Joined: 17 May 2004 Posts: 347 Location: Baltimore, MD
Posted: Thu Aug 19, 2010 12:00 pm Post subject: NPRM: Proposed New Listings for Mental Impairments
From this morning's Federal Register: http://tinyurl.com/29k7dtm _________________ Paul W. Nolan
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_________________ David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
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david[at]traverlaw.com
An SSA insider called to give me a tip that the usual "concentration, persistence or pace" would be changed to "concentration, persistence and pace."
Is that a significant change? I think so.
Page 7 of the published proposed listings states:
Quote:
The proposed paragraph B3 criterion
is the same as the current paragraph B3
criterion, ‘‘maintaining concentration,
persistence, or pace,’’ except that we
propose to change ‘‘or’’ to ‘‘and.’’ This
would not be a substantive change in
the paragraph B3 criterion, but only a
clarification of the overall requirement.
In a work setting, just as a person is
expected to understand, remember, and
apply information, he or she is also
expected to be able to concentrate,
persist, and maintain pace.
If there is no difference, why change it? Problems arise for pending cases in which claimants have treating source statements in which "concentration, persistence or pace" is addressed, and by regulatory change, such evidence becomes insufficient to meet the listings. Corresponding preexisting State Agency opinions on point break favorably for the Commissioner and against the claimant. Clever. _________________ David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
david[at]traverlaw.com
Joined: 13 May 2004 Posts: 1388 Location: Cincinnati OH
Posted: Fri Aug 20, 2010 01:37 am Post subject:
The explanatory language indicates that the intent was to clarify that a deficit in any of the three characteristics is sufficient, except elementary administrative law teaches that "and" means all three must be deficient, while "or" means a deficit in any area is sufficient to meet the requirement. If we say that a snowman needs to be fixed if he lacks a hat, carrot or scarf, that is entirely different than saying a snowman needs to be fixed if he lacks a hat, carrot and scarf. If, as claimed in the explanation, the intent was to recognize that work requirements demand that a person be able to "concentrate, persist, and maintain pace" then the language indicating the required deficits in those areas needs to use the word "or" as in the current regs. It seems counterintuitive, but David is correct.
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