Title XVI: Determining Childhood Disability Under the Functional Equivalence Rule-The “Whole Child” Approach, 7527-7532 [E9-3375]

Agencies

• Social Security Administration

[Federal Register Volume 74, Number 30 (Tuesday, February 17, 2009)]
[Notices]
[Pages 7527-7532]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-3375]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2008-0062; Social Security Ruling, SSR 09-1p.]


Title XVI: Determining Childhood Disability Under the Functional 
Equivalence Rule--The ``Whole Child'' Approach

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Ruling (SSR).

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SUMMARY: We are giving notice of SSR 09-1p. This SSR provides policy 
interpretations and consolidates information from our regulations, 
training materials, and question-and-answer documents about our ``whole 
child'' approach for determining whether a child's impairment(s) 
functionally equals the listings.

DATES: Effective Date: March 19, 2009.

FOR FURTHER INFORMATION CONTACT: Janet Bendann, Office of Disability 
Programs, Social Security Administration, 6401 Security Boulevard, 
Baltimore, MD 21235-6401, (410) 965-9118.

SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do 
not require us to publish this SSR, we are doing so under 20 CFR 
402.35(b)(1).
    SSRs make available to the public precedential decisions relating 
to the Federal old-age, survivors, disability, supplemental security 
income, special veterans benefits, and black lung benefits programs. 
SSRs may be based on determinations or decisions made at all levels of 
administrative adjudication, Federal court decisions, Commissioner's 
decisions, opinions of the Office of the General Counsel, or other 
interpretations of the law and regulations.
    Although SSRs do not have the same force and effect as statutes or 
regulations, they are binding on all components of the Social Security 
Administration.
    This SSR will be in effect until we publish a notice in the Federal 
Register that rescinds it, or publish a new SSR that replaces or 
modifies it.

(Catalog of Federal Domestic Assistance, Program No. 96.006 
Supplemental Security Income.)

    Dated:
    February 9, 2009.
Michael J. Astrue,
Commissioner of Social Security.

Policy Interpretation Ruling

Title XVI: Determining Childhood Disability Under the Functional 
Equivalence Rule--The ``Whole Child'' Approach

    Purpose: This SSR provides policy interpretations and consolidates 
information from our regulations, training materials, and question-and-
answer documents about our ``whole child'' approach for determining 
whether a child's impairment(s) functionally equals the listings.
    Citations: Sections 1614(a)(3), 1614(a)(4), and 1614(c) of the 
Social Security Act, as amended; Regulations No. 4, subpart P, appendix 
1; and Regulations No. 16, subpart I, sections 416.902, 416.906, 
416.909, 416.923, 416.924, 416.924a, 416.924b, 416.925, 416.926, 
416.926a, and 416.994a.
    Introduction: A child\1\ who applies for Supplemental Security 
Income (SSI) \2\ is ``disabled'' if the child is not engaged in 
substantial gainful activity and has a medically determinable physical 
or mental impairment or combination of impairments \3\ that results in 
``marked and severe functional limitations.'' \4\ 20 CFR 416.906. This 
means that the impairment(s) must meet or medically equal a listing in 
the Listing of

[[Page 7528]]

Impairments (the listings),\5\ or functionally equal the listings (also 
referred to as ``functional equivalence''). 20 CFR 416.924 and 
416.926a.
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    \1\ The definition of disability in section 1614(a)(3)(C) of the 
Social Security Act (the Act) applies to any ``individual'' who has 
not attained age 18. In this SSR, we use the word ``child'' to refer 
to any such person, regardless of whether the person is considered a 
``child'' for purposes of the SSI program under section 1614(c) of 
the Act.
    \2\ For simplicity we refer in this SSR only to initial claims 
for benefits. However, the policy interpretations in this SSR also 
apply to continuing disability reviews of children under section 
1614(a)(4) of the Act and 20 CFR 416.994a.
    \3\ We use the term ``impairment(s)'' in this SSR to refer to an 
``impairment or a combination of impairments.''
    \4\ The impairment(s) must also satisfy the duration requirement 
in section 1641(a)(3)(A) of the Act; that is, it must be expected to 
result in death, or must have lasted or be expected to last for a 
continuous period of not less than 12 months.
    \5\ For each major body system, the listings describe 
impairments we consider severe enough to cause ``marked and severe 
functional limitations.'' 20 CFR 416.925(a); 20 CFR part 404, 
subpart P, appendix 1.
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    To functionally equal the listings, an impairment(s) must be of 
listing-level severity; that is, it must result in ``marked'' 
limitations in two domains of functioning or an ``extreme'' limitation 
in one domain.\6\ 20 CFR 416.926a(a). Domains are broad areas of 
functioning intended to capture all of what a child can or cannot do. 
We use the following six domains:
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    \6\ See 20 CFR 416.926a(e) for definitions of the terms 
``marked'' and ``extreme.''
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    (1) Acquiring and using information,
    (2) Attending and completing tasks,
    (3) Interacting and relating with others,
    (4) Moving about and manipulating objects,
    (5) Caring for yourself, and
    (6) Health and physical well-being.

20 CFR 416.926a(b)(1).\7\

    \7\ For the first five domains, we describe typical development 
and functioning using five age categories: Newborns and young 
infants (birth to attainment of age 1); older infants and toddlers 
(age 1 to attainment of age 3); preschool children (age 3 to 
attainment of age 6); school-age children (age 6 to attainment of 
age 12); and adolescents (age 12 to attainment of age 18). We do not 
use age categories in the sixth domain because that domain does not 
address typical development and functioning, as we explain in SSR 
09-8p title XVI: Determining Childhood Disability--The Functional 
Equivalence Domain of ``Health and Physical Well-Being.''
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    Our rules provide that we start our evaluation of functional 
equivalence by considering the child's functioning without considering 
the domains or individual impairments. They provide that ``[w]hen we 
evaluate your functioning and decide which domains may be affected by 
your impairment(s), we will look first at your activities and 
limitations and restrictions.'' \8\ 20 CFR 416.926a(c) (emphasis 
added). Our rules also provide that we:
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    \8\ In the preamble to the final childhood disability 
regulations we published in 2000, we noted that this approach 
assumes that at this step in the sequential evaluation process for 
children we have already established the existence of at least one 
medically determinable impairment that is ``severe.'' Therefore, * * 
* we are looking primarily at the extent of the limitation of the 
child's functioning. We look at all of the child's activities to 
determine the child's limitations or restrictions and then decide 
which domains to use. 65 FR 54747, 54757 (2000).

look at the information we have in your case record about how your 
functioning is affected during all of your activities when we decide 
whether your impairment or combination of impairments functionally 
equals the listings. Your activities are everything you do at home, 
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at school, and in your community.

20 CFR 416.926a(b) (emphasis added).
    After we identify which of a child's activities are limited, we 
determine which domains are involved in those activities. We then 
determine whether the child's impairment(s) could affect those domains 
and account for the limitations. This is because:

[a]ny given activity may involve the integrated use of many 
abilities and skills; therefore, any single limitation may be the 
result of the interactive and cumulative effects of one or more 
impairments. And any given impairment may have effects in more than 
one domain; therefore, we will evaluate the limitations from your 
impairment(s) in any affected domain(s).

20 CFR 416.926a(c). We then rate the severity of the limitations in 
each affected domain.
    This technique for determining functional equivalence accounts for 
all of the effects of a child's impairments singly and in combination--
the interactive and cumulative effects of the impairments--because it 
starts with a consideration of actual functioning in all settings. We 
have long called this technique our ``whole child'' approach.

Policy Interpretation

I. General

    We always evaluate the ``whole child'' when we make a finding 
regarding functional equivalence, unless we can make a fully favorable 
determination or decision without having to do so. The functional 
equivalence rules require us to begin by considering how the child 
functions every day and in all settings compared to other children the 
same age who do not have impairments. After we determine how the child 
functions in all settings, we use the domains to create a picture of 
how, and the extent to which, the child is limited by identifying the 
abilities that are used to do each activity, and assigning each 
activity to any and all of the domains involved in doing it. We then 
determine whether the child's medically determinable impairment(s) 
accounts for the limitations we have identified. Finally, we rate the 
overall severity of limitation in each domain to determine whether the 
child is ``disabled'' as defined in the Act.
    More specifically, we consider the following questions.
    1. How does the child function? ``Functioning'' refers to a child's 
activities; that is, everything a child does throughout the day at 
home, at school, and in the community, such as getting dressed for 
school, cooperating with caregivers, playing with friends, and doing 
class assignments. We consider:
     What activities the child is able to perform,
     What activities the child is not able to perform,
     Which of the child's activities are limited or restricted,
     Where the child has difficulty with activities--at home, 
in childcare, at school, or in the community,
     Whether the child has difficulty independently initiating, 
sustaining, or completing activities,
     The kind of help, and how much help the child needs to do 
activities, and how often the child needs it, and
     Whether the child needs a structured or supportive 
setting, what type of structure or support the child needs, and how 
often the child needs it.

20 CFR 416.926a(b)(2).

    2. Which domains are involved in performing the activities? We 
assign each activity to any and all of the domains involved in 
performing it. Many activities require more than one of the abilities 
described by the first five domains and may also be affected by 
problems that we evaluate in the sixth domain.
    3. Could the child's medically determinable impairment(s) account 
for limitations in the child's activities? If it could, and there is no 
evidence to the contrary, we conclude that the impairment(s) causes the 
activity limitations we have identified in each domain.
    4. To what degree does the impairment(s) limit the child's ability 
to function age-appropriately in each domain? We consider how well the 
child can initiate, sustain, and complete activities, including the 
kind, extent, and frequency of help or adaptations the child needs, the 
effects of structured or supportive settings on the child's 
functioning, where the child has difficulties (at home, at school, and 
in the community), and all other factors that are relevant to the 
determination of the degree of limitation. 20 CFR 416.924a.
    This technique of looking first at the child's actual functioning 
in all activities and settings and considering all domains that are 
involved in doing those activities, accounts for the interactive and 
cumulative effects of the child's impairment(s), including any 
impairments that are not ``severe.'' This is because limitations in a 
child's activities will generally be the manifestation of any 
difficulties that result from the impairments both individually and in 
combination.\9\
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    \9\ As noted in question no. 3 above, we would not make this 
assumption if there is evidence indicating that a child's 
limitations are not attributable to a medically determinable 
impairment(s). However, in most cases, limitations that are of 
listing-level severity will be associated with underlying physical 
or mental impairments.

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[[Page 7529]]

    In sections II, III, and IV, we provide more detail about the 
technique for determining functional equivalence. However, we do not 
require our adjudicators to discuss all of the considerations in the 
sections below in their determinations and decisions, only to provide 
sufficient detail so that any subsequent reviewers can understand how 
they made their findings.

II. Determining Which Domains Are Involved in Doing Activities

A. General
    The ``whole child'' approach recognizes that many activities 
require the use of more than one of the abilities described in the 
first five domains, and that they may also be affected by a problem 
that we consider in the sixth domain. A single impairment, as well as a 
combination of impairments, may result in limitations that require 
evaluation in more than one domain.\10\ Conversely, a combination of 
impairments, as well as a single impairment, may result in limitations 
that we rate in only one domain.
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    \10\ Rating the limitations caused by a child's impairment(s) in 
each and every domain that is affected is not ``double-weighting'' 
of either the impairment(s) or its effects. Rather, it recognizes 
the particular effects of the child's impairment(s) in all domains 
involved in the child's limited activities.
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    Therefore, it is incorrect to assume that the effects of a 
particular medical impairment must be rated in only one domain or that 
a combination of impairments must always be rated in several. Rather, 
adjudicators must consider the particular effects of a child's 
impairment(s) on the child's activities in any and all of the domains 
that the child uses to do those activities, based on the evidence in 
the case record.\11\
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    \11\ By the time we reach the functional equivalence step, we 
will have already determined that the child has at least one 
medically determinable impairment that is ``severe''; that is, it 
that causes more than minimal functional limitations. 20 CFR 
416.924. Therefore, the child must have a limitation in at least one 
domain.
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    In the sections that follow, we provide examples to illustrate how 
we apply these principles. These examples do not indicate whether a 
child is disabled, only how we assign limitations in a child's 
activities to a domain or domains. The rating of severity--determining 
whether the child is disabled--comes later. See sections III and IV 
below.
B. Examples of Activities That Typically Require Two or More Abilities
    1. Tying shoes. Tying shoes typically requires abilities in at 
least four domains:
     Learning and remembering the sequence for tying (Acquiring 
and using information),
     Focusing on the task (Attending and completing tasks),
     Using the fingers and hands to do the task (Moving about 
and manipulating objects), and
     Taking responsibility for dressing and appearance (Caring 
for yourself).
    Therefore, depending on the nature and effects of the 
impairment(s), a child who has difficulty tying his shoes may have 
limitations in one, two, three, or even all of these domains. For 
example, if a child has a deformity of the hands and fingers that 
affects only manipulation, the only domain that might be affected is 
``Moving about and manipulating objects.'' However, if the child has 
pain or other symptoms, there might also be a problem in concentration, 
which we would also evaluate in the domain of ``Attending and 
completing tasks.'' There might also be limitations in other 
domains.\12\
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    \12\ Children who have mental disorders will often have 
limitations that are rated in more than one domain, but as we 
explain in the domain-specific SSRs referenced at the end of this 
SSR, physical impairments can also have effects that must be 
assigned to more than one domain.
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    2. Riding a public bus. Taking a public bus independently typically 
requires the abilities in the first five domains:
     Knowing how, where, and when to catch the bus, which bus 
to ride, the amount of the fare and how to pay it, and how and where to 
get off, as well as properly accomplishing these tasks (Acquiring and 
using information, Attending and completing tasks).
     Relating appropriately to the driver and other passengers 
(Interacting and relating with others),
     Being physically able to get on and off the bus (Moving 
about and manipulating objects), and
     Following safety rules (Caring for yourself).
    Again, depending on the nature and particular effects of the 
impairment(s), a child who has difficulty riding a public bus may have 
limitations in any one, two, several, or even all of these domains.
C. Example of a Child With a Single Impairment That Is Rated in More 
Than One Domain
    A boy in elementary school with attention-deficit/hyperactivity 
disorder (AD/HD) has trouble with all of the following activities.
    1. Reading class assignments. The child repeatedly misreads words 
by impulsively guessing what they are based on the first letters or the 
shapes of the words, and he is not keeping up with the rest of his 
class. His ability to learn and think about information in school is at 
least partly dependent on how well he can read. These difficulties 
indicate a limitation in the domain of ``Acquiring and using 
information.''
    2. Following classroom instructions. The child generally carries 
out only the first part of three-part instructions. Being unable to 
sustain focus, he quickly goes on to unrelated activities. He also 
makes mistakes in carrying out the instructions on which he does try to 
focus. He needs controlled, directed attention to carry out 
instructions correctly. These difficulties indicate a limitation in the 
domain of ``Attending and completing tasks.''
    3. Playing with others. The child will typically approach a group 
of children, interrupt whoever is talking, and begin telling his own 
story, leading to conflicts with the other children. To successfully 
interact and relate with peers, the child must understand the social 
situation and use appropriate behaviors to approach other children. 
These difficulties indicate a limitation in the domain of ``Interacting 
and relating with others.''
    4. Avoiding danger. The child often impulsively dashes out into the 
street without looking for cars and considering his safety. Being 
responsible for his own safety requires the child to stop moving and to 
be cautious before stepping into the street. These difficulties in 
self-related activities indicate a limitation in the domain of ``Caring 
for yourself.''
    Therefore, even though attentional difficulties and hyperactivity 
are hallmarks of AD/HD, in this case it would be incorrect to assume 
that this child's AD/HD causes limitations only in the domain of 
``Attending and completing tasks.'' This child's activities demonstrate 
that his single impairment causes limitations that we must rate in four 
domains.
D. Example of a Child With a Combination of Impairments That Is Rated 
in Only One Domain
    A girl in middle school has a mild hearing disorder that affects 
both her hearing and speech. She also has a repaired complete cleft lip 
and palate that affects her speech as well as her appearance. She has 
difficulty hearing other children, especially on the playground during 
games, and they have difficulty understanding what she

[[Page 7530]]

says. The other children do not approach her, and they also make fun of 
her because of her appearance and speech difficulties. Consequently, 
she has difficulty forming friendships with her classmates. She tends 
to stay to herself during recess and lunchtime and plays alone when at 
home.\13\
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    \13\ Even though this child's underlying ability to socialize 
may not be affected, there is a limitation in her ability to 
interact and relate with other children because of indirect effects 
of her impairments that limit her opportunity to use the ability.
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    However, she does not have any difficulty learning. She completes 
all her schoolwork and chores on time, appropriately, and without 
unusual assistance, is well-behaved and otherwise cares for herself 
age-appropriately. She also has no motor difficulties.
    In this example, the evidence shows that the child has only social 
limitations at school and in her neighborhood, and that the limitations 
in her activities are the result of her difficulty communicating 
effectively with other children because of her hearing and speech 
problems and appearance. Therefore, the combination of this child's two 
impairments causes limitations only in the domain of ``Interacting and 
relating with others.''
    It is unnecessary to evaluate the effects of each of the child's 
impairments separately and then to determine their combined effects. 
Since we start by evaluating her functioning (in this case, her social 
limitations), the limitations in interacting and relating with others 
established by the evidence in the case record reflect the combined 
effects of her impairments.
E. Example of a Child With a Combination of Impairments That Is Rated 
in More Than One Domain
    An adolescent has a diagnosis of borderline intellectual 
functioning (BIF) and has been a ``slow learner'' throughout school. 
She also has recently been diagnosed with depression. She has received 
special education services throughout her school years and is now in 
the 11th grade. She has attended special classes for all of her 
academic subjects, but has been mainstreamed for some elective courses 
and extracurricular activities. Her teacher reports that she performed 
satisfactorily in most of her classes in previous years, but for the 
past two semesters has become inattentive in class, has failed three 
academic subjects because of inattention and failure to complete her 
assignments, and has frequently refused to go to school. Her mother 
reports that at home the child cries a lot, sleeps as long as 12 hours 
every night, eats irregularly, complains of headaches, and is 
irritable, uncooperative, and angry more often than not. Despite many 
attempts, the parent has been unable to engage her daughter in talking 
about what is wrong and how she might help.
    The student's difficulty with activities at school and at home 
involves three, and possibly four, domains:
    1. Her many years of placement in special education classes for all 
academic work indicate a limitation that we would rate in the domain of 
``Acquiring and using information.''
    2. Her inattention in class and current failure in three academic 
subjects as a consequence indicate that there is also a limitation in 
the domain of ``Attending and completing tasks.''
    3. Her mother's description of some of the child's difficulties at 
home (for example, crying, oversleeping, physical complaints, and 
irritability) and the child's avoidance of dealing with them indicate a 
limitation in the domain of ``Caring for yourself.''
    4. In addition, if her refusal to talk with her mother and her 
anger and uncooperativeness exceed what would be expected of 
adolescents of the same age who do not have any impairments, this would 
indicate a limitation in the domain of ``Interacting and relating with 
others.''

III. Rating Severity

A. General
    Once we have determined which of a child's activities are limited, 
which domain or domains are involved, and that the limitations are the 
result of a medically determinable impairment(s), we rate the severity 
of the limitations and determine whether the impairment(s) functionally 
equals the listings. We consider all relevant evidence in the case 
record, including objective medical and other evidence, and all of the 
relevant factors discussed in 20 CFR 416.924a.\14\
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    \14\ As provided in 20 CFR 416.924a(b), we consider these 
factors whenever we evaluate functioning at any step of the 
sequential evaluation process for children. We also use these 
factors to determine whether a child has a limitation, not just the 
severity of the limitations.
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    It is important to determine the extent to which an impairment(s) 
compromises a child's ability to independently initiate, sustain, and 
complete activities. To do so, we consider the kinds of help or support 
the child needs in order to function. See 20 CFR 416.924a(b). In 
general, if a child needs a person, medication, treatment, device, or 
structured, supportive setting to make his functioning possible or to 
improve the functioning, the child will not be as independent as same-
age peers who do not have impairments. Such a child will have a 
limitation, even if he is functioning well with the help or support.
    The more help or support of any kind that a child receives beyond 
what would be expected for children the same age without impairments, 
the less independent the child is in functioning, and the more severe 
we will find the limitation to be. For example:
     A 10-year-old child who is dressed appropriately may 
appear not to be limited in this activity. However, if the evidence in 
the case record shows that the child needs significant help from her 
parents with the basics of dressing every day (for example, putting on 
and buttoning shirts), the child will have a limitation of that 
activity.\15\
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    \15\ The domain or domains in which we would rate the limitation 
would depend on the reason(s) that the child needs the help. For 
example, the child may have motor difficulties (Moving about and 
manipulating objects), difficulties learning or remembering how to 
dress appropriately (Acquiring and using information), difficulties 
with attention or impulsivity (Attending and completing tasks), or a 
combination of some or all of these problems. There may be 
limitations we would evaluate in other domains as well.
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     A 14-year-old child who has a serious emotional 
disturbance may be given ``wrap-around services'' that include the 
services of an adult who supervises the child at school. With these 
services, the child attends school, participates in activities with 
other children, and does not take any actions that endanger himself or 
others. However, the degree of ``extra help'' \16\ the child needs to 
function demonstrates a limitation in at least the domains of 
``Interacting and relating with others'' and ``Caring for yourself.''
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    \16\ See 20 CFR 416.924a(b)(5).
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B. Rating the Severity of Limitations in the Domains
    When we determine the degree to which the child's impairment(s) 
limits each affected domain, we use the definitions of ``marked'' or 
``extreme'' in our regulations. See 20 CFR 416.926a(e). The following 
discussion provides further guidance about how to apply those 
definitions.
    To determine whether there is a ``marked'' or an ``extreme'' 
limitation in a domain, we use a picture constructed of the child's 
functioning in each domain. This last step in the ``whole child'' 
approach summarizes everything we know about a child's limited 
activities. The rating of limitation in a domain is then based on the 
answers to these questions:

[[Page 7531]]

    1. How many of the child's activities in the domain are limited 
(for example, one, few, several, many, or all)?
    2. How important are the limited activities to the child's age-
appropriate functioning (for example, basic, marginally important, or 
essential)?
    3. How frequently do the activities occur and how frequently are 
they limited (for example, daily, once a week, or only occasionally)?
    4. Where do the limitations occur (for example, only at home or in 
all settings)?
    5. What factors are involved in the limited activities (for 
example, does the child receive support from a person, medication, 
treatment, device, or structured/supportive setting)?
    There is no set formula for applying these considerations in each 
case. A child's day-to-day functioning may be seriously or very 
seriously limited whether an impairment(s) limits only one activity or 
whether it limits several. See 20 CFR 416.926a(e)(2) and (e)(3). Also, 
we may find that a child has a ``marked'' or ``extreme'' limitation of 
a domain even though the child does not have serious or very serious 
limitations every day. As in any case, we must consider the effects of 
the impairment(s) longitudinally (that is, over time) when we evaluate 
the severity of the child's limitations.\17\ The judgment about whether 
there is a ``marked'' or ``extreme'' limitation of a domain depends on 
the importance and frequency of the limited activities and the relative 
weight of the other considerations described above.
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    \17\ For example, in 20 CFR 416.924a(b)(8), we provide: ``If you 
have a chronic impairment(s) that is characterized by episodes of 
exacerbation (worsening) and remission (improvement), we will 
consider the frequency and severity of your episodes of exacerbation 
as factors that may be limiting your functioning. Your level of 
functioning may vary considerably over time. Proper evaluation of 
your ability to function in any domain requires us to take into 
account any variations in your level of functioning to determine the 
impact of your chronic illness on your ability to function over 
time.'' When we published this rule in 2000, we explained that, 
while we adopted the language from section 12.00D of the adult 
mental disorders listings, ``[t]his principle is equally applicable 
to children and adults, and to both physical and mental 
impairments.'' See 65 FR at 54754.
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    Adjudicators must also be alert to the possibility that limitation 
of several seemingly minor activities may point to a larger problem 
that requires further evaluation. For example, a young child may have 
serious difficulty with common childhood activities such as scribbling, 
using scissors, or copying shapes, which in themselves may not appear 
to be important to age-appropriate functioning. It would be unlikely, 
however, that a young child would have serious difficulty with those 
common activities but have no trouble with other activities, such as 
buttoning a shirt or printing letters, that also involve fine motor or 
perceptual-motor ability. Such additional difficulties would indicate 
that the child has more significant problems with age-appropriate 
functioning than just scribbling, using scissors, or copying shapes 
alone might suggest.
    Finally, the rating of limitation of a domain is not an ``average'' 
of what activities the child can and cannot do. When evaluating whether 
a child's functioning is age-appropriate, adjudicators must consider 
evidence about all of the child's activities. We do not ``average'' all 
of the findings in the evidence about a child's activities to come up 
with a rating for the domain as a whole. The fact that a child can do a 
particular activity or set of activities relatively well does not 
negate the difficulties the child has in doing other activities.

IV. Example of a Functional Equivalence Analysis

    In this section, we provide an example of how we would consider a 
child's activities at the functional equivalence step. In this example, 
we provide only partial evidence to illustrate how we consider 
activities and sort them into the domains. We do not rate the severity 
of the limitations because we are not providing complete evidence and 
because rating severity based on a specific set of case facts would not 
be useful in other cases.
    Example: A parent files a claim on behalf of her 8-year-old son, 
alleging that anxiety keeps him from living normally, going to school 
regularly, and playing with other children. The evidence establishes 
that the child has a generalized anxiety disorder (GAD) that is 
``severe'' but that does not meet or medically equal listing 112.06.
A. How does the child function?
    The child says that he cannot sleep because he is afraid of the 
dark and the noises he hears outside, and that he needs to be awake and 
keep his eyes open as long as possible in case anything happens. His 
mother reports that he refuses to go to bed, must be coaxed into his 
room, frequently will not stay there, and gets up and watches 
television until he falls asleep in front of it. He does not sleep well 
at night and in the daytime is often irritable. Sometimes, he is 
combative. He cries when he has to leave for school, and his mother 
must sometimes ride with him on the school bus. His teacher reports a 
reduction in his energy and attention in school, that he has trouble 
focusing in class and does little work at school or at home, and that 
he may not be promoted at the end of the year because he has fallen 
behind in his learning. She also reports that he sometimes refuses to 
leave the classroom for recess or activities anywhere else in the 
school building or playground, and that an aide must stay with him when 
he does. She says that the child seems suspicious of other children in 
his class because he frequently reports things they do and say that 
worry and frighten him.
    The child is seen regularly by a clinical psychologist. Results of 
formal evaluation, including an anxiety scale and a depression 
inventory, contribute to a profile of GAD. His pediatrician prescribed 
two kinds of medications, but both had unacceptable side effects, so 
the child does not take them. He is in play therapy.
B. Which domains are involved in the child's limited activities?
    The following chart \18\ provides a picture of the child's 
functioning, including information about several factors that are 
relevant to determining the severity of his limitations; for example, 
help from a parent and school aide, medications, and play therapy. As 
shown in the chart, the descriptions from the evidence about how the 
child functions must be specific, not general. For example, ``the child 
is anxious'' is a general conclusion, while the notes in the chart 
below state specifically what the child does and how he does it, based 
on his own words and the observations of the medical sources and adults 
who know him and spend the most time with him.
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    \18\ This chart is for illustration only. We do not require our 
adjudicators to develop or use such a chart.

[[Page 7532]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Attending & completing  Interacting & relating      Moving about &                              Health & physical
   Acquiring & using information              tasks                with others        manipulating objects   Caring for yourself         well-being
--------------------------------------------------------------------------------------------------------------------------------------------------------
Does little work in class or at      Attention at school is  Despite orders from     (No limitations.)....  Difficulty sleeping;   Pediatrician has
 home and has fallen behind; may      reduced; has trouble    mother, refuses to go                          afraid of dark and     tried short-term
 not be promoted to next grade in     focusing in class;      to bed; mother must                            outside noises;        Valium; child
 school.                              does little work in     coax him into                                  needs to stay awake    complained of
                                      class or at home.       bedroom; will not                              and keep eyes open     stomach cramps and
                                                              stay in bed; gets up                           (be vigilant).         headache; tried
                                                              and watches TV until                           Parent must coax him   short-term Ativan;
                                                              falls asleep. May be                           into bedroom. Will     side effects were
                                                              combative at home.                             not stay in bed;       dizziness and
                                                              Sometimes refuses to                           watches TV until       daytime sleepiness.
                                                              leave classroom for                            falls asleep. Is
                                                              recess and activities                          irritable because of
                                                              elsewhere; in that                             lack of sleep. Cries
                                                              case, an aide must                             when has to leave
                                                              stay with him.                                 for school; mother
                                                              Frequently reports                             may have to ride bus
                                                              other children's                               with him to school.
                                                              actions and                                    Anxiety scale shows
                                                              conversations; seems                           GAD. Child is in
                                                              suspicious of them.                            play therapy.
--------------------------------------------------------------------------------------------------------------------------------------------------------

C. Could the child's medically determinable impairment(s) limit any of 
his activities?
    In the example described above, the medically determinable 
impairment of GAD clearly accounts for the child's problems, and there 
is no evidence to the contrary.\19\ Therefore, it is appropriate to 
conclude that the child's GAD results in limitations that are evaluated 
in five of the six domains, as indicated in the chart above.
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    \19\ With other facts, additional development might be needed. 
For example, if the evidence in this case showed that the child 
performed poorly in sports (which we mention as a typical activity 
of children without impairments), we would note that GAD would not 
be expected to affect the child's physical ability to move about and 
manipulate objects. Therefore, poor performance in sports in a child 
with GAD might be attributable to something other than the mental 
disorder. There may not be a medical reason at all: The child might 
do poorly because he does not like to play any sport, is not good at 
sports, or is not interested in them. On the other hand, there might 
be another impairment not yet documented by evidence from an 
acceptable medical source that would limit motor functioning and 
interfere with the child's day-to-day activities; in such instances, 
additional development might be needed to complete the evaluation of 
the child's functioning.
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V. Responsibility for Determining Functional Equivalence

    The responsibility for making functional equivalence determinations 
depends on the level of the administrative review process.
     For initial and reconsideration determinations, the State 
agency medical or psychological consultant has the overall 
responsibility for determining functional equivalence.
     When an SSI recipient has requested a hearing before a 
disability hearing officer at the reconsideration level, the disability 
hearing officer determines functional equivalence.
     For cases at the Administrative Law Judge (ALJ) and 
Appeals Council (AC) levels (when the AC makes a decision), the ALJ or 
AC determines functional equivalence. 20 CFR 416.926a(n).
    While SSR 96-6p \20\ requires that an ALJ or the AC must obtain an 
updated medical expert opinion before making a decision of disability 
based on medical equivalence, there is no such requirement for 
decisions of disability based on functional equivalence. Therefore, 
ALJs and the AC (when the AC makes a decision) are not required to 
obtain updated medical expert opinions when they determine that a 
child's impairment(s) functionally equals the listings.\21\
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    \20\ See SSR 96-6p, Titles II and XVI: Consideration of 
Administrative Findings of Fact by State Agency Medical and 
Psychological Consultants and Other Program Physicians and 
Psychologists at the Administrative Law Judge and Appeals Council 
Levels of Administrative Review; Medical Equivalence, 61 FR 34466 
(1996), available at: https://www.socialsecurity.gov/OP_Home/
rulings/di/01/SSR96-06-di-01.html.
    \21\ For cases pending at the ALJ and AC levels from States in 
the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, 
Montana, Nevada, Northern Mariana Islands, Oregon, and Washington) 
at the time of the ALJ or AC decision, see Acquiescence Ruling 04-
1(9), Howard on behalf of Wolff v. Barnhart, 341 F.3d 1006 (9th Cir. 
2003)--Applicability of the Statutory Requirement for Pediatrician 
Review in Childhood Disability Cases to the Hearings and Appeals 
Levels of the Administrative Review Process--Title XVI of the Social 
Security Act, 69 FR 22578 (2004), available at: https://
www.socialsecurity.gov/OP_Home/rulings/ar/09/AR2004-01-ar-09.html.
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    Effective date: This SSR is effective on March 19, 2009.
    Cross-References: SSR 09-2p, Title: Determining Childhood 
Disability--Documenting a Child's Impairment-Related Limitations; SSR 
09-3p, Title XVI: Determining Childhood Disability--The Functional 
Equivalence Domain of ``Acquiring and Using Information''; SSR 09-4p, 
Title XVI: Determining Childhood Disability--The Functional Equivalence 
Domain of ``Attending and Completing Tasks''; SSR 09-5p, Title XVI: 
Determining Childhood Disability--``Interacting and Relating with 
Others''; SSR 09-6p, Title XVI: Determining Childhood Disability--The 
Functional Equivalence Domain of ``Moving About and Manipulating 
Objects''; SSR 09-7p, Title XVI: Determining Childhood Disability--The 
Functional Equivalence Domain of ``Caring for Yourself''; SSR 09-8p, 
Title XVI: Determining Childhood Disability--The Functional Equivalence 
Domain of ``Health and Physical Well-Being''; SSR 98-1p, Title XVI: 
Determining Medical Equivalence in Childhood Disability Claims When a 
Child Has Marked Limitations in Cognition and Speech; SSR 96-6p, Titles 
II and XVI: Consideration of Administrative Findings of Fact by State 
Agency Medical and Psychological Consultants and Other Program 
Physicians and Psychologists at the Administrative Law Judge and 
Appeals Council Levels of Administrative Review; Medical Equivalence; 
and Program Operations Manual System (POMS) DI 25225.030, DI 25225.035, 
DI 25225.040, DI 25225.045, DI 25225.050, and DI 25225.055.

[FR Doc. E9-3375 Filed 2-13-09; 8:45 am]
BILLING CODE 4191-02-P