Strategies for Meeting a Back Pain Listing

  What does it mean to meet a “listing?”  Stated simply, Social Security’s listings are detailed descriptions of medical problems that reflect such a level of severity that SSA will assume you cannot work.  Remember, that Social Security’s definition of disability considers whether your medically determinable condition will leave you unable to engage in “substantial activity” for 12 consecutive months.  If your diagnosis equals a listing, Social Security assumes that your capacity for work is impaired to the point where you could not work.

  Because a listing level impairment would automatically qualify you for benefits, Social Security does not make it easy to meet a listing.  In fact, a relatively small number of claimants actually meet listings because the diagnoses set out in the listings reflect such severity.

  The Musculoskeletal listing which covers the musculoskeletal system is one of fourteen body systems contained in Social Security’s Adult Listings of Impairments.  There is also a Childhood Listing of Impairments, but for purposes of this web site, I am going to focus on the adult back and spine listing.

  There are seven (7) substantive parts to the Listing 1.00:

1.02 - Major dysfunction of a joint due to any cause characterized by gross anatomical deformity and chronic joint pain and stiffness

1.03 - Reconstructive surgery or surgical arthrodesis (fusion) of a major weight bearing joint with inability to walk effectively

1.04 - Disorders of the spine with compromise of the nerve root

1.05 - Amputation due to any cause

• - both hands; or
• - one leg with stump complication; or
• - one hand and one leg; or
• - amputation of portion of hip or pelvis

1.06 - Fracture of the femur, tibia, pelvis, or one or more of the tarsal bones - with no solid healing of fracture and inability to walk effectively

1.07 - Fracture of an upper extremity with non-union of fracture and loss of function of that extremity

1.08 - Soft tissue injury (e.g. burns) resulting in loss of function of significant part of body

  Administrative personnel working for Social Security are trained to look for listing level impairments at the initial and at the reconsideration appeal stages of your case.  As such, most of the cases involving amputation, severe burns or even failed reconstructive surgery are caught early and are approved.

  My experience has been that if a Social Security Administrative Law Judge is going to find a listing level impairment at a hearing, the most likely listings he will find will be Listings 1.02 or 1.04.  These listings would cover such medical problems as:

• herniated disc at L5/S1 with nerve root impingement
• multi-level herniated discs
• failed back syndrome
• fusion with instability
• severe narrowing of spinal canal
• excess scar tissue formation at level of fusion

  If I believe that my client’s medical condition meets or equals a listing, I will prepare a listing checklist that tracks the elements of the specific listing, and ask the doctor to complete.  I will usually include in this checklist a few questions that speak to my client’s decreased function so I will have evidence that supports a functional capacity argument available to me at a hearing.

  I do not ever assume that I will be able to prove that a claim meets a listing.  I always come to my hearings prepared to argue for disability based on functional capacity and/or the grids as well.

  If the judge has called a medical expert and the ME concludes that the impairment is listing level, then my hearing will last only 10 minutes.  These are the cases when I recognize the value of keeping my mouth shut and graciously accepting a win.

Back to Back Pain Cases - Strategies and Case Studies

Copyright 2007-2010 Ginsberg Law Offices, P.C., 1854 Independence Square, Atlanta, GA 30338.  770-393-4985  All rights reserved.