In the January edition of this newsletter, we reviewed the Social Security Administration’s (SSA’s) new listings for claims involving musculoskeletal impairments published on December 3, 2020. Although we had some hope these regulations would be withdrawn by the new administration, they did indeed go into effect on April 2, 2021.
On that effective date, SSA issued further guidance on the new listings, including Emergency Message (EM) 21027. The EM provides additional guidance for evaluating the “documented medical need” for a wheeled and seated mobility device (WSMD) and applying the “close proximity of time” standard with respect to the imaging requirement.
The new listing added the requirement to show one of the following: the need for a two-handed assistive device, need for a one-handed assistive device plus inability to use the other hand, or inability to use either hand for work-related activities. When evaluating function, the EM provides for consideration of the “most restrictive” assistive device when the claimant has a documented medical need. According to the EM, the “most restrictive device” is the device that involves the greatest limitation on the claimant’s use of the upper extremities, which is the focus of the functional criteria. “Documented need” does not require a prescription for specific assistive device, but the evidence must describe any limitation(s) in upper or lower extremity functioning and the circumstances for which the claimant needs to use the assistive device. Evidence could include:
- Documentation of the use and description of any assistive device(s);
- Inability to bear weight on the lower extremities;
- Inability to rise from a seated position without assistance or the use of both arms;
- Significant weakness in the legs; or
- Amputation of the lower extremities at or above the ankle with inability to use a prosthesis.
The new listing also adds the requirement that all applicable listing requirements must be present simultaneously, or “within close proximity of time.” “Close proximity” means all the relevant criteria must appear in the medical record within a four-month period. According to the EM, in claims with imaging requirements, adjudicators should determine whether it can be “reasonably expected” that the findings on imaging were present within a close proximity of time of the other elements. But a claim should not be denied, or additional development required, simply because the imaging was not taken within a “close proximity of time” to the other required listing elements. “In most cases, no additional imaging or development is necessary unless there was a potentially corrective surgery or other intervention between the time-frame of the imaging and the other findings.” In determining whether it can be “reasonably expected” that the findings were present within a close proximity of time of the other elements, the adjudicator should consider factors including, but not limited to:
- Are the findings consistent with the other evidence? If the signs and symptoms are consistent with what we would expect from the specific findings and there is no other explanation for the signs and symptoms (for example, a recent injury), then you will generally “reasonably expect” that the findings would be present.
- What kinds of findings were present on imaging? If the findings on imaging are the kind that generally remain static or worsen, you will generally find that you can “reasonably expect” them to continue to be present. If the findings are the kind that can improve over time, you might not “reasonably expect” them to continue to be present, particularly if they are far removed from the date of adjudication.
- How recent is the imaging? If the findings are the kind that may improve over time or if the imaging is several years old, you might not “reasonably expect” the findings to remain present.
- What is the longitudinal medical history? If there was surgery or other intervening treatment that could improve the findings that were seen on imaging, you will generally not “reasonably expect” that the findings would remain present.
SSA also issued a series of Q&As about the new listings. According to SSA, 90% of claims allowed due to musculoskeletal impairments are made using the medical-vocational guidelines at Step 5 of the sequential evaluation, which have not changed. Only 10% are approved due to meeting or medically equaling a musculoskeletal listing. SSA does not expect this to change. SSA also cites conclusions of the SSA Office of Chief Actuary (OCACT) estimating there will be a small net increase in SSI awards under the new listings, while there will be a small net decrease for SSDI. The OCACT also claims there is no evidence to indicate that determinations under the new listings will differ in a significant way by age, sex, or race/ethnicity. Of note, it appears the OCACT based its estimates on a study done by SSA, using the earlier version of the listings. And given that SSA has not tracked race data for a number of years, it is curious how OCACT was able to extrapolate any information about race and ethnicity. See page 4 of this newsletter. The Q&As are available here and the OCACT report here.
Advocates should be aware that the new regulations will apply to all claims that were pending on the April 2, 2021 effective date. So, for example, if a hearing was held in February 2021 in which an advocate argued a claim under the old listings, but a decision was not issued before April 2, 2021, the new regulations will govern the decision. It is not clear whether SSA has issued guidance to Administrative Law Judges (ALJs) about scheduling supplemental hearings or sending post-hearing interrogatories to medical experts. Advocates with pending claims may want to consider requesting supplemental hearings if it appears, for example, different arguments or additional evidence would be necessary to prove pending claims under the new listings.
The new listings also provide that federal courts will review decisions using the rules that were in effect at the time the decisions were issued. In remanded claims, these final rules will be applied to the entire period at issue. Query whether SSA has the authority to create retroactive rules? Remanded claims applying the new rules could lead to further litigation regarding retro-activity.