Social Security Ruling, SSR 09-2p.; Title XVI: Determining Childhood Disability-Documenting a Child's Impairment-Related Limitations, 7625-7630 [E9-3378]
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Social Security Ruling, SSR 09–2p.;
Title XVI: Determining Childhood
Disability—Documenting a Child’s
Impairment-Related Limitations
AGENCY: U.S. Small Business
Administration.
ACTION: Notice.
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Social Security Administration.
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(SSR).
SUMMARY: We are giving notice of SSR
09–2p. This SSR provides policy
interpretations and consolidates
information from our regulations,
training materials, and question-andanswer documents about documenting
and evaluating evidence of a child’s
impairment-related limitations and
related issues.
DATES: Effective Date: March 20, 2009
FOR FURTHER INFORMATION CONTACT:
Robin Doyle, Office of Disability
Programs, Social Security
Administration, 6401 Security
Boulevard, Baltimore, MD 21235–6401,
(410) 966–2771.
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,
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General Counsel, or other
interpretations of the law and
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Although SSRs do not have the same
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regulations, they are binding on all
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Administration. 20 CFR 402.35(b)(1).
This SSR will be in effect until we
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Federal Register / Vol. 74, No. 31 / Wednesday, February 18, 2009 / Notices
Dated: February 9, 2009.
Michael J. Astrue,
Commissioner of Social Security.
Policy Interpretation Ruling
Title XVI: Determining Childhood
Disability—Documenting a Child’s
Impairment-Related Limitations
Purpose: This SSR provides policy
interpretations and consolidates
information from our regulations,
training materials, and question-andanswer documents about documenting
and evaluating evidence of a child’s
impairment-related limitations and
related issues.
Citations (Authority): Sections
1614(a)(3) and 1614(a)(4) 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, 416.912,
416.913, 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
Impairments (the listings),5 or
functionally equal the listings (also
referred to as ‘‘functional equivalence’’).
20 CFR 416.924 and 416.926a.
As we explain in greater detail in SSR
09–1p, we always evaluate the ‘‘whole
child’’ when we make a finding
regarding functional equivalence, unless
we can otherwise make a fully favorable
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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 1614(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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determination or decision.6 We focus
first on the child’s activities, and
evaluate how appropriately, effectively,
and independently the child functions
compared to children of the same age
who do not have impairments. 20 CFR
416.926a(b) and (c). We consider what
activities the child cannot do, has
difficulty doing, needs help doing, or is
restricted from doing because of the
impairment(s). 20 CFR 416.926a(a).
Activities are everything a child does at
home, at school, and in the community,
24 hours a day, 7 days a week.7
We next evaluate the effects of a
child’s impairment(s) by rating the
degree to which the impairment(s)
limits functioning in six ‘‘domains.’’
Domains are broad areas of functioning
intended to capture all of what a child
can or cannot do. We use the following
six domains:
(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).8
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.9 20 CFR 416.926a(a).
This SSR explains the evidence we
need to document a child’s impairmentrelated limitations, the sources of
evidence we commonly see in
6 See SSR 09–1p, Title XVI: Determining
Childhood Disability Under the Functional
Equivalence Rule—The ‘‘Whole Child’’ Approach.
7 However, some children have chronic physical
or mental impairments that are characterized by
episodes of exacerbation (worsening) and remission
(improvement); therefore, their level of functioning
may vary considerably over time. To properly
evaluate the severity of a child’s limitations in
functioning, as described in the following
paragraphs, we must consider any variations in the
child’s level of functioning to determine the impact
of the chronic illness on the child’s ability to
function longitudinally; that is, over time. For more
information about how we evaluate the severity of
a child’s limitations, see SSR 09–1p.
8 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 WellBeing.’’
9 See 20 CFR 416.926a(e) for definitions of the
terms ‘‘marked’’ and ‘‘extreme.’’
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childhood disability cases, how we
consider the evidence we receive from
early intervention and school programs
(including special education), how we
address inconsistencies in the evidence,
and other issues related to the
development of evidence about
functioning.10
Policy Interpretation
I. General
We use evidence of a child’s
functioning to determine whether the
child’s medically determinable
impairment(s):
• Is ‘‘severe’’—that is, causes more
than minimal functional limitations (20
CFR 416.924(c));
• Meets or medically equals a listed
impairment when the listing criteria
include functioning (20 CFR
416.924a(b)(1)); and
• Functionally equals the listings (20
CFR 416.926a).
When we consider functioning in
children, we evaluate how the
impairment(s) affects the ability to
function age-appropriately. A child
functions age-appropriately when
initiating, sustaining, and completing
age-appropriate activities.
‘‘Functioning’’ includes everything a
child does throughout a day at home, at
school, and in the community.
Examples include, getting dressed for
school, cooperating with caregivers,
playing with friends, and doing class
assignments.
As we explain in Section III below,
evidence of a child’s functioning can
come from a wide variety of sources. We
will consider all of the relevant
evidence we receive about a child’s
functioning to help us understand how
the impairment(s) affects the child’s
day-to-day activities.
II. What Evidence Do We Need About a
Child’s Impairment-Related
Limitations?
We need evidence that is sufficient to
evaluate a child’s limitations on a
longitudinal basis; that is, over time.
This evidence will help us answer the
following questions about whether the
child’s impairment(s) affects day-to-day
functioning and whether the child’s
activities are typical of other children of
the same age who do not have
impairments. Accordingly, we need
evidence to help us determine the
following:
• What activities is the child able to
perform?
• What activities is the child not able
to perform?
10 For more information about the domains, see
the cross-references at the end of this SSR.
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• Which of the child’s activities are
limited or restricted compared to other
children of the same age who do not
have impairments?
• Where does the child have
difficulty with activities—at home, in
childcare, at school, or in the
community?
• Does the child have difficulty
independently initiating, sustaining, or
completing activities?
• What kind and how much help
does the child need to do activities, and
how often does the child need it?
• Does the child need a structured or
supportive setting, what type of
structure or support does the child
need, and how often does the child need
it?
We do not require our adjudicators to
provide formal answers to these specific
questions in the determination or
decision. However, the evidence should
create a clear picture of the child’s
functioning in the context of the six
functional equivalence domains so that
we can determine the severity of
limitation in each domain. The critical
element in evaluating the severity of a
child’s limitations is how appropriately,
effectively, and independently the child
performs age-appropriate activities.
Also, a child who is having significant
but unexplained problems may have an
impairment(s) that has not yet been
diagnosed, or may have a diagnosed
impairment(s) for which we lack
evidence. For example, children who
are many grades behind in school often
have a medically determinable
impairment(s). In many cases, the
school will have evaluated the child,
and the school records will provide
information about whether there is a
medically determinable
impairment(s).11 It may be necessary to
further develop information from the
child’s medical source(s) or purchase a
consultative examination (CE).
Adjudicators should pursue indications
that an impairment(s) may be present if
that fact may be material to the
determination or decision.
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III. Sources of Evidence About a Child’s
Impairment-Related Limitations
Once we have evidence from an
acceptable medical source 12 that
11 This will be especially true in cases in which
the child is behind in school because of mental
retardation, borderline intellectual functioning, or a
learning disability, which can be established by
evidence from a school psychologist, or because of
a language disorder, which can be established by a
qualified speech-language pathologist. See 20 CFR
416.913(a). However, school records may include
evidence from other kinds of acceptable medical
sources establishing the existence of a medically
determinable impairment.
12 The term ‘‘acceptable medical source’’ is
defined in 20 CFR 416.902 as ‘‘one of the sources
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establishes the existence of at least one
medically determinable impairment, we
consider all relevant evidence in the
case record to determine whether a
child is disabled. This evidence may
come from acceptable medical sources
and from a wide variety of ‘‘other
sources.’’ 13
Medical Sources: Acceptable medical
sources can provide information about
how an impairment(s) affects a child’s
everyday activities. For example, a
pediatrician might discuss the impact of
asthma on a child’s participation in
physical activities, or a speech-language
pathologist might discuss how a
language disorder contributes to limited
attention and problems in school.
We cannot use evidence from other
medical sources who are not
‘‘acceptable medical sources’’ to
establish that a child has a medically
determinable impairment. However, we
can use evidence from these sources,
such as nurse-practitioners, physicians’
assistants, naturopaths, chiropractors,
audiologists, occupational therapists
(OTs), physical therapists (PTs), and
psychiatric social workers (PSWs), to
determine the severity of the
impairment(s) and how it affects the
child’s ability to function compared to
children of the same age who do not
have impairments. For example:
• A PSW might comment on the
child’s ability to handle stressful
situations.
• An OT or PT may evaluate the
impact of a musculoskeletal disorder on
the child’s activities and comment on
muscle tone and strength and how it
affects the child’s ability to walk with a
brace.
• An OT might comment on the
child’s ability to use motor skills to get
dressed without assistance.
Non-Medical Sources: Evidence from
other sources who are not medical
sources and who know and have contact
with the child can also be very
important to our understanding of the
severity of a child’s impairment(s) and
how it affects day-to-day functioning.
These sources include parents and
described in 416.913(a) who provides evidence
about your impairments.’’
13 We explain what the term ‘‘other sources’’
means in 20 CFR 416.913(d). For more information
about how we consider opinion evidence from
‘‘other sources,’’ including opinions about
functional limitations, see SSR 06–03p, Titles II and
XVI: Considering Opinions and Other Evidence
from Sources Who Are Not ‘‘Acceptable Medical
Sources’’ in Disability Claims; Considering
Decisions on Disability by Other Governmental and
Nongovernmental Agencies, 71 FR 45593 (2006),
available at: https://www.socialsecurity.gov/
OP_Home/rulings/di/01/SSR2006-03-di-01.html.
For information about how we consider opinion
evidence from acceptable medical sources, see
generally 20 CFR 416.927.
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caregivers, educational personnel (for
example, teachers, early intervention
team members, counselors,
developmental center workers, and
daycare center workers), public and
private social welfare agency personnel,
and others (for example, siblings,
friends, neighbors, and clergy).
Therefore, we will consider evidence
from such non-medical sources when
we determine the severity of the child’s
impairment(s) and how the child
typically functions compared to
children of the same age who do not
have impairments.
IV. Early Intervention and School
Programs 14
In most cases, early intervention (EI)
and school programs are significant
sources of evidence about a child’s
impairment-related limitations.
Children from birth to the attainment of
age 3 may receive EI services if they are
experiencing delays in one or more
developmental areas or if they have a
diagnosed physical or mental condition
that is likely to result in such delays.15
Children from ages 3 through 5 may
attend preschool or other daycare
programs. Children age 6 and older
usually attend school and may receive
special education and related services16
if they require specially designed
instruction because of their unique
needs related to a physical or mental
impairment(s).
We require adjudicators to try to get
EI and school records whenever they are
needed to make a determination or
decision regarding a child’s disability.
We do not require information from EI
or school personnel in every case
because sometimes we can decide that
a child is disabled without it, such as
when the child’s impairment(s) meets
the requirements of a listing. We may
also have to make a determination or
decision without EI or school evidence
when we are unable to obtain it.
14 School programs also include preschool
programs, such as Early Head Start (for children
birth to age 3) and Head Start (ages 3 through 5).
15 EI services may include occupational therapy,
physical therapy, speech therapy, psychological
services, audiology, health services, nutrition
services, nursing services, and assistive technology
devices. The developmental areas are: Cognitive
development; physical development, including
vision and hearing; communication development;
social or emotional development; and adaptive
development.
16 ‘‘Related services’’ includes transportation and
such developmental, corrective, and other
supportive services (such as physical and
occupational therapy) as are required to assist a
child with a disability to benefit from special
education. A child who does not qualify for special
education may qualify for related services under
section 504 of the Rehabilitation Act of 1973 to
ensure a free, appropriate public education. See
section IV.C., below.
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A. Comprehensive Evaluations in EI or
School Programs
We will consider the results of
comprehensive evaluations we receive.
Children receive comprehensive
evaluations when they are candidates
for EI or special education and related
services and periodically after that
when they receive these services. These
evaluations are usually conducted by a
team of qualified personnel 17 who can
assess a child in all areas of suspected
delay or educational need.
As part of a comprehensive
evaluation, the EI or school program
will use a variety of assessment
procedures and tools to identify a
child’s unique strengths and needs, as
well as all of the services appropriate to
address those needs. For younger
children, the primary focus of the
evaluation is their level of functioning
in terms of developmental milestones.
For school-age children, the primary
focus is their level of academic skills
and related developmental needs.
The evaluation generally includes:
• Observations of the child in a
learning environment or a natural
setting, such as in the home;
• Alternative and informal
assessments, such as play-based
assessment and review of completed
classroom assignments;
• Interviews with parents, teachers,
or other appropriate people, including
child behavior checklists; and
• Standardized tests, such as a formal
development test for a toddler or a
formal intelligence or language test for
an older child.
When we request information from EI
programs or schools, we will ask for the
most recent comprehensive evaluation
and test results, as well as other
evidence that supports the analysis of
the child’s development or academic
skills and related developmental needs.
Some children may have received a
comprehensive evaluation, but may not
be receiving EI or special education
services. Therefore, we will request this
information even if a child is not
receiving services.
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B. Individualized Family Service Plans
and Individualized Education Programs
The agency providing EI services or
special education and related services
will develop a written plan
documenting the child’s eligibility for
services, the therapeutic or educational
17 The evaluation team may include personnel
who are ‘‘acceptable medical sources’’ under our
rules. When the team includes such people, the
comprehensive evaluation may provide the primary
evidence we need to both establish and evaluate the
child’s impairment and resulting limitations.
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goals, the services the agency will
provide, and the setting(s) where the
agency will provide these services.
Infants and toddlers should have an
Individualized Family Service Plan
(IFSP). Preschool and school-age
children should have an Individualized
Education Program (IEP), including an
IEP transition plan for children
beginning at age 14.
Both IFSPs and IEPs are important
sources of specific information about a
child’s abilities and impairment-related
limitations, and provide valuable
information about the various kinds and
levels of support a child receives. For
example, an IEP will describe:
• Supplementary aids and services,
such as speech-language pathology
services, counseling, transportation, and
orientation and mobility services;
• Modifications to the academic
program made to accommodate the
child’s impairment(s), such as reading
instruction in a resource room;
• The role of a classroom aide
assigned to the child, such as assistance
in moving from one classroom to the
next; and
• The characteristics of the child’s
self-contained classroom, such as
teacher-student ratio.
This information about supports
children receive can be critical to
determining the extent to which their
impairments compromise their ability to
independently initiate, sustain, and
complete activities. In general, if a child
needs a person, a structured or
supportive setting, medication,
treatment, or a device to improve or
enable functioning, the child will not be
as independent as same-aged peers who
do not have impairments. We will
generally find that such a child has a
limitation, even if the child 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
independently the child functions, and
the more severe we will find the
limitation to be.18
1. Present Level of Development or
Educational Performance. The first part
of an IFSP or IEP describes and analyzes
the child’s present level of development
(for example, physical or cognitive
development) or academic skills based
on the comprehensive evaluation or
subsequent assessments and other
information that is available at the time
the IFSP or IEP is developed.19
18 See generally 20 CFR 416.924a(b). See also SSR
09–1p.
19 IFSPs and IEPs frequently reference underlying
psychological or developmental testing, and
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2. Goals and Objectives. The second
part of an IFSP or IEP consists of one or
more sets of goals and specific
objectives for the infant or toddler’s
development or the preschool or schoolage child’s education. The IFSP or IEP
includes goals for improvement within
3–6 months (for infants and toddlers) or
1 year for preschool and school-age
children. We can infer how the child is
currently functioning from these goals.
For example, if an IEP goal is ‘‘will be
able to read at a 4th grade level,’’ we can
reasonably conclude that the child was
not performing at that level when the
IEP was written.
Based on broad developmental or
educational goals, the written plan will
outline specific objectives organized
around the discrete physical or mental
skills that must be mastered in order to
achieve the goal. The plan also includes
the kinds of activities and tasks the
teacher or therapist will undertake with
the child to develop the targeted skills.
For example:
• An IFSP goal for a toddler from an
occupational therapist might be: ‘‘The
child will use fine/gross motor skills to
handle age-appropriate materials during
play,’’ while a specific objective (one of
many) would identify the skills to be
developed (for example, articulation of
the thumb and all fingers for grasping)
and the particular manipulative tasks to
be used to develop the needed skills (for
example, molding modeling clay into
balls).
• An IEP goal for an 11-year-old from
a special educator might be: ‘‘The child
will independently read simple stories
at the 4th grade level,’’ while a specific
objective (one of many) would identify
the skills to be developed (for example,
use of phonetic cues to identify initial,
medial, and ending sounds in new
words), and the particular instruction
methods to be used to develop the
needed skills (for example, small group
instruction with practice sounding out
unfamiliar words).
Children who reach age 14 begin the
transition from high school to the adult
workplace. The IEP transition plan
describes a student’s levels of
functioning based on reasonable
estimates by both the student and the
special education team and identifies
the kinds of vocational and living skills
the child needs to develop in order to
move into adulthood. The IEP transition
goals may range from the development
of skills appropriate to supervised and
supported work and living settings to
those needed in independent work and
living situations.
therefore, may indicate that there is other relevant
evidence available.
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Both the IFSP and IEP can provide
useful information about a child’s
functioning. However, the underlying
purpose of these documents is not to
determine disability under our rules.
Rather, the IFSP or IEP is used to design
the individualized services and
supports a child needs to maximize
growth and development or to
participate in and progress in the
general education curriculum. In
contrast, we use the information in the
IFSP or IEP to help determine if the
child has marked and severe functional
limitations.
It is important to remember, therefore,
that the goals in an IFSP or IEP are
frequently set at a level that the child
can readily achieve to foster a sense of
accomplishment. Those goals are
frequently lower than what would be
expected of a child the same age
without impairments. In this regard:
• A child who achieves a goal may
still have limitations. The child may
have achieved the goal simply because
it was set low, and may be developing
or acquiring skills at a slower rate than
children the same age without
impairments.
• On the other hand, the fact that the
child does not achieve a goal is likely
an indication of the severity of the
child’s impairment-related limitations.
However, the child’s failure to achieve
a goal does not, by itself, establish that
the impairment(s) functionally equals
the listings.
Therefore, we must consider the
purpose of the goals provided in an
IFSP or IEP. And, as with any single
piece of evidence, we will consider
facts, such as whether a child achieves
goals in an IFSP or IEP, along with other
relevant information in the case record.
3. Services, Settings, and Supports.
The third part of the IFSP or IEP
documents what services the child
needs, the settings in which the services
will be provided, and any supports the
child needs. The services needed may
include special education placement,
early intervention services, related
services (such as occupational therapy,
counseling, and transportation services),
and supplementary services (such as
peer tutoring and a one-on-one aide).
The settings for services may include
any setting that is typical for the child’s
same-aged peers and classroom
placement (described in a. below). The
supports a child needs may include
adaptive equipment (such as a special
seat), assistive technology (such as a
communication board), and
accommodations (described in b.
below).
The IFSP may have an additional
section for ‘‘other services,’’ which
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outlines services that the child may be
receiving from other sources. An EI
program should coordinate the services
a child needs with other State and
Federal programs. If the IFSP identifies
such services, we will request the
information from the other programs
unless we determine that the additional
information would not affect the
outcome of the case given the other
evidence already in the record.
a. Classroom Placements
When a child receives special
education services under an IEP, the IEP
will include information about the
setting where the child will receive the
services. There is a continuum of
alternative placements including, but
not limited to:
• Regular classrooms,
• Regular classrooms with ‘‘pull-out’’
services, such as a resource room,
• Special education classrooms,
• Alternative schools,
• Day treatment programs, and
• Residential schools.
The decision to provide services in a
particular setting may be based on
factors other than the severity of the
child’s limitations. Therefore, details
about the child’s performance in school
and other settings (for example, how
well the child is performing) are
important components of our analysis.
As we explain in more detail in SSR 09–
1p, we will consider the kinds and
levels of the support the child receives.
b. Accommodations
Some students with impairments
need accommodations in their
educational program in order to
participate in the general curriculum. In
this context, accommodations are
practices and procedures that allow a
child to complete the same assignment
or test as other students, but with a
change in:
• Presentation, or how instruction or
directions are delivered (for example,
read orally to the child by an adult, or
provided in large print, on audiotape, or
via a screen reader).
• Response, or how the student solves
problems or completes assignments (for
example, using an augmentative
communication device or dictating
answers to a scribe).
• Setting, or how the environment is
set up (for example, seating the child
near the teacher or seating the child
away from distractions).
• Timing/Scheduling, or the time
period during which the lesson or
assignment is scheduled (for example,
allowing extra time to complete an
assignment or scheduling tests around a
child’s medication regimen).
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C. Section 504 Plans
Section 504 of the Rehabilitation Act
of 1973 prohibits discrimination on the
basis of disability in programs and
activities that receive Federal financial
assistance.20 Schools must provide a
free, appropriate public education to
each student with a disability.21
Children must receive educational and
related aids and services that are
designed to meet their educational
needs, even if they are not provided any
special education services under the
Individuals with Disabilities Education
Act (IDEA).22 Schools will conduct an
evaluation of specific areas of
educational need for children who have
disabilities that limit their access to the
educational setting. If a child is
qualified under section 504, the school
will have a written plan for the aids,
services, and accommodations that will
be provided. We will consider any
section 504 plans when we request
information from a child’s school.
V. Standard of Comparison
Because we compare a child’s
functioning to the functioning of other
children the same age who do not have
impairments, we should understand the
standard of comparison used by sources
of the information. For example, a
special education teacher may say a
child is ‘‘doing well.’’ Without knowing
the standard of comparison, this could
mean:
• Compared to that teacher’s
expectations for the child,
• Compared to other children in the
special education class, or
• Compared to children the same age
who do not have impairments.
Therefore, the adjudicator will
consider both the standards used by the
teacher or other source to rate the
quality of the child’s functioning and
the characteristics of the group to whom
the child is being compared. 20 CFR
416.924a(b)(3)(ii).
VI. Resolving Inconsistencies in the
Evidence
Adjudicators should analyze and
evaluate relevant evidence for
consistency, and resolve any
20 Public Law 93–112, section 504; 29 U.S.C.
794(a), as amended.
21 See 34 CFR 104.33(a). ‘‘Appropriate’’ in this
context means the provision of regular or special
education and related aids and services that (i) are
designed to meet individual educational needs of
handicapped persons as adequately as the needs of
nonhandicapped persons are met and (ii) are based
upon adherence to procedures that satisfy the
requirements of the Department of Education’s
regulations. 34 CFR 104.33(b).
22 20 U.S.C. 1400, et seq.
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inconsistencies that need to be
resolved.23
After reviewing all of the relevant
evidence, we determine whether there is
sufficient evidence to make a finding
about disability. ‘‘All of the relevant
evidence’’ means:
• The relevant objective medical
evidence and other relevant evidence
from medical sources;
• Relevant information from other
sources, such as school teachers, family
members, or friends;
• The claimant’s statements
(including statements from the child’s
parent(s) or other caregivers); and
• Any other relevant evidence in the
case record, including how the child
functions over time and across settings.
If there is sufficient evidence and
there are no inconsistencies in the case
record, we will make a determination or
decision. However, the fact that there is
an inconsistency in the evidence does
not automatically mean that we need to
request additional evidence, or that we
cannot make a determination or
decision. Often, we will be able to
resolve the issue with the evidence in
the case record because most of the
evidence or the most probative evidence
outweighs the inconsistent evidence
and additional information would not
change the determination or decision.
Sometimes an inconsistency may not
be ‘‘material’’; that is, it may not have
any effect on the outcome of the case or
on any of the major findings. Obviously,
an inconsistency would be immaterial if
the decision would be fully favorable
regardless of the resolution. For
example, if one piece of evidence shows
the child’s birth weight as 950 grams
and another shows it as 1025 grams, the
inconsistency is not material because
we would find that the child’s
impairment(s) functionally equals the
listings under 20 CFR 416.926a(m)(6)
based on either birth weight. Similarly,
an inconsistency could also be
immaterial in an unfavorable
determination or decision when
resolution of the inconsistency would
not affect the outcome. This could
occur, for example, if there is
inconsistent evidence about a limitation
in an activity, but no evidence
supporting a rating of ‘‘marked’’
limitation of a relevant domain.
At other times, an apparent
inconsistency may not be a true
inconsistency. For example, the record
23 This basic policy is also contained in other
rules on evidence, including 20 CFR 416.912,
416.913, 416.924a(a), 416.927, and 416.929. For our
rules on how we consider test results, see also
section 112.00D of the listings for IQ and other tests
related to mental disorders, and 20 CFR
416.924a(a)(1)(ii) and 416.926a(b)(4) for all testing.
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for a child with attention-deficit/
hyperactivity disorder (AD/HD) may
include good, longitudinal evidence of
hyperactivity at home and in the
classroom, but show a lack of
hyperactivity during a CE. While this
may appear to be an inconsistency, it is
a well-known clinical phenomenon that
children with some impairments (for
example, AD/HD) may be calmer, less
inattentive, or less out-of-control in a
novel or one-to-one setting, such as a
CE. See 20 CFR 416.924a(b)(6).24
In some cases, the longitudinal
history may reveal sudden, negative
changes in the child’s functioning; for
example, a child who previously did
well in school suddenly begins to fail.
In these situations, we should try to
ascertain the reason for these changes
whenever they are material to the
decision.
In all other cases in which the
evidence is insufficient, including when
a material inconsistency exists that we
cannot resolve based on an evaluation of
all of the relevant evidence in the case
record, we will try to complete the
record by requesting additional or
clarifying information.25
Effective Date: This SSR is effective
on March 20, 2009.
Cross-References: SSR 09–1p, Title
XVI: Determining Childhood Disability
Under the Functional Equivalence
Rule—The ‘‘Whole Child’’ Approach;
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
(SSR).
24 This example highlights the importance of
getting a full picture of the ‘‘whole child’’ and of
our longstanding policy that we must consider each
piece of evidence in the context of the remainder
of the case record. Accepting the observation of the
child’s behavior or performance in an unusual
setting, like a CE, without considering the rest of
the evidence could lead to an erroneous conclusion
about the child’s overall functioning.
25 With respect to testing, we provide in 20 CFR
416.926a(b)(4)(iii) that we will try to resolve
material inconsistencies between test scores and
other information in the case record. We explain
that, while it is our responsibility to resolve any
material inconsistencies, the interpretation of a test
is ‘‘primarily the responsibility of the psychologist
or other professional who administered the test.’’ If
necessary, we may recontact the professional who
administered the test for further clarification.
However, we may also resolve an inconsistency
with other information in the case record, by
questioning other people who can provide us with
information about a child’s day-to-day functioning,
or by purchasing a consultative examination. This
regulation also provides that when we do not
believe that a test score accurately indicates a
child’s abilities, we will document our reasons for
not accepting the score in the case record, or in the
decision at the administrative law judge hearing
and Appeals Council levels (when the Appeals
Council makes a decision).
SUMMARY: We are giving notice of SSR
09–4p. This SSR consolidates
information from our regulations,
training materials, and question-andanswer documents about the functional
equivalence domain of ‘‘Attending and
completing tasks.’’ It also explains our
policy about that domain.
DATES: Effective Date: March 20, 2009.
FOR FURTHER INFORMATION CONTACT:
Janet Truhe, Office of Disability
Programs, Social Security
Administration, 6401 Security
Boulevard, Baltimore, MD 21235–6401,
(410) 965–1020.
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
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Tasks’’; SSR 09–5p, Title XVI:
Determining Childhood Disability—The
Functional Equivalence Domain of
‘‘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 06–03p,
Titles II and XVI: Considering Opinions
and Other Evidence from Sources Who
Are Not ‘‘Acceptable Medical Sources’’
in Disability Claims; Considering
Decisions on Disability by Other
Governmental and Nongovernmental
Agencies; and Program Operations
Manual System (POMS) DI 24515.055,
DI 25225.030, DI 25225.035, DI
25225.040, DI 25225.045, DI 25225.050,
and DI 25225.055.
[FR Doc. E9–3378 Filed 2–17–09; 8:45 am]
BILLING CODE 4191–02–P
SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA–2008–0062, Social
Security Ruling, SSR 09–4p.]
Title XVI: Determining Childhood
Disability—The Functional Equivalence
Domain of ‘‘Attending and Completing
Tasks’’
Social Security Administration.
Notice of Social Security Ruling
AGENCY:
ACTION:
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[Federal Register Volume 74, Number 31 (Wednesday, February 18, 2009)]
[Notices]
[Pages 7625-7630]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-3378]
=======================================================================
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SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA-2008-0062]
Social Security Ruling, SSR 09-2p.; Title XVI: Determining
Childhood Disability--Documenting a Child's Impairment-Related
Limitations
AGENCY: Social Security Administration.
ACTION: Notice of Social Security Ruling (SSR).
-----------------------------------------------------------------------
SUMMARY: We are giving notice of SSR 09-2p. This SSR provides policy
interpretations and consolidates information from our regulations,
training materials, and question-and-answer documents about documenting
and evaluating evidence of a child's impairment-related limitations and
related issues.
DATES: Effective Date: March 20, 2009
FOR FURTHER INFORMATION CONTACT: Robin Doyle, Office of Disability
Programs, Social Security Administration, 6401 Security Boulevard,
Baltimore, MD 21235-6401, (410) 966-2771.
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. 20 CFR 402.35(b)(1).
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.)
[[Page 7626]]
Dated: February 9, 2009.
Michael J. Astrue,
Commissioner of Social Security.
Policy Interpretation Ruling
Title XVI: Determining Childhood Disability--Documenting a Child's
Impairment-Related Limitations
Purpose: This SSR provides policy interpretations and consolidates
information from our regulations, training materials, and question-and-
answer documents about documenting and evaluating evidence of a child's
impairment-related limitations and related issues.
Citations (Authority): Sections 1614(a)(3) and 1614(a)(4) 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, 416.912, 416.913, 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 Impairments (the listings),\5\ or functionally equal the
listings (also referred to as ``functional equivalence''). 20 CFR
416.924 and 416.926a.
As we explain in greater detail in SSR 09-1p, we always evaluate
the ``whole child'' when we make a finding regarding functional
equivalence, unless we can otherwise make a fully favorable
determination or decision.\6\ We focus first on the child's activities,
and evaluate how appropriately, effectively, and independently the
child functions compared to children of the same age who do not have
impairments. 20 CFR 416.926a(b) and (c). We consider what activities
the child cannot do, has difficulty doing, needs help doing, or is
restricted from doing because of the impairment(s). 20 CFR 416.926a(a).
Activities are everything a child does at home, at school, and in the
community, 24 hours a day, 7 days a week.\7\
We next evaluate the effects of a child's impairment(s) by rating
the degree to which the impairment(s) limits functioning in six
``domains.'' 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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\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 1614(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.
\6\ See SSR 09-1p, Title XVI: Determining Childhood Disability
Under the Functional Equivalence Rule--The ``Whole Child'' Approach.
\7\ However, some children have chronic physical or mental
impairments that are characterized by episodes of exacerbation
(worsening) and remission (improvement); therefore, their level of
functioning may vary considerably over time. To properly evaluate
the severity of a child's limitations in functioning, as described
in the following paragraphs, we must consider any variations in the
child's level of functioning to determine the impact of the chronic
illness on the child's ability to function longitudinally; that is,
over time. For more information about how we evaluate the severity
of a child's limitations, see SSR 09-1p.
---------------------------------------------------------------------------
(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).\8\
\8\ 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.''
---------------------------------------------------------------------------
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.\9\ 20 CFR 416.926a(a).
---------------------------------------------------------------------------
\9\ See 20 CFR 416.926a(e) for definitions of the terms
``marked'' and ``extreme.''
---------------------------------------------------------------------------
This SSR explains the evidence we need to document a child's
impairment-related limitations, the sources of evidence we commonly see
in childhood disability cases, how we consider the evidence we receive
from early intervention and school programs (including special
education), how we address inconsistencies in the evidence, and other
issues related to the development of evidence about functioning.\10\
---------------------------------------------------------------------------
\10\ For more information about the domains, see the cross-
references at the end of this SSR.
---------------------------------------------------------------------------
Policy Interpretation
I. General
We use evidence of a child's functioning to determine whether the
child's medically determinable impairment(s):
Is ``severe''--that is, causes more than minimal
functional limitations (20 CFR 416.924(c));
Meets or medically equals a listed impairment when the
listing criteria include functioning (20 CFR 416.924a(b)(1)); and
Functionally equals the listings (20 CFR 416.926a).
When we consider functioning in children, we evaluate how the
impairment(s) affects the ability to function age-appropriately. A
child functions age-appropriately when initiating, sustaining, and
completing age-appropriate activities. ``Functioning'' includes
everything a child does throughout a day at home, at school, and in the
community. Examples include, getting dressed for school, cooperating
with caregivers, playing with friends, and doing class assignments.
As we explain in Section III below, evidence of a child's
functioning can come from a wide variety of sources. We will consider
all of the relevant evidence we receive about a child's functioning to
help us understand how the impairment(s) affects the child's day-to-day
activities.
II. What Evidence Do We Need About a Child's Impairment-Related
Limitations?
We need evidence that is sufficient to evaluate a child's
limitations on a longitudinal basis; that is, over time. This evidence
will help us answer the following questions about whether the child's
impairment(s) affects day-to-day functioning and whether the child's
activities are typical of other children of the same age who do not
have impairments. Accordingly, we need evidence to help us determine
the following:
What activities is the child able to perform?
What activities is the child not able to perform?
[[Page 7627]]
Which of the child's activities are limited or restricted
compared to other children of the same age who do not have impairments?
Where does the child have difficulty with activities--at
home, in childcare, at school, or in the community?
Does the child have difficulty independently initiating,
sustaining, or completing activities?
What kind and how much help does the child need to do
activities, and how often does the child need it?
Does the child need a structured or supportive setting,
what type of structure or support does the child need, and how often
does the child need it?
We do not require our adjudicators to provide formal answers to
these specific questions in the determination or decision. However, the
evidence should create a clear picture of the child's functioning in
the context of the six functional equivalence domains so that we can
determine the severity of limitation in each domain. The critical
element in evaluating the severity of a child's limitations is how
appropriately, effectively, and independently the child performs age-
appropriate activities.
Also, a child who is having significant but unexplained problems
may have an impairment(s) that has not yet been diagnosed, or may have
a diagnosed impairment(s) for which we lack evidence. For example,
children who are many grades behind in school often have a medically
determinable impairment(s). In many cases, the school will have
evaluated the child, and the school records will provide information
about whether there is a medically determinable impairment(s).\11\ It
may be necessary to further develop information from the child's
medical source(s) or purchase a consultative examination (CE).
Adjudicators should pursue indications that an impairment(s) may be
present if that fact may be material to the determination or decision.
---------------------------------------------------------------------------
\11\ This will be especially true in cases in which the child is
behind in school because of mental retardation, borderline
intellectual functioning, or a learning disability, which can be
established by evidence from a school psychologist, or because of a
language disorder, which can be established by a qualified speech-
language pathologist. See 20 CFR 416.913(a). However, school records
may include evidence from other kinds of acceptable medical sources
establishing the existence of a medically determinable impairment.
---------------------------------------------------------------------------
III. Sources of Evidence About a Child's Impairment-Related Limitations
Once we have evidence from an acceptable medical source \12\ that
establishes the existence of at least one medically determinable
impairment, we consider all relevant evidence in the case record to
determine whether a child is disabled. This evidence may come from
acceptable medical sources and from a wide variety of ``other
sources.'' \13\
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\12\ The term ``acceptable medical source'' is defined in 20 CFR
416.902 as ``one of the sources described in 416.913(a) who provides
evidence about your impairments.''
\13\ We explain what the term ``other sources'' means in 20 CFR
416.913(d). For more information about how we consider opinion
evidence from ``other sources,'' including opinions about functional
limitations, see SSR 06-03p, Titles II and XVI: Considering Opinions
and Other Evidence from Sources Who Are Not ``Acceptable Medical
Sources'' in Disability Claims; Considering Decisions on Disability
by Other Governmental and Nongovernmental Agencies, 71 FR 45593
(2006), available at: https://www.socialsecurity.gov/OP_Home/
rulings/di/01/SSR2006-03-di-01.html. For information about how we
consider opinion evidence from acceptable medical sources, see
generally 20 CFR 416.927.
---------------------------------------------------------------------------
Medical Sources: Acceptable medical sources can provide information
about how an impairment(s) affects a child's everyday activities. For
example, a pediatrician might discuss the impact of asthma on a child's
participation in physical activities, or a speech-language pathologist
might discuss how a language disorder contributes to limited attention
and problems in school.
We cannot use evidence from other medical sources who are not
``acceptable medical sources'' to establish that a child has a
medically determinable impairment. However, we can use evidence from
these sources, such as nurse-practitioners, physicians' assistants,
naturopaths, chiropractors, audiologists, occupational therapists
(OTs), physical therapists (PTs), and psychiatric social workers
(PSWs), to determine the severity of the impairment(s) and how it
affects the child's ability to function compared to children of the
same age who do not have impairments. For example:
A PSW might comment on the child's ability to handle
stressful situations.
An OT or PT may evaluate the impact of a musculoskeletal
disorder on the child's activities and comment on muscle tone and
strength and how it affects the child's ability to walk with a brace.
An OT might comment on the child's ability to use motor
skills to get dressed without assistance.
Non-Medical Sources: Evidence from other sources who are not
medical sources and who know and have contact with the child can also
be very important to our understanding of the severity of a child's
impairment(s) and how it affects day-to-day functioning. These sources
include parents and caregivers, educational personnel (for example,
teachers, early intervention team members, counselors, developmental
center workers, and daycare center workers), public and private social
welfare agency personnel, and others (for example, siblings, friends,
neighbors, and clergy). Therefore, we will consider evidence from such
non-medical sources when we determine the severity of the child's
impairment(s) and how the child typically functions compared to
children of the same age who do not have impairments.
IV. Early Intervention and School Programs \14\
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\14\ School programs also include preschool programs, such as
Early Head Start (for children birth to age 3) and Head Start (ages
3 through 5).
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In most cases, early intervention (EI) and school programs are
significant sources of evidence about a child's impairment-related
limitations. Children from birth to the attainment of age 3 may receive
EI services if they are experiencing delays in one or more
developmental areas or if they have a diagnosed physical or mental
condition that is likely to result in such delays.\15\ Children from
ages 3 through 5 may attend preschool or other daycare programs.
Children age 6 and older usually attend school and may receive special
education and related services\16\ if they require specially designed
instruction because of their unique needs related to a physical or
mental impairment(s).
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\15\ EI services may include occupational therapy, physical
therapy, speech therapy, psychological services, audiology, health
services, nutrition services, nursing services, and assistive
technology devices. The developmental areas are: Cognitive
development; physical development, including vision and hearing;
communication development; social or emotional development; and
adaptive development.
\16\ ``Related services'' includes transportation and such
developmental, corrective, and other supportive services (such as
physical and occupational therapy) as are required to assist a child
with a disability to benefit from special education. A child who
does not qualify for special education may qualify for related
services under section 504 of the Rehabilitation Act of 1973 to
ensure a free, appropriate public education. See section IV.C.,
below.
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We require adjudicators to try to get EI and school records
whenever they are needed to make a determination or decision regarding
a child's disability. We do not require information from EI or school
personnel in every case because sometimes we can decide that a child is
disabled without it, such as when the child's impairment(s) meets the
requirements of a listing. We may also have to make a determination or
decision without EI or school evidence when we are unable to obtain it.
[[Page 7628]]
A. Comprehensive Evaluations in EI or School Programs
We will consider the results of comprehensive evaluations we
receive. Children receive comprehensive evaluations when they are
candidates for EI or special education and related services and
periodically after that when they receive these services. These
evaluations are usually conducted by a team of qualified personnel \17\
who can assess a child in all areas of suspected delay or educational
need.
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\17\ The evaluation team may include personnel who are
``acceptable medical sources'' under our rules. When the team
includes such people, the comprehensive evaluation may provide the
primary evidence we need to both establish and evaluate the child's
impairment and resulting limitations.
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As part of a comprehensive evaluation, the EI or school program
will use a variety of assessment procedures and tools to identify a
child's unique strengths and needs, as well as all of the services
appropriate to address those needs. For younger children, the primary
focus of the evaluation is their level of functioning in terms of
developmental milestones. For school-age children, the primary focus is
their level of academic skills and related developmental needs.
The evaluation generally includes:
Observations of the child in a learning environment or a
natural setting, such as in the home;
Alternative and informal assessments, such as play-based
assessment and review of completed classroom assignments;
Interviews with parents, teachers, or other appropriate
people, including child behavior checklists; and
Standardized tests, such as a formal development test for
a toddler or a formal intelligence or language test for an older child.
When we request information from EI programs or schools, we will
ask for the most recent comprehensive evaluation and test results, as
well as other evidence that supports the analysis of the child's
development or academic skills and related developmental needs. Some
children may have received a comprehensive evaluation, but may not be
receiving EI or special education services. Therefore, we will request
this information even if a child is not receiving services.
B. Individualized Family Service Plans and Individualized Education
Programs
The agency providing EI services or special education and related
services will develop a written plan documenting the child's
eligibility for services, the therapeutic or educational goals, the
services the agency will provide, and the setting(s) where the agency
will provide these services. Infants and toddlers should have an
Individualized Family Service Plan (IFSP). Preschool and school-age
children should have an Individualized Education Program (IEP),
including an IEP transition plan for children beginning at age 14.
Both IFSPs and IEPs are important sources of specific information
about a child's abilities and impairment-related limitations, and
provide valuable information about the various kinds and levels of
support a child receives. For example, an IEP will describe:
Supplementary aids and services, such as speech-language
pathology services, counseling, transportation, and orientation and
mobility services;
Modifications to the academic program made to accommodate
the child's impairment(s), such as reading instruction in a resource
room;
The role of a classroom aide assigned to the child, such
as assistance in moving from one classroom to the next; and
The characteristics of the child's self-contained
classroom, such as teacher-student ratio.
This information about supports children receive can be critical to
determining the extent to which their impairments compromise their
ability to independently initiate, sustain, and complete activities. In
general, if a child needs a person, a structured or supportive setting,
medication, treatment, or a device to improve or enable functioning,
the child will not be as independent as same-aged peers who do not have
impairments. We will generally find that such a child has a limitation,
even if the child 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 independently the child functions, and the more severe we will
find the limitation to be.\18\
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\18\ See generally 20 CFR 416.924a(b). See also SSR 09-1p.
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1. Present Level of Development or Educational Performance. The
first part of an IFSP or IEP describes and analyzes the child's present
level of development (for example, physical or cognitive development)
or academic skills based on the comprehensive evaluation or subsequent
assessments and other information that is available at the time the
IFSP or IEP is developed.\19\
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\19\ IFSPs and IEPs frequently reference underlying
psychological or developmental testing, and therefore, may indicate
that there is other relevant evidence available.
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2. Goals and Objectives. The second part of an IFSP or IEP consists
of one or more sets of goals and specific objectives for the infant or
toddler's development or the preschool or school-age child's education.
The IFSP or IEP includes goals for improvement within 3-6 months (for
infants and toddlers) or 1 year for preschool and school-age children.
We can infer how the child is currently functioning from these goals.
For example, if an IEP goal is ``will be able to read at a 4th grade
level,'' we can reasonably conclude that the child was not performing
at that level when the IEP was written.
Based on broad developmental or educational goals, the written plan
will outline specific objectives organized around the discrete physical
or mental skills that must be mastered in order to achieve the goal.
The plan also includes the kinds of activities and tasks the teacher or
therapist will undertake with the child to develop the targeted skills.
For example:
An IFSP goal for a toddler from an occupational therapist
might be: ``The child will use fine/gross motor skills to handle age-
appropriate materials during play,'' while a specific objective (one of
many) would identify the skills to be developed (for example,
articulation of the thumb and all fingers for grasping) and the
particular manipulative tasks to be used to develop the needed skills
(for example, molding modeling clay into balls).
An IEP goal for an 11-year-old from a special educator
might be: ``The child will independently read simple stories at the 4th
grade level,'' while a specific objective (one of many) would identify
the skills to be developed (for example, use of phonetic cues to
identify initial, medial, and ending sounds in new words), and the
particular instruction methods to be used to develop the needed skills
(for example, small group instruction with practice sounding out
unfamiliar words).
Children who reach age 14 begin the transition from high school to
the adult workplace. The IEP transition plan describes a student's
levels of functioning based on reasonable estimates by both the student
and the special education team and identifies the kinds of vocational
and living skills the child needs to develop in order to move into
adulthood. The IEP transition goals may range from the development of
skills appropriate to supervised and supported work and living settings
to those needed in independent work and living situations.
[[Page 7629]]
Both the IFSP and IEP can provide useful information about a
child's functioning. However, the underlying purpose of these documents
is not to determine disability under our rules. Rather, the IFSP or IEP
is used to design the individualized services and supports a child
needs to maximize growth and development or to participate in and
progress in the general education curriculum. In contrast, we use the
information in the IFSP or IEP to help determine if the child has
marked and severe functional limitations.
It is important to remember, therefore, that the goals in an IFSP
or IEP are frequently set at a level that the child can readily achieve
to foster a sense of accomplishment. Those goals are frequently lower
than what would be expected of a child the same age without
impairments. In this regard:
A child who achieves a goal may still have limitations.
The child may have achieved the goal simply because it was set low, and
may be developing or acquiring skills at a slower rate than children
the same age without impairments.
On the other hand, the fact that the child does not
achieve a goal is likely an indication of the severity of the child's
impairment-related limitations. However, the child's failure to achieve
a goal does not, by itself, establish that the impairment(s)
functionally equals the listings.
Therefore, we must consider the purpose of the goals provided in an
IFSP or IEP. And, as with any single piece of evidence, we will
consider facts, such as whether a child achieves goals in an IFSP or
IEP, along with other relevant information in the case record.
3. Services, Settings, and Supports. The third part of the IFSP or
IEP documents what services the child needs, the settings in which the
services will be provided, and any supports the child needs. The
services needed may include special education placement, early
intervention services, related services (such as occupational therapy,
counseling, and transportation services), and supplementary services
(such as peer tutoring and a one-on-one aide). The settings for
services may include any setting that is typical for the child's same-
aged peers and classroom placement (described in a. below). The
supports a child needs may include adaptive equipment (such as a
special seat), assistive technology (such as a communication board),
and accommodations (described in b. below).
The IFSP may have an additional section for ``other services,''
which outlines services that the child may be receiving from other
sources. An EI program should coordinate the services a child needs
with other State and Federal programs. If the IFSP identifies such
services, we will request the information from the other programs
unless we determine that the additional information would not affect
the outcome of the case given the other evidence already in the record.
a. Classroom Placements
When a child receives special education services under an IEP, the
IEP will include information about the setting where the child will
receive the services. There is a continuum of alternative placements
including, but not limited to:
Regular classrooms,
Regular classrooms with ``pull-out'' services, such as a
resource room,
Special education classrooms,
Alternative schools,
Day treatment programs, and
Residential schools.
The decision to provide services in a particular setting may be
based on factors other than the severity of the child's limitations.
Therefore, details about the child's performance in school and other
settings (for example, how well the child is performing) are important
components of our analysis. As we explain in more detail in SSR 09-1p,
we will consider the kinds and levels of the support the child
receives.
b. Accommodations
Some students with impairments need accommodations in their
educational program in order to participate in the general curriculum.
In this context, accommodations are practices and procedures that allow
a child to complete the same assignment or test as other students, but
with a change in:
Presentation, or how instruction or directions are
delivered (for example, read orally to the child by an adult, or
provided in large print, on audiotape, or via a screen reader).
Response, or how the student solves problems or completes
assignments (for example, using an augmentative communication device or
dictating answers to a scribe).
Setting, or how the environment is set up (for example,
seating the child near the teacher or seating the child away from
distractions).
Timing/Scheduling, or the time period during which the
lesson or assignment is scheduled (for example, allowing extra time to
complete an assignment or scheduling tests around a child's medication
regimen).
C. Section 504 Plans
Section 504 of the Rehabilitation Act of 1973 prohibits
discrimination on the basis of disability in programs and activities
that receive Federal financial assistance.\20\ Schools must provide a
free, appropriate public education to each student with a
disability.\21\ Children must receive educational and related aids and
services that are designed to meet their educational needs, even if
they are not provided any special education services under the
Individuals with Disabilities Education Act (IDEA).\22\ Schools will
conduct an evaluation of specific areas of educational need for
children who have disabilities that limit their access to the
educational setting. If a child is qualified under section 504, the
school will have a written plan for the aids, services, and
accommodations that will be provided. We will consider any section 504
plans when we request information from a child's school.
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\20\ Public Law 93-112, section 504; 29 U.S.C. 794(a), as
amended.
\21\ See 34 CFR 104.33(a). ``Appropriate'' in this context means
the provision of regular or special education and related aids and
services that (i) are designed to meet individual educational needs
of handicapped persons as adequately as the needs of nonhandicapped
persons are met and (ii) are based upon adherence to procedures that
satisfy the requirements of the Department of Education's
regulations. 34 CFR 104.33(b).
\22\ 20 U.S.C. 1400, et seq.
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V. Standard of Comparison
Because we compare a child's functioning to the functioning of
other children the same age who do not have impairments, we should
understand the standard of comparison used by sources of the
information. For example, a special education teacher may say a child
is ``doing well.'' Without knowing the standard of comparison, this
could mean:
Compared to that teacher's expectations for the child,
Compared to other children in the special education class,
or
Compared to children the same age who do not have
impairments.
Therefore, the adjudicator will consider both the standards used by
the teacher or other source to rate the quality of the child's
functioning and the characteristics of the group to whom the child is
being compared. 20 CFR 416.924a(b)(3)(ii).
VI. Resolving Inconsistencies in the Evidence
Adjudicators should analyze and evaluate relevant evidence for
consistency, and resolve any
[[Page 7630]]
inconsistencies that need to be resolved.\23\
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\23\ This basic policy is also contained in other rules on
evidence, including 20 CFR 416.912, 416.913, 416.924a(a), 416.927,
and 416.929. For our rules on how we consider test results, see also
section 112.00D of the listings for IQ and other tests related to
mental disorders, and 20 CFR 416.924a(a)(1)(ii) and 416.926a(b)(4)
for all testing.
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After reviewing all of the relevant evidence, we determine whether
there is sufficient evidence to make a finding about disability. ``All
of the relevant evidence'' means:
The relevant objective medical evidence and other relevant
evidence from medical sources;
Relevant information from other sources, such as school
teachers, family members, or friends;
The claimant's statements (including statements from the
child's parent(s) or other caregivers); and
Any other relevant evidence in the case record, including
how the child functions over time and across settings.
If there is sufficient evidence and there are no inconsistencies in
the case record, we will make a determination or decision. However, the
fact that there is an inconsistency in the evidence does not
automatically mean that we need to request additional evidence, or that
we cannot make a determination or decision. Often, we will be able to
resolve the issue with the evidence in the case record because most of
the evidence or the most probative evidence outweighs the inconsistent
evidence and additional information would not change the determination
or decision.
Sometimes an inconsistency may not be ``material''; that is, it may
not have any effect on the outcome of the case or on any of the major
findings. Obviously, an inconsistency would be immaterial if the
decision would be fully favorable regardless of the resolution. For
example, if one piece of evidence shows the child's birth weight as 950
grams and another shows it as 1025 grams, the inconsistency is not
material because we would find that the child's impairment(s)
functionally equals the listings under 20 CFR 416.926a(m)(6) based on
either birth weight. Similarly, an inconsistency could also be
immaterial in an unfavorable determination or decision when resolution
of the inconsistency would not affect the outcome. This could occur,
for example, if there is inconsistent evidence about a limitation in an
activity, but no evidence supporting a rating of ``marked'' limitation
of a relevant domain.
At other times, an apparent inconsistency may not be a true
inconsistency. For example, the record for a child with attention-
deficit/hyperactivity disorder (AD/HD) may include good, longitudinal
evidence of hyperactivity at home and in the classroom, but show a lack
of hyperactivity during a CE. While this may appear to be an
inconsistency, it is a well-known clinical phenomenon that children
with some impairments (for example, AD/HD) may be calmer, less
inattentive, or less out-of-control in a novel or one-to-one setting,
such as a CE. See 20 CFR 416.924a(b)(6).\24\
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\24\ This example highlights the importance of getting a full
picture of the ``whole child'' and of our longstanding policy that
we must consider each piece of evidence in the context of the
remainder of the case record. Accepting the observation of the
child's behavior or performance in an unusual setting, like a CE,
without considering the rest of the evidence could lead to an
erroneous conclusion about the child's overall functioning.
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In some cases, the longitudinal history may reveal sudden, negative
changes in the child's functioning; for example, a child who previously
did well in school suddenly begins to fail. In these situations, we
should try to ascertain the reason for these changes whenever they are
material to the decision.
In all other cases in which the evidence is insufficient, including
when a material inconsistency exists that we cannot resolve based on an
evaluation of all of the relevant evidence in the case record, we will
try to complete the record by requesting additional or clarifying
information.\25\
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\25\ With respect to testing, we provide in 20 CFR
416.926a(b)(4)(iii) that we will try to resolve material
inconsistencies between test scores and other information in the
case record. We explain that, while it is our responsibility to
resolve any material inconsistencies, the interpretation of a test
is ``primarily the responsibility of the psychologist or other
professional who administered the test.'' If necessary, we may
recontact the professional who administered the test for further
clarification. However, we may also resolve an inconsistency with
other information in the case record, by questioning other people
who can provide us with information about a child's day-to-day
functioning, or by purchasing a consultative examination. This
regulation also provides that when we do not believe that a test
score accurately indicates a child's abilities, we will document our
reasons for not accepting the score in the case record, or in the
decision at the administrative law judge hearing and Appeals Council
levels (when the Appeals Council makes a decision).
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Effective Date: This SSR is effective on March 20, 2009.
Cross-References: SSR 09-1p, Title XVI: Determining Childhood
Disability Under the Functional Equivalence Rule--The ``Whole Child''
Approach; 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--The Functional Equivalence
Domain of ``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 06-03p, Titles II and XVI: Considering
Opinions and Other Evidence from Sources Who Are Not ``Acceptable
Medical Sources'' in Disability Claims; Considering Decisions on
Disability by Other Governmental and Nongovernmental Agencies; and
Program Operations Manual System (POMS) DI 24515.055, DI 25225.030, DI
25225.035, DI 25225.040, DI 25225.045, DI 25225.050, and DI 25225.055.
[FR Doc. E9-3378 Filed 2-17-09; 8:45 am]
BILLING CODE 4191-02-P
