determine whether there is a need to change or refine our rules for adjudicating substance addiction disorder claims.

This PC discusses existing policy in terms of the statutory requirements and provides answers to some frequently asked questions. In this PC, the terms “substance addiction disorder” and “alcoholism or other drug addiction disorder” are used interchangeably.

1. Can a substance addiction disorder be considered a medically determinable impairment that could satisfy the definition of disability?

   Yes. A substance addiction disorder, in and of itself, can be a disabling medically determinable impairment if it satisfies the requirements of the Social Security law. No additional physical or mental impairment (e.g., irreversible organ damage) is required for a finding of disability. As with any impairment, a diagnosis, alone, cannot be the sole basis for finding disability. A medically determinable substance addiction disorder is established when behavioral changes or physical changes associated with the regular use of substances that affect the central nervous system are documented. According to the “Diagnostic and Statistical Manual of Mental Disorders (Third Edition - Revised)” (DSM-III-R), some examples of these changes include:

   • using the substance in larger amounts or over a longer period of time than intended;

   • continued use of the substance despite the presence of a persistent or recurrent social, occupational, psychological, or physical problem that the person knows may be exacerbated by that use;

   • unsuccessful attempts to reduce or cease use of the substance (e.g., repeated detoxification treatments);

   • the development of severe withdrawal symptoms (e.g., agitation, hallucinations, and vomiting) following cessation or reduction in use of the substance.

   Once a medically determinable substance addiction impairment (which encompasses the inability or impaired ability to control the use of addictive substances) is established, a finding of disability will depend on the severity and duration of the impairment and, where appropriate, the individual's remaining functional capacity. In each case, all symptoms, signs, and findings of the substance addiction (and any other impairments, whether or not related to the substance addiction) must be considered to determine the complete picture of the individual's impairment severity and, where appropriate, remaining functional capacity.

   The claimant's ability to control his or her excessive drinking or other drug use must be evaluated: 1) when establishing the presence of a medically determinable impairment, and 2) when determining the severity of the impairment to the extent that it is functionally limiting. A finding of “impaired ability to control” the use of addictive substances does not, in and of itself, establish any discrete level of impairment severity, e.g., meets or equals, or direct a finding of disabled. The “impaired ability to control” relates to the issue of impairment severity to the extent that it is functionally limiting. Therefore, the degree of functional limitations, if any, caused by an “impaired ability to control,” must be assessed to determine impairment severity.See Regulation No. 4, Subpart P, Section 404.1508, 404.1525(e); Regulation No. 16, Subpart I, Section 416.908, 416.925(e); POMS DI 24515.045ff.

2. What other significant signs, symptoms, and laboratory findings are typically associated with substance addiction disorders?

   In addition to the behavioral and physical changes needed to establish the existence of these disorders, individuals with substance addiction disorders may manifest a wide variety of mental, neurological, gastrointestinal, and other symptoms, signs and findings. In some cases, these symptoms, signs, and findings may actually represent co-existing physical and mental impairments. A co-existing impairment is not required, however, in order to find an individual with a substance addiction disorder disabled under the Social Security law. Individuals with substance addiction disorders may also have:

   • Neurological signs and symptoms such as seizures, blackouts, dizziness, lightheadedness, blurred vision, confusion, numbness, tingling, and muscle weakness.

   • Gastrointestinal manifestations such as liver dysfunction, pain, abdominal bleeding, tenderness, cramps, nausea, diarrhea and weight loss.

   • Psychiatric or psychological symptoms and signs such as anxiety, depression, disorientation, confusion, impulsivity, suicidal ideation, lability, compulsivity, seclusivity, memory loss, paranoid ideation, delusions or hallucinations. They may also show evidence of impaired judgment, fatigability, or decreased ability to concentrate, persist and maintain pace.

   • Other symptoms and signs such as metabolic disturbances, hepatitis, and alcoholic myocarditis.

   Consideration must be given to the frequency, duration, effect on functioning and precipitating and exacerbating factors of these and other signs and symptoms of substance addiction disorders. The effects of the addiction disorder which may be transient or not persistent must be distinguished from those which are persistent or of long duration. Because the claimant's impairment severity may vary significantly in periods of remission and exacerbation, it is important to document carefully both phases. Thus, it is necessary to obtain all available evidence regarding the claimant's history of remissions and exacerbations in the context of their frequency, duration, effects on function, and precipitating and exacerbating factors. As always, the adverse effects of medication and the duration of such side effects must also be considered.

   If material to the determination, i.e., a favorable determination is not possible without their consideration, these signs, symptoms and findings must be developed for their frequency, duration and effect on ability to function. See POMS DI 22511.000ff, DI 24501.020-.025, DI 32551.025D.

3. How should substance addiction disorder cases be documented?

   As with any mental impairment case, efforts must be made to establish a longitudinal history for all substance addiction cases. As indicated in POMS DI 22505.005A.2., development outside a minimum 12-month period may be needed to document the history and progression of the disease. Medical evidence is needed from an acceptable medical source (see POMS DI 22505.003B.1.) to establish: 1) the existence of a medically determinable substance addiction impairment, and 2) the functional limitations attributable to the impairment. Efforts should be made to secure all existing relevant medical evidence from prior and current treating sources.

   When developing medical evidence, it is important to request the source: 1) to identify all information used to substantiate the existence of the substance addiction impairment, and 2) to provide information on how the impairment affects the claimant's ability to function. (See POMS DI 22505.006B., DI 22511.007D.). Per the DSM-III-R, the existence of the impairment is substantiated when the evidence shows a cluster of diagnostic findings which indicate that the claimant has impaired control of drugs and/or alcohol and continues use of the substance despite adverse consequences. It is also important to request records of treatment for substance addiction, including detoxification attempts, remissions and exacerbations, unless those records are not needed to establish the existence of the substance addiction impairment (see DSM-III-R) and are not relevant to the claimant's ability to function during the period for which the claim is made.

   If the medical source does not initially provide sufficient evidence to document the existence of a substance addiction impairment (see DSM-III-R), or to determine the claimant's ability to function, a follow-up contact with the source is necessary to determine the availability of the additional information. (See POMS DI 22505.006B., DI 22505.008C.1., DI 22511.007D.) When recontacting the medical source, the most appropriate format should be used (e.g., telephone, letter, informal report) and the following should be explained:

   • the nature of the missing evidence,

   • why clarifying information is needed,

   • the types of evidence needed.

   Information from other than acceptable medical sources (see POMS DI 22505.003B.2.) is also useful. These sources include other professional health care providers (see POMS DI 22511.007E.) as well as collateral sources (see POMS DI 22511.007F.) outside the health care field, e.g., spouse, other relatives, friends, neighbors. This information may aid an acceptable medical source, as well as our medical and psychological consultants, in determining whether a medically determinable impairment exists and in assessing the functional impact of the impairment. Therefore, all relevant evidence should be requested.

   Other professional health care providers which usually are valuable in providing information relative to the claimant's functioning would include: psychiatric nurses, social workers, administrators of substance addiction detoxification programs or other treatment centers, as well as shelters or other programs or facilities where the claimant has been observed over time (e.g., prisons or detention facilities). Evidence from these sources should always be requested. Obtain additional functional information, if necessary, from collateral sources such as family members, former employers, friends or other persons who: 1) live with or have close contact with the claimant, and 2) have knowledge of the claimant's functioning.

   If sufficient evidence is unavailable from all potential sources, it may be necessary to obtain a consultative examination (CE).

   Specific diagnostic findings (see DSM-III-R) and functional information, taking into account the effects of the claimant's substance addiction disorder, should be requested from the CE provider.

   See Regulation No. 4, Subpart P, Section 404.1513(e), Regulation No. 16, Subpart I, Section 416.913(e); POMS DI 22501.001ff, DI 22505.005ff, DI 22505.010ff, DI 22510.005ff, DI 22511.001ff, DI 22511.009, DI 24501.020 - DI 24501.025, DI 24515.045F, DI 32551.025D.

4. What if the claimant is intoxicated at the CE?

   CE's of intoxicated persons can contribute useful information. However, they may also be unreliable. Therefore, they must be reviewed for consistency with all the other evidence in file. If the claimant reports to the CE in an intoxicated state, rely on the CE provider's professional judgment to determine whether to continue the examination. He/she should consider postponing and rescheduling the CE if the claimant is acutely intoxicated and/or reliable or valid information cannot be obtained about the claimant's history, functional limitations, intellectual abilities or other relevant clinical findings.

   If the CE provider decides to continue the examination, ask the provider to include a statement of CE validity or reliability and to describe:

   • the degree of intoxication displayed by the claimant at the time of the examination;

   • recent substance use and its effect on the claimant's ability to function during the examination;

   • the claimant's overall physical and mental status;

   • details of the claimant's addiction history in terms of frequency, duration, exacerbating factors, and effect on functioning.

   If the examination cannot be performed due to the claimant's intoxicated state, reschedule the CE only if the claimant or a responsible individual indicates the claimant will attend in a sober state.

   The claimant's failure to attend the CE in a sober state is not automatic grounds for a denial or a cessation. Before making an adverse decision:

   • determine whether there is good cause for the claimant's failure to appear for the CE;

   • review the file, including the medical evidence of record (MER), and determine if any other potential sources of evidence could be contacted;

   • evaluate the case according to the available MER.

   See POMS DI 22510.018, DI 22510.019, DI 32551.025D.7.

5. What is the significance of “confinement” in assessing the severity of the substance addiction disorder?

   Confinement in an institution or other facility, whether for treatment or otherwise, does not provide a conclusive basis for determining impairment severity. Confinement may occur for reasons other than the severity of the impairment. Although the circumstances concerning the confinement must be determined and considered, confinement alone does not establish that the impairment is severe. Also, confinement prescribed as treatment by an appropriate treating source does not, in and of itself, establish the presence or severity of an impairment. The presence of an impairment and its severity are established on the basis of symptoms, signs, laboratory findings and functional limitations.

   Similarly, release from an institution or any other facility does not establish that an impairment has improved, or that an impairment is not severe. In assessing a claimant's functioning while in an institution, due consideration must be given to the support of the structured setting and the ability of the claimant to maintain the same level of functioning outside the structured setting. Such a setting might reduce or attenuate the claimant's symptoms and make functioning appear only minimally restricted. See Regulation No. 4, Subpart P, Appendix 1, Section 12.00F; POMS DI 24515.045C.

6. How is Listing 12.09, Substance Addiction Disorders, used to evaluate alcoholism or other drug addiction disorders?

   Listing 12.09 has two components:

   • The capsule definition of a substance addiction disorder. This component is satisfied when the behavioral or physical changes associated with the regular use of substances that affect the central nervous system are documented. (See Question #1 of this PC).

   • The severity component contained in the appropriate cross-reference listing. The adjudicator/reviewer must examine the total constellation of symptoms, signs and laboratory findings and then select the most appropriate reference listing, or another listing in the Listing of Impairments, to evaluate the manifestations of the substance addiction and assess the impairment severity. The use of a cross-reference listing does not mean that a co-existing impairment is required before a substance addiction disorder can be found disabling, because the claimant is not required to demonstrate that he or she has the cross-referenced disorder. For example, a claimant whose substance addiction disorder is manifested by disorientation to time and place could be evaluated using Listing 12.02 as the cross-reference listing. The criterion in paragraph A.1. under Listing 12.02 should be identified on the Psychiatric Review Technique Form (PRTF); then, if the paragraph B. criteria under Listing 12.02 are satisfied, Listing 12.09A. is met. The claimant does not have to meet the capsule definition of Listing 12.02 for organic mental disorders.

   A physical or mental cross-reference listing not specified in Listing 12.09 may be used if it best reflects the manifestations of the substance addiction in a specific case. In such a case, the substance addiction disorder will be evaluated using that cross-reference listing's criteria. If those criteria are satisfied, the substance addiction disorder will be found to equal Listing 12.09. Use of a combination of reference listings (based on the claimant's signs, symptoms, and laboratory findings) may also equal Listing 12.09. See Regulation No. 4, Subpart P, Appendix 1, Part A, Sections 12.00 and 12.09; POMS DI 34001.010 Section 12.00.

7. How is Listing 112.09, Psychoactive Substance Dependence Disorders, used to evaluate substance addiction disorder cases?

   Listing 112.09 is found in the revised childhood mental disorders listings published and effective on December 12, 1990. Listing 112.09 employs updated terminology; however, “psychoactive substance dependence disorders” and “substance addiction disorders” refer to the same diagnostic classification.

   The listing's capsule definition requires “a cluster of cognitive, behavioral, and physiologic symptoms that indicate impaired control of psychoactive substance use with continued use of the substance despite adverse consequences.” If this definition, which encompasses impairment of the ability to control the use of the substance, is satisfied, a medically determinable psychoactive substance dependence (substance addiction) disorder is present.

   Unlike Listing 12.09, Listing 112.09 contains its own paragraph A and B criteria, rather than cross-references to other listings. It is applied the same as other mental disorders listings that have their own paragraph A and B criteria. If a child does not meet the listing because he or she does not satisfy the specific criteria, the child can still be evaluated under this listing to determine whether he or she has an impairment equivalent in severity and duration to this listing. See Regulation No. 4, Subpart P, Appendix 1, Part B, Sections 112.00 and 112.09.

8. What is the role of the Psychiatric Review Technique Form (PRTF) in the evaluation of substance addiction disorders under Listing 12.09?

   The PRTF is required to evaluate cases involving substance addiction under Listing 12.09.

   • If the capsule definition of Listing 12.09 is satisfied, mark the “Present” block at the top of page 7 of the PRTF;

   • Identify which of the cross-referenced listings is being used to evaluate the disorder by checking one of the blocks numbered 1 through 10 on page 7 of the PRTF;

   • If a mental cross-reference listing is chosen:

   1. Go to the appropriate listing on the PRTF (e.g., Listing 12.02 is located on page 3 of the PRTF), and check the A criteria that are present in the specific case. Since the presence of another disorder is not required, the capsule definition of the cross-reference listing must not be marked “Present” unless that separate mental impairment (e.g., organic mental disorder) is clinically documented as being present. We do not require the presence of a co-existing impairment, but we do recognize the possibility.

   2. The B criteria will then be assessed on page 8 of the PRTF. If appropriate, the C criteria will be assessed on page 9.

   3. If the requisite paragraph A and paragraph B criteria are satisfied for that particular cross-reference listing, then Listing 12.09 is met. For example, if the cross-reference listing being used is Listing 12.02, and at least one of the paragraph A criteria items on page 3 has been satisfied, and two of the criteria in paragraph B are assessed as marked, frequent, or repeated, then Listing 12.09A is met.

   • If a physical cross-reference listing is chosen, mark page 1 of the PRTF for referral to another medical specialty. If, based on that referral, it is determined that the criteria of the physical cross-reference listing are satisfied, the file is returned to update page 1 of the PRTF to show which subsection of Listing 12.09 is met. For instance, if the medical consultant performing the referral evaluation determines that the criteria of Listing 5.05 are satisfied, the PRTF will be updated to show that Listing 12.09E is met.

   • If a cross-reference listing not specified under Listing 12.09 is used to evaluate the claim, that specific listing is entered in the “Other” block on page 7 of the PRTF, e.g., “Listing 12.03, Schizophrenia.” If the “Other” listing is a mental disorder listing, the appropriate listing in Section III is used to evaluate the claim and the PRTF is completed as explained above. If it is a physical listing, it will be referred to another specialty as explained above. In either case, if the cross-reference listing criteria are satisfied, the claimant will equal Listing 12.09. See Regulation No. 4, Subpart P, Section 404.1520(a), Regulation No. 16, Subpart I, Section 416.920(a); POMS DI 24505.025, DI 32551.025D.4.

9. What if the substance addiction impairment is severe, but not of listing-level severity?

   For all substance addiction disorder cases, if the impairment is severe but does not meet or equal a listing, the adjudication must continue through the sequential evaluation process. Generally, the disability decision then will be based on the residual functional capacity (RFC) assessment and the impact of the substance addiction impairment and any other impairment(s) on the individual's ability to do past relevant work, or to perform any other work considering the vocational factors of age, education, and prior work experience.

   For children's SSI claims, it must be determined whether the impact of the impairment on the child's ability to function is comparable to that which would make an adult unable to engage in SGA. This requires an individualized functional assessment (IFA) and consideration of the impact of the substance addiction impairment and any other impairment(s) on the child's ability to function in an age-appropriate manner.

   In assessing function (i.e., RFC or IFA), all mental and physical limitations must be considered. All symptoms, signs, and laboratory findings associated with the substance addiction, and the manifestations of any co-existing mental or physical impairment(s), must be carefully evaluated. As in all cases, descriptions and observations of the claimant's restrictions by both medical and non-medical sources, including the claimant's treating source opinion regarding the nature and severity of impairment, must be considered in determining RFC or IFA.

   The functional assessment must consider the claimant's ability to function over time, including both periods of intoxication and non-intoxication. Periods of intoxication and withdrawal must be documented as fully as possible in terms of precipitating and exacerbating factors, frequency, duration, and effect on function. While the claimant's inability to control the use of addictive substances must be considered in assessing RFC, a finding of uncontrollable substance use, alone, does not establish a level of functional deficit that prevents the performance of SGA or age-appropriate functioning. When there is a medically determined substance addiction disorder that produces significant functional limitations which preclude the performance of SGA, a finding of disability must be made. See Regulation No. 4, Subpart P, Section 404.1545, Regulation No. 16, Subpart I, Sections 416.924a and 416.945; POMS DI 22511.005, DI 24510.060ff.

Attachment 3. - Flag Attached to DDS-Identified SchoolcraftClaims to Be Coded Into the OHA Case Control System (OHA CCS).

NOTE TO HEARING OFFICES:

Upon receipt of a request for hearing in this claim, please key an “A” to the SPC field of the OHAQ for future identification as SCHOOLCRAFT.

DO NOT REMOVE UNLESS APPEAL PERIOD HAS EXPIRED OR APPEALS COUNCIL HAS TAKEN FINAL ACTION.

Attachment 4. - Flag Attached to OHA-Associated Potential Schoolcraft Claims to be Forwarded to ODIO After Agency/Judicial Action is Completed.

SCHOOLCRAFT

This is a potential Schoolcraft case.

After adjudication of the current claim, effectuation, if applicable, and the expiration of any retention period, forward all files to ODIO for Schoolcraft processing.

The ODIO address is:

If OHA personnel have any questions about the Schoolcraft aspects of handling this case, they should contact the OAO Class Action Coordinator at (703) 305-0656.