There are some major changes to how Social Security evaluates musculoskeletal disorders. Social Security recently released a complete overhaul of the requirements of both the adult and child listings for “Musculoskeletal Disorders.” The new musculoskeletal listings are scheduled to be binding on all disability cases that are pending on or after April 2, 2021. This is a big deal because out of the 100 or so different listings, the musculoskeletal listings are among the most frequently used in disability cases.
Remind me, what are the Listings?
The Listings are the third step of both the adult and childhood disability evaluation. For adults, Social Security uses a five-step process to determine whether an adult meets the requirements for disability. For children, Social Security uses a three-step process to determine whether a child is disabled.
At Step One, Social Security looks into whether a person is “performing substantial gainful activity,” which roughly means asking whether the person is earning too much money to receive disability. At Step Two, if a person is not earning too much, Social Security looks into whether a person has a severe medically determinable impairment(s) that impacts their functioning for at least 12 consecutive months. At Step Three, if an adult is not working too much and is suffering from a severe impairment, then Social Security will look to see whether a person’s impairment(s) meet or in combination equal the requirements of one of the listings. If an adult is found to meet or medically equal a listing, then the person is disabled and Social Security will award their case without continuing on to Steps Four and Five of the Five-Step Sequential Analysis. You can read more about the Five Step Sequential Evaluation Process and learn more about Past Relevant Work.
For children, at Step Three, Social Security will look at whether a child’s impairment(s) meet, medically equal, or functionally equal a listing. A child needs to meet, medically equal, or functionally equal a listing to be found disabled because there are no Steps Four or Five in a child’s case.
A win under a listing at Step Three is the most direct and unambiguous way to win an adult’s disability case, and the only way to win a child’s disability case. As such, a lawyer must know every requirement of every relevant listing in their client’s case to provide a disability applicant with the excellent representation they deserve.
What conditions do the musculoskeletal listings cover?
The new listings 1.00 (adults) and 101.00 (children) cover disorders of the skeletal spine. The skeletal spine refers to the bony structures, ligaments, and discs making up the spine. Examples of such disorders include curvature of the spine; degenerative disc disease (including disc herniation and facet arthritis); and spinal stenosis.
The listings cover disorders of the arms and legs that affect musculoskeletal functioning such as abnormality of a major joint due to arthritis in any extremity; reconstructive surgery or surgical arthrodesis of a major weight-bearing joint; amputation due to any cause, non-healing or complex fractures of the femur, tibia, or pelvis; non-healing or complex fracture in an arm including the shaft of the humerus, radius, or ulna; and pathologic fractures due to any cause. The listings also covers soft tissue injuries (including burns) that require ongoing surgical management to restore function to the affected area.
What is different about the new musculoskeletal listings?
Everything. The current requirements for being found disabled under the musculoskeletal listings look nothing like the new requirements that are on the horizon. We will highlight the most significant change in this blog, but here you can find comprehensive detail of all the revised medical criteria for evaluating musculoskeletal disorders.
The biggest change to the listings is the addition of clearly defined “functional criteria” that a person needs to show to meet a listing. The old listings required disability applicants to show that their musculoskeletal condition resulted in an “inability to ambulate effectively” if the condition affected their ability to walk or that the condition resulted in an “inability to perform fine and gross movements effectively” if the condition affected their ability to use their hands. The new listings place a heavier reliance on whether an individual uses medically necessary assistive devices throughout their day. For example, many of the new listing’s subsections contain the following “functional criteria” requirement:
- Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months, and medical documentation of at least one of the following:
- A documented medical need for a walker, bilateral canes, or bilateral crutches or a wheeled and seated mobility device involving the use of both hands; or
- An inability to use one upper extremity to independently initiate, sustain, and complete work-related activities involving fine and gross movements, and a documented medical need for a one-handed, hand-held assistive device that requires the use of the other upper extremity or a wheeled and seated mobility device involving the use of one hand; or
- An inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete work-related activities involving fine and gross movements.
The new listing also defines “documented medical need” as evidence from a medical source that supports your need for a device, and describes any limitation in your upper or lower extremity functioning and the circumstances for which you need to use the assistive device. Such a detailed accounting is unlikely to be found in a doctor’s treatment notes during the normal course of an appointment. People applying for disability will require the assistance of an experienced disability lawyer to get narrative statements from their doctors that explain the circumstances for which they need to use their assistive device.
The importance of lawyers updating the medical source statements they send to medical professionals
Lawyers must update the medical source statements that they send to medical professionals to ensure their clients’ doctors are shedding light on whether a person’s condition meets (or equals) the requirements of the new listings. These new listings tighten up a lot of previously vague language and create new evidentiary hurdles that a disability applicant needs to meet to win their case under the musculoskeletal listings. These hurdles are another example of why it is in everyone’s best interest to work with an experienced lawyer who is up to date on Social Security’s ever-changing rules and regulations. Exceptional lawyers will embrace these changes and adjust their strategy for winning their clients’ cases. Meanwhile, people who are either unrepresented or are represented by a lawyer who only dabbles in disability law are in for a rough ride.
If you have questions about the new criteria for evaluating musculoskeletal disorders, leave a comment or contact us at 866-49-BALIN.