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Meeting A Social Security Disability Listing - How Strict Is The Language Criteria

Oklahoma City, OK |

Based upon the SSA medical listing of 14.09C1, it states (in part):

C. Ankylosing spondylitis or other spondyloarthropathies, with:

1. Ankylosis (fixation) of the dorsolumbar or cervical spine as shown by appropriate medically acceptable imaging and measured on physical examination at 45° or more of flexion from the vertical position (zero degrees); or

For the sake of argument, a claimant can show x-rays (and radiology reports) of SI joint fusion in addition to multiple areas of fusion throughout the spine. A thoracic kyphosis is measured at "approximately 42°". If the claim comes down to a decision solely based upon a step 3 evaluation, would "approx 42°" be credited for 14.09C1? In my research, I have many documents stating there is a medically accepted tolerance of 5°.

Would the SSA consider 42° as meeting this listing, or would they make an issue out of an "approximate" measurement of only 3° difference? Would the SSA consider medical research pertaining to medically accepted values of human error when it comes to these types of measurements? Does anyone have a different definition of what this listing criteria means? Some people think the 45° measurement means how much a claimant can "bend". I'm not sure there is any ONE interpretation of how this listing criteria is defined.

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Attorney answers 4

Posted

I think that this question really depends on your judge and the other impairments they have in conjunction with the spinal issues. I have seen strict adherence to the listings by some judges vs not so strict by others (including one judge who ruled on this listing without the claimant having a flex test in the file).

This comment is provided for informational purposes only, and is not to be considered legal advice and/or the establishment of an attorney/client relationship.

Asker

Posted

Thanks for replying. As I said, I've done a lot of research about how Ankylosing Spondylitis and the disability process operated, and it seems that everyone has their own interpretation of the language criteria. I see this is an invitation for more backlog in the system when one court rules one way and the upper courts will rule another. There seems to be no consistency when it comes to this listing. This makes me wonder if all the listings have such conflicting definitions. I've read many, many federal appeals cases, and focusing on the ones about Ankylosing Spondylitis, I have not come across ONE approved claim where there was any discussion about a kyphosis measurement. Like you said about a judge ruling without a flex text (although I don't know if that means a positive or negative ruling), it appears that even the ALJ's are not aware of the full criteria to this listing, so I would hope since there are so many approved claims out there with no mention to a kyphosis measurement, the ALJ would not put a halt on my approval simply based upon an "approximation" of 3°. Like I said, there is human error up to 5° on the various techniques used for this measurement in addition to the individual radiologist who determines the measurement. I mean, 3° could be a simple matter of whether I was in a muscle spasm or not at the time of measurement. On one of my CE reports, she tests my ROM (which tells me that she doesn't have an understanding of this criteria language either). It's not about a range of movement in the spine (although that aspect would be important in a RFC environment). Even then, she notes range of motion of forward flexion 50°, extension 18°, and lateral bending at 16°. I don't remember her measuring anything other than with her eyes, so I'm not sure the accuracy in those measurements. Why would a CE even make measurements if they aren't physically measuring them? Talk about room for human error. One of the federal appeals claims that I read gave credit to a claimant who was "only able to flex 60°-70°" (and this is what approved his disability). If that's the case, then the ALJ was allowing ROM to become part of the listing criteria. I surely can't bend forward as much as that guy did, so should that prove anything for my claim? I'm just looking for any clarification from those who knows about this listing.

Posted

As a general rule, most judges require you to have all the findings to "meet" the listing. Otherwise, if you do not exactly meet the listing but have other medical problems, SSA will consider first whether the combination "equals" a listing - the combo effect is just as bad as the primary condition alone - or decide what you are still able to do despite your impairments.

SSA cases are not easy any more. You might want to consider talking to a local attorney. You may contact your local city, county or state bar association to see if they have a lawyer referral program, or you may contact your local legal aid office if you cannot afford an attorney. If there is a law school in your area, you may contact their legal clinic as well.

You may also contact the National Organization of Social Security Claimants' Representatives (NOSSCR) for the name and email address or telephone number of attorneys in your area. The telephone number for the lawyer referral service of NOSSCR is 1-800-431-2804. NOSSCR's website is www.nosscr.org.

In addition, you can find a Board certified specialist in Social Security by contacting the National Board of Trial Advocacy. They evaluate lawyers (independently) in many types of claims and require extensive experience and testing before a lawyer is certified. They have a section specifically for Social Security: The National Board of Social Security Disability Advocacy, Divisions of the National Board of Legal Specialty Certification.

Their link is: http://www.nblsc.us/

I hope this information helps. Good luck to you!
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The exact answers to questions like this require more information than presented. The answer(s) provided should be considered general information. The information provided by this is general advice, and is not legal advice. Viewing this information is not intended to create, and does not constitute, an attorney-client relationship. It is intended to educate the reader and a more definite answer should be based on a consultation with a lawyer. You should not take any action that might affect your claim without first seeking the professional opinion of an attorney. You should consult an attorney who can can ask all the appropriate questions and give legal advice based on the exact facts of your situation. The general information provided here does not create an attorney-client relationship.

Posted

It is extremely rare that your condition will meet the listing. The exception is for mental conditions which can be meet using multiple lists. Essentially, you are trying to show that your condition is comparable or exceeds the listing.

Disclaimer Information on this site is provided by attorney Clint Curtis as general information and not specific legal advice. Specific advice can only be provided after a complete analysis of all information related to the asker. No attorney-client relationship is established by the use of the information provided. If you have additional questions please contact the law office.

Asker

Posted

Are you saying that it is extremely rare that the SSA will credit an "approximate" measurement of 42° with meeting a listing requiring 45°? Are you making a blanket assumption, or do you have experience in this listing?

Posted

The difference in degrees doesn't matter, though any evidence you can bring in to show the medically accepted tolerance can be helpful. If you have a disability of any sort, and it affects your ability to work, get medical evidence (usually a diagnosis) of the disability and add it to your case. The judge will review everything you give them, so don't withhold less than perfect evidence simply because it doesn't meet a rule. Some judges can be very flexible, so put everything you have into it and see what happens. If you don't have an SSDI attorney, you are taking a real risk as there are so many exceptions and details they will know to look for due to experience. I highly recommend you consider retaining an attorney for your hearing. This will be your best opportunity to win your claim, and your attorney will only be awarded 25% of your past due benefits up to $6,000.

As may be stated elsewhere on this site, my comments should not be construed as legal advice. Until I have signed an attorney fee agreement with you, I do not represent you. Reviewing comments by attorneys on any website can be helpful, but should not be considered a replacement for representation by actual legal counsel.

Asker

Posted

Thanks for replying. The reason I asked about the exact criteria is because all of the documentation and Federal appeals I have read, the ALJ's are requiring almost word for word language matching when it comes to meeting a listing. Also, the reason I am more focused on meeting a listing is because I believe (again in my research) that continuing disability reviews would be more advantageous when it comes to my condition if I was to meet a listing. Because Ankylosing Spondylitis will never be cured, and there will never be any medical improvement, meeting a listing would assure me a better outcome when it comes to any continuing reviews. A little back story in my claim that furthers makes me focus on a listing: I'm currently at the Appeals Council for the second time. I had a horrible representative for the first hearing. He withdrew himself after the first denial. He failed to address many issues that lead to my denial. I've had an ongoing issue with an incorrect AOD starting from the local field office that (even at the beginning of the second ALJ hearing) was not corrected. They entered my AOD as 3 years PAST my DLI. I wrote my own request for review after the first denial; the AC remanded my hearing, vacated the decision, and instructed the ALJ to correct my AOD (to the date I submitted) in addition to correcting several other issues. By the time of the second hearing, the AOD was STILL not corrected. This created a situation where the Medical Expert that was to appear at my second hearing was only given instructions to testify based on medical records beginning with (the incorrect AOD) to the present. Again, the difference between the AOD I submitted and the incorrect AOD is 8 years. These were not only the years in which I became disabled, but also the years in which I was still insured. So essentially, the ME was given access to my records beginning from a time period that was already 3 years AFTER my DLI. Even my second representative didn't grasp the critical issue (this is why I have to come to forums like this with questions because even my current representative has basically mentally stepped away). On top of everything else, the ME was allowed to testify by telephone (with NO prior notice) - my representative didn't object; the ME was also ONLY qualified as a child psychiatrist (had NO training about anything to do with Arthritis or Rheumatology) - again my representative didn't object. I later found out the ME lives only 4 miles from the hearing office and wasn't required to show up. I had to drive 100+ miles to this hearing office, yet a ME who lived 4 miles away didn't have to appear in person. Considering all that, the ME STILL agreed I met listing 14.09C1. In his limited testimony, he did mention something about "a strict measurement was not in my record", so that's why I took it upon myself to focus on this Kyphosis measurement. I feel I should focus more on making sure I stick with meeting listing 14.09C1 than a Step 4 or Step 5 evaluation (where the ALJ can basically say whatever he wants and deny my claim). I really feel at this point I'm having to win my claim on my own because it's pretty clear I've made it this far only by my own due diligence. Does any of this change your perspective?

Kenneth A Prigmore

Kenneth A Prigmore

Posted

You seem quite diligent in pursuing your case. If your attorney is not representing you well, you obviously can change attorneys. The biggest problem with attorney changes is the trouble with determination of fees. This can be such a pain that many attorneys will not take your case, so you may be on your own anyway. Recognize that judges have all of the rules to lean on when they make a decision, however, there is much leeway for the judge's opinion of testimony by the claimant, the ME, and the VE. Judges will review doctor's records and examinations and determine whether the treating doctor has identified solid disability, or if they just like the claimaint and are trying to help them win. All of this leeway can be a blessing and a curse. If you present the case in the right light, you may win under the same facts where others would lose. The quality of your presentation will depend largely on your past experience giving such presentations before that particular judge. This is where a good SSDI attorney can help you. Good luck!

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