Suzanne Villalon-Hinojosasvhatty@heardandsmith.comhttp://www.linkedin.com/pub/suzanne-villalon-hinojosa/9/199/786

NOSSCR October 2009San Francisco, CA

A middle-aged man, whose hair had begun to turn gray, courted two women at the same time. One of them was young, and the other well advanced in years. The elder woman, ashamed to be courted by a man younger than herself, made a point, whenever her admirer visited her, to pull out some portion of his black hairs. The younger, on the contrary, not wishing to become the wife of an old man, was equally zealous in removing every gray hair she could find. Thus it came to pass that between them both he very soon found that he had not a hair left on his head.

Those who seek to please everybody please nobody.

Aesop’s Fables

Step 3 of the 5 step sequential evaluation process

If the claimant meets or equals a listing, they are “per se” disabled

Analysis ends, claim is won.

• Listed impairments are:• permanent or expected

to result in death;• either state a specific

time period to meet or must have lasted or can be expected to last for a continuous period of at least 12 months;

• Impairment(s) cannot meet the criteria of a listing based only on a diagnosis. • To meet, you must

have an impairment(s) that satisfies all of the criteria in the listing. 20 CFR § 404.1525

The listings describe for each of the major body systems impairments that are severe enough to prevent an individual from doing any gainful activity.

The basis for the listings are anatomical, diagnostic and functional, the mix of which varies from listing to listing and body system to body system. Improving the Social Security Disability

Process, Institute of Medicine, 2007 The listings provide guidelines for

evaluating disability claims and provide an administrative means for screening in obviously disabled individuals. 66 FR 58024 2001

Listing of Impairment Part A: Adults

1.00 Musculoskeletal System2.00 Special Senses & Speech3. 00 Respiratory System4.00 Cardiovascular System5.00 Digestive System6.00 Genitourinary System7.00 Hematological System8.00 Skin Disorders9.00 Endocrine System10.00 Multiple Body11.00 Neurological12.00 Mental13.00 Neoplastic Diseases14.00 Immune System

Childrens listings include one other grouping: growth impairments.

• 1955 First list of disabling diseases• 1968 listings published in the CFR• 1977 Children listings• 1979 revisions

– Added: dialysis, obesity– Deleted :active TB– Changes: MR IQ threshold increased by 10 points

• 1885 mental revised– 4 to 8 categories– Conformity to DSM– Adult functional criteria – PRTF required

• 1st expiration date • 1986 revisions

– expiration dates for all listings– Blood gas test controversy– Bone marrow transplant– Labs for seizures

• 1990 mental (children) revised– 7 new listings, including ADHD– A & B criteria adopted for children’s listing

• 7/1993 revisions– Added: HIV– Moved: SLE, obesity– Deleted: leprosy

• 1993 revised respiratory • 1994 revised cardiac • 1996 children listing revised

– Abolished IFA,– comparable severity standard

– expanded functional equivalence• 1999 Deleted obesity • 2000 Added adult down syndrome, traumatic

brain injury• 2001 Children listing revised

– More changes to functional equivalence• 2002 revised musculoskeletal

– Added spinal arachnoiditis, spinal stenosis, burns– Moved rheumatoid arthritis

• 2002 technical revisions– Defined numerous objective measures– Deleted: homonymous hemianopsia, tabes

dorsalis, EEG requirement for seizures– Added: transplant (lung, liver), certain cancers,

• 2003 ALS changed (diagnosis is sufficient)• 2004 revised skin, cancer• 2005 revised genitourinary• 2006 revised cardiac• 2007 revised digestive, special senses and

speech• 2008 revised immune system

The trend in revisions has been to make the listings “less dependent on diagnosis and more dependent on function.”

Alan L. Cowles, M.D., Ph.D. The History of the Disability Listings, March 2, 2005

• Not likely attributable to revisions or trend toward functional criteria

• Medical advances resulting in fewer applicants exhibiting profound manifestations

• Publication of GRID rules in 1979 and subsequent explanatory rulings (1982-1985)

• Increased filings and less obvious disabilities (1980-1990)

• Recognition that some people can still work and meet a listing (blind, deaf, wheelchair bound)

• Listings have not been “scientifically” validated

• SSA delay in revising the listings• Objective requirements are not available to

many claimants • Listings fails to provide guidance for

combination of impairments

Social Security Advisory Board, 2003 Improving the Social Security Disability Process, Institute of Medicine, 2007

•Initial Allowances

•1950s 93% met/equaled•1983 82% met/equaled•2000 58% met/equaled•2003 51% met/equaled•2004 49% met/equaled

• Bias• DDS spokesmen state “using functional criteria in the

listings changes the listings from “objective and simple” to “complex and subjective” causing inconsistencies in decisions and increased case processing time. • Improving the Social Security Disability Process, Institute of

Medicine, 2007 pg. 82

• 2002 AALJ letter• Under the old listings, the credibility and severity of a

claimant’s subjective complaints did not have to be assessed at Step 3. An ALJ could often solely rely on the DDS physician’s opinion that a claimant did not meet or equal a listing, since this opinion was based on a review of the objective medical evidence…. This will significantly change under the new listings.• Ronald G. Bernoski , President AALJ

Measures of breathing capacity

Measures of acuity, efficiency and field

Measures of speech or hearing loss

Measures of joint function

Evolution of listing for Inflammatory/Rheumatoid Arthritis

1.02 to 14.09

Disorders of the spine and joints

Fractures of the extremities Amputations Soft tissue injuries such as

burns Ischemic heart disease Chronic heart failure Systemic Lupus

Erythematosus (SLE) Systemic vasculitis Systemic sclerosis

(scleroderma) Polymyositis or

Dermatomyositis Undifferentiated or mixed

connective tissue disease

Immune deficiency disorder excluding HIV infection

HIV infection Inflammatory arthritis Sjogren’s Schizophrenic, paranoid and

other psychotic disorders Affective disorders Anxiety-related disorders Somatoform Personality disorder Autistic disorders

Treating source opinion statement Side effects of treatment ▪ Musculoskeletal 1.00G 2002, Cancer 13.00G 2004,

Digestive 5.00G 2007, 14.00 14.00G Immune System 2008

Other statements Claimant’s testimony Lay testimony (epilepsy) Forms (E section)

Request a consultative exam Loss of speech see SSR 82-57 Inability to pay SSR 82-59

20 CFR 404.1520(a)(3) (1984) PL 98-460 We will consider all evidence in your case….

SSR 96-5p (1996) Some issues are not medical issues regarding the nature and severity of an

individual's impairment(s) but are administrative findings : Whether an individual's impairment(s) meets or is equivalent in severity to the requirements of any impairment(s) in the listings.

Evidentiary Requirements for Making Findings About Medical Equivalence, 71 Fed. Reg. 10421 (3/31/06) 404.1525 Listings of Impairments in appendix 1—removed references to medical

findings 404.1526 Medical equivalence—clarified that all evidence (not just medical ) should

be considered 404.1528 Symptoms, signs and laboratory findings—removed old intro that

referenced medical evidence 404.1529 How we evaluate symptoms, including pain—clarified consideration of

opinion statements to include non-treating sources

We have always has some listings that also include functional criteria. (at 10423)

A criteria Closely tracks the

DSM B & C criteria

Functional limitations▪ B criteria▪ ADLs, Social, CPP,

Decompensations

▪ C criteria▪ Inability to function

outside of a highly supportive setting

Different structure Mental Retardation, Substance

Addiction

No C criteria Somatoform Personality Autistic disorders

B. Resulting in at least two of the following: • 1. Marked restriction of

activities of daily living; or

• 2. Marked difficulties in maintaining social functioning; or

• 3. Marked difficulties in maintaining concentration, persistence, or pace; or

• 4. Repeated episodes of decompensation, each of extended duration.

Schizophrenic, paranoid and other psychotic disorders

Affective disorders Anxiety-related

disorders Somatoform Personality

disorder Autistic disorders

A marked limitation is defined by the nature and overall degree of interference with function.

Rating scale: none, mild, moderate, marked and extreme. No limitation or a mild limitation is a non-severe limitation (or

does not significantly limit basic work activities) Marked is more than moderate but less than extreme SSA Medical Assessment Form

▪ Old TRC 945 (09/97): moderate = fair, fair= seriously limited but not precluded

▪ Court held fair=marked ▪ Cruse v. U.S. Department of Health & Human Services 49 F.3d 614(10th Cir. 1995)

▪ New HA-1152-U3 (11/2002): moderate=still able to function satisfactorily, marked = seriously limited but not precluded

Use DOT definition of occasional (up to 1/3 of the time)=marked

...The adjudicator must remember that the limitations identified in the “paragraph B” … criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments, and summarized on the PRTF. SSR 96-8p Assessing Residual Functional Capacity in Initial Claims

Substantial loss of ability to meet any of the basic mental demands …may meet or equal the listed medical criteria. Therefore, before making a determination that includes vocational evaluation, the adjudicator should discuss the case with a psychiatrist or psychologist to learn whether a significant part of the evidence had been previously overlooked or underrated. POMS DI 25020.010

Source of evidence To establish the presence of a medically

determinable mental impairment(s): ▪ acceptable medical source

To assess the degree of functional limitation the impairment(s) imposes:▪ Information from the individual▪ Other professional health care providers

(counselors, social workers) See SSR 06-03p▪ nonmedical sources (family, employer, work

evaluations, rehab progress notes, etc.)

Inability to ambulate effectively on a sustained basis for any reason, including pain…

Inability to perform fine and gross movements effectively on a sustained basis for any reason, including pain… 1.00B2a

Disorders of the spine Nerve root

compression neuro-anatomic

distribution of pain Spinal arachnoiditis

severe burning or painful dysesthesia

Lumbar spinal stenosis chronic nonradicular

pain and weakness

1.00B2d. an individual's pain or other symptoms may be an

important factor contributing to functional loss. 20 CFR 404.1529(d)(2)

Some listed impairments include symptoms usually associated with those impairments as criteria. Generally, when a symptom is one of the criteria in a listing, it is only necessary that the symptom be present in combination with the other criteria. It is not necessary, unless the listing specifically states otherwise, to provide information about the intensity, persistence, or limiting effects of the symptom as long as all other findings required by the specific listing are present.

• Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.

• Associated with degenerative processes, congenital anomalies and traumas.

• Pseudoclaudication is pain and discomfort in the buttocks, legs and feet aggravated by walking and reduced by leaning forward. 1.00K2b3

confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging,

manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;

1.03 ARTHRITIS OF A MAJOR WEIGHT-BEARING JOINT (DUE TO ANY CAUSE) 2001

With history of persistent joint pain and stiffness with signs of marked limitation of motion or abnormal motion of the affected joint on current physical examination. With: Gross anatomical deformity of

hip or knee (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) supported by x-ray evidence of either significant joint space narrowing or significant bony destruction and markedly limiting ability to walk and stand

1.02 MAJOR DYSFUNCTION OF A JOINT(S) (DUE TO ANY CAUSE) 2002

Characterized by gross anatomical deformity (e.g. subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and finding on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With: Involvement of one major

peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2B Or

1.04 ARTHRITIS OF ONE MAJOR JOINT IN EACH OF THE UPPER EXTREMITIES (DUE TO ANY CAUSE) 2001

With history of persistent joint pain and stiffness, signs of marked limitation of motion of the affected joints on current

physical examination, and X-ray evidence of either significant joint space narrowing or significant bony destruction. With: 

Abduction and forward flexion (elevation) of both arms at the shoulders, including scapular motion, restricted to less than 90 degrees; or

 Gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability, ulnar deviation) and enlargement or effusion of the affected joints.

1.02 MAJOR DYSFUNCTION OF A JOIN(S) DUE TO ANY CAUSE 2002

Characterized by gross anatomical deformity (e.g. subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and finding on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With: Involvement of one major

peripheral joint in each upper extremity (i.e. shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c.

1.00B2b(2) Inability to walk without the

use of a walker, two crutches or two canes

The inability to walk a block at a reasonable pace on rough or uneven surfaces

The inability to use standard public transportation

The inability to carry out routine ambulatory activities such as shopping and banking,

The inability to climb a few steps at a reasonable pace with the use of a single hand rail.

The criteria do not require an individual to use an assistive device of any kind.

We do not believe that “reasonable pace” can be easily limited to a particular distance in a specific amount of time.

We hope it is clear that the criteria are not intended to exclude all but those confined to wheelchairs.

66 FR 58026

The inability to prepare a simple meal and feed oneself

The inability to take care of personal hygiene

The inability to sort and handle papers or files

The inability to place files in a file cabinet at or above waist level

An individual must be unable to sustain such functions as reaching, pushing, pulling, grasping and fingering, regardless of whether he or she has the use of one or both upper extremities.

A claimant’s loss of function may be evident through some other description than is found in any of the examples.

66 FR 58028

B. Resulting in one of the following: 1. Persistent symptoms of heart failure

which very seriously limit the ability to independently initiate, sustain, or complete activities of daily living in an individual for whom an MC, preferably one experienced in the care of patients with cardiovascular disease, has concluded that the performance of an exercise test would present a significant risk to the individual; or

2. Three or more separate episodes of acute congestive heart failure within a consecutive 12‑month period (see 4.00A3e), with evidence of fluid retention (see 4.00D2b (ii)) from clinical and imaging assessments at the time of the episodes, requiring acute extended physician intervention such as hospitalization or emergency room treatment for 12 hours or more, separated by periods of stabilization (see 4.00D4c); or

New functional criteria in 4.02B1

SSA rejects the NYHA classifications and instead adopts their own definition of an “extreme” limitation.

SSA notes that the prior listing language of “inability to carry on any physical activity” was too harsh and implied the person was bedridden. New criterion for frequent acute episodes

Allows SSA to make a favorable decision without an EET

C. Coronary artery disease, demonstrated by angiography (obtained independent of Social Security disability evaluation) or other appropriate medically acceptable imaging, and in the absence of a timely exercise tolerance test or a timely normal drug-induced stress test, an MC, preferably one experienced in the care of patients with cardiovascular disease, has concluded that performance of exercise tolerance testing would present a significant risk to the individual, with both 1 and 2:

1. Angiographic evidence showing:a. 50 percent or more narrowing of a nonbypassed left main coronary artery; orb. 70 percent or more narrowing of another nonbypassed coronary artery; orc. 50 percent or more narrowing involving a long (greater than 1 cm) segment of a nonbypassed coronary artery; ord. 50 percent or more narrowing of at least two nonbypassed coronary arteries; ore. 70 percent or more narrowing of a bypass graft vessel; and

2. Resulting in very serious limitations in the ability to independently initiate, sustain, or complete activities of daily living.

Repeated manifestations of the disorder with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level: 1. Limitation of activities of

daily living. 2. Limitation in maintaining

social functioning. 3. Limitation in completing

tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

Systemic Lupus Erythematosus (SLE)

Systemic vasculitis Systemic sclerosis

(scleroderma) Polymyositis or

Dermatomyositis Undifferentiated or mixed

connective tissue disease Immune deficiency disorder

excluding HIV infection HIV infection Inflammatory arthritis Sjogren’s

Mental 65 Fed. Reg. 50746

▪ August 21, 2000 Musculoskeletal

66 Fed. Reg. 58010 ▪ November 19, 2001

Skin 66 Fed. Reg. 63634

▪ June 9, 2004 Cancer

69 Fed. Reg. 67018 ▪ November 15, 2004

Genitourinary 70 Fed. Reg. 38582

▪ July 5, 2005

Multiple Body Systems 70 FR 51252

▪ October 31, 2005 Cardiovascular

71 Fed. Reg. 2312 ▪ January 13, 2006

Visual 71 Fed. Reg. 67037

▪ November 20, 2006 Digestive

72 Fed. Reg. 59398 ▪ October 19, 2007

Immune system 73 Fed. Reg. 14570

▪ March 19, 2008

Training guide www.ssas.com

▪ Public files

www.gpoaccess.gov/fr/search.htlm 1994 (Vol. 59)

thru 2009 (Vol. 74)

Respiratory last updated in 1993 can be found at HALLEX II-4-1