Multiple sclerosis (MS) is a progressive autoimmune disease impacting a variety of body systems often resulting in weakness and loss of function in use of legs and arms, bladder and vision problems and frequently serious depression. Most patients also note severe fatigue as a result of the disease.
For many years, Social Security has acknowledged that MS symptoms can be totally disabling. Listing 11.09, which outlines the findings SSA is looking for in multiple sclerosis applications, was recently updated, significantly changing the analysis advocates must use. This also impacts the information patients must be giving to their neurologists to make sure the needed descriptions are in the medical charts. The new version of 11.09 is much more technically legal than the prior analysis.
The Listing provides two ways to prove “total disability.” The first requires proof of: “...an extreme limitation in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities.”
The new language description of “an extreme limitation” is dramatic. A claimant must be unable to rise from a chair, or unable to balance, without the assistance of another person, or the use of a walker, or the use of two crutches or two canes. The inability to use one’s arms means “a very serious limitation” in the ability to initiate and sustain work-related activities such as fine and gross manipulations, or the inability to lift, carry, push and pull.
The second method of proving disability is even more complex. It requires proof of: “Marked limitation in both physical functioning and in one of the following:
The explanatory language defines a “marked limitation” as a serious limitation in your ability to independently initiate, sustain and complete work related activities. Elsewhere in the Rulings “sustained” is defined as 8 hours a day, five days a week and is often a primary theory in these cases.
Physical functioning can be markedly impaired by fatigue, weakness, vision, breathing, and/or pain. This will be determined by the findings in the neurologist’s charts. The mental functioning requirements focus on the ability to perform those tasks in a work or work-like setting. Again, fatigue, pain and other symptoms can cause marked impact on the ability to sustain interaction with others appropriately, to concentrate and to remember and apply information.
It is concerning that few neurologists, in the course of routine medical practice, keep clinical notes on the four mental health issues. However, without those findings in the charts it will be difficult to meet the requirements of this Listing.
The new Listing dramatically changes the analysis Social Security applies when attempting to determine if claimants suffering from Multiple Sclerosis are entitled to Social Security disability benefits. Please call if you have clients or patients needing help with these issues, or if you would like us to come to your agency or support group and review these new requirements.
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