After it has been determined that a claimant has a “severe impairment,” the claimant’s impairment is of a severity to meet or medically equal the criteria of an impairment listed in 20 CFR part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1526). If the claimant’s impairment or combination of impairments is of a severity to meet or medically equal the criteria of a listing, then the claimant is disabled. If the claimant cannot meet these requirements, then you proceed to Step 4 of the Sequential Evaluation Process.
Notably, up until this point, the first two steps presented ways for the Social Security Administration to deny a claim, not ways for them to approve. However, at Step 3, the SSA can actually say “yes” and award a claimant disability. Unfortunately, to get to get an award at this level is no easy task, as the Administration is looking for the claimant to meet extremely rigorous medical requirements.
Example 1: Back Problems
E.g. Degenerative Disc Disease, osteoarthritis, herniated nucleus pulposus, etc). There are few different ways to meet the listings based on a back impairment, one of the most common provision is Listing 1.04 A. It states you can be approved for your back impairment under this:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);
To establish this, a claimant will need to have radiological (e.g. x-rays or MRIs) documentation confirming the condition. He then needs “evidence of nerve root compression.” This is commonly referred to as radiculopathy. Though it is not specifically called for in the Listings, some DDS and ODAR staff will not accept clinical (observations of pain made by the doctor in person) to establish that you have this. Instead, they will require additional proof in the form of an EMG/Nerve Conduction testing that may or may not be able to pick up radiculopathy.
Then, the claimant must demonstrate all of the other elements of this provision. He must have a doctor observe and write down that he has decreased range of motion, muscle atrophy/weakness and decreased sensation (sensory loss). Finally, there must be documentation of positive straight-leg raise testing, and this needs to be for both the sitting and supine (laying down) position.
In the areas where I practice, it is virtually impossible to expect medical providers, even good providers to have all of this information present in their records. For instance, I cannot recall seeing records from an orthopedist who during the course of his normal treatment obtained straight-leg raise test lying down, then did separate testing for the client while sitting. Yet, the absence of this one clinical test can serve as the basis for denying a claimant under the Listings.
Finally, keep in mind what is not considered in these Listings. There is no mention whatsoever about surgeries that have been performed or physical therapy that has been completed. There is no mention about the effect of heavy pain medication. It is therefore entirely possible that someone who has had multiple back surgeries and is prescribed narcotic pain medication like hydrocodone would not qualify under the Listings because just one of the elements listed above was absent in from the treatment records.
Equaling The Listings
Though the Listings of impairments address a great number of impairments, it has a number of glaring omissions. For instance, the Listings do not currently contain stand-alone criterion for evaluating either diabetes or sarcoidosis. However, this does not mean that a claimant with these conditions could not be found to be disabled under the Listings. Instead, the rules allow for an ALJ to evaluate a claimant’s condition under the Listing criteria that closely approximates the kinds of limitations experienced by the claimant.
For instance the Listing 3.03B for Asthma allows for an award of benefits where a claimant has:
Attacks, in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each in-patient hospitalization for longer than 24 hours for control of asthma counts as two attacks…
Sarcoidosis can cause major respiratory problems often requiring hospitalization. A claimant with a sarcoidosis and have four 24-hour hospital stays could be found to equal Listing 3.03B for asthma.
In my experience, the question of equivalence is rarely addressed at either the DDS or Hearings level. At the Initial and Reconsideration levels, the examiners and non-consulting doctors are not explicitly asked to look for possible equivalence. Even if they did want to look for these theories, practically speaking, DDS staff rarely has the time to consider these types of arguments.
Typically, ALJs will be reluctant to consider someone’s claim under the medical equivalence. Because of the highly technical nature of such a determination it is much more likely to be reviewed by staff from the Appeals Council and could result in a remand back to the ALJ. To the extent that the ALJs will consider these arguments, they will require a statement from a doctor (whether treating or consulting) that offers an opinion as to medical equivalence.
