Social Security Disability and Multiple Sclerosis: The Impact of the MS ‘Listing’
By Jamie R. Hall, Esquire
Jamie Hall is an attorney admitted to practice in Pennsylvania, New York and New Jersey. He is a regular speaker on Social Security Disability issues, having given seminars throughout Pennsylvania, New York and Ohio. Mr. Hall can be reached for questions or assistance at (610)570-5253 or firstname.lastname@example.org
The path to social security disability benefits is almost invariably long and difficult. First, an individual’s disability must have progressed to the point where he or she can no longer engage in gainful employment. It is only at this point that an individual can submit his or her application for disability benefits. After this application is submitted, the decision process often takes up to two years. This is often the most difficult two years of the applicant’s life, when the transition from a life of work is complicated by the uncertainty of the pending application.
In a previous article, “Social Security Disability: A Primer,” I provided an outline of the Social Security Disability application process, from the standards involved to the decision making process and timeline. The present article will focus on the ‘Listing’ the Social Security Administration has provided for Multiple Sclerosis, and how this impacts the decision-making process.
Generally, a disability applicant must prove that they have a condition that prevents them from engaging in gainful employment of a certain degree of difficulty. This age-based standard often makes it difficult for younger individuals to obtain benefits. For certain medically diagnosed conditions, however, the Social Security Administration has issued ‘listings’ which provide a secondary method of proving disability. One such listing, neurological listing 11.09, directly addresses multiple sclerosis.
Under the MS listing, the administration has established a two-part test, recently revised in late 2016. Although the new guidelines are in their infancy and are being newly interpreted by judges, the test as drafted considers limitations in physical function and limitations in cognition.
(1) Extreme Limitation of Physical Function
To qualify under physical limitations alone, a person must show an “extreme” limitation in their physical function. According to the SSA, such limitations include an inability to stand from a seated position, an inability to maintain balance while standing (requiring a walker or two canes), or inability to use their hands to sustain pinching, handling, and gripping in a work like capacity.
(2) Marked Limitation of Motor Function and Marked Limitation in Cognition
Should a person’s physical limitations not rise to the level of ‘extreme,’ the claimant must show both physical and cognitive loss rendering them markedly limited. Marked physical limitations have been defined as less severe than the extreme limitations defined above, but still causing persistent symptoms that result in a serious limitation to engage in activities on a sustained basis. We anticipate that judges will incorporate limitations based upon chronic fatigue in the marked category, as a claimant may be able to balance or use their hands for short periods, but will quickly tire and experience diminished capacities.
Importantly, if physical limits are only considered to be ‘marked’ limitations, a cognitive loss rising to the level of ‘marked’ must also be shown. The SSA has further defined this standard by noting ’serious limitations’ in the ability to function effectively on a sustained basis, including understand, remember, interact with others, concentrate, and maintain pace. Again, we anticipate that cognitive fatigue will be incorporated in this component.
Other issues addressed in the prior version of the multiple sclerosis listing, such as visual dysfunction from optic neuritis, will now be interpreted under other portions of the listing. The largest change under the new listings, however, is for individuals with chronic and premature fatigue but minimal cognitive dysfunction. Assuming the fatigue does not rise to the level of being ‘extreme’ as defined by the SSA, these individuals will face greater challenges in obtaining an approval.
As evidenced above, these standards are recently revised and are living documents that are newly interpreted on a regular basis. Should you have questions or need assistance in your disability claim, you are welcome to contact our office to discuss whether a listing claim is appropriate, or whether your claim should be pursued under the traditional guidelines.