Winning Social Security Disability Benefits for Multiple Sclerosis by Meeting a Listing
To determine whether you are disabled at Step 3 of the Sequential Evaluation Process, the Social Security Administration will consider whether your multiple sclerosis is severe enough to meet or equal the MS listing. The Social Security Administration has developed a set of rules called Listing of Impairments for most common impairments. The listing for each impairment describes a degree of severity that the Social Security Administration presumes would prevent a person from performing substantial work. If your MS is severe enough to meet or equal the listing, you will be eligible for disability benefits.
The listing for multiple sclerosis is 11.09, which has three parts: A, B, and C. You will be eligible for disability benefits if you meet any part.
You will meet Listing 11.09A and qualify for social security disability benefits if you have multiple sclerosis with disorganization of motor function as described in listing 11.04B. Listing 11.04B requires significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station.
MS is characterized by exacerbations that vary in frequency, character, severity, and duration. Remissions vary in degree of recovery and duration. The Social Security Administration should consider the course of the disease process during the few years preceding your application for benefits. An attempt should be made to decide if your case under consideration has developed a specific course. However, if you have had two or more severe exacerbations in a year, which prevent any work for more than 1 month, you would be found to have an impairment which meets the listing.
Two Extremities Must Be Impaired
The two major areas of motor limitations are:
- Upper extremity (arm and hand) function including:
- Gross movements.
- Dexterous movements.
- Lower extremity (leg) function including:
- Gait – the manner of walking.
- Station – the manner of standing, i.e., ability to maintain a posture.
Two extremities must be involved to satisfy part A of the MS listing: both legs, both arms, or one arm and one leg.
If a lower extremity alone (i.e., a single leg) is affected, the listing cannot be met. However, if the lower extremity is so weak that a hand-held assistive device such as a quad cane is necessary for walking, then use of an arm would be tied up with the same functional result as paralysis of the arm. Such cases would equal the listing.
If you cannot stand and walk 6 to 8 hours daily and have any significant weakness or inability to manipulate objects with an upper extremity, the listing is satisfied. Inability to stand or walk for such prolonged times does not necessarily depend only on lower extremity strength. An uncoordinated gait, or poor balance that results in an unreasonably slow pace would meet the listing. This is particularly important if you have neurological dysfunction in both lower extremities, but not in the arms.
At a physical examination, a doctor can obtain information regarding strength in the upper and lower extremities with some simple and routine maneuvers. First, the examining physician can estimate strength loss by comparing the strength of muscle contraction on your the weak side to your normal side.
Physicians frequently report subjective determination of strength by using a scale of 0 to 5 with 5 being normal. For example a doctor might ask you to try to straighten out your leg while the doctor resists such movement. A weaker leg might be reported as 3/5 for the quadriceps muscle (muscle on the front of the thigh) compared to an expected normal of 5/5. Zero means no movement. One means a trace of movement. Two means movement with the help of gravity. Three means movement is possible against gravity, but not against resistance. Four means movement against gravity and resistance by the examining physician. Five means normal.
Errors in this type of subjective testing can be caused by the person’s motivation, variations among people in “normal” strength, and differences in the doctor’s subjective assessment.
More objectively, a doctor can test your ability to walk on your heels and toes and squat and arise. Ability to walk on the toes means you can lift your body weight by contraction of your gastrocnemius (calf) muscles and implies significant strength. Ability to walk on the heels indicates that the muscles in the front leg (opposite the calf muscles) that flex the foot still have good strength. Ability to squat and arise implies good strength of the quadriceps muscles of the thighs.
Determination of lower extremity strength is very important, because if you cannot stand 6 to 8 hours a day and an upper extremity is significantly affected, then the listing will be fulfilled. If you cannot stand or walk 6 to 8 hours a day, you can do only sedentary work, but if you also have limited use of an upper extremity, you cannot even do sedentary work. If you cannot walk on heels or toes in the affected lower extremity, it is not reasonable to expect that you would have the strength to stand 6 to 8 hours daily. If you can do such testing well, it is not likely you will qualify under listing 11.09A on the basis of strength deficit. However, you still may qualify based on severe lack of balance or coordination in walking.
Evaluating Walking and Balance
In evaluating how well you stand and walk, the Social Security Administration requires a detailed description from a medical doctor. This involves factors such as how weak your legs are, how much difficulty you have in keeping your balance, how fast you walk, how much help you need walking, and so forth. To meet the listing, you do not have to use a cane, crutch, brace, walker, or other assistive device to move about. Of course, if you need such devices, that would indicate a very severe limitation. However, the use of an assistive device such as a cane or crutch, or even a wheelchair, does not establish a severe limitation without supporting objective medical data. This is true, even if your treating doctor says you need the device.
Evaluating Arm and Hand Use
The use of the arms and hands is evaluated by looking at gross and dexterous movements. Dexterous movements are those like writing, picking up small objects, or other types of fine movements. Gross movements involve larger motions with the arms and hands. Movements can be influenced by weakness, or loss of control over the way an arm or hand moves, such as tremors or poor coordination. The ability to oppose fingertips to the thumb successively can give some idea as to the intactness of fine manipulatory (dexterous) ability. However, if you can do finger-thumb opposition only slowly and clumsily, then you should not be considered capable of dexterous movements. Also, your activities of daily living (ADLs) can be helpful in assessing functional severity when they describe specific inabilities or abilities (e.g., turning doorknobs, dressing, climbing stairs, shaving, etc.).
Meeting Social Security Administration Listing 11.09B for Multiple Sclerosis
Part B states that visual disorders are to be evaluated under the appropriate visual impairment listings, and mental disorders under the appropriate mental impairment listings. Concerning mental disorders, note that part B only refers to listing 12.02 for organic brain syndrome. This is a peculiar omission of mental disorder listings that involve depression and anxiety, but there is no reason you cannot be evaluated under whatever mental disorder listing, or combination of listings, is appropriate.
Meeting Social Security Administration Listing 11.09C for Multiple Sclerosis
You will meet Listing 11.09C and qualify for social security disability benefits if you have multiple sclerosis and:
- Significant, reproducible fatigue of motor function with
- Substantial muscle weakness on repetitive activity, that is
- Demonstrated on physical examination,
- Resulting from neurological dysfunction in areas of the central nervous system known to be pathologically involved by the multiple sclerosis process.
Part C attempts to take into account easy fatigability caused by multiple sclerosis, although brief muscle strength on testing may be normal. There are several problems with part C that make it difficult to use by Social Security Administration adjudicators.
Part C refers to increased muscle weakness detected on physical examination, as measured by repetitive activity. Required would be some type of repetitive effort against a measurable resistance, such as moving a given weight through a given distance a given number of times, or measurement of grip strength force to see if it decreases with repetition. No test is meaningful without standardization. The Social Security Administration has never offered any testing guidelines for objectively measuring fatigability in multiple sclerosis.
Part C also requires that the easy fatigability be related to areas of the brain that have been demonstrated to be involved with multiple sclerosis. Yet, one cannot correlate the areas of abnormality on a MRI brain scan with fatigue. While fatigue may affect a specific limb when associated with muscle weakness, fatigue usually affects the entire body. It cannot easily be separated out into pieces.
In the evaluation of fatigue in MS, the Social Security Administration provides a medical policy explanation which states:
“Fatigue can be a factor in individuals with MS. However, fatigue is difficult to assess because, … there are no objective tests to measure it. The individual must demonstrate some objective ongoing neurological deficit; a claim cannot be allowed on the basis of fatigue alone. Clinical and laboratory data and a well-documented medical history must establish findings which may reasonably account for fatigue.
“The best means of assessing fatigue is by inference in terms of documentation of the claimant’s activities of daily living, the extent of physical activity before fatigue occurs, and the frequency at which the claimant requires periods of rest. Individuals either living with the claimant (e.g., spouse, son, daughter) or individuals in close contact with the claimant should be good sources of such information. After such information is obtained, an inference in terms of documentation of the claimant’s activities of daily living to see what effect fatigue plays in his or her overall physical activities should be made. However, conclusions about the intensity and persistence of fatigue and the effect on the person’s work capacity must be drawn from the clinical and laboratory data and other evidence. In effect, a judgment is required as to whether findings relative to fatigue are consistent with the clinical course of the disorder and substantiated by the medical and other evidence. A judgment must be made on an individual case-by-case basis.”
Rather than disregarding part C because of its impossible requirement that damaged brain (or spinal cord) areas match manifestations of fatigue, a finding that you equal the listing whenever the Social Security Administration policy is otherwise satisfied. There is no doctor on earth who can correlate particular brain lesions with fatigue in MS.