How Hard is it to Establish Medical Equivalence?

Some have argued that medical equivalence is extremely difficult if not impossible to establish. One expert explains, for instance, that when the only thing that an unlisted condition (narcolepsy) has in common with a listed condition (seizures) is "their episodic nature," an assessment of medical equivalence is precluded.

While reported frequency of attacks would be a sensible means of assessing severity, SSA refuses to rely entirely on symptomatology as a basis for determining disability. Hence, the evaluation of a condition like narcolepsy is tantamount to impossible under the equivalency standard as SSA defines it.[i]

I believe that this logic is well accepted, particularly among ALJs and medical experts.  But I also believe it is based on a misunderstanding of what SSA means about medical equivalence and the requisite evidence.  As noted in the regulation, findings of equal medical significance to required criteria are sufficient.  As advocates we need to persuade adjudicators to view the concept of medical equivalence in this fashion.

The commentator who argues that narcolepsy cannot equal a seizure listing points to one regulation (20 CFR §§ 404.1528, 416.928) and two process unification rulings (SSR 96-3p, SSR 96-7p) in support of the notion that symptoms cannot support an award of benefits at Step 3 based on medical equivalence.

404.1528 provides definitions of symptoms, signs, and laboratory findings

Symptoms

Symptoms are your own description of your physical or mental impairment. Your statements alone are not enough to establish that there is a physical or mental impairment.

Signs

Signs are anatomical, physiological, or psychological abnormalities which can be observed, apart from your statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic techniques. Psychiatric signs are medically demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or perception. They must also be shown by observable facts that can be medically described and evaluated.

Laboratory Findings

Laboratory findings are anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic techniques. Some of these diagnostic techniques include chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.), roentgen logical studies (X-rays), and psychological tests.

This regulation distinguishes a symptom from a sign by noting that a symptom is what the claimant describes but a sign is observed from another.  The implication is that a sign is observed by a treating source.  Laboratory findings are more self explanatory and are clearly from medical tests,[ii] i.e. not what the claimant says nor what is observed but what “shows up” on a test.  Bottom line, signs and laboratory findings are found from the medical evidence but symptoms are outside of the medical evidence of record.

Indeed, this apparent plain language meaning of the rule is bolstered by the statement about symptoms in 96-3p which reads:

Symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect an individual's ability to do basic work activities unless the individual first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment(s) and that the impairment(s) could reasonably be expected to produce the alleged symptom(s).

And last, 96-7p explains that:

No symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment(s) that could reasonably be expected to produce the symptoms.

Hence, the logic: symptoms are not enough to equal a listing.

But in 2006 when SSA promulgated the new rule on medical equivalence, they changed the rule on symptoms, signs and laboratory findings, as well.  The agency deleted the entire opening statement to 404.1528 and 416.928 which explained that medical findings consist of symptoms, signs, and laboratory findings.  The change was explained to “remove any confusion about the evidence we consider wherever we use medical findings in our rules.”[iii]

Moreover, SSA changed the rules regarding how the agency evaluates symptoms including pain, 404.1529 and 416.929.  The regulation now explains that a credibility assessment involves a comparison of the allegations to objective medical evidence and other evidence.  And the references to “treating or examining physical or psychologist” were changed to “treating or nontreating source.”[iv]

And while 96-3p does explain that symptoms alone cannot be the basis of a Step 2 analysis, the ruling explains that once impairments and symptoms are established (by signs and laboratory findings):

the intensity, persistence, and limiting effects of the symptom(s) must be considered along with the objective medical and other evidence in determining whether the impairment or combination of impairments is severe.

And last, while 96-7p explains symptoms alone are not the basis of a determination of disability, the following guidance is provided in the ruling on how to assess the credibility of statements once impairments and symptoms are established by (signs and laboratory findings).

[W]henever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record.  This includes:

• The medical signs and laboratory findings
• The individual's own statements about the symptoms
• Statements and other information provided by treating or examining physicians or psychologists
• Other persons about the symptoms and how they affect the individual
• Any other relevant evidence in the case record

The bolded terms in this ruling reference regulations that were changed in 2006.  The word “medical” was deleted from 404.1528 and 416.928 and “treating or examining physicians or psychologists” was changed from 404.1529 and 416.929 to “treating or nontreating source.”  96-7p did not change in 2006 but it is important to note that it continues to reference obsolete terms.

These rule changes suggest therefore that once a condition is properly diagnosed, establishing a “medically determinable physical or mental impairment,” every bit of relevant medical evidence can support a determination of medical equivalence, including symptomatology.  With regards to symptoms per se,  404.1529(d) and 416.929(d) explains that symptoms, such as pain, are considered at Step 2 thru Step 5, i.e. also at Step 3.  And with regards to medical equivalence 404.1529(d)(3) and 416.929(d)(3) explains that:

If the symptoms, signs, and laboratory findings of your impairment(s) are equivalent in severity to those of a listed impairment, we will find you disabled.

[i] Samuels, Barbara. Social Security Disability Claims: Practice and Procedure, Part VII, § 22.80

[ii] Some might be tempted to consider only laboratory findings as objective medical evidence.  But 404.1529(c)(2) explains that objective medical evidence is “obtained from the application of medically acceptable clinical and laboratory diagnostic techniques, such as evidence of reduced joint motion, muscle spasm, sensory deficit or motor disruption.”  These are generally obtained from a physical examination by a health care worker.  As such, they are signs (not laboratory findings) as defined at 404.1528.  Objective medical evidence therefore comes from the observations of others, examining sources, and from medical tests.

[iii] 71FR 10424

[iv] 71 FR 10424