Historically, musculoskeletal and mental impairments account for the major cause of disability among Social Security disability beneficiaries. In fact, the older the applicant, the more likely they will be awarded for musculoskeletal rather than mental disorders.
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.
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 (HNP) and spinal stenosis. The new listing at 1.04 separates out spinal stenosis and names a new condition, spinal arachnoiditis. The listing provides separate criteria for those two conditions. Listing 1.04A provides a specific set of criteria for all other spinal cord disorders causing nerve root compromise.
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). This list is a significant departure from the previous examples. While SSA always intended a broad group of conditions, 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.” 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.
Also, these new listed conditions can be objectively documented by x-ray. The previous listing arguably required a more expensive, and therefore unavailable, study such as an MRI or CT scan, neither of which will be purchased by SSA.
The new listing no longer requires a showing that the listing elements persist for at least three 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” 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.
This is important, because some Administrative Law Judges (ALJs) assume the opposite. That is, they will not order a consultative exam 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.” 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. 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.”
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.” If atrophy is present, it must be shown by circumferential measurements.
With all of these changes, the spinal cord disorder’s listing should be easier to meet. But many claims examiners and ALJs continue to require all of the elements of the old listings. Also, the new requirement of a positive 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. 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.
Imaging is useful only when non-invasive conservative regimens have failed and surgery or a therapeutic injection is under consideration. 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.
Also note that 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.
So why do many judges 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 claimants have conflicting examination findings if they are also involved in workers’ compensation claims 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.
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.
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. A training video, no longer available, did provide guidance on how to evaluate 1.04 with the test performed in only one position. According to that guidance, SSA will not re-contact the clinician and will accept the positive test unless:
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.