Evaluating Medical Evidence in a Disability Case

How Impairments Affect Functioning

In 1985 legislation brought about major changes to the listings, to include the first real functional limitations to the mental listings. The oldest specific functional criteria in the mental listing are known as the B and C criteria of the mental listings.  The B criteria consist of four broad areas of functioning.

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;

For all of the mental listings which contain the B criteria, 2 at the marked level are required to meet a listing.

In the 1990s, revisions to the respiratory listings also included functional criteria.  And in the following year the cardiac listings included criteria for chronic heart failure which equate to functional restrictions consistent with NYHA.

Similarly, the revisions to the musculoskeletal listings in 2002 include functional criteria (ability to manipulate and ambulate) for disorders involving weight bearing joints, fractures of the extremities, amputations and soft tissue injuries.

Finally, the revisions to the immune system listings in 2008 now include functional criteria for all the listed impairments in that listing. The trend is likely to increase since SSA has committed to update all the listings at least once every 5 years. Obviously, the best evidence of functional limitations is in the medical evidence of record, but when lacking, the advocate should:

• Submit opinion evidence from treating sources
• Present lay testimony
• And/or ask for development when appropriate.

In 2006 the agency clarified that at Step 3 "medical evidence" included not just findings reported by medical sources but other information about your medical condition(s) and its effects, including your own description of your impairment(s). And the regulations regarding the listings, in general, were revised to remove references to "medical findings" and "medical criteria" to include language instead that references "objective medical and other findings."

Specific Listings with Functional Criteria

Mental

The oldest specific functional criteria in the listing are known as the B and C criteria of the mental listings.  The B criteria consist of four broad areas of functioning.  For all of the mental listings which contain the B criteria, 2 at the marked level are required to meet a listing.

The introduction of the mental listings provides an imprecise definition of the term marked.

Where we use "marked" as a standard for measuring the degree of limitation, it means more than moderate but less than extreme.

And when describing the broad areas of functioning, the introduction further states that "marked" is NOT defined by a specific number of activities of daily living, a specific number of different behaviors in which social functioning is impaired, or a specific number of tasks that you are unable to complete, but by the nature and overall degree of interference with function.

The regulation which explains how to evaluate the severity of a mental listing at Step two and Step 3 explains that no mental impairment or a mild mental impairment equates to a non severe mental limitations. One could then assume that a moderate limitation equates to a severe impairment and a marked limitation is more than severe.

Without a more precise measure of a marked limitation there is very little to cross-examine a testifying medical expert with when he/she finds a severe mental limitation established in the medical evidence of record which results in only moderate limitations, i.e. not at listing level.

Most practitioners move on, so to speak, to formulating a definition of moderate which will result in a determination of disabled at step five of the sequential evaluation process.  Since, vocational experts are familiar with the DOT’s definitions of occasional and frequent, those can be helpful, particularly if there are only a few moderate non-exceptional limitations.

But before conceding that the mental impairment is not at listing level, simply because the medical expert, or the state agency medical consultant (SAMC), opine that there are only moderate limitations, the advocate should develop evidence of the claimant’s inability to function “independently, appropriately and effectively” on a sustained basis.

The advocate should argue that his client meets the listing and urge the ALJ to consider the lay testimony, not only in assessing his RFC but also at Step three.  In support, the advocate can remind the ALJ that the assessment of functional limitations for mental impairments at Step 3 is a "complex and highly individualized" process that requires the consideration of all relevant evidence.

Moreover, the introductory language of the mental listings specifically states that evidence of functional limitations is not required to come from "acceptable medical sources" but is generally provided from the claimant him/herself or others who know the claimant.  To exclude this testimony from a Step three analysis is clearly improper.

Musculoskeletal

The regulations also explain that some listings include symptoms like pain. In fact, in 2002 the musculoskeletal revisions include pain as an element in nearly all the listings (exceptions are 1.05D, 1.07 and 1.08).  Each of the spinal cord disorders specifically includes pain.  All the others require an inability to ambulate or perform fine and gross movements.

The introductory language to the musculoskeletal listing explains that these functional limitations can be the result of pain. While the introductory language also suggests that an evaluation of the intensity and persistence of pain is important, it actually references a regulation which has changed and which now specifically says such an inquiry is not required unless specifically required in the listing.

Pain is in fact a major element in the listing for spinal stenos is.  It is not unusual for the medical evidence to only reference pseudoclaudication.  Even though the introductory language to the listing explains that pseudoclaudication manifests as pain and weakness, a good practice is to ask the treating source to simply confirm that the condition is painful.  Forwarding a copy of the intro language to the treating source and/or providing a copy to the client is also helpful.

Spinal arachnoiditis also manifests as severe burning or pain.  Additionally, the functional limitation (the need to change positions several times within a two hour period) is inconsistent with competitive employment.

The functional limitation for the listing for impairments to weight bearing joints (hip, knee, ankle) has evolved from a “markedly limiting ability to walk and stand” to an “inability to ambulate effectively.”

The limitation for joints in each upper extremity (shoulder, elbow, wrist-hand) no longer requires of marked limitation of motion (only limited motion) but also includes the inability to perform fine and gross movements effectively.

These terms “inability to ambulate effectively” and “inability to perform fine and gross movements effectively” are not precisely defined in the listing.  However there are some examples in the definition and the list is not exhaustive.

Cardiac

In addition to very specific criteria for chronic heart failure and ischemic heart disease the listings at 4.02B and 4.04C now also include a serious limitation in the ability to independently initiate, sustain, or complete activities of daily living.  This language equates to an extreme limitation (as opposed to marked).  However, SSA notes that the prior listing language of “inability to carry on any physical activity” was too harsh and implied the person were bedridden.

Immune system

The functional limitation which is now a part of every immune system listing requires repeated episodes of the disorder (flare-ups) and only one marked limitation in activities of daily living, social functioning or completing tasks in a timely manner due to deficiencies in concentration.  The definition of repeated is rather precisely defined as manifestations which occur on an average of three times a year, each lasting 2 weeks or a variation of that duration. On the other hand, marked simply means "more than moderate but less than extreme." This is the same definition inherent in the five point rating system for mental impairments and the childhood functional equivalence assessment. With this new functional criterion to the Immune system listing more individuals should be found disabled.  In fact, the agency specific states that the functional criteria are intended to prevent the adjudicator from overlooking:

…individuals who do not necessarily have the objective evidence needed to meet the other criteria in the listings but who may still be disabled.

As such, the functional criteria in these listings has to be found outside of the medical evidence of record, i.e. lay testimony and treating source opinion evidence.