Disability Claims for Spinal Cord Disorder: New Listing Changes

Historically, musculoskeletal and mental impairments account for the major cause of disability among social security disability beneficiaries[i] and a "high percentage of cases adjudicated under the listings."[ii] In fact, the older the applicant, the more likely they will be awarded for musculoskeletal rather than mental disorders.[iii]

Since 1982, diagnostic trends confirm an increase in musculoskeletal disorders over other categories (such as circulatory, neoplasm and infectious diseases).[iv] In the mid-1990s[v] SSA began tracking awards by diagnosis at all appeal levels and this data shows a continued prevalence of musculoskeletal disorders well into the millennium.[vi] According to a recent statistical report from SSA, released in July 2009, the most common “diagnostic group” among disability recipients was “diseases of the musculoskeletal system and connective tissue.”[vii] One researcher speculates:

"One possible explanation for this would be the aging of the baby-boom generation (birth cohorts 1946-1964), which may be experiencing a higher incidence of arthritic, back, and bone disorders as they enter their late 40s and early 50s".[viii]

These reports don't specifically delineate the incidents of disability based on spinal cord disorders. But the CDC and the US Census Bureau report that “back and spine problems” rank as the second most common cause of disability among adults in the United States.[ix] Spinal cord disorders are prevalent in our practice.

Good Listings Changes

SSA made major changes to the spinal cord listing in 2001. The old listing, at 1.05C, provided only two examples of spinal cord disorders (herniated nucleus pulpous, hereinafter HNP and spinal stenosis). The new listing at 1.04 separates both spinal stenosis and names a new condition, spinal arachnoiditis. The listing provides separate criteria for those two conditions. They will not be discussed here.[x] 1.04A provides a specific set of criteria for all other spinal cord disorders causing nerve root compromise.

New List of Specific Conditions

The new listing, 1.04A, includes a more specific list of conditions (osteoarthritis, degenerative disc disease, facet arthritis and vertebral fracture, a.k.a. osteoporosis).[xi] This list is a significant departure from the previous examples. While SSA always intended a broad group of conditions,[xii] the listing was usually interpreted narrowly to require an HNP. SSA explained, when the change was made that “various abnormalities may result in nerve root impingement.”[xiii] And the agency points out that while an HNP is associated with nerve root impingement, “this is not an absolute; that is, the two are not always associated.[xiv]

Also, these new listed conditions can be objectively documented by x-ray.[xv] The previous listing arguably[xvi] required a more expensive, and therefore unavailable, study such as an MRI or CT Scan, neither of which will be purchased by SSA.[xvii]

No Treatment History Required

The new listing no longer requires a showing that the listing elements persist for at least 3 months, despite treatment. SSA explains that there no longer needs to be a long treatment history, rather “a longitudinal clinical record sufficient to assess the severity and expected duration of an impairment”[xviii] is sufficient. In fact, SSA explains:

The fact that an individual may not have a treating or other medical source does not mean that we cannot establish a longitudinal clinical record. If necessary, we may purchase a consultative examination for comparison with earlier evidence.[xix]

This is important because some ALJs assume the opposite. That is, they will not order a consultative examination when treatment ends (as in a workers compensation claim or when health insurance coverage lapses) and argue that the lack of treatment reflects a non-listing level condition. Many ALJs believe that a consultative examination, to establish a missing listing element, is a waste of agency resources because of the lack of correlating treatment records.

The requirement for muscle spasms is also eliminated from the new listing because they are considered “intermittent findings.”[xx] And range of motion deficits no longer need to be “significant.” SSA points out that any limitation of motion is significant if “accompanied by the other requirements.[xxi] Sensory and reflex abnormalities are also no longer concurrent requisites since “depending on the level of the compression, both sensory and reflex abnormalities may not occur anatomically.”[xxii]

Muscle Weakness Requirement

Last, the listing also no longer requires significant motor loss with muscle weakness. Rather, the new listing defines motor loss as atrophy with muscle weakness or simply muscle weakness. This is important because many individuals with a history of unskilled manual labor may not exhibit atrophy even if they are restricted to sedentary activities due to their disorder. SSA explains that atrophy “in the absence of muscle weakness is not evidence of motor loss.”[xxiii] If atrophy is present, it must be shown by circumferential measurements.[xxiv]

Continued Problems with 1.04A

With all of these changes, the spinal cord disorder’s listing should be easier to meet. But many adjudicators continue to require all of the elements of the old listings. Also, the new requirement of a straight leg raise test both sitting and supine is often not present. Last, the new listing is often interpreted as requiring nerve root compression objectively documented on MRI studies.

Injury/Disability Imaging

However, the cornerstone for a diagnosis and determination of severity for low back pain is the physical examination. MRI or any other “appropriate medically acceptable imaging” is not required to establish the cause of low back pain or to provide appropriate treatment.

It is now clear…that uncomplicated acute LBP or radiculopathy is a benign, self-limited condition that does not warrant any imaging studies....The most common indication for the use of these imaging procedures, however, is the clinical setting of LBP complicated by radiating pain (radiculopathy, sciatica) or cauda equina syndrome (bilateral leg weakness, urinary retention, saddle anesthesia), usually due to herniated disc and/or canal stenosis.[xxv]

Imaging is useful only when non-invasive conservative regimens have failed and surgery or a therapeutic injection is under considerations.[xxvi] Imaging improves outcomes when injections and/or surgery are considered as it can assist in locating nerve root impingement and targeting these treatments so that the likelihood of a positive outcome is enhanced. MRIs may show significant anatomical defects, but without the clinical correlation, the defect may not be a true indication of the cause of low back pain nor a determination of severity.

Patients with large, extruded, sequestered, or high-signal-intensity disc herniations do not have a worse prognosis than do patients with smaller contained disc herniations or protrusions. The presence of a disc extrusion or sequestration is not an indication for immediate surgery.[xxvii]

Disability Claims with No Imaging Record

So why do many ALJs and testifying experts refuse to even consider the listing if there is no imaging performed, particularly if there is no MRI study in the record? It is hard to say but it does seem to be the easiest way to quickly evaluate a claim, particularly when examination findings are inconsistent or when listing criteria are not found in the medical evidence of record.

Many SS claimants have conflicting examination findings if they are also involved in workers’ compensation claims disputes or personal injury litigation. Rather than peruse the record for listing criteria, testifying medical experts often base their opinion of severity and whether the claimant meets/equals a listing on the opinions of examining doctors participating in those disputes, rather than on treating sources.

Moreover, there seems to be a well accepted interpretation of the listing that an MRI is required to show “evidence of nerve root compromise” or evidence of “nerve root compression.” However, SSA has not required imaging to establish either. For some reason, testifying experts often look for those buzz words on imaging studies only and when not found, provide an opinion that the claimant does not meet the listing, even if all the listing elements are found. This approach is simply inconsistent with mainstream medical research. As noted by one researcher, many studies:

"…stress the important of not relying too heavily on imaging studies alone for assessment when nerve root compromise is suspected. The anatomic level of imaging study findings must correspond to the side and the level of concern physiologically detected through the history, physical examination, or other physiologic methods."[xxviii]

Given that nerve root compromise can be detected without imaging, logically it can flow from clinical evidence. In fact, that appears to be the proper way to read the listing. Nerve root compromise can be confirmed by the presence of a neuro-anatomic distribution of pain consistent with the other examination findings, such as sensory, motor and reflex abnormalities.

Straight Leg Raising Test

Perhaps another big problem with listing 1.04A is the new requirement for a positive straight-leg raising (SLR) test in the sitting & supine position for low back impairments. Medical records often include only one test; either the clinician performed only one test or the record isn’t clear. SSA provided training materials to adjudicators in 2002, some of which can still be found on-line.[xxix] A training video, no longer available,[xxx] did provide guidance on how to evaluate 1.04 with the test performed in only one position. SSA will not re-contact the clinician and will accept the positive test unless:

1. SLR is positive in one position but negative in the other position,
2. The pain elicited is not in the appropriate neuroanatomical distribution,
3. The positive SLR findings are not consistently reproducible (this does not mean present at every exam), or
4. Back pain is noted as a positive SLR test (not a true positive result).

For more information about disability claims process for spinal disorders, contact a local disability lawyer. Having an attorney on your side can help tremendously when it comes to navigating the often complicated adjudication process.

[i] Social Security Advisory Board, Disability Decision Making, Data and Materials, May 2006 http://www.ssab.gov/documents/chartbook.pdf
[ii] 66 Fed. Reg. 58010 (November 19, 2001)
[iii] Social Security Advisory Board, The Social Security Definition of Disability, October 2003, pg. 39-40 http://www.ssab.gov/documents/SocialSecurityDefinitionOfDisability_002.pdf
[iv] Donald T. Ferron, Diagnostic Trends of Disabled Social Security Beneficiaries, 1986–93,
http://www.ssa.gov/policy/docs/ssb/v58n3/v58n3p15.pdf,
[v] Tim Zayatz, Social Security Insurance Program Worker Experience http://www.socialsecurity.gov/OACT/NOTES/pdf_studies/study114.pdf
[vi] SSA, Trends in the Social Security and Supplemental Security Income Programs, SSA Publication No. 13-11831
Released: August 2006, http://www.socialsecurity.gov/policy/docs/chartbooks/disability_trends/trends.pdf
[vii] Annual Statistical Report on the Social Security Disability Insurance Program, 2008 http://ssa.gov/policy/docs/statcomps/di_asr/2008/di_asr08.pdf
[viii] Zayatz, Social Security Insurance Program Worker Experience, pg .2
[ix] Study of the Survey of Income and Program Participation (SIPP) shows 7.6 million Americans report significant functional limitations due to back and spine disorders. Prevalence and Most Common Causes of Disability Among Adults --- United States, 2005, CDC, MMWR, May 1, 2009 / 58(16);421-426, http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5816a2.htm
[x] See The addition of Functional Criteria to Listings: How Listing Changes Have Changed a Step 3 Assessment in these materials.
[xi] 66 Fed. Reg. 58016
[xii] The old listing 1.05C referred to "vertebrogenic disorder" which was not defined. However 1.05C cross-referenced 1.00B which stated that the listing included disorders that result in impairment "because of distortion of the bony and ligamentous architecture of the spine or impingement of a herniated [disk] or bulging annulus on a nerve root."
[xiii] 66 Fed. Reg. 58015
[xiv] Ibid
[xv] When the spine is x-rayed the beams pass through the skin and underlying soft tissues (e.g. muscle, ligaments, tendons). When the beams meet bone (vertebra) it stops creating a white shadow on the film. A bone abnormality is reflected on the finished film. Shades of gray mirror the density of the different tissues. X-rays are best for looking at bone. They are not helpful for looking at soft tissue. http://www.spineuniverse.com/displayarticle.php/article268.html
[xvi] One could argue that the 1.04A does not require a diagnostic test because the listing criteria does not specifically reference “appropriate medically acceptable imaging.” 1.00C explains that appropriate imaging should be used if it is the proper one to support the evaluation and diagnosis of the impairment. In fact, the clinical guidelines for low back pain does not suggest that a CT or MRI is recommended in many patient presentations. See http://www.guideline.gov/summary/summary.aspx?doc_id=13009. Whereas the guidelines for lower extremity disorders (hip, knee) do frequently recommend MRI imaging. See http://www.guideline.gov/summary/summary.aspx?doc_id=13007
[xvii] 20 C.F.R. Pt. 404, Subpt. P, App. 1, Part B, § 1.00C2 (hereinafter “Listing 1.00C2”).
[xviii] 66 Fed. Reg. 58018
[xix] 66 Fed. Reg. 58030
[xx] 66 Fed. Feg. 58018
[xxi] Ibid
[xxii] Id
[xxiii] Ib.
[xxiv] Listing 1.00E
[xxv] ACR Appropriateness Criteria low back pain. American College of Radiology-Medical Specialty Society. 1996(revised 2008). NGC: 007005 http://www.guideline.gov/search/searchresults.aspx?Type=3&txtSearch=low+back+pain&num=20
[xxvi] Adult low back pain. Institute for Clinical Systems Improvement-Private Nonprofit Organization. 1994 Jun (revised 2008 Nov.). 66 pages. NGC: 006888 f http://www.guideline.gov/summary/summary.aspx?doc_id=13479&nbr=006888&string=low+AND+back+AND+pain
[xxvii] Ibid
[xxviii] See http://spinemate.metrohispeed.com/ The following studies provide support. Persistent Low Back Pain, NEJM 352; 18 May 5, 2005, Herron, L.D, Turner J. Patient selection for lumbar laminectomy and discectomy with a revised objective rating system. Clin Ortrop 1985 Oct; 1999: 145-52, Morris, EW, Di Paola M, Vallance R, Waddell G. Diagnosis and decision making in lumbar disc prolapsed and nerve entrapment. Spine 1986 Jun:11(5):436-9, Spengler D.M, Freeman CW. Patient selection for lumbar discetomy. An objective approach. Spine 1979 Mar-Apr;4(2):129-34, Spengler DM, Ouellette EA, Battie, M. Zeh J. Elective discectomy for hernation of a lumbar disc. Additional experience with an objective method. J Bone Joint Surg[Am’ 1990 Feb;72(2);230-7. Carragee EJ, Kim DH., A prospective analysis of magnetic resonance imaging findings in patients with sciatica and lumbar disc herniation. Correlation of outcomes with disc fragment and canal morphology. Spine 1997 Jul 15;22(14):1650-60 Schade V, Semmer N, Main CJ, Hora J, Boos N, The impact of clinical, morphological, psychosocial and work-related factors on the outcome of lumbar discectomy. Pain 1999 Mar;80(1-2):239-49, Boos N, Rieder R, Schade V, Spratt KF, Semmer N, Aebi M. 1995 Volvo Award in clinical sciences. The diagnostic accuracy of magnetic resonance imaging, work perception, and psychosocial factors in identifying symptomatic disc herniations. Spine 1995 Dec 15;20(24):2613-25 , Cairns MC, Foster NE, Wright CC, Pennington D. Level of distress in a recurrent low back pain population referred for physical therapy. Spine 2003;28:953-9., Burton AK, Tillotson KM, Main CJ, Hollis S. Psychosocial predictors of outcome in acute and subacute low back trouble. Spine 1995;20:722-8. Carragee EJ, Alamin TF, Miller JL, Carragee JM. Discographic, MRI and psychosocial determinants of low back pain disability and remission: a prospective study in subjects with benign persistent back pain. Spine J. 2005 Jan-Feb;5(1):24-35. Hansson TH, Hansson EK. The effects of common medical interventions on pain, back function, and work resumption in patients with chronic low back pain: A prospective 2-year cohort study in six countries. Spine. 2000 Dec 1;25(23):3055-64] Boos N, Semmer N, Elfering A, et al. Natural history of individuals with asymptomatic disc abnormalities in magnetic resonance imaging: predictors of low back pain-related medical consultation and work incapacity. Spine 2000;25:1484-92. Cassidy JD, Carroll L, Cote P, Berglund A, Nygren A. Low back pain after traffic collisions: a population-based cohort study. Spine 2003;28:1002-9.
[xxix] www.ssas.com/public files
[xxx] Unfortunately this video is no longer available from the Office of Learning at SSA.