[Federal Register Volume 85, Number 233 (Thursday, December 3, 2020)]
[Rules and Regulations]
[Pages 78164-78189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25250]
[[Page 78163]]
Vol. 85
Thursday,
No. 233
December 3, 2020
Part II
Social Security Administration
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20 CFR Parts 404 and 416
Revised Medical Criteria for Evaluating Musculoskeletal Disorders;
Final Rule
Federal Register / Vol. 85 , No. 233 / Thursday, December 3, 2020 /
Rules and Regulations
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA-2006-0112]
RIN 0960-AG38
Revised Medical Criteria for Evaluating Musculoskeletal Disorders
AGENCY: Social Security Administration.
ACTION: Final rules.
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SUMMARY: We are revising the criteria in the Listing of Impairments
(listings) that we use to evaluate claims involving musculoskeletal
disorders in adults and children under titles II and XVI of the Social
Security Act (Act). The revisions reflect our adjudicative experience,
advances in medical knowledge, and comments we received from the public
in response to a notice of proposed rulemaking (NPRM).
DATES: These rules are effective April 2, 2021.
FOR FURTHER INFORMATION CONTACT: Cheryl A. Williams, Office of
Disability Policy, Social Security Administration, 6401 Security
Boulevard, Baltimore, Maryland 21235-6401, (410) 965-1020. For
information on eligibility or filing for benefits, call our national
toll-free number, 1-800-772-1213, or TTY 1-800-325-0778, or visit our
internet site, Social Security Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
We are making final the rules for evaluating musculoskeletal
disorders that we proposed in the NPRM published in the Federal
Register on May 7, 2018.\1\ The preamble to the NPRM provides the
background for these revisions. You can view the preamble to the NPRM
by visiting http://www.regulations.gov and searching for document
``SSA-2006-0112.'' We are making a number of changes in these final
rules in response to public comments to the NPRM, which we explain
below. We are also making a conforming change to the endocrine
disorders body system to comport with the change we proposed to section
416.926a(m) to be consistent with these final rules.
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\1\ 83 FR 20646 (2018).
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Why are we revising the listings for evaluating musculoskeletal
disorders?
We developed these final rules as part of our ongoing review of the
listings. We are revising the listings for evaluating musculoskeletal
disorders to update the medical criteria and clarify how we evaluate
musculoskeletal disorders.
When will we begin to use these final rules?
As we noted in the dates section of this preamble, these final
rules will be effective on April 2, 2021. We delayed the effective date
of the rules to give us time to update our systems, and to provide
training and guidance to all of our adjudicators before we implement
the final rules. The current rules will continue to apply until the
effective date of these final rules. When the final rules become
effective, we will apply them to new applications filed on or after the
effective date of the rules, and to claims that are pending on or after
the effective date.\2\
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\2\ This means that we will use these final rules on and after
their effective date in any case in which we make a determination or
decision. We expect that Federal courts will review our final
decisions using the rules that were in effect at the time we issued
the decisions. If a court reverses our final decision and remands a
case for further administrative proceedings after the effective date
of these final rules, we will apply these final rules to the entire
period at issue in the decision we make after the court's remand.
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Public Comments on the NPRM
In the NPRM, we provided the public with a 60-day comment period,
which ended on July 6, 2018. We received 39 comments.\3\ The comments
came from advocacy groups, legal services organizations, a State agency
that makes disability determinations for us, medical organizations, and
individual commenters. A number of the letters provided identical (or
very similar) comments and recommendations.
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\3\ The docket summary on Regulations.gov indicates 46 comments
were received; however, this number includes seven comments we
received for a prior final rule in which we sought comments with a
comment period that closed in January 2002 (66 FR 58009, November
19, 2001). Thus, we actually only received a total of 39 public
comments in response to these rules.
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We carefully considered all of the comments that were relevant to
this rulemaking. We have tried to summarize the commenters' views
accurately and respond to all of the significant issues raised by the
commenters that were within the scope of these rules. We have not
summarized or responded to comments that were outside the scope of the
proposed rules. Some commenters noted provisions with which they agreed
and did not make suggestions for changes in those provisions. We did
not summarize or respond to those comments.
Comment: Several commenters asked us to withdraw this rule because
they opined the changes we proposed were more stringent in nature. They
asserted fewer applicants would therefore qualify for disability at the
listing level. Consequently, they asserted, further assessment at later
steps in the evaluation process would be needed, requiring vocational
information and consideration of the person's age, education, and work
experience to make a determination. Ultimately, the entire disability
process would be prolonged. Commenters also asserted that in some
cases, even if we changed certain listing criteria, the functional
limitations associated with some musculoskeletal conditions would not
necessarily change, but would rather result in further evaluations
being needed at steps 4 and 5 (and perhaps disability awards being made
at those levels). This too could result in longer decision times.
Response: We decline to withdraw this final rule. The listings
describe impairments that preclude the ability to perform ``any gainful
activity'' (or, in the case of a child applying for Supplemental
Security Income (SSI) payments based on disability, to identify
impairments that result in marked and severe functional
limitations).\4\ Even if in some cases (although not all) the revised
rule results in more decisions being made at steps 4 and 5, we still
have a statutory obligation to ensure the listings are up to date and
accurately reflect current medical criteria. Contrary to the
commenters' assertion, changing the listing does affect the associated
functional criteria as well. The updated functional criteria are
uniform and specific severity criteria, which represent the level of
dysfunction of the upper and lower extremities that would cause a
person to be unable to do any work or would cause a child to be unable
to perform age-appropriate activities.
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\4\ 20 CFR 404.1525(a) and 416.925(a).
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Comment: One commenter believes that the functional criteria we use
for adults (Part A) and for children (Part B) should not be the same,
because children with disabilities are defined by their ability to
participate in activities at a level comparable to children of the same
age without disabilities.
Response: We disagree. The functional criteria for musculoskeletal
disorders in children age 3 and older are appropriately comparable to
the functional criteria for musculoskeletal disorders in adults. When
we evaluate a child's functioning for purposes of the disability
program, including under these listings, we consider whether the child
does the things that other children their age typically do, or whether
they
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have limitations and restrictions because of their medically
determinable impairment(s). We also look at how well children do the
activities and how much help they need from family, teachers, or
others. Information about what children can and cannot do, and how they
function on a day-to-day basis at home, school, and in the community,
allows us to compare their activities to the activities of children the
same age who do not have impairments.\5\ In 101.00E1 (How do we use the
functional criteria to evaluate your musculoskeletal disorder under
these listings?), we explain that under these rules we compare the
musculoskeletal functioning of a child age 3 and older to the
functioning of children the same age who do not have impairments,
whereas we explain in 1.00E2 (Work environment) that we evaluate
musculoskeletal functioning for adults with respect to the work
environment. Furthermore, we provide unique criteria for evaluating
musculoskeletal disorders in infants and toddlers in listing 101.24
(Musculoskeletal disorders of infants and toddlers, from birth to
attainment of age 3, with developmental motor delay), which take into
account the rapid development of motor function during the infant and
toddler stages.
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\5\ 20 CFR 416.924a and Social Security Ruling (SSR) 09-1p:
Title XVI: Determining Childhood Disability Under the Functional
Equivalence Rule--The ``Whole Child'' Approach. Available at:
https://mwww.ba.ssa.gov/OP_Home/rulings/ssi/02/SSR2009-01-ssi-02.html.
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Comment: Many commenters asked that, in addition to considering a 0
to 5 grading scale of muscle function, we consider alternative,
equivalent, medically acceptable grading scales. One commenter
expressed that a 0 to 5 grading scale may not be reliable for children
who are age 5 or younger, or for older children and adults with
cognitive impairments, because of these groups' presumed inability to
follow the test instructions.
Response: We agree with these comments, and provide clarification
in 1.00C2c (Physical examination report(s)) and 101.00C2c (Physical
examination report(s)). We revised the introductory text for reduction
in muscle strength to indicate that the measurement should be based on
a muscle strength grading system that is considered medically
acceptable for the person's age and impairments. We also state that we
will accept muscle strength tests using scales other than the 0 to 5
scale, provided the scales used are equivalent, medically acceptable
scales.\6\ Furthermore, we added an explanation of what we consider
reduction in muscle strength present when the evidence demonstrates
that the person's muscle strength is less than active range of motion
against gravity with maximum resistance. Since Table 1--Grading System
of Muscle Function in 1.00C2c (Physical examination report(s)) and
101.00C2c (Physical examination report(s)) already includes multiple
examples of alternative scales, including those suggested, and we added
the clarification that we will accept equivalent, medically acceptable
scales, we did not add the additional suggested alternative percentage
scale used by Kendall and McCreary. If a person's musculoskeletal
disorder causes a reduction in muscle strength, and we do not have a
report documenting the strength of the muscle(s) in question because
the person cannot participate in muscle strength testing, we will
consider other objective clinical findings appropriate to the specific
musculoskeletal disorder. As well, we note that adults and children
with cognitive impairments also may be found disabled on another basis
without consideration of their musculoskeletal impairments. We will
cover this information, about equivalent, medically acceptable scales,
including the Kendall and McCreary scale, during our training on these
final rules to fully ensure that adjudicators are aware.
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\6\ For example, Table 1 (included in the NPRM and again here)
includes, under the muscle strength chart, the none/trace/poor/fair/
good/normal alternate scale.
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Comment: One commenter suggested that we should not require a
positive straight-leg raising test, but should instead use a ``cluster
of tests'' and allow flexibility in evaluations.
Response: We disagree. The straight-leg raising test is a
longstanding requirement for current listing 1.04 (Disorders of the
spine), and it provides objective medical evidence in cases involving
lumbar nerve root compromise. The straight-leg raising test is
routinely used in medical examinations and is well-accepted by the
medical community. It does not require specialty equipment and is
considered reliable, accurate, and non-invasive.7 8
Furthermore, the commenter did not specify the ``cluster of tests''
that should be used instead.
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\7\ Fajolu, O.K., Pencle, F.J.R., Rosas, S., & Chin, K.R.
(2018). A prospective analysis of the supine and sitting straight-
leg raise test and its performance in litigation patients. Journal
of Spine Surgery, 12(1), 58-63. https://doi.org/10.14444/5010.
\8\ Rabin, A., Gerszten, P.C., Karausky, P., Bunker, C.H.,
Potter, D.M., & Welch, W.C. (2007). The sensitivity of the seated
straight-leg raise test compared with the supine straight-leg raise
test in patients presenting with magnetic resonance imaging evidence
of lumbar nerve root compression. Archives of Physical Medicine and
Rehabilitation, 88(7), 840-43. https://doi.org/10.1016/j.apmr.2007.04.016.
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Comment: One commenter asked that we clarify which sources we
consider to be acceptable medical sources, and that we consider
physical therapists as acceptable medical sources.
Response: We need objective medical evidence from an ``acceptable
medical source'' to establish the existence of a medically determinable
impairment(s). We define in 20 CFR 404.1502(a) and 416.902(a) which
sources we consider to be ``acceptable medical sources.'' To the extent
that information is already provided at length in our existing
regulations, we do not repeat it here. However, in response to the
commenter's specific concern, we note that physical therapists are not
included in the list of acceptable medical sources. As we explained
when we updated our medical evidence rules in 2017,\9\ our acceptable
medical sources have licensure requirements that are more nationally
consistent, which is essential for us to administer a national
disability program. For physical therapists, States significantly vary
on titles, the required hours of experience for licensure, and the
scope of practice, such as clinical and non-clinical practice. Thus, we
do not include them in the list of acceptable medical sources.
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\9\ 82 FR 5844 (2017).
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When we evaluate the severity of musculoskeletal disorders
throughout the sequential evaluation process, we consider all relevant
evidence we receive from all medical sources, including physical
therapists, regardless of whether they are an acceptable medical
source. We therefore note that while evidence from physical therapists
cannot establish a medically determinable impairment, the evidence can
still help us establish what, if any, functional limitations arise from
the medically determinable impairment.
Comment: One commenter asked that we use the terms ``arm'' instead
of ``upper extremity'' and ``leg'' instead of ``lower extremity.''
Response: We did not adopt this comment. An upper extremity
includes not just the arm, but also structures such as the fingers,
hand, wrist, elbow, forearm, upper arm, and shoulder; and a lower
extremity includes not just the leg, but also the toes, feet, ankles,
lower leg, knee, upper leg, and hip.
Comment: One commenter asked that we define the ankle as the
talocrural joint, instead of the tarsal joint, as the talocrural joint
is the ankle proper.
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Response: We agree with the comment. In 1.00M (What do we consider
when we evaluate non-healing or complex fractures of the femur, tibia,
pelvis, or one or more of the talocrural bones (1.22)?), 1.20C
(Amputation due to any cause), 1.20D (Amputation due to any cause),
101.00M (What do we consider when we evaluate non-healing or complex
fractures of the femur, tibia, pelvis, or one or more of the talocrural
bones (101.22)?), 101.20C (Amputation due to any cause), and 101.20D
(Amputation due to any cause), we referred to the ankle as the ``tarsal
joint,'' which is incorrect. We replaced ``tarsal'' with ``talocrural''
in these sections, and also in listings 1.22 (Non-healing or complex
fractures of the femur, tibia, pelvis, or one or more of the talocrural
bones) and 101.22 (Non-healing or complex fractures of the femur,
tibia, pelvis, or one or more of the talocrural bones).
Comment: One commenter asked that we clarify whether these rules
consider Syme amputations.
Response: We did not make any changes in the final rules based on
this comment. The criteria in 1.20D (Amputation due to any cause) and
101.20D (Amputation due to any cause) require amputation of one or both
lower extremities, occurring at or above the ankle. A Syme amputation
does not meet the criteria in 1.20D and 101.20D, because it is an
amputation done through the ankle in which the tibia and fibular are
left intact, the foot is removed, and the heel pad is saved. This is
done so that the body's weight can be borne over the distal end of the
stump.\10\ A Syme amputation offers early post-operative weight-bearing
without the need for gait training, better gait pattern with less
energy expenditure, and less pressure on the distal
stump.11 12 As a result, a person with a Syme amputation
often requires only a cane and walking boot to ambulate post-surgery.
Once the stump has sufficiently healed, a prosthesis is fitted to allow
near-normal functioning. For this reason, the impairment, in and of
itself, does not rise to listing-level severity. In cases involving a
Syme amputation we would then evaluate the claim under the guidance in
1.00S (How do we evaluate musculoskeletal disorders that do not meet
one of these listings?) and 101.00R (How do we evaluate musculoskeletal
disorders that do not meet one of these listings?).
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\10\ Diveley, R.L., & Kiene, R.H. (2008). An improved prosthesis
for a syme amputation: Rex L. Diveley MD (1893-1980), Richard H.
Kiene MD. Clinical orthopaedics and related research, 466(1), 127-
129. https://doi.org/10.1007/s11999-007-0027-0.
\11\ Syme Amputation for Limb Salvage: Early Experience with 26
Cases, Frykberg, R., Abraham, S., Tierney, E., and Hall, J. The
Journal of Foot and Ankle Surgery, Volume 45, Issue 2, March-April
2007, pp 93-100. Doi: 10.1053/j.jfras.2006.11.005.
\12\ Syme Amputation and Prosthetic Fitting Challenges, Philbin,
T., DeLuccia, D., Nitsch, R., Maurus, P. Techniques in Foot & Ankle
Surgery, Sept. 2007--Volume 6--Issue 3--p147-155. Doi: 10.1097/
BTF.0b013e31814255b9.
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Comment: Many commenters asked that we clarify that the terms
``compromise'' and ``impingement'' are not required for listings 1.15
(Disorders of the skeletal spine resulting in compromise of a nerve
root(s)) and 101.15 (Disorders of the skeletal spine resulting in
compromise of a nerve root(s)), because other terms such as
``displacement'' and ``foraminal stenosis'' also may indicate
compromise of a nerve root.
Response: We did not make any changes in the final rules based on
these comments. Listings 1.15 (Disorders of the skeletal spine
resulting in compromise of a nerve root(s)) and 101.15 (Disorders of
the skeletal spine resulting in compromise of a nerve root(s)) require
symptoms of radicular distribution of one or more manifestations,
radicular neurological signs, findings on imaging, and physical
limitation of musculoskeletal functioning. We explain in 1.00F1 (What
do we consider when we evaluate disorders of the skeletal spine
resulting in a compromise of a nerve root(s)? (1.15)) and 101.00F1
(What do we consider when we evaluate disorders of the skeletal spine
resulting in a compromise of a nerve root(s)? (101.15)) that compromise
of a nerve root may be referred to as ``nerve root impingement,'' and
both are terms used when a physical object, such as a tumor or
herniated disc, is seen pushing on the nerve root in an imaging study
or during surgery. Moreover, while the proposed terms of
``displacement'' and ``foraminal stenosis'' may indicate compromise of
a nerve root, they are not exclusively alternative terms for compromise
of a nerve root but instead have separate meanings.13 14
``Disc displacement'' is an alternative term for ``disc herniation''
and ``foraminal stenosis'' refers to narrowing of the openings between
the bones of the spine. Both of these conditions may occur in people
without nerve root compromise as described by these listings. We do not
include every possible term indicating compromise of a nerve root. We
consider all evidence regardless of whether the terms we include in the
rules, or other comparable terms, appear in the evidence. We also note
that our medical consultants are acceptable medical sources with formal
medical training, and they will not be confused by commonly accepted
alternative medical terms.
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\13\ Raja, A., Hoang, S, Viswanath, O., Herman, J.A., & Mesfin,
F.B. (2020). Spinal stenosis. In StatPearls. Retrieved from https://www.ncbi.nlm.nih.gov/books/NBK441989/.
\14\ Leonardi, M. & Boos, N. (2008). Disc herniation and
radiculopathy. In N. Boos & M. Aebi, (Eds.), Spinal Disorders
Fundamentals of Diagnosis and Treatment (pp. 481-512). Berlin:
Springer. Available from https://link.springer.com/content/pdf/10.1007%2F978-3-540-69091-7_18.pdf.
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Comment: Many commenters asked that we include
``pseudoclaudication'' as an alternative term for ``neurogenic
claudication.''
Response: We adopted these comments. In 1.00G2 (Compromise of the
cauda equina) and 101.00G2 (Compromise of the cauda equina), we added
``pseudoclaudication'' as an alternative term for ``neurogenic
claudication.''
Comment: Some commenters objected to the removal of listing
criteria for spinal arachnoiditis found in current 1.04B (Disorders of
the spine).
Response: Spinal arachnoiditis is a rare spinal disorder involving
inflammation of the arachnoid, which is one of the membranes
surrounding the spinal cord. The inflammation can result in adhesion of
the nerve roots, which, in turn, affects nerve
function.15 16 The disorder is characterized by neurological
signs and symptoms, including, but not limited to, pain, numbness or
weakness in the legs, muscle cramps or spasms, and motor
paralysis.17 18 We believe spinal arachnoiditis is more
appropriately evaluated under the neurological body system due to its
origins in the nervous system. Listings 11.08 (Spinal cord disorders)
and 111.08 (Spinal cord disorders) offer different methods of
evaluating functional limitations resulting from spinal cord disorders,
such as spinal arachnoiditis, including extreme limitation in motor
function or marked limitation in physical and mental functioning, which
may be appropriate for evaluating the functional limitations caused by
spinal arachnoiditis depending on the medical evidence we receive. We
added a statement to 1.00F (What do we consider when we evaluate
disorders of the skeletal spine resulting in compromise
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of a nerve root(s) (1.15)?) and 101.00F (What do we consider when we
evaluate disorders of the skeletal spine resulting in compromise of a
nerve root(s) (101.15)?) indicating that spinal arachnoiditis should be
evaluated under 11.00 and 111.00. Additionally, we will highlight this
clarification during our training on these final rules.
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\15\ Wright, M.H. + Denney, L.C. (2003). A comprehensive review
of spinal arachnoiditis. Orthopaedic Nursing, 22(3), 215-9. doi:
10.1097/00006416-200305000-00010.
\16\ https://rarediseases.info.nih.gov/diseases/5839/arachnoiditis.
\17\ https://my.clevelandclinic.org/health/diseases/12062-arachnoiditis.
\18\ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3237290/.
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Comment: Several commenters asked that we use plain language
terminology instead of medical terminology in these rules, and gave an
example of using ``pins and needles'' instead of ``paresthesia.''
Response: We did not make any changes in the final rules based on
these comments. While we drafted these rules using plain language to
the extent possible, the rules specify the medical criteria we use to
evaluate musculoskeletal disorders. The appropriate medical term is
paresthesia. We note that the term ``pins and needles'' is at times
used in medical literature 19 20 21 but as a specific
medical criteria we believe it is overly colloquial. As such, while we
acknowledge that the term ``pins and needles'' may appear in medical
records, we choose to not include the colloquialism in the regulatory
text. We will cover this information during our training on these final
rules to fully remind adjudicators that colloquialisms such as ``pins
and needles'' may be seen in medical records.
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\19\ Harrison's Principles of Internal Medicine, Chapter 22
(https://accessmedicine.mhmedical.com/content.aspx?sectionid=192011473&bookid=2129#196882079).
\20\ https://www.ncbi.nlm.nih.gov/medgen/14619.
\21\ Bates' Guide to Physical Examination and History Taking
Twelfth Edition.
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Comment: One commenter stated that many of the terms used in these
rules are ``not defined well enough'' for adjudicators and others to be
sure what they mean and gave the examples of ``unable,'' ``walk,''
``fine and gross motor movements,'' ``picking,'' ``pinching,''
``manipulating and fingering,'' ``handling,'' ``gripping and
grasping,'' ``holding,'' ``turning,'' ``lifting and carrying,''
``seriously limit,'' and ``prescribed treatment.''
Response: We disagree with these comments. These rules use ``fine
and gross movements'' (not ``fine and gross motor movements''), which
is a term defined in 1.00E4 (Fine and gross movements) and 101.00E4
(Fine and gross movements). The majority of the other terms identified
by this commenter are examples of fine movements (picking, pinching,
manipulating, and fingering) and gross movements (handling, gripping,
grasping, holding, turning, lifting, and carrying), and we use these
terms, as well as ``unable'' and ``walk,'' in these rules as they are
defined in common English usage. The proposed rules did not include the
terms ``prescribed treatment'' or ``seriously limit.''
Comment: One commenter expressed concern with the guidance in
101.00C5b (Response to treatment) for child claims (which is also in
1.00C5b (Response to treatment) for adult claims) that explains we may
defer our determination or decision under these listings for up to 3
months from the date treatment began. The commenters recommended that
the length of deferral time be considered in consultation with a
physician or other medical professional.
Response: We agree with and are adopting these comments. We revised
1.00C5b (Response to treatment) and 101.00C5b (Response to treatment)
by removing the last sentence, which stated that we may defer our
determination or decision under these listings for up to 3 months. The
remaining guidance continues to explain that we need information about
treatment over a sufficient period of time to determine its effect on a
person's musculoskeletal functioning. We use medical consultants and
our adjudicative experience to determine the appropriate amount of
time. We will not defer our determination or decision when the evidence
establishes that the claimant is disabled, either under these listings
or on another basis.
Comment: We sought comment on whether the proposed functional
criteria in 1.00C6 (Assistive devices) and 101.00C6 (Assistive devices)
were appropriate and sufficient. In response, one commenter asked that
we add a fourth category of assistive devices, specifically wheeled
mobility devices, including manual and power wheelchairs, to the list
of assistive devices in 1.00C6 (Assistive devices) and 101.00C6
(Assistive devices). Most of the other commenters made similar
comments, recommending that we add ``wheelchairs and scooters''
wherever we include ``a documented medical need for a walker, bilateral
canes, or bilateral crutches'' in these rules, because people with a
documented need for a wheelchair or scooter require ``at least as much
assistance in walking as those with a need for other assistive
devices.'' These commenters also asked that we ``examine how a patient
will use an assistive device, not merely why it is needed,'' and that
we require documentation of distance, cadence, and level of assistance.
Response: We are partially adopting the suggestions offered. The
functional criteria in these rules do not require an inability to walk,
so the relative assistance in walking offered by different assistive
devices is not the point of consideration. Rather, the functional
criteria in these rules represent functional limitations related to the
upper extremities. These functional limitations either directly
represent upper extremity limitations, as with the criteria for an
inability to perform fine and gross movements, or indirectly represent
upper extremity limitations, as with the criteria for the use of a
hand-held assistive device(s), which necessarily limits the use of the
upper extremity holding the assistive device. Further, as we explain in
1.00C6d (Hand-held assistive devices) and 101.00C6d (Hand-held
assistive devices), ``[w]hen you use a one-handed, hand-held assistive
device (such as a cane) with one upper extremity to walk and you cannot
use your other upper extremity for fine or gross movements (see
1.00E4), the need for the assistive device limits the use of both upper
extremities.''
To be responsive to the commenters, however, we added wheeled and
seated mobility devices to the functional criteria based on how the
wheeled and seated mobility device affects the person's use of the
upper extremities. As suggested by the commenters, these modifications
to the functional criteria are reflected everywhere hand-held assistive
devices were proposed in the NPRM. We also added explanation to the
introductory text about how we will consider wheeled and seated
mobility devices in 1.00C6e (Wheeled and seated mobility devices),
1.00E3 (Functional criteria), 1.00K4 (Amputation of one upper extremity
and one lower extremity (1.20C)), 1.00K5 (Amputation of one lower
extremity or both lower extremities with complications of the residual
limb(s) (1.20D)), 101.00C6e (Wheeled and seated mobility devices),
101.00E3 (Functional criteria), 101.00K4 (Amputation of one upper
extremity and one lower extremity (101.20C)), and 101.00K5 (Amputation
of one lower extremity or both lower extremities with complications of
the residual limbs(s) (101.20D)). We further clarified that any
assistive device, regardless of whether it is wheeled, hand-held, or
worn, must be supported by medical documentation of the medical need
for the assistive device for a continuous period of at least 12 months
in 1.00C6a (General) and 101.00C6a (General). With respect to the
requests that we require documentation of distance, cadence, and level
of assistance, we decline to do so. Most records already supply the
information
[[Page 78168]]
needed to assess the new functional criteria whereas information about
the requested items, especially distance, is not typically provided and
would necessitate additional development and burden to the claimant to
obtain that information.
Comment: One commenter asked that we clarify that hand-held
assistive devices are devices you hold onto.
Response: We adopted this comment. In 1.00C6d (Hand-held assistive
devices) and 101.C6d (Hand-held assistive devices), we clarified that
hand-held assistive devices are devices you hold onto, not carry, with
your hands.
Comment: One commenter expressed that the statement in 1.00C6d
(Hand-held assistive devices) about the need for evidence from a
medical source describing how the person walks when using a hand-held
assistive device is vague and open to interpretation.
Response: We did not make changes in response to this comment.
Depending on the specific musculoskeletal impairment causing the
functional limitation, there is variability in the type of device being
used, how a person uses an assistive device, and how this device
affects mobility. Requiring specific details from the medical source
may not adequately address the facts in an individual case. For these
reasons, we are intentionally leaving the type of description provided
to the discretion of the medical source rather than prescribing a
specific type of description. This allows the medical source necessary
flexibility in providing a description.
Comment: Many commenters suggested we explain in 1.00D (How do we
consider symptoms, including pain, under these listings?) and 101.00D
(How do we consider symptoms, including pain, under these listings?) of
the introductory text of the listings that a lack of opioid
prescription or a person's attempt to reduce or avoid opioid use does
not indicate the severity of a musculoskeletal disorder.
Response: In 1.00C5b (Response to treatment) and 101.00C5b
(Response to treatment), we clarified that a person's musculoskeletal
disorder may meet or medically equal one of these listings regardless
of whether the person was prescribed opioid medication, or whether the
person was prescribed opioid medication and did not follow this
prescribed treatment. In addition to how we consider opioids in the
context of treatment, in 1.00D (How do we consider symptoms, including
pain, under these listings?) and 101.00D (How do we consider symptoms,
including pain, under these listings?), we explain how we consider
symptoms, including pain, under these listings. The disability program
rules require the presence of a medically determinable impairment that
could reasonably be expected to produce the symptoms (including pain),
a description of the person's medications (see 1.00C5b (Response to
treatment) and 101.00C5b (Response to treatment)), and the effects of
those medications on the allegations of pain. Our regulations in 20 CFR
404.1529 and 416.929 and Social Security Ruling (SSR) 16-3p: Titles II
and XVI: Evaluation of Symptoms in Disability Claims,\22\ explain how
we evaluate symptoms, including pain, in disability adjudication.
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\22\ 81 FR 14166 (03/16/16), 81 FR 15776 (03/24/16)
(Correction), 82 FR 49462 (10/25/17) (Republished).
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Our rules about the failure to follow prescribed treatment are
found in 20 CFR 404.1530 and 416.930, with additional guidance found in
SSR 18-3p: Titles II and XVI: Failure to Follow Prescribed
Treatment.\23\ If a person is prescribed opioid medication, and chooses
to not take the medication, we consider these rules for any medical
condition(s), not just musculoskeletal disorders. SSR 18-3p
specifically references the ``risk of addiction to opioid medication''
as an example of a ``good cause'' reason for not following prescribed
treatment with opioid medication.\24\ We further note that the
musculoskeletal disorders listings are used at step three of our
sequential evaluation process, and are used to establish medical
criteria to help expedite allowances. Therefore, we do not deny adult
claims at this step for any reason and only deny childhood claims if
the child's medically determinable impairment(s) does not meet,
medically equal, or functionally equal the listings.\25\
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\23\ SSR 18-3p: Titles II and XVI: Failure to Follow Prescribed
Treatment. Available at: https://www.ssa.gov/OP_Home/rulings/di/02/SSR2018-03-di-02.html.
\24\ SSR 18-3p: Titles II and XVI: Failure to Follow Prescribed
Treatment. Available at: https://www.ssa.gov/OP_Home/rulings/di/02/SSR2018-03-di-02.html.
\25\ We use a five-step sequential evaluation process to
determine whether an adult is disabled under titles II and XVI. 20
CFR 404.1520 and 416.920. We use a different process to decide
whether a child is disabled under title XVI of the Act. 20 CFR
416.924.
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Comment: A number of commenters asked that we continue to consider
obesity and its effects on the musculoskeletal system.
Response: We agree with the comments. We have not changed our
policy on evaluating obesity. We consider all medically determinable
impairments when we evaluate claims for disability purposes. If obesity
is a medically determinable impairment, we consider its effects on
functioning throughout the sequential evaluation process. These final
rules do not eliminate or prevent our consideration of obesity. We
added section 1.00Q (How do we consider the effects of obesity when we
evaluate your musculoskeletal disorder?), which explains that the
combined effects of obesity with musculoskeletal impairments can be
greater than the effects of each impairment considered separately. We
also provide guidance in SSR 19-2p: Titles II and XVI: Evaluating Cases
Involving Obesity, which explains how we consider obesity in disability
claims.\26\ The removal of the prior section 1.00Q (Effects of
obesity), which explained that the combined effects of obesity with
musculoskeletal impairments can be greater than the effects of each
impairment considered separately, does not change our policy on
evaluating obesity.
---------------------------------------------------------------------------
\26\ SSR 19-2p: Titles II and XVI: Evaluating Cases Involving
Obesity. Available at: https://www.ssa.gov/OP_Home/rulings/di/01/SSR2019-02-di-01.html.
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Comment: One commenter asked how these rules account for
fibromyalgia, considering there are no diagnostic tests for this
condition; no clear physical, anatomical, or psychological
abnormalities resulting from fibromyalgia; and that it is difficult to
fully assess pain as part of a medical evaluation, which is
particularly challenging given that pain is the primary presenting
symptom of fibromyalgia.
Response: These final rules do not change how we consider
fibromyalgia. Fibromyalgia is a complex medical condition characterized
primarily by widespread pain in the joints, muscles, tendons, or nearby
soft tissues that has persisted for at least 3 months. SSR 12-2p:
Titles II and XVI: Evaluation of Fibromyalgia explains how we consider
fibromyalgia in disability claims, including how we evaluate it at step
3 of our sequential evaluation process.\27\ We consider all medically
determinable impairments when we evaluate claims for disability
purposes. Once fibromyalgia is established as a medically determinable
impairment based on appropriate medical evidence, we consider its
effects on functioning throughout the sequential evaluation process.
---------------------------------------------------------------------------
\27\ SSR 12-2p: Titles II and XVI: Evaluation of Fibromyalgia.
Available at: https://www.ssa.gov/OP_Home/rulings/di/01/SSR2012-02-di-01.html.
---------------------------------------------------------------------------
Comment: Several commenters disagreed with our introduction into
the regulations of an explicit requirement that all applicable listing
criteria must
[[Page 78169]]
be present simultaneously, and asked that we change our policy to
reflect the holding with respect to prior 1.04A in Radford v. Colvin,
734 F.3d 288 (4th Cir. 2013).\28\
---------------------------------------------------------------------------
\28\ Acquiescence Ruling (AR) 15-1(4): Radford v. Colvin, 734
F.3d 288 (4th Cir. 2013): Standard for Meeting Section 1.04A of the
Listing of Impairments--Disorders of the Spine with Evidence of
Nerve Root Compression--Titles II and XVI of the Social Security
Act. Available at: https://www.ssa.gov/OP_Home/rulings/ar/04/AR2015-01-ar-04.html. The Radford Court held that ``[a] claimant need not
show that each symptom was present at precisely the same time--i.e.,
simultaneously--in order to establish the chronic nature of his
condition. Nor need a claimant show that the symptoms were present
in the claimant in particularly close proximity.''
---------------------------------------------------------------------------
Response: We did not adopt these comments. The holding of the Court
of Appeals in Radford differs from our interpretation of the listing
requirement, and is inconsistent with our understanding of the degree
of severity requirements at step 3 of the sequential evaluation
process.
In Radford,\29\ the United States Court of Appeals for the Fourth
Circuit held that Listing 1.04A required a claimant to show only ``that
each of the symptoms are present, and that the claimant has suffered or
can be expected to suffer from nerve root compression continuously for
at least 12 months.'' Contrary to our policy that the requisite level
of severity requires the simultaneous presence of all the medical
criteria in paragraph A of former 1.04, the Court of Appeals held that
a claimant need not show that each criterion was present simultaneously
or in particularly close proximity. Because this holding was contrary
to our policy, we issued AR 15-1(4), which implemented the Court of
Appeals' holding within the Fourth Circuit.\30\
---------------------------------------------------------------------------
\29\ Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013).
\30\ Acquiescence Ruling (AR) 15-1(4): Radford v. Colvin, 734
F.3d 288 (4th Cir. 2013): Standard for Meeting Section 1.04A of the
Listing of Impairments--Disorders of the Spine with Evidence of
Nerve Root Compression--Titles II and XVI of the Social Security
Act. Available at: https://www.ssa.gov/OP_Home/rulings/ar/04/AR2015-01-ar-04.html.
---------------------------------------------------------------------------
These final rules clarify our interpretation of the regulations.
For a medically determinable impairment to meet a listing, the criteria
must be present simultaneously to establish listing-level severity.
Once that is established, evidence must show that this level of
severity has lasted, or is expected to last, for at least 12 months.
We note that in reaching its conclusion in Radford, the Court of
Appeals declined to give our interpretation deference because the
agency had not previously published any regulation or other agency
guidance supporting our interpretation.\31\ The Court of Appeals also
found that our interpretation was ``plainly inconsistent with the text
and structure of the regulation because the regulation said ``nothing
about a claimant's need to show that the symptoms present
simultaneously in the claimant or in close proximity to one another''
\32\ Thus, the Court of Appeals decision itself does not preclude us
from developing regulations to explicit state this requirement and
establish national consistency. Furthermore, our acquiescence rules
also allow us to subsequently clarify, modify, or revoke regulations
that are the subject of a circuit holding that we determine conflicts
with our interpretation of the regulations.\33\ In accordance with
these rules, we will rescind AR 15-1(4) when these final rules become
effective.
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\31\ Radford v. Colvin, 734 F.3d at 294.
\32\ Id.
\33\ 20 CFR 404.985(e)(4) and 416.1485(e)(4).
---------------------------------------------------------------------------
Comment: These commenters also stated that the 4-month duration
period, during which all of the relevant criteria must be present, if
not ``present simultaneously,'' in the medical evidence, should not be
a requirement for these listings, and that we should allow medical
sources to opine whether the criteria occurred within a 4-month period
regardless of whether these findings are actually recorded in the
medical record. One commenter suggested that we change the 4-month
period to a 6-month period.
Response: We did not adopt these comments. None of these commenters
submitted any supporting research or data to justify such a change to
these rules. The intention of a 4-month time period was to best ensure
all relevant criteria are ``present simultaneously,'' while also
providing leeway in cases where multiple visitations or examinations
are necessary, such as when a physical examination might not have been
performed or symptoms might not have been documented at a given
appointment. In the absence of research or data to support these
comments, we are not changing the 4-month period, which is consistent
with the standard of care and common industry practice. For example, a
2012 study of over 100,000 patients with chronic lower back pain found
that the median patient visited a physician office 10 times in the
study year, with an interquartile range between 6 and 17 outpatient
visits.\34\ This is consistent with a requirement to document all
relevant criteria within a four-month duration can reasonably be
accommodated by most patients' routine visitation frequencies. As
another example, a two-year study using data from the Medical Panel
Expenditure Survey regarding utilization of healthcare showed that for
people with spine disease, arthritis/joint disease, musculoskeletal
injuries, and other musculoskeletal disease, the average total visits
to physician and non-physician ambulatory services was greater in
frequency than once every three months.\35\ Other studies also suggest
that for chronic ailments, including certain musculoskeletal disorders,
re-visitation within 3-4 months is normative.\36\
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\34\ Gore, M., Sadosky, A., Stacey, B.R., Tai, K.S., & Leslie,
D. (2012). The burden of chronic low back pain: Clinical
comorbidities, treatment patterns, and health care costs in usual
care settings. Spine, 37(11), E668-E677. https://doi.org/10.1097/BRS.0b013e318241e5de.
\35\ BMUS: The Burden of Musculoskeletal Diseases in the United
States. In: BMUS: The Burden of Musculoskeletal Diseases in the
United States [internet]. [cited 15 July 2020]. https://www.boneandjointburden.org/fourth-edition/viiic2/utilization-condition-group.
\36\ J Gen Intern Med. 1999 Apr; 14(4): 230-235. doi: 10.1046/
j.1525-1497.1999.00322.x Lisa M. Schwartz, MD, MS, Steven Woloshin,
MD, MS, John H. Wasson, MD, Roger A. Renfrew, MD, and H. Gilbert
Welch, MD, MPH, Dartmouth Primary Care Cooperative Research
Network\1\.
---------------------------------------------------------------------------
Moreover, it is generally perceived that providers are trained to
schedule their patients for visits every 3 to 4 months routinely,
regardless of disease severity.\37\ This is further backed by clinical
practice guidelines. For example, the Veteran's Health Administration
(VHA) and Department of Defense's (DoD) Clinical Practice Guideline for
the Management of Medically Unexplained Symptoms: Chronic Pain and
Fatigue (2001) recommends ``initially, a revisit at two to three weeks
would be appropriate. As soon as the patient is doing well, then
revisits every 3 to 4 months would be recommended.'' \38\ Similarly,
the VHA/DoD 2017 guide Clinical Practice Guideline for Diagnosis and
Treatment of Low Back Pain recommends reassessment monthly after
initiation of therapy if low back pain continues and
[[Page 78170]]
no serious specific underlying cause for low back pain is found.\39\
---------------------------------------------------------------------------
\37\ Bavafa, H., Savin, S., & Terwiesch, C. (2019). Redesigning
Primary Care Delivery: Customized Office Revisit Intervals and E-
Visits. https://dx.doi.org/10.2139/ssrn.2363685 Paper referenced by
Bavafa: Schectman, G., G. Barnas, P. Laud, L. Cantwell, M. Horton,
E.J. Zarling. 2005. Prolonging the return visit interval in primary
care. The American Journal of Medicine, 118(4) 393-399.
\38\ Veterans Health Administration & Department of Defense.
(2001). VHA/DoD Clinical Practice Guideline for the Management of
Medically Unexplained Symptoms: Chronic Pain and Fatigue. https://www.healthquality.va.gov/guidelines/MR/mus/mus_fulltext.pdf (2001 VA
Practice Guideline for Medically Unexplained Chronic Pain and
Fatigue).
\39\ Veterans Health Administration & Department of Defense.
(2017). VA/DoD Clinical Practice Guideline for Diagnosis and
Treatment of Low Back Pain. https://www.healthquality.va.gov/guidelines/Pain/lbp/VADoDLBPCPG092917.pdf (Module B in document).
---------------------------------------------------------------------------
We believe our review of available medical literature and clinical
guidelines reflects the appropriateness of selecting a 4-month time
period. We recognize that one routine visit alone does not necessarily
ensure that all necessary criterion for a medical listing are
appropriately documented; however the 4-month time period provides
sufficient buffer to ensure the criteria are present within a close
proximity of time.
We cannot accept a medical opinion that opines that otherwise
undocumented medical findings would have occurred during a 4-month
period in the absence of any other supporting evidence to bolster that
view. We note that when prescribing how we should consider medical
opinions, our existing regulations \40\ make clear that the most
important factors are supportability and consistency. The medical
opinions must be supportive of and consistent with other evidence in
the case file for us to find them persuasive.
---------------------------------------------------------------------------
\40\ 20 CFR 404.1520b and 404.1520c.
---------------------------------------------------------------------------
Comment: Several commenters expressed concern about the criterion
for imaging in 1.15C (Disorders of the skeletal spine resulting in
compromise of a nerve root(s)), 1.16C (Lumbar spinal stenosis resulting
in compromise of the cauda equina), 101.15C (Disorders of the skeletal
spine resulting in compromise of a nerve root(s)), and 101.16C (Lumbar
spinal stenosis resulting in compromise of the cauda equina). These
comments noted that there may be people eligible for disability under
current rules who may not be able to afford medical imaging or feel
that medical imaging is necessary to treat their condition. These
commenters asked that we remove this criterion because many claimants
cannot afford imaging.
Response: We do not believe that final rule introduces new medical
imaging requirements that were not already present under existing
rules. Current 1.04 (Disorders of the spine) establishes three
potential means for meeting the medical listing. Current 1.04C
(Disorders of the spine) explicitly requires appropriate medically
acceptable imaging. Current 1.04B (Disorders of the spine) pertains to
spinal arachnoiditis and explicitly requires medical imaging, an
operative note, or pathology report of tissue biopsy. As discussed
elsewhere in this preamble, spinal arachnoiditis is more appropriately
evaluated under the neurological body system (for example, under
listings 11.08 (Spinal cord disorders) and 111.08 (Spinal cord
disorders) and will be assessed using the requirements in the
neurological listings. Finally, current 1.04A does not have an explicit
medical imaging requirement. In full, 1.04A reads: ``[e]vidence of
nerve root compression characterized by neuro-anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory
or reflex loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine)''. Despite not having an
explicit medical imaging requirement, under current adjudication policy
we would always consider the ``evidence of nerve root compression''
required in 1.04A to necessarily include medical imaging. Because of
this, while 1.15 is more explicit than 1.04A in its requirements
pertaining to medical imaging, it does not impose any new medical
imaging requirements nor does it impose additional costs on applicants.
Comment: One commenter asked that we replace the medical term
``cauda equina involvement'' with ``nerve root impingement,'' since
``nerve root impingement'' is more commonly used in the medical
community.
Response: The term ``nerve root impingement'' is not
interchangeable with ``cauda equina involvement,'' so we did not make
changes in response to this comment. As we explain in 1.00F (What do we
consider when we evaluate disorders of the skeletal spine resulting in
compromise of a nerve root(s) (1.15)?) and 101.00F (What do we consider
when we evaluate disorders of the skeletal spine resulting in
compromise of a nerve root(s) (101.15)?), ``compromise of a nerve
root,'' which is an alternative term to ``nerve root impingement,'' is
used when a physical object is pushing on the nerve root and results in
related symptoms that follow the path of the affected nerve root.
Compromise of the cauda equina, as we explain in 1.00G (What do we
consider when we evaluate lumbar spinal stenosis resulting in
compromise of the cauda equina (1.16)?) and 101.00G (What do we
consider when we evaluate lumbar spinal stenosis resulting in
compromise of the cauda equina (101.16)?), involves the bundle of
nerves descending from the lower part of the spinal cord and typically
results in nonradicular pain, because it is not associated with a
specific nerve root.
Comment: One commenter suggested that we incorporate impairment of
the muscles controlling joint movements into 1.00I (What do we consider
when we evaluate abnormality of a major joint(s) in any extremity
(1.18)?) and that we should consider how these impairments impact
function.
Response: These suggestions are already included in the
introductory text and listing criteria for 1.18 (Abnormality of a major
join(s) in any extremity). In 1.00I1 (What do we consider when we
evaluate abnormality of a major joint(s) in any extremity (1.18)?), we
indicate that ``[a]bnormalities of the joints include ligamentous
laxity or rupture, soft tissue contracture, or tendon rupture and can
cause muscle weakness of the affected joint(s).'' We explain functional
abnormality in 1.00I1b (What do we consider when we evaluate
abnormality of a major joint(s) in any extremity (1.18)?).
Comment: Several commenters asked that we insert ``at or'' before
``above the wrists'' because amputation at the wrists causes
essentially identical functional limitations as amputation just above
the wrists.
Response: We agree with the comments. In 1.00K2 (Amputation of both
upper extremities), 1.20A (Amputation due to any cause), 101.00K2
(Amputation of both upper extremities), and 101.20A (Amputation due to
any cause), we added ``at or'' before ``above the wrists.''
Comment: Several commenters suggested we combine the proposed
criteria in 1.15A and B (Disorders of the skeletal spine resulting in
compromise of a nerve root(s)) and 101.15A and B (Disorders of the
skeletal spine resulting in compromise of a nerve root(s)) and ``allow
them to be satisfied when at least one of the following
neuroanatomically-distributed (radicular) symptoms is present: . . .
pain; limitation of motion of the spine; muscle weakness or fatigue;
signs of nerve root irritation, tension, or compression; and
paresthesias.''
Response: We did not adopt these comments. The commenters
mischaracterized muscle weakness and signs of nerve root irritation,
tension, or compression as ``symptoms'' of disorders of the skeletal
spine resulting in compromise of a nerve root(s). These are, in fact,
medical signs. The commenters' suggestion would conflate the symptoms
and signs of skeletal spine disorders. The separation of symptoms and
signs into two distinct criteria is appropriate given our requirements
establishing a medically
[[Page 78171]]
determinable impairment.\41\ SSA defines a symptom as one's own
description of a physical or mental impairment(s),\42\ whereas a sign
is one or more anatomical, physiological, or psychological
abnormalities that can be observed apart from one's own statements.
Signs must be ``shown by accepted medically acceptable clinical
diagnostic techniques.'' \43\
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\41\ 20 CFR 404.1521 and 416.921.
\42\ 20 CFR 404.1502(i) and 416.902(i).
\43\ 20 CFR 404.1502(g) and 416.902(g).
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Comment: Several commenters suggested that we remove the functional
criteria for 1.15 (Disorders of the skeletal spine resulting in
compromise of a nerve root(s)) and 101.15 (Disorders of the skeletal
spine resulting in compromise of a nerve root(s)). For example, they
argued that the skeletal spine disorder would have serious limitations
that would be disabling without any accompanying need for a hand-held
assistive device (which we require for the skeletal spine disorder to
be considered listing level).
Response: We agree that skeletal spine disorders can cause
significant limitations. However, the signs and symptoms that are
included in 1.15A and B (Disorders of the skeletal spine resulting in
compromise of a nerve root(s)) and 101.15A and B (Disorders of the
skeletal spine resulting in compromise of a nerve root(s)) have a wide
range of presentation. There can be a similarly wide range of
limitations resulting from those signs and symptoms. The functional
criteria are designed to specify the level of limitation that results
in the inability to perform ``any gainful activity,'' which is the
level of severity required to meet or equal a listing.\44\
---------------------------------------------------------------------------
\44\ 20 CFR 404.1525(a) and 416.925(a).
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Comment: Several commenters asked that we omit the functional
criteria from 1.23 (Non-healing or complex fracture of an upper
extremity) and 101.23 (Non-healing or complex fracture of an upper
extremity), because the proposed criteria makes the new listings more
difficult to meet or equal than the prior listings.
Response: We partially adopted this comment. Functional criteria
continue to be an important part of establishing the inability to
perform ``any gainful activity,'' which is the level of severity
required to meet or equal a listing.\45\ We did, however, modify the
criteria in 1.23 (Non-healing or complex fracture of an upper
extremity) and 101.23 (Non-healing or complex fracture of an upper
extremity) to remove the proposed criterion for the use of a hand-held
assistive device, and to instead focus on the inability to perform fine
and gross movements that would be associated with non-union or complex
fracture of an upper extremity.
---------------------------------------------------------------------------
\45\ Id.
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Comment: Several commenters expressed that the functional criteria
in 1.23 (Non-healing or complex fracture of an upper extremity) and
101.23 (Non-healing or complex fracture of an upper extremity) are
``flawed because they fail to distinguish whether the dominant or non-
dominant extremity is injured, which is a crucial distinction in terms
of functional abilities and limitations.''
Response: We did not make changes in response to this comment.
Although the commenters are correct about the lack of distinction
between the dominant and non-dominant upper extremity, the listings for
musculoskeletal disorders have never considered the difference between
a dominant and non-dominant extremity, because people can still use
their non-dominant extremities. We more appropriately consider a
distinction when we assess manipulative limitations in the residual
functional capacity (at a later step in the disability determination
process), since manipulations require more targeted motor skills and
coordination, and the role of the dominant extremity is more important
in that area.
Comment: Some commenters argued that listings 1.22 (Non-healing or
complex fracture of the femur, tibia, pelvis, or one or more of the
talocrural bones), 1.23 (Non-healing or complex fracture of an upper
extremity), 101.22 (Non-healing or complex fracture of the femur,
tibia, pelvis, or one or more of the talocrural bones), and 101.23
(Non-healing or complex fracture of an upper extremity) are not
sufficient replacements for non-pathologic fractures due to the
exclusion of fractures of bones such as the skull, ribs, and clavicle.
Response: We do not agree with these comments. First, listings 1.22
(Non-healing or complex fracture of the femur, tibia, pelvis, or one or
more of the talocrural bones), 1.23 (Non-healing or complex fracture of
an upper extremity), 101.22 (Non-healing or complex fracture of the
femur, tibia, pelvis, or one or more of the talocrural bones), and
101.23 (Non-healing or complex fracture of an upper extremity) include
the same types of fractures as current listings 1.06 (Fracture of the
femur, tibia, pelvis, or one or more of the tarsal bones), 1.07
(Fracture of an upper extremity), 101.06 (Fracture of the femur, tibia,
pelvis, or one or more of the tarsal bones), and 101.07 (Fracture of an
upper extremity), which also did not include fractures of the skull,
ribs, and clavicle. Second, non-pathologic fractures likely result in
impairments that are more appropriately evaluated under other listing
criteria. For example, a fracture of the skull may accompany a
traumatic brain injury, which is better considered under neurological
listings 11.18 (Traumatic brain injury) and 111.18 (Traumatic brain
injury), whereas fractures of the ribs or clavicle may result in soft
tissue injury that is more appropriately considered under 1.21 (Soft
tissue injury or abnormality under continuing surgical management) and
101.21 (Soft tissue injury or abnormality under continuing surgical
management).
Comment: Several commenters suggested we should not limit the
criteria for 1.19 (Pathologic fractures due to any cause) and 101.19
(Pathological fractures due to any cause) to pathologic fractures,
because the same functional limitations can result from both pathologic
and non-pathologic fractures.
Response: We did not make changes as a result of these comments. As
we explained in the NPRM, medical treatment and recovery expectations
for fractures differ, depending on whether the condition is due to an
underlying pathology (such as osteoporosis), or to a traumatic event.
For this reason, we are adding separate listings for fractures caused
by an underlying pathology to provide specific criteria in 1.19
(Pathologic fractures due to any cause) and 101.19 (Pathologic
fractures due to any cause) related to evaluation and adjudication of
pathologic fractures. We will evaluate complex or non-healing traumatic
fractures under 1.22 (Non-healing or complex fracture of the femur,
tibia, pelvis, or one or more of the talocrural bones), 1.23 (Non-
healing or complex fracture of an upper extremity) (Non-healing or
complex fracture of the femur, tibia, pelvis, or one or more of the
talocrural bones), or 101.23 (Non-healing or complex fracture of an
upper extremity).
Furthermore, the criterion in 1.19 (Pathologic fractures due to any
cause) and 101.19 (Pathologic fractures due to any cause) for three
fractures in a 12-month period is not appropriate for non-pathologic
fractures. Each traumatic fracture constitutes a separate medically
determinable impairment under our program rules, and each would need to
be evaluated separately to determine whether the duration requirement
is met. As we state in 20 CFR 404.1523(a) and 419.923(a), we cannot
combine two or more unrelated severe impairments to meet the 12 month
duration test. In contrast, multiple pathologic fractures over an
extended period are considered
[[Page 78172]]
related impairments because of the underlying medical condition (for
example, osteoporosis).
Comment: One commenter expressed concern about children with a
diagnosis of osteogenesis imperfecta, and suggested we revise the
criteria to only require a ``definitive diagnosis'' of osteogenesis
imperfecta with multiple fractures at one time, rather than the
proposed requirement for fractures on separate and distinct occasions.
Response: We did not make changes in response to this comment.
Osteogenesis imperfecta is not the only cause of pathologic fractures
evaluated under 101.19 (Pathologic fractures due to any cause). Other
causes include osteoporosis, other skeletal dysplasias, side effects of
medications, and disorders of the endocrine system. The criteria for
pathological fractures need to be appropriate for pathologic fractures
and not just for one condition that has variable effects such as
osteogenesis imperfecta. The terminology ``definitive diagnosis'' would
contradict our other regulations. Our regulations require a medically
determinable impairment established by objective medical evidence. We
specifically state that we do not use a diagnosis to establish the
existence of an impairment.\46\ Once we establish the presence of a
severe medically determinable impairment, we then determine whether the
level of impairment results in the inability to perform ``any gainful
activity,'' which is the level of severity required to meet or equal a
listing.\47\ A ``definitive diagnosis'' is not, on its own, indicative
of listing level severity.
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\46\ 20 CFR 404.1521 and 416.921.
\47\ 20 CFR 404.1525(a) and 416.925(a).
---------------------------------------------------------------------------
We describe in 101.00J (What do we consider when we evaluate
pathologic fractures due to any cause (101.19)?) that osteogenesis
imperfecta is one of the conditions that might result in pathologic
fractures. Osteogenesis imperfecta is a genetic disease that can
manifest at differing levels of severity. For this reason, there is a
recognized classification system for the disorder, from type 1 to type
4, to differentiate between the clinical characteristics of each
type.\48\ The requirement in 101.19 (Pathologic fractures due to any
cause) is that the fractures ``must occur on separate, distinct
occasions, rather than multiple fractures occurring at the same time,
but they may affect the same bone(s) multiple times. There is no
required period between the incidents of fracture(s), but they must all
occur within a 12-month period; for example, separate incidents may
occur within hours or days of each other. However, the associated
limitation(s) of function must last, or be expected to last, at least
12 months.'' This criterion ensures that the severity of the
osteogenesis imperfecta, or any other types of pathological fractures,
rises to the level required.
---------------------------------------------------------------------------
\48\ https://radiopaedia.org/articles/osteogenesis-imperfecta-classification-1?lang=us.
---------------------------------------------------------------------------
Comment: One commenter asked that we clarify when we adjust a
child's age for prematurity.
Response: We did not make any changes in the final rules based on
this comment. In 101.00O2a (Severity of motor development delay), we
provide a citation to 20 CFR 416.924b(b), which explains at length our
rules for correcting the chronological age of premature infants. We
have not changed those rules here; as such, we direct the commenter to
the rules cited above.
Comment: One commenter expressed concern that the listing will
``favor or encourage claimants to engage in medical treatment that they
would not otherwise engage in'' and that ``claimants should make
treatment decisions with their medical providers and the other
consideration should be whether or not the treatment may be beneficial
and if the potential benefits outweigh any risks.'' A similar comment
outlined a series of examples of clients who were found eligible at
Step 3 under current rules but who the commenter does not believe would
be found eligible at Step 3 under this final rule and would therefore
need to move on to subsequent steps in the sequential evaluation
process.
Response: We did not make changes in response to this comment. In
fact, the Act specifically prevents us from interfering with medical
practice.\49\ At no point do we instruct or require that any form of
treatment be prescribed, which would violate the cited section of the
Act. We only state that in some cases, we consider some items (for
example, the use of handheld assistive devices, for certain disorders)
or treatments to be effective functional indicators of the presence of
a particular musculoskeletal disorder. However, it is understood that
if a person is engaging in medical treatment, that treatment must be
prescribed by a medical source, and that source will have documented
the need for the treatment or assistive device. We do not believe that
this requirement will cause the affected public to pursue a different
course of treatment than they otherwise would have under our existing
rules.
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\49\ Sec. 216(i)1: ``Nothing in this title shall be construed as
authorizing the Commissioner or any other officer or employee of the
United States to interfere in any way with the practice of medicine
or with relationships between practitioners of medicine and their
patients, or to exercise any supervision or control over the
administration or operation of any hospital.''
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We also note that many of our medical listings include a functional
limitation component, and in the case of certain musculoskeletal
disorders, we believe the use of certain treatments or assistive
devices is the only objective functional component we can assess. We do
not believe that this requirement will cause the affected public to
pursue a different course of treatment than they otherwise would have,
including the purchase of assistive devices, for people who may seek to
apply for disability. This rule requires only the documented medical
need for the assistive device, not the ownership of the device. We do
not believe that this final rule will result in people, who previously
had a documented medical need for an assistive device but who had
chosen not to in consultation with their physician due to a perceived
lack of benefit (for example, because they are confined to bed)
purchase and assistive device to satisfy the functional requirements of
this rule. Conversely, a person without a documented medical need for
an assistive device in their record will continue to be evaluated under
steps 4 and 5 of the disability determination process even if they are
not found eligible at step 3.
Comment: One commenter expressed concern that we do not provide
quantitative data to show the validity of these listings, noting that
many people engage in work even though their impairments meet the
listing requirements. The commenter opined that this challenges the
validity of using the listings to determine whether a person is
disabled, and that the listings are in conflict with the statutory
definition of disability. Several other commenters asserted that we do
not provide any justification for making the substantial changes.
Response: We did not make any changes in the final rules based on
these comments. Contrary to the commenters' assertion that we did not
provide justification or sources for our changes, our NPRM included a
list of 64 references that we relied on in proposing these rules.\50\
We also invited the public to comment on these references and the data
contained within them. The listings help ensure that determinations and
decisions of disability have a sound medical basis, that claimants
receive equal treatment throughout the country, and that we can
[[Page 78173]]
readily identify the majority of people who are disabled. The level of
severity described in the listings is such that we consider a person,
who is not engaging in substantial gainful activity (SGA) and has an
impairment that meets or medically equals all of the criteria of the
listing, is generally considered unable to do any work because of the
medical impairment alone at step 3 of the sequential evaluation
process. When such a person's impairment or combination of impairments
meets or medically equals the level of severity described in the
listing for the required duration, we will find the person disabled on
the basis of medical facts alone in the absence of evidence to the
contrary (for example, the actual performance of substantial gainful
activity).
---------------------------------------------------------------------------
\50\ 83 FR 20646, 20656-58 (2019).
---------------------------------------------------------------------------
Comment: One commenter opined that our proposed revisions
discriminate against the poor because the criteria in the listings
depend on specific diagnoses that, in turn, require medical tests that
many people cannot afford and that we will not purchase. The commenter
notes that these tests are not specifically required by the listings,
but that they still help establish disability for those people who are
able to afford them.
Response: We did not make any changes in the final rules based on
these comments. The Act and our regulations require a claimant to
submit medical evidence to establish a medically determinable
impairment. We use medical evidence generally accepted in the medical
community and available in medical records to establish and determine
the severity of an impairment. We consider all available evidence about
all of a claimant's impairments, not just information about a
particular allegation, such as a musculoskeletal condition. We may also
purchase medical examinations or tests to obtain the evidence that we
need.\51\ We may find a person disabled even if he or she does not have
a medical diagnosis for his or her impairment(s) when applying for
benefits, as long as we are able to establish a medically determinable
severe physical or mental impairment or combination of impairments that
meets the duration requirements.
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\51\ 20 CFR 404.1517, 404.1519, 404.1519a-404.1519f, 404.1519k,
416.917, 416.919, and 416.919a-419.919f.
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Comment: Some commenters expressed concern that our proposed
updates would ultimately result in more denials of claims at the
initial and reconsideration levels.
Response: In some cases, the revised criteria may result in more
denials of claims. However, our updated listing criteria most
accurately reflect current medical thought in these areas. As well, we
note that not all claimants applying on the basis of a musculoskeletal
disorder will necessarily be denied because of these listings. In some
cases, the impairment(s) also could be found to medically equal a
listing (or, in the case of a child seeking SSI payments, functionally
equal the listings). If an adult claimant's impairment(s) does not meet
or medically equal any listing, in some cases he or she could be found
disabled at a later step in the sequential evaluation process once we
consider the person's residual functional capacity and the factors of
age, education, and vocational experience and skills.
Comment: One commenter asserted that these rules will negatively
affect current disability beneficiaries by taking away their benefits.
Response: When these rules become final, we will not terminate any
person's disability benefits solely because we have revised these
listings. We do not readjudicate previously decided cases when we
revise our listings.
However, under the Act, we are required to periodically conduct
continuing disability reviews (CDR) to determine whether beneficiaries
are still disabled.\52\ When we conduct CDRs, we re-examine an existing
beneficiary's or recipient's case using the Medical Improvement Review
Standard (MIRS) to determine whether a person continues to meet the
disability requirements of the Act.\53\ When SSA applies the MIRS, our
threshold inquiry is whether the beneficiary or recipient has an
impairment that still meets that listing. So, if a disability
beneficiary or recipient undergoes a CDR after these final rules
becomes effective, the standards these rules contain could potentially
be applied; theoretically, then, the new standards could contribute to
the possibility of a cessation of benefits or payments. We again, note,
however, that we would examine all relevant factors when conducting the
CDR, just as we do during an initial or reconsideration claim. These
include whether the impairment(s) meets or equals a listing, whether
there has been medical improvement in the impairments present at the
most recent favorable determination, and, if necessary, whether the
person has the ability to engage in SGA, given his or her residual
functional capacity, and his or her age, education, and past work
experience.
---------------------------------------------------------------------------
\52\ 42 U.S.C. 421(i), 20 CFR 404.1589, 416.989.
\53\ 42 U.S.C. 423(f), 20 CFR 404.1594, 416.994, 416.994a.
---------------------------------------------------------------------------
What is our authority to make rules and set procedures for
determining whether a person is disabled under our statutory
definition?
Under the Act, we have authority to make rules and regulations and
to establish necessary and appropriate procedures to carry out such
provisions.\54\
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\54\ Sections 205(a), 702(a)(5), and 1631(d)(1) (42 U.S.C.
405(a), 902(a)(5), 1383(d)(1)).
---------------------------------------------------------------------------
How long will these final rules be in effect?
These final rules will remain in effect for 5 years after the date
they become effective, unless we extend them, or revise and issue them
again. We will continue to monitor these rules to ensure that they
continue to meet program purposes, and may revise them before the end
of the 5-year period if warranted.
How we will implement these final rules?
We will begin to apply these final rules to new applications,
pending claims, and CDRs, as appropriate, as of the effective date of
these final rules.\55\
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\55\ We will use the final rules beginning on its effective
date. We will apply the final rules to new applications filed on or
after the effective date, and to claims that are pending on and
after the effective date. This means that we will use the final
rules on and after its effective date in any case in which we make a
determination or decision, including CDRs, as appropriate. 20 CFR
404.902 and 416.1402.
---------------------------------------------------------------------------
Regulatory Procedures
Executive Order 12866, as Supplemented by Executive Order 13563
We consulted with the Office of Management and Budget (OMB) and
determined that these final rules meet the criteria for a significant
regulatory action under Executive Order 12866, as supplemented by
Executive Order 13563. Therefore, OMB reviewed the rules. Details about
the economic impacts of our rules follow.
Anticipated Reduction in Transfer Payments Made by Our Programs:
In 2017, we conducted a case study covering about 1,400 initial
DDS-level decisions, based on the proposed rules as developed at that
time. The case study sample was stratified by specific musculoskeletal
diagnosis category and included listing-level allowances as well as
denials at the medical-vocational stage of the disability determination
process. Implementation of this final rule would result in decisional
changes relative to those made under current listings both from
allowance to denial and from denial to allowance. Based on the results
of the
[[Page 78174]]
case study, we estimate that for the OASDI program, there would be a
net annual reduction in allowances of about 260, the net effect of an
estimated 480 annual changes from allowance to denial, and an estimated
220 annual changes from denial to allowance. This small shift is
primarily driven by claimants who were allowed at the listing-level
(Step 3) under existing regulations but whose case files do not contain
medical evidence indicating they would meet the new assistive devices
requirements in this final rule, because such documentation is not
required under current rules. Under implementation of this final rule,
some of these claimants would be expected to be able to provide this
information under the new requirement, and would do so. We made a small
adjustment to the case study results based on this expectation.
For the SSI program the estimates indicate a net increase in annual
allowances of about 180, the net effect of an estimated 285 annual
changes from denial to allowance, and an estimated 105 annual changes
from allowance to denial. The results of the actuarial analysis using
the case study results indicate a net reduction in OASDI benefit
payments ($263 million) and a net increase in Federal SSI payments ($67
million) over the FY 2021 Budget projection period, FYs 2021-30.
Anticipated Administrative Costs to the Social Security
Administration:
In calculating whether the implementation of these final rules will
result in administrative costs or savings to the agency, we examine two
sources: (1) Work-years and (2) direct financial administrative costs.
We define work-years as a measure of the SSA employee work time
these final rules will cost or save during implementation of its
policies. We calculate one work-year as 2,080 hours of labor, which
represents the amount of hours one SSA employee works per year based on
a standard 40-hour workweek.
We are estimating net administrative savings of less than $2
million and 15 work years per year. The administrative savings result
from fewer SSI appeals, fewer maintenance actions for OASDI
beneficiaries, and administrative efficiencies from decisions made
earlier in the sequential evaluation process. Because we project an
increase in SSI allowances, we believe there will be fewer SSI appeals
once the regulation is implemented. We estimate an increase in OASDI
denials. Because more OASDI claims would be denied, there would be
fewer OASDI actions to process such as change of address or payment
corrections. Offsetting administrative costs include those to process
additional appeals for the net increase in OASDI claims that are
denied, as well as costs to train Disability Determination Service
(DDS) employees, and for increased maintenance-of-the-rolls actions
from the net increase in SSI recipients. Although this rule results in,
on net, slightly more overall denials than allowances when compared to
the current regulations, because of the administrative efficiencies
resulting from decisions made earlier in the sequential evaluation
process, the overall impact to this rulemaking is a slight reduction in
administrative costs.
Anticipated Costs to the Public
We do not believe there are any more than de minimis costs to the
public associated with this rulemaking. First, as discussed earlier in
responses to comments on the Notice of Proposed Rulemaking as well as
in the Paperwork Reduction Act section below, we do not believe any of
the requirements contained in this rulemaking will impose new
additional costs outside of the normal course of business for
applicants. We do not believe that the new rules induce any new medical
imaging requirements and do not believe they will result in additional
purchasing and documentation of assistive devices.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
OMB designated these rules as major rules, as defined by 5 U.S.C.
804(2).
Executive Order 13132 (Federalism)
We analyzed these final rules in accordance with the principles and
criteria established by Executive Order 13132, and determined that they
will not have sufficient Federalism implications to warrant the
preparation of a Federalism assessment. We also determined that the
final rules will not preempt any State law or State regulations or
affect the States' abilities to discharge traditional State
governmental functions.
Executive Order 13771
Based upon the criteria established in Executive Order 13771 and M-
17-21 (``Guidance Implementing E.O. 13771''), we consider this rule a
transfer rule with no more than de minimis costs. As such, it is exempt
from requirements under E.O. 13771.
Regulatory Flexibility Act
We certify that these final rules will not have a significant
economic impact on a substantial number of small entities because they
affect individuals only. Therefore, the Regulatory Flexibility Act, as
amended, does not require us to prepare a regulatory flexibility
analysis.
Paperwork Reduction Act
These final rules comprehensively revise the regulatory criteria we
use to evaluate musculoskeletal disorders, and will affect the OASDI
and SSI programs. SSA uses multiple existing OMB-approved information
collection (IC) tools to document disability claims for all body system
disorders, including musculoskeletal disorders. However, because these
ICs are not specific to any particular body system disorders, they do
not require modification in any way as a result of these final rules.
As well, the regulatory changes are not changing the frequency of
reporting or the burden--including documentation--involved in
musculoskeletal disability claims. So, we are not making any changes
under the Paperwork Reduction Act as a result of these rules.
Below we list for informational purposes the ICs that SSA uses to
collect information related to Musculoskeletal (and all other)
disability Title II & Title XVI claims. However, for the reasons
provided above, we are not modifying them in any way due to these final
rules.
OMB No. 0960-0579 (SSA-3368, Disability Report--Adult)
OMB No. 0960-0577 (SSA-3820, Disability Report--Child)
OMB No. 0960-0578 (SSA-3369, Work History Report)
OMB No. 0960-0540 (SSA-3371, Pain Report--Child)
OMB No. 0960-0681 (SSA-3373, Function Report--Adult)
OMB No. 0960-0542 (SSA-3375, SSA-3376, SSA-3377, SSA-3378 and
SSA-3379, Function Report--Child)
OMB No. 0960-0635 (SSA-3380, Function Report--Adult--Third
Party)
OMB No. 0960-0623 (SSA-827, Authorization to Disclose
Information to the Social Security Administration)
OMB No. 0960-0598 (SSA-820 or SSA-821, Work Activity Report--
Self Employed Person & Work Activity Report--Employee)
OMB No. 0960-0144 (SSA-3441, Disability Report--Appeal)
OMB No. 0960-0499 (SSA-3881, Questionnaire for Children
Claiming SSI Benefits)
OMB No. 0960-0720 (SSA-3830, Certification of Low Birth Weight
for SSI Eligibility)
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--
[[Page 78175]]
Disability Insurance; 96.002, Social Security--Retirement Insurance;
96.004, Social Security--Survivors Insurance; and 96.006,
Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure; Blind, Disability benefits;
Old-age, survivors, and disability insurance; Reporting and
recordkeeping requirements; Social Security.
20 CFR Part 416
Administrative practice and procedure; Aged, Blind, Disability cash
payments; Public assistance programs; Reporting and recordkeeping
requirements; Supplemental Security Income (SSI).
The Commissioner of Social Security, Andrew Saul, having reviewed
and approved this document, is delegating the authority to
electronically sign this document to Faye I. Lipsky, who is the primary
Federal Register Liaison for the Social Security Administration, for
purposes of publication in the Federal Register.
Faye I. Lipsky,
Federal Register Liaison, Office of Legislative and Congressional
Affairs, Social Security Administration.
For the reasons set out in the preamble, we are amending subpart P
of part 404 of chapter III of title 20 of the Code of Federal
Regulations as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950-)
Subpart P--Determining Disability and Blindness
0
1. The authority citation for subpart P of part 404 continues to read
as follows:
Authority: Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a) and
(h)-(j), 222(c), 223, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a) and (h)-(j),
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110
Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42
U.S.C. 902 note).
0
2. Amend appendix 1 to subpart P of part 404 as follows:
0
a. In the introductory text before part A, revise paragraph 2;
0
b. In part A:
0
i. Amend the table of contents for part A by revising the entry for
section 1.00;
0
ii. Revise section 1.00;
0
iii. Revise paragraph 4.00G4b;
0
iv. Revise paragraphs 14.00C6 through 14.00C8, 14.00C12, 14.00D4c(i),
14.00D6a, 14.00D6e(i), and 14.00D6e(ii); and
0
v. Under section 14.00, revise listings 14.04B, 14.04C2, 14.05A,
14.09A, and 14.09B introductory text; and
0
c. In part B:
0
i. Amend the table of contents by revising the entry for section
101.00;
0
ii. Revise section 101.00;
0
iii. Revise paragraph 104.00F9b;
0
iv. Revise paragraph 109.00C;
0
v. Revise paragraphs 114.00C6 through 114.00C8, 114.00C12,
114.00D4c(ii), 114.00D6a, 114.00D6e(i), and 114.00D6e(ii); and
0
vi. Under section 114.00, revise listings 114.04B, 114.04C2, 114.05A,
114.09A, and 114.09B introductory text.
The revisions read as follows:
Appendix 1 to Subpart P of Part 404--Listing of Impairments
* * * * *
2. Musculoskeletal Disorders (1.00 and 101.00): April 2, 2026.
* * * * *
Part A
* * * * *
1.00 Musculoskeletal Disorders
* * * * *
1.00 Musculoskeletal Disorders
A. Which musculoskeletal disorders do we evaluate under these
listings?
1. We evaluate disorders of the skeletal spine (vertebral
column) or of the upper or lower extremities that affect
musculoskeletal functioning under these listings. We use the term
``skeletal'' when we are referring to the structure of the bony
skeleton. The skeletal spine refers to the bony structures,
ligaments, and discs making up the spine. We refer to the skeletal
spine in some musculoskeletal listings to differentiate it from the
neurological spine (see 1.00B1). Musculoskeletal disorders may be
congenital or acquired, and may include deformities, amputations, or
other abnormalities. These disorders may involve the bones or major
joints; or the tendons, ligaments, muscles, or other soft tissues.
2. We evaluate soft tissue injuries (including burns) or
abnormalities that are under continuing surgical management (see
1.00O1). The injuries or abnormalities may affect any part of the
body, including the face and skull.
3. We evaluate curvatures of the skeletal spine that affect
musculoskeletal functioning under 1.15. If a curvature of the
skeletal spine is under continuing surgical management (see 1.00O1),
we will evaluate it under 1.21 using our rules for determining
medical equivalence. See Sec. Sec. 404.1526 and 416.926 of this
chapter.
B. Which related disorders do we evaluate under other listings?
1. We evaluate a disorder or injury of the skeletal spine that
results in damage to, and neurological dysfunction of, the spinal
cord and its associated nerves (for example, paraplegia or
quadriplegia) under the listings in 11.00.
2. We evaluate inflammatory arthritis (for example, rheumatoid
arthritis) under the listings in 14.00.
3. We evaluate curvatures of the skeletal spine that interfere
with your ability to breathe under the listings in 3.00, impair
myocardial function under the listings in 4.00, or result in social
withdrawal or depression under the listings in 12.00.
4. We evaluate non-healing or pathological fractures due to
cancer, whether it is a primary site or metastases, under the
listings in 13.00.
5. We evaluate the leg pain associated with peripheral vascular
claudication and foot ulceration associated with peripheral arterial
disease under the listings in 4.00.
6. We evaluate burns that do not require continuing surgical
management under the listings in 8.00.
C. What evidence do we need to evaluate your musculoskeletal
disorder?
1. General. We need objective medical evidence from an
acceptable medical source to establish that you have a medically
determinable musculoskeletal disorder. We also need evidence from
both medical and nonmedical sources, who can describe how you
function, to assess the severity and duration of your
musculoskeletal disorder. We will determine the extent and kinds of
evidence we need from medical and nonmedical sources based on the
individual facts about your disorder. For our basic rules on
evidence, see Sec. Sec. 404.1512, 404.1513, 404.1520b, 416.912,
416.913, and 416.920b of this chapter. For our rules on evidence
about your symptoms, see Sec. Sec. 404.1529 and 416.929 of this
chapter.
2. Physical examination report(s). In the report(s) of your
physical examination, we require a medical source's detailed
description of the orthopedic, neurologic, or other objective
clinical findings appropriate to your specific musculoskeletal
disorder from his or her direct observations during your physical
examination. We will not accept a report of your statements about
your symptoms and limitations in place of the medical source's
report of objective clinical findings. We will not use findings on
imaging or other diagnostic tests (see 1.00C3) as a substitute for
findings on physical examination.
a. When the medical source reports that a clinical test sign(s)
is positive, unless we have evidence to the contrary, we will assume
that he or she performed the test properly and accept the medical
source's interpretation of the test. For example, we will assume a
straight-leg raising test was conducted properly (that is, in
sitting and supine positions), even if the medical source does not
specify the positions in which the test was performed.
b. If you use an assistive device (see 1.00C6), the report must
support the medical need for the device.
c. If your musculoskeletal disorder causes a reduction in muscle
strength, the report must document measurement of the strength of
the muscle(s) in question. The measurement should be based on a
muscle strength grading system that is considered medically
acceptable based on your age and impairments. For example, a grading
system
[[Page 78176]]
of 0 to 5, with 0 indicating complete loss of strength and 5
indicating maximum strength or equivalent medically acceptable scale
(see Table 1). Reduction in muscle strength is demonstrated by
evidence that your muscle strength is less than active range of
motion (ROM) against gravity with maximum resistance. If the
reduction in muscle strength involves one or both of your hands, the
report must also document measurements of grip and pinch strength.
Table 1--Grading System of Muscle Function
------------------------------------------------------------------------
Grade Function of the muscle
------------------------------------------------------------------------
0--None........................... No visible or palpable contraction.
1--Trace.......................... Visible or palpable contraction with
no motion.
2--Poor........................... Active ROM with gravity eliminated.
3--Fair........................... Active ROM against gravity only,
without resistance.
4--Good........................... Active ROM against gravity, moderate
resistance.
5--Normal......................... Active ROM against gravity, maximum
resistance.
------------------------------------------------------------------------
3. Imaging and other diagnostic tests.
a. Imaging refers to medical imaging techniques, such as x-ray,
computed tomography (CT), magnetic resonance imaging (MRI), and
radionuclide scanning. For the purpose of these listings, the
imaging must be consistent with the prevailing state of medical
knowledge and clinical practice as the proper technique to support
the evaluation of the disorder.
b. Findings on imaging must have lasted, or be expected to last,
for a continuous period of at least 12 months.
c. Imaging and other diagnostic tests can provide evidence of
physical abnormalities; however, these abnormalities may correlate
poorly with your symptoms, including pain, or with your
musculoskeletal functioning. Accordingly, we will not use findings
on imaging or other diagnostic tests as a substitute for findings on
physical examination about your ability to function, nor can we
infer severity or functional limitations based solely on such tests.
d. For our rules on purchasing imaging and other diagnostic
tests, see Sec. Sec. 404.1519k, 404.1519m, 416.919k, and 416.919m
of this chapter.
4. Operative reports. If you have had a surgical procedure, we
need a copy of the operative report, including details of the
findings at surgery and information about any medical complications
that may have occurred. If we do not have the operative report, we
need confirmatory evidence of the surgical procedure from a medical
source (for example, detailed follow-up reports or notations in the
medical records concerning the surgical procedure in your medical
history).
5. Effects of treatment.
a. General. Treatments for musculoskeletal disorders may have
beneficial or adverse effects, and responses to treatment vary from
person to person. We will evaluate all of the effects of treatment
(including surgical treatment, medications, and therapy) on the
symptoms, signs, and laboratory findings of your musculoskeletal
disorder, and on your musculoskeletal functioning.
b. Response to treatment. To evaluate your musculoskeletal
functioning in response to treatment, we need the following: A
description, including the frequency of the administration, of your
medications; the type and frequency of therapy you receive; and a
description of your response to treatment and any complications you
experience related to your musculoskeletal disorder. The effects of
treatment may be temporary or long-term. We need information over a
sufficient period to determine the effects of treatment on your
current musculoskeletal functioning and permit reasonable
projections about your future functioning. We will determine the
amount of time that constitutes a sufficient period in consultation
with a medical consultant on a case-by-case basis. In some cases, we
will need additional evidence to make an assessment about your
response to treatment. Your musculoskeletal disorder may meet or
medically equal one of these listings regardless of whether you were
prescribed opioid medication, or whether you were prescribed opioid
medication and did not follow this prescribed treatment.
6. Assistive devices.
a. General. An assistive device, for the purposes of these
listings, is any device that you use to improve your stability,
dexterity, or mobility. An assistive device can be worn (see 1.00C6b
and 1.00C6c), hand-held (see 1.00C6d), or used in a seated position
(see 1.00C6e). When we use the phrase ``documented medical need,''
we mean that there is evidence from a medical source that supports
your medical need for an assistive device (see 1.00C2b) for a
continuous period of at least 12 months (see 1.00C6a). This evidence
must describe any limitation(s) in your upper or lower extremity
functioning and the circumstances for which you need to use the
assistive device. We do not require that you have a specific
prescription for the assistive device.
b. Prosthesis(es). A prosthesis is a wearable device, such as an
artificial limb, that takes the place of an absent body part. If you
have a prosthesis(es), we need evidence from a medical source
documenting your ability to walk, or perform fine and gross
movements (see 1.00E4), with the prosthesis(es) in place. When
amputation(s) involves one or both lower extremities, it is not
necessary for the medical source to evaluate your ability to walk
without the prosthesis(es) in place. If you cannot use your
prosthesis(es) due to complications affecting your residual limb(s),
we need evidence from a medical source documenting the condition of
your residual limb(s) and the medical basis for your inability to
use the device(s).
c. Orthosis(es). An orthosis is a wearable device, such as a
brace, that prevents or corrects a dysfunction or deformity by
aligning or supporting the affected body part. If you have an
orthosis(es), we need evidence from a medical source documenting
your ability to walk, or perform fine and gross movements (see
1.00E4), with the orthosis(es) in place. If you cannot use your
orthosis(es), we need evidence from a medical source documenting the
medical basis for your inability to use the device(s).
d. Hand-held assistive devices. Hand-held assistive devices
include walkers, canes, or crutches, which you hold onto with your
hand(s) to support or aid you in walking. When you use a one-handed,
hand-held assistive device (such as a cane) with one upper extremity
to walk and you cannot use your other upper extremity for fine or
gross movements (see 1.00E4), the need for the assistive device
limits the use of both upper extremities. If you use a hand-held
assistive device, we need evidence from a medical source describing
how you walk with the device.
e. Wheeled and seated mobility devices. Wheeled and seated
mobility devices are assistive devices that you use in a seated
position, such as manual wheelchairs, motorized wheelchairs,
rollators, and power operated vehicles. If you use a wheeled and
seated mobility device, we need evidence from a medical source
describing the type of wheeled and seated mobility device that you
use and how you use the assistive device including any
customizations or modifications to the assistive device itself or
for your use of the assistive device. For example, if you use a
wheelchair that typically requires the use of both hands but has
been customized for your use with one hand, then we will evaluate
your use of the assistive device using the criteria in 1.00E3b and
not 1.00E3a.
(i) Wheeled and seated mobility devices involving the use of
both hands. Some wheeled and seated mobility devices involve the use
of both hands to use the assistive device (for example, most manual
wheelchairs). If you use a wheeled and seated mobility device that
involves the use of both hands, then the need for the assistive
device limits the use of both upper extremities.
(ii) Wheeled and seated devices involving the use of one hand.
Some wheeled and seated mobility devices involve the use of one hand
to use the assistive device (for example, most motorized
wheelchairs). If you use a wheeled and seated mobility device that
involves the use of one upper extremity and you cannot use your
other upper extremity for fine or gross movements (see
[[Page 78177]]
1.00E4), then the need for the assistive device limits the use of
both upper extremities.
7. Longitudinal evidence.
a. We generally need a longitudinal medical record to assess the
severity and duration of your musculoskeletal disorder because the
severity of symptoms, signs, and laboratory findings related to most
musculoskeletal disorders may improve over time or respond to
treatment. Evidence over an extended period will show whether your
musculoskeletal functioning is improving, worsening, or unchanging.
b. For 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, 1.22, and 1.23, all
of the required criteria must be present simultaneously, or within a
close proximity of time, to satisfy the level of severity needed to
meet the listing. The phrase ``within a close proximity of time''
means that all of the relevant criteria must appear in the medical
record within a consecutive 4-month period. When the criterion is
imaging, we mean that we could reasonably expect the findings on
imaging to have been present at the date of impairment or date of
onset. For listings that use the word ``and'' to link the elements
of the required criteria, the medical record must establish the
simultaneous presence, or presence within a close proximity of time,
of all the required medical criteria. Once this level of severity is
established, the medical record must also show that this level of
severity has continued, or is expected to continue, for a continuous
period of at least 12 months.
8. Surgical treatment and physical therapy. For some
musculoskeletal disorders, a medical source may recommend surgery or
physical therapy (PT). If you have not yet had the recommended
surgery or PT, we will not assume that these interventions will
resolve your disorder or improve your functioning. We will assess
each case on an individual basis. Depending on your response to
treatment, or your medical sources' treatment plans, we may defer
our findings regarding the effect of surgery or PT, until a
sufficient period has passed to permit proper consideration or
judgment about your future functioning. When necessary, we will
follow the rules on following prescribed treatment in Sec. Sec.
404.1530 and 416.930 of this chapter, including consideration of
your reasons for failure to follow prescribed treatment.
D. How do we consider symptoms, including pain, under these
listings?
1. Musculoskeletal disorders may cause pain or other symptoms;
however, your statements about your pain or other symptoms will not
alone establish that you are disabled. We will not substitute an
alleged or a reported increase in the intensity of a symptom, such
as pain, no matter how severe, for a medical sign or diagnostic
finding present in the listing criteria. Pain is included as just
one consideration in 1.15A, 1.16A, and 1.18A, but it is not required
to satisfy the criteria in 1.15, 1.16, and 1.18.
2. To consider your symptom(s), we require objective medical
evidence from an acceptable medical source showing the existence of
a medically determinable musculoskeletal impairment that we could
reasonably expect to produce the symptom(s). See Sec. Sec. 404.1529
and 416.929 of this chapter for how we evaluate symptoms, including
pain, related to your musculoskeletal disorder.
E. How do we use the functional criteria to evaluate your
musculoskeletal disorder under these listings?
1. General. The functional criteria are based on impairment-
related physical limitations in your ability to use both upper
extremities, one or both lower extremities, or a combination of one
upper and one lower extremity. The required impairment-related
physical limitation of musculoskeletal functioning must have lasted,
or be expected to last, for a continuous period of at least 12
months. We do not use the functional criteria in 1.20A, 1.20B, or
1.21.
2. Work environment. We use the relevant evidence that we have
to evaluate your musculoskeletal functioning with respect to the
work environment rather than the home environment. For example, an
ability to walk independently at home without an assistive device
does not, in and of itself, indicate an ability to walk without an
assistive device in a work environment.
3. Functional criteria. A musculoskeletal disorder satisfies the
functional criteria of a listing when the medical documentation
shows the presence of at least one of the impairment-related
limitations cited in the listing. The required impairment-related
limitation of musculoskeletal functioning must be medically
documented by one of the following:
a. A documented medical need (see 1.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i));
b. An inability to use one upper extremity to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 1.00E4), and a documented medical need
(see 1.00C6a) for a one-handed, hand-held assistive device (see
1.00C6d) that requires the use of your other upper extremity or a
wheeled and seated mobility device involving the use of one hand
(see 1.00C6e(ii));
c. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete
work-related activities involving fine and gross movements (see
1.00E4).
4. Fine and gross movements. Fine movements, for the purposes of
these listings, involve use of your wrists, hands, and fingers; such
movements include picking, pinching, manipulating, and fingering.
Gross movements involve use of your shoulders, upper arms, forearms,
and hands; such movements include handling, gripping, grasping,
holding, turning, and reaching. Gross movements also include
exertional abilities such as lifting, carrying, pushing, and
pulling. Examples of performing fine and gross movements include,
but are not limited to, taking care of personal hygiene, sorting and
handling papers or files, and placing files in a file cabinet at or
above waist level.
F. What do we consider when we evaluate disorders of the
skeletal spine resulting in compromise of a nerve root(s) (1.15)?
1. General. We consider musculoskeletal disorders such as
herniated nucleus pulposus, spinal osteoarthritis (spondylosis),
vertebral slippage (spondylolisthesis), degenerative disc disease,
facet arthritis, and vertebral fracture or dislocation. Spinal
disorders may cause cervical or lumbar spine dysfunction when
abnormalities of the skeletal spine compromise nerve roots of the
cervical spine, a nerve root of the lumbar spine, or a nerve root of
both cervical and lumbar spines. We consider spinal nerve disorders
that originate in the nervous system (for example, spinal
arachnoiditis), under the neurological disorders body system, 11.00.
2. Compromise of a nerve root(s). Compromise of a nerve root,
sometimes referred to as ``nerve root impingement,'' is a phrase
used when a physical object, such as a tumor, herniated disc,
foreign body, or arthritic spur, is pushing on the nerve root as
seen on imaging or during surgery. It can occur when a
musculoskeletal disorder produces irritation, inflammation, or
compression of the nerve root(s) as it exits the skeletal spine
between the vertebrae. Related symptoms must be associated with, or
follow the path of, the affected nerve root(s).
a. Compromise of unilateral nerve root of the cervical spine.
Compromise of a nerve root as it exits the cervical spine between
the vertebrae may affect the functioning of the associated upper
extremity. The physical examination reproduces the related symptoms
based on radicular signs and clinical tests appropriate to the
specific cervical nerve root (for example, a positive Spurling
test).
b. Compromise of bilateral nerve roots of the cervical spine.
Although uncommon, if compromise of a nerve root occurs on both
sides of the cervical spinal column, functioning of both upper
extremities may be limited.
c. Compromise of a nerve root(s) of the lumbar spine. Compromise
of a nerve root as it exits the lumbar spine between the vertebrae
may limit the functioning of the associated lower extremity. The
physical examination reproduces the related symptoms based on
radicular signs and clinical tests. When a nerve root of the lumbar
spine is compromised, we require a positive straight-leg raising
test (also known as a Las[egrave]gue test) in both supine and
sitting positions appropriate to the specific lumbar nerve root that
is compromised.
G. What do we consider when we evaluate lumbar spinal stenosis
resulting in compromise of the cauda equina (1.16)?
1. General. We consider how pain, sensory changes, and muscle
weakness caused by compromise of the cauda equina due to lumbar
spinal stenosis affect your functioning. The cauda equina is a
bundle of nerve roots that descends from the lower part of the
spinal cord. Lumbar spinal stenosis can compress the nerves of the
cauda equina, causing sensory changes and muscle weakness that may
affect your ability to stand or walk. Pain related to compromise of
the cauda equina is nonradicular because it is not typically
associated with a specific nerve root (as is radicular pain in the
cervical or lumbar spine).
2. Compromise of the cauda equina due to lumbar spinal stenosis
can affect your ability
[[Page 78178]]
to walk or stand because of neurogenic claudication (also known as
pseudoclaudication), a condition usually causing nonradicular pain
that starts in the low back and radiates bilaterally (or less
commonly, unilaterally) into the buttocks and lower extremities (or
extremity). Extension of the lumbar spine, which occurs when you
walk or stand, may provoke the pain of neurogenic claudication. The
pain may be relieved by forward flexion of the lumbar spine or by
sitting. In contrast, the leg pain associated with peripheral
vascular claudication results from inadequate arterial blood flow to
a lower extremity. It occurs repeatedly and consistently when a
person walks a certain distance and is relieved when the person
rests.
H. What do we consider when we evaluate reconstructive surgery
or surgical arthrodesis of a major weight-bearing joint (1.17)?
1. General. We consider reconstructive surgery or surgical
arthrodesis when an acceptable medical source(s) documents the
surgical procedure(s) and associated medical treatments to restore
function of, or eliminate motion in, the affected major weight-
bearing joint. Reconstructive surgery may be done in a single
procedure or a series of procedures directed toward the salvage or
restoration of functional use of the affected joint.
2. Major weight-bearing joints are the hip, knee, and ankle-
foot. The ankle and foot are considered together as one major joint.
3. Surgical arthrodesis is the artificial fusion of the bones
that form a joint, essentially eliminating the joint.
I. What do we consider when we evaluate abnormality of a major
joint(s) in any extremity (1.18)?
1. General. We consider musculoskeletal disorders that produce
anatomical abnormalities of major joints of the extremities, which
result in functional abnormalities in the upper or lower extremities
(for example, osteoarthritis, chronic infections of bones and
joints, and surgical arthrodesis of a joint). Abnormalities of the
joints include ligamentous laxity or rupture, soft tissue
contracture, or tendon rupture, and can cause muscle weakness of the
affected joint(s).
a. An anatomical abnormality is one that is readily observable
by a medical source during a physical examination (for example,
subluxation or contracture), or is present on imaging (for example,
joint space narrowing, bony destruction, ankylosis, or deformity).
b. A functional abnormality is abnormal motion or instability of
the affected joint(s), including limitation of motion, excessive
motion (hypermobility), movement outside the normal plane of motion
for the joint (for example, lateral deviation), or fixation of the
affected joint(s).
2. Major joint of an upper extremity refers to the shoulder,
elbow, and wrist-hand. We consider the wrist and hand together as
one major joint.
3. Major joint of a lower extremity refers to the hip, knee, and
ankle-foot. We consider the ankle and hindfoot together as one major
joint.
J. What do we consider when we evaluate pathologic fractures due
to any cause (1.19)? We consider pathologic fractures of the bones
in the skeletal spine, extremities, or other parts of the skeletal
system. Pathologic fractures result from disorders that weaken the
bones, making them vulnerable to breakage. Pathologic fractures may
occur with osteoporosis, osteogenesis imperfecta or any other
skeletal dysplasias, side effects of medications, and disorders of
the endocrine or other body systems. Under 1.19, the fractures must
have occurred on separate, distinct occasions, rather than multiple
fractures occurring at the same time, but the fractures may affect
the same bone(s) multiple times. There is no required time that must
elapse between the fractures, but all three must occur within a 12-
month period; for example, separate incidents may occur within hours
or days of each other. We evaluate non-healing or complex traumatic
fractures without accompanying pathology under 1.22 or 1.23.
K. What do we consider when we evaluate amputation due to any
cause (1.20)?
1. General. We consider amputation (the full or partial loss or
absence of any extremity) due to any cause including trauma,
congenital abnormality or absence, surgery for treatment of
conditions such as cancer or infection, or complications of
peripheral vascular disease or diabetes mellitus.
2. Amputation of both upper extremities (1.20A). Under 1.20A, we
consider upper extremity amputations that occur at any level at or
above the wrists (carpal joints), up to and including
disarticulation of the shoulder (glenohumeral) joint. If you have
had both upper extremities amputated at any level at or above the
wrists up to and including the shoulder, your impairment satisfies
the duration requirement in Sec. Sec. 404.1509 and 416.909 of this
chapter. For amputations below the wrist, we will follow the rules
described in 1.00S. We do not evaluate amputations below the wrist
under 1.20A because the resulting limitation of function of the
thumb(s), finger(s), or hand(s) will vary, depending on the extent
of loss and corresponding effect on fine and gross movements.
3. Hemipelvectomy or hip disarticulation (1.20B). Under 1.20B,
we consider hemipelvectomy, which involves amputation of an entire
lower extremity through the sacroiliac joint, and hip
disarticulation, which involves amputation of an entire lower
extremity through the hip joint capsule and closure of the remaining
musculature over the exposed acetabular bone. If you have had a
hemipelvectomy or hip disarticulation, your impairment satisfies the
duration requirement in Sec. Sec. 404.1509 and 416.909 of this
chapter.
4. Amputation of one upper extremity and one lower extremity
(1.20C). Under 1.20C, we consider the amputation of one upper
extremity at any level at or above the wrist and one lower extremity
at or above the ankle. If you have a documented medical need for a
one-handed, hand-held assistive device (such as a cane) or a wheeled
and seated mobility device involving the use of one hand (such as a
motorized wheelchair), then you must use your remaining upper
extremity to hold the device, making the extremity unavailable to
perform other fine and gross movements (see 1.00E4).
5. Amputation of one lower extremity or both lower extremities
with complications of the residual limb(s) (1.20D). Under 1.20D, we
consider the amputation of one lower extremity or both lower
extremities at or above the ankle. We also consider the condition of
your residual limb(s), whether you can wear a prosthesis(es) (see
1.00C6b), and whether you have a documented medical need (see
1.00C6a) for a hand-held assistive device(s) (see 1.00C6d) or a
wheeled and seated mobility device (see 1.00C6e). If you have a non-
healing residual limb(s) and are receiving ongoing surgical
treatment expected to re-establish or improve function, and that
ongoing surgical treatment has not ended, or is not expected to end,
within at least 12 months of the initiation of the surgical
management (see 1.00L), we evaluate your musculoskeletal disorder
under 1.21.
L. What do we consider when we evaluate soft tissue injuries or
abnormalities under continuing surgical management (1.21)?
1. General.
a. We consider any soft tissue injury or abnormality involving
the soft tissues of the body, whether congenital or acquired, when
an acceptable medical source(s) documents the need for ongoing
surgical procedures and associated medical treatments to restore
function of the affected body part(s) (see 1.00O1). Surgical
management includes the surgery(ies) itself, as well as various
post-surgical procedures, surgical complications, infections or
other medical complications, related illnesses, or related
treatments that delay your attainment of maximum benefit from
therapy (see 1.00O2).
b. Surgical procedures and associated treatments typically take
place over extended periods, which may render you unable to perform
work-related activity on a sustained basis. To document such
inability, we must have evidence from an acceptable medical
source(s) confirming that the surgical management has continued, or
is expected to continue, for at least 12 months from the date of the
first surgical intervention. These procedures and treatments must be
directed toward saving, reconstructing, or replacing the affected
part of the body to re-establish or improve its function, and not
for cosmetic appearances alone.
c. Examples include malformations, third- and fourth-degree
burns, crush injuries, craniofacial injuries, avulsive injuries, and
amputations with complications of the residual limb(s).
d. We evaluate skeletal spine abnormalities or injuries under
1.15 or 1.16, as appropriate. We evaluate abnormalities or injuries
of bones in the lower extremities under 1.17, 1.18, or 1.22. We
evaluate abnormalities or injuries of bones in the upper extremities
under 1.18 or 1.23.
2. Documentation. In addition to the objective medical evidence
we need to establish your soft tissue injury or abnormality, we also
need all of the following medically documented evidence about your
continuing surgical management:
a. Operative reports and related laboratory findings;
b. Records of post-surgical procedures;
c. Records of any surgical or medical complications (for
example, related infections or systemic illnesses);
[[Page 78179]]
d. Records of any prolonged post-operative recovery periods and
related treatments (for example, surgeries and treatments for
burns);
e. An acceptable medical source's plans for additional
surgeries; and
f. Records detailing any other factors that have delayed, or
that an acceptable medical source expects to delay, the saving,
restoring, or replacing of the involved part for a continuous period
of at least 12 months following the initiation of the surgical
management.
3. Burns. Third- and fourth-degree burns damage or destroy nerve
tissue, reducing or preventing transmission of signals through those
nerves. Such burns frequently require multiple surgical procedures
and related therapies to re-establish or improve function, which we
evaluate under 1.21. When burns are no longer under continuing
surgical management (see 1.00O1), we evaluate the residual
impairment(s). When the residual impairment(s) affects the
musculoskeletal system, as often occurs in third- and fourth-degree
burns, it can result in permanent musculoskeletal tissue loss, joint
contractures, or loss of extremities. We will evaluate such
impairments under the relevant musculoskeletal disorders listing,
for example, 1.18 or 1.20. When the residual impairment(s) involves
another body system, we will evaluate the impairment(s) under the
listings in the relevant body system(s).
4. Craniofacial injuries. Surgeons may treat craniofacial
injuries with multiple surgical procedures. These injuries may
affect vision, hearing, speech, and the initiation of the digestive
process, including mastication. When the craniofacial injury-related
residual impairment(s) involves another body system(s), we will
evaluate the impairment(s) under the listings in the relevant body
system(s).
M. What do we consider when we evaluate non-healing or complex
fractures of the femur, tibia, pelvis, or one or more of the
talocrural bones (1.22)?
1. Non-healing fracture. A non-healing (nonunion) fracture is a
fracture that has failed to unite completely. Nonunion is usually
established when a minimum of 9 months has elapsed since the injury
and the fracture site has shown no, or minimal, progressive signs of
healing for a minimum of 3 months.
2. Complex fracture. A complex fracture is a fracture with one
or more of the following:
a. Comminuted (broken into many pieces) bone fragments;
b. Multiple fractures in a single bone;
c. Bone loss due to severe trauma;
d. Damage to the surrounding soft tissue;
e. Severe cartilage damage to the associated joint; or
f. Dislocation of the associated joint.
3. When a complex fracture involves soft tissue damage, the
treatment may involve continuing surgical management to restore or
improve functioning. In such cases, we may evaluate the fracture(s)
under 1.21.
N. What do we consider when we evaluate non-healing or complex
fracture of an upper extremity (1.23)?
1. Non-healing fracture. A non-healing (nonunion) fracture is a
fracture that has failed to unite completely. Nonunion is usually
established when a minimum of 9 months has elapsed since the injury
and the fracture site has shown no, or minimal, progressive signs of
healing for a minimum of 3 months.
2. Complex fracture. A complex fracture is a fracture with one
or more of the following:
a. Comminuted (broken into many pieces) bone fragments;
b. Multiple fractures in a single bone;
c. Bone loss due to severe trauma;
d. Damage to the surrounding soft tissue;
e. Severe cartilage damage to the associated joint; or
f. Dislocation of the associated joint.
3. When a complex fracture involves soft tissue damage, the
treatment may involve continuing surgical management to restore or
improve functioning. In such cases, we may evaluate the fracture(s)
under 1.21.
O. How will we determine whether your soft tissue injury or
abnormality or your upper extremity fracture is no longer under
continuing surgical management or you have received maximum benefit
from therapy?
1. We will determine that your soft tissue injury or
abnormality, or your upper extremity fracture, is no longer under
continuing surgical management, as used in 1.21 and 1.23, when the
last surgical procedure or medical treatment directed toward the re-
establishment or improvement of function of the involved part has
occurred.
2. We will determine that you have received maximum benefit from
therapy, as used in 1.21, if there are no significant changes in
physical findings or on appropriate imaging for any 6-month period
after the last surgical procedure or medical treatment. We may also
determine that you have received maximum benefit from therapy if
your medical source(s) indicates that further improvement is not
expected after the last surgical procedure or medical treatment.
3. When you have received maximum benefit from therapy, we will
evaluate any impairment-related residual symptoms, signs, and
laboratory findings (including those on imaging), any complications
associated with your surgical procedures or medical treatments, and
any residual limitations in your functioning (see 1.00S).
P. How do we evaluate your musculoskeletal disorder if there is
no record of ongoing treatment?
1. Despite having a musculoskeletal disorder, you may not have
received ongoing treatment, may have just begun treatment, may not
have access to prescribed medical treatment, or may not have an
ongoing relationship with the medical community. In any of these
situations, you will not have a longitudinal medical record for us
to review when we evaluate your disorder and we may ask you to
attend a consultative examination to determine the severity and
potential duration of your disorder. See Sec. Sec. 404.1519a(b) and
416.919a(b) of this chapter.
2. In some instances, we may be able to assess the severity and
duration of your musculoskeletal disorder based on your medical
record and current evidence alone. If the information in your case
record is not sufficient to show that you have a musculoskeletal
disorder that meets the criteria of one of the musculoskeletal
disorders listings, we will follow the rules described in 1.00S.
Q. How do we consider the effects of obesity when we evaluate
your musculoskeletal disorder? Obesity is a medically determinable
impairment that is often associated with musculoskeletal disorders.
Obesity increases stress on weight-bearing joints and may contribute
to limitation of the range of motion of the skeletal spine and
extremities. The combined effects of obesity with a musculoskeletal
disorder can be greater than the effects of each of the impairments
considered separately. We consider the additional and cumulative
effects of your obesity when we determine whether you have a severe
musculoskeletal disorder, a listing-level musculoskeletal disorder,
a combination of impairments that medically equals the severity of a
listed impairment, and when we assess your residual functional
capacity.
R. How do we evaluate your musculoskeletal disorder if there is
evidence establishing a substance use disorder? If we find that you
are disabled and there is medical evidence in your case record
establishing that you have a substance use disorder, we will
determine whether your substance use disorder is a contributing
factor material to the determination of disability. See Sec. Sec.
404.1535 and 416.935 of this chapter.
S. How do we evaluate musculoskeletal disorders that do not meet
one of these listings?
1. These listings are only examples of musculoskeletal disorders
that we consider severe enough to prevent you from doing any gainful
activity. If your impairment(s) does not meet the criteria of any of
these listings, we must also consider whether you have an
impairment(s) that meets the criteria of a listing in another body
system.
2. If you have a severe medically determinable impairment(s)
that does not meet a listing, we will determine whether your
impairment(s) medically equals a listing. See Sec. Sec. 404.1526
and 416.926 of this chapter. If your impairment(s) does not meet or
medically equal a listing, you may or may not have the residual
functional capacity to engage in substantial gainful activity. We
proceed to the fourth step and, if necessary, the fifth step of the
sequential evaluation process in Sec. Sec. 404.1520 and 416.920 of
this chapter.
3. We use the rules in Sec. Sec. 404.1594 and 416.994 of this
chapter, as appropriate, when we decide whether you continue to be
disabled.
1.01 Category of Impairments, Musculoskeletal Disorders
1.15 Disorders of the skeletal spine resulting in compromise of
a nerve root(s) (see 1.00F), documented by A, B, C, and D:
A. Neuro-anatomic (radicular) distribution of one or more of the
following symptoms consistent with compromise of the affected nerve
root(s):
1. Pain; or
2. Paresthesia; or
3. Muscle fatigue.
AND
[[Page 78180]]
B. Radicular distribution of neurological signs present during
physical examination (see 1.00C2) or on a diagnostic test (see
1.00C3) and evidenced by 1, 2, and either 3 or 4:
1. Muscle weakness; and
2. Sign(s) of nerve root irritation, tension, or compression,
consistent with compromise of the affected nerve root (see 1.00F2);
and
3. Sensory changes evidenced by:
a. Decreased sensation; or
b. Sensory nerve deficit (abnormal sensory nerve latency) on
electrodiagnostic testing; or
4. Decreased deep tendon reflexes.
AND
C. Findings on imaging (see 1.00C3) consistent with compromise
of a nerve root(s) in the cervical or lumbosacral spine.
AND
D. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months, and medical documentation
of at least one of the following:
1. A documented medical need (see 1.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)); or
2. An inability to use one upper extremity to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 1.00E4), and a documented medical need
(see 1.00C6a) for a one-handed, hand-held assistive device (see
1.00C6d) that requires the use of the other upper extremity or a
wheeled and seated mobility device involving the use of one hand
(see 1.00C6e(ii)); or
3. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete
work-related activities involving fine and gross movements (see
1.00E4).
1.16 Lumbar spinal stenosis resulting in compromise of the cauda
equina (see 1.00G), documented by A, B, C, and D:
A. Symptom(s) of neurological compromise manifested as:
1. Nonradicular distribution of pain in one or both lower
extremities; or
2. Nonradicular distribution of sensory loss in one or both
lower extremities; or
3. Neurogenic claudication.
AND
B. Nonradicular neurological signs present during physical
examination (see 1.00C2) or on a diagnostic test (see 1.00C3) and
evidenced by 1 and either 2 or 3:
1. Muscle weakness.
2. Sensory changes evidenced by:
a. Decreased sensation; or
b. Sensory nerve deficit (abnormal sensory nerve latency) on
electrodiagnostic testing; or
c. Areflexia, trophic ulceration, or bladder or bowel
incontinence.
3. Decreased deep tendon reflexes in one or both lower
extremities.
AND
C. Findings on imaging (see 1.00C3) or in an operative report
(see 1.00C4) consistent with compromise of the cauda equina with
lumbar spinal stenosis.
AND
D. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months, and medical documentation
of at least one of the following:
1. A documented medical need (see 1.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)); or
2. An inability to use one upper extremity to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 1.00E4), and a documented medical need
(see 1.00C6a) for a one-handed, hand-held assistive device (see
1.00C6d) that requires the use of the other upper extremity or a
wheeled and seated mobility device involving the use of one hand
(see 1.00C6e(ii)).
1.17 Reconstructive surgery or surgical arthrodesis of a major
weight-bearing joint (see 1.00H), documented by A, B, and C:
A. History of reconstructive surgery or surgical arthrodesis of
a major weight-bearing joint.
AND
B. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months.
AND
C. A documented medical need (see 1.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)).
1.18 Abnormality of a major joint(s) in any extremity (see
1.00I), documented by A, B, C, and D:
A. Chronic joint pain or stiffness.
AND
B. Abnormal motion, instability, or immobility of the affected
joint(s).
AND
C. Anatomical abnormality of the affected joint(s) noted on:
1. Physical examination (for example, subluxation, contracture,
or bony or fibrous ankylosis); or
2. Imaging (for example, joint space narrowing, bony
destruction, or ankylosis or arthrodesis of the affected joint).
AND
D. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months, and medical documentation
of at least one of the following:
1. A documented medical need (see 1.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)); or
2. An inability to use one upper extremity to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 1.00E4), and a documented medical need
(see 1.00C6a) for a one-handed, hand-held assistive device (see
1.00C6d) that requires the use of the other upper extremity or a
wheeled and seated mobility device involving the use of one hand
(see 1.00C6e(ii)); or
3. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete
work-related activities involving fine and gross movements (see
1.00E4).
1.19 Pathologic fractures due to any cause (see 1.00J),
documented by A and B:
A. Pathologic fractures occurring on three separate occasions
within a 12-month period.
AND
B. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months, and medical documentation
of at least one of the following:
1. A documented medical need (see 1.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)); or
2. An inability to use one upper extremity to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 1.00E4), and a documented medical need
(see 1.00C6a) for a one-handed, hand-held assistive device (see
1.00C6d) that requires the use of the other upper extremity or a
wheeled and seated mobility device involving the use of one hand
(see 1.00C6e(ii)); or
3. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete
work-related activities involving fine and gross movements (see
1.00E4).
1.20 Amputation due to any cause (see 1.00K), documented by A,
B, C, or D:
A. Amputation of both upper extremities, occurring at any level
at or above the wrists (carpal joints), up to and including the
shoulder (glenohumeral) joint.
OR
B. Hemipelvectomy or hip disarticulation.
OR
C. Amputation of one upper extremity, occurring at any level at
or above the wrist (carpal joints), and amputation of one lower
extremity, occurring at or above the ankle (talocrural joint), and
medical documentation of at least one of the following:
1. A documented medical need (see 1.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)); or
2. A documented medical need (see 1.00C6a) for a one-handed,
hand-held assistive device (see 1.00C6d) requiring the use of the
other upper extremity or a wheeled and seated mobility device
involving the use of one hand (see 1.00C6e(ii)); or
3. The inability to use the remaining upper extremity to
independently initiate, sustain, and complete work-related
activities involving fine and gross movements (1.00E4).
OR
D. Amputation of one or both lower extremities, occurring at or
above the ankle (talocrural joint), with complications of the
residual limb(s) that have lasted, or are
[[Page 78181]]
expected to last, for a continuous period of at least 12 months, and
medical documentation of 1 and 2:
1. The inability to use a prosthesis(es); and
2. A documented medical need (see 1.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)).
1.21 Soft tissue injury or abnormality under continuing surgical
management (see 1.00L), documented by A, B, and C:
A. Evidence confirms continuing surgical management (see 1.00O1)
directed toward saving, reconstructing, or replacing the affected
part of the body.
AND
B. The surgical management has been, or is expected to be,
ongoing for a continuous period of at least 12 months.
AND
C. Maximum benefit from therapy (see 1.00O2) has not yet been
achieved.
1.22 Non-healing or complex fracture of the femur, tibia,
pelvis, or one or more of the talocrural bones (see 1.00M),
documented by A, B, and C:
A. Solid union not evident on imaging (see 1.00C3) and not
clinically solid.
AND
B. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months.
AND
C. A documented medical need (see 1.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)).
1.23 Non-healing or complex fracture of an upper extremity (see
1.00N), documented by A and B:
A. Nonunion or complex fracture of the shaft of the humerus,
radius, or ulna, under continuing surgical management (see 1.00O1)
directed toward restoration of functional use of the extremity.
AND
B. Medical documentation of an inability to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 1.00E4) that has lasted, or is
expected to last, for a continuous period of at least 12 months.
* * * * *
4.00 Cardiovascular System
* * * * *
G. Evaluating Peripheral Vascular Disease
* * * * *
4. What is lymphedema and how will we evaluate it?
* * * * *
b. Lymphedema does not meet the requirements of 4.11, although
it may medically equal the severity of that listing. We will
evaluate lymphedema by considering whether the underlying cause
meets or medically equals any listing or whether the lymphedema
medically equals a cardiovascular listing, such as 4.11, or a
musculoskeletal disorders listing, such as 1.18. If no listing is
met or medically equaled, we will evaluate any functional
limitations imposed by your lymphedema when we assess your residual
functional capacity.
* * * * *
14.00 Immune System Disorders
* * * * *
C. Definitions
* * * * *
6. Documented medical need has the same meaning as in 1.00C6a.
7. Fine and gross movements has the same meaning as in 1.00E4.
8. Major joint of an upper or a lower extremity has the same
meaning as in 1.00I2 and 1.00I3.
* * * * *
12. Severe means medical severity as used by the medical
community. The term does not have the same meaning as it does when
we use it in connection with a finding at the second step of the
sequential evaluation process in Sec. Sec. 404.1520 and 416.920 of
this chapter.
D. How do we document and evaluate the listed autoimmune
disorders?
* * * * *
4. Polymyositis and dermatomyositis (14.05).
* * * * *
c. * * *
(i) Weakness of your pelvic girdle muscles that results in your
inability to rise independently from a squatting or sitting position
or to climb stairs may be an indication that you are unable to walk
without assistance. Weakness of your shoulder girdle muscles may
result in your inability to perform lifting, carrying, and reaching
overhead, and also may seriously affect your ability to perform
activities requiring fine movements. We evaluate these limitations
under 14.05A.
* * * * *
6. * * *
a. General. The spectrum of inflammatory arthritis includes a
vast array of disorders that differ in cause, course, and outcome.
Clinically, inflammation of major joints in an upper or a lower
extremity may be the dominant manifestation causing difficulties
with walking or fine and gross movements; there may be joint pain,
swelling, and tenderness. The arthritis may affect other joints, or
cause less limitation in walking or fine and gross movements.
However, in combination with extra-articular features, including
constitutional symptoms or signs (severe fatigue, fever, malaise,
and involuntary weight loss), inflammatory arthritis may result in
an extreme limitation.
* * * * *
e. * * *
(i) Listing-level severity in 14.09A and 14.09C1 is shown by the
presence of an impairment-related physical limitation of
functioning. In 14.09C1, if you have the required ankylosis
(fixation) of your cervical or dorsolumbar spine, we will find that
you have a listing-level impairment-related physical limitation in
your ability to see in front of you, above you, and to the side,
even though you might not require bilateral upper limb assistance.
(ii) Listing-level severity in 14.09B, 14.09C2, and 14.09D is
shown by inflammatory arthritis that involves various combinations
of complications (such as inflammation or deformity, extra-articular
features, repeated manifestations, and constitutional symptoms and
signs) of one or more major joints in an upper or a lower extremity
(see 14.00C8) or other joints. Extra-articular impairments may also
meet listings in other body systems.
* * * * *
14.01 Category of Impairments, Immune System Disorders
* * * * *
14.04 Systemic sclerosis (scleroderma). As described in 14.00D3.
With:
* * * * *
B. One of the following:
1. Toe contractures or fixed deformity of one or both feet and
medical documentation of at least one of the following:
a. A documented medical need (see 14.00C6) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)); or
b. An inability to use one upper extremity to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 14.00C7), and a documented medical
need (see 14.00C6) for a one-handed, hand-held assistive device (see
1.00C6d) that requires the use of the other upper extremity or a
wheeled and seated mobility device involving the use of one hand
(see 1.00C6e(ii)); or
2. Finger contractures or fixed deformity in both hands and
medical documentation of an inability to use both upper extremities
to the extent that neither can be used to independently initiate,
sustain, and complete work-related activities involving fine and
gross movements (see 14.00C7); or
3. Atrophy with irreversible damage in one or both lower
extremities and medical documentation of at least one of the
following:
a. A documented medical need (see 14.00C6) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)); or
b. An inability to use one upper extremity to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 14.00C7), and a documented medical
need (see 14.00C6) for a one-handed, hand-held assistive device (see
1.00C6d) that requires the use of the other upper extremity or a
wheeled and seated mobility device involving the use of one hand
(see 1.00C6e(ii)); or
4. Atrophy with irreversible damage in both upper extremities
and medical documentation of an inability to use both upper
extremities to the extent that neither can be used to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 14.00C7); or
[[Page 78182]]
C. Raynaud's phenomenon, characterized by:
* * * * *
2. Ischemia with ulcerations of toes or fingers and medical
documentation of at least one of the following:
a. A documented medical need (see 14.00C6) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)); or
b. An inability to use one upper extremity to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 14.00C7), and a documented medical
need (see 14.00C6) for a one-handed, hand-held assistive device (see
1.00C6d) that requires the use of the other upper extremity or a
wheeled and seated mobility device involving the use of one hand
(see 1.00C6e(ii)); or
c. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete
work-related activities involving fine and gross movements (see
14.00C7); or
* * * * *
14.05 Polymyositis and dermatomyositis. As described in 14.00D4.
With:
A. Proximal limb-girdle (pelvic or shoulder) muscle weakness and
medical documentation of at least one of the following:
1. A documented medical need (see 14.00C6) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)); or
2. An inability to use one upper extremity to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 14.00C7), and a documented medical
need (see 14.00C6) for a one-handed, hand-held assistive device (see
1.00C6d) that requires the use of the other upper extremity or a
wheeled and seated mobility device involving the use of one hand
(see 1.00C6e(ii)); or
3. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete
work-related activities involving fine and gross movements (see
14.00C7); or
* * * * *
14.09 Inflammatory arthritis. As described in 14.00D6. With:
A. Persistent inflammation or persistent deformity of:
1. One or more major joints in a lower extremity (see 14.00C8)
and medical documentation of at least one of the following:
a. A documented medical need (see 14.00C6) for a walker,
bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
1.00C6e(i)); or
b. An inability to use one upper extremity to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 14.00C7), and a documented medical
need (see 14.00C6) for a one-handed, hand-held assistive device (see
1.00C6d) that requires the use of the other upper extremity or a
wheeled and seated mobility device involving the use of one hand
(see 1.00C6e(ii)); or
2. One or more major joints in each upper extremity (see
14.00C8) and medical documentation of an inability to use both upper
extremities to the extent that neither can be used to independently
initiate, sustain, and complete work-related activities involving
fine and gross movements (see 14.00C7); or
B. Inflammation or deformity in one or more major joints of an
upper or a lower extremity (see 14.00C8) with:
* * * * *
Part B
* * * * *
101.00 Musculoskeletal Disorders
* * * * *
101.00 Musculoskeletal Disorders
A. Which musculoskeletal disorders do we evaluate under these
listings?
1. We evaluate disorders of the skeletal spine (vertebral
column) or of the upper or lower extremities that affect
musculoskeletal functioning under these listings. We use the term
``skeletal'' when we are referring to the structure of the bony
skeleton. The skeletal spine refers to the bony structures,
ligaments, and discs making up the spine. We refer to the skeletal
spine in some musculoskeletal listings to differentiate it from the
neurological spine (see 101.00B1). Musculoskeletal disorders may be
congenital or acquired, and may include deformities, amputations, or
other abnormalities. These disorders may involve the bones or major
joints; or the tendons, ligaments, muscles, or other soft tissues.
2. We evaluate soft tissue injuries (including burns) or
abnormalities that are under continuing surgical management (see
101.00P1). The injuries or abnormalities may affect any part of the
body, including the face and skull.
3. We evaluate curvatures of the skeletal spine that affect
musculoskeletal functioning under 101.15. If a curvature of the
skeletal spine is under continuing surgical management (see
101.00P1), we will evaluate it under 101.21 using our rules for
determining medical equivalence. See Sec. 416.926 of this chapter.
B. Which related disorders do we evaluate under other listings?
1. We evaluate a disorder or injury of the skeletal spine that
results in damage to, and neurological dysfunction of, the spinal
cord and its associated nerves (for example, paraplegia or
quadriplegia) under the listings in 111.00.
2. We evaluate inflammatory arthritis (for example, rheumatoid
arthritis) under the listings in 114.00.
3. We evaluate curvatures of the skeletal spine that interfere
with your ability to breathe under the listings in 103.00, impair
myocardial function under the listings in 104.00, or result in
social withdrawal or depression under the listings in 112.00.
4. We evaluate non-healing or pathological fractures due to
cancer, whether it is a primary site or metastases, under the
listings in 113.00.
5. We evaluate the leg pain associated with peripheral vascular
claudication under the listings in 104.00.
6. We evaluate burns that do not require continuing surgical
management under the listings in 108.00.
C. What evidence do we need to evaluate your musculoskeletal
disorder?
1. General. We need objective medical evidence from an
acceptable medical source to establish that you have a medically
determinable musculoskeletal disorder. We also need evidence from
both medical and nonmedical sources, who can describe how you
function, to assess the severity and duration of your
musculoskeletal disorder. We will determine the extent and kinds of
evidence we need from medical and nonmedical sources based on the
individual facts about your disorder. For our basic rules on
evidence, see Sec. Sec. 416.912, 416.913, and 416.920b of this
chapter. For our rules on evidence about your symptoms, see Sec.
416.929 of this chapter.
2. Physical examination report(s). In the report(s) of your
physical examination, we require a medical source's detailed
description of the orthopedic, neurologic, or other objective
clinical findings appropriate to your specific musculoskeletal
disorder from his or her direct observations during your physical
examination. We will not accept a report of your statements about
your symptoms and limitations in place of the medical source's
report of objective clinical findings. We will not use findings on
imaging or other diagnostic tests (see 101.00C3) as a substitute for
findings on physical examination.
a. When the medical source reports that a clinical test sign(s)
is positive, unless we have evidence to the contrary, we will assume
that he or she performed the test properly and accept the medical
source's interpretation of the test. For example, we will assume a
straight-leg raising test was conducted properly (that is, in
sitting and supine positions), even if the medical source does not
specify the positions in which the test was performed.
b. If you use an assistive device (see 101.00C6), the report
must support the medical need for the device.
c. If your musculoskeletal disorder causes a reduction in muscle
strength, the report must document measurement of the strength of
the muscle(s) in question. The measurement should be based on a
muscle strength grading system that is considered medically
acceptable based on your age and impairments. For example, a grading
system of 0 to 5, with 0 indicating complete loss of strength and 5
indicating maximum strength or equivalent medically acceptable scale
(see Table 1). Reduction in muscle strength is demonstrated by
evidence that your muscle strength is less than active range of
motion (ROM) against gravity with maximum resistance. If the
reduction in muscle strength involves one or both of your hands, the
report must also document measurements of grip and pinch strength.
[[Page 78183]]
Table 1--Grading System of Muscle Function
------------------------------------------------------------------------
Grade Function of the muscle
------------------------------------------------------------------------
0--None........................... No visible or palpable contraction.
1--Trace.......................... Visible or palpable contraction with
no motion.
2--Poor........................... Active ROM with gravity eliminated.
3--Fair........................... Active ROM against gravity only,
without resistance.
4--Good........................... Active ROM against gravity, moderate
resistance.
5--Normal......................... Active ROM against gravity, maximum
resistance.
------------------------------------------------------------------------
3. Imaging and other diagnostic tests.
a. Imaging refers to medical imaging techniques, such as x-ray,
computed tomography (CT), magnetic resonance imaging (MRI), and
radionuclide scanning. For the purpose of these listings, the
imaging must be consistent with the prevailing state of medical
knowledge and clinical practice as the proper technique to support
the evaluation of the disorder.
b. Findings on imaging must have lasted, or be expected to last,
for a continuous period of at least 12 months.
c. Imaging and other diagnostic tests can provide evidence of
physical abnormalities; however, these abnormalities may correlate
poorly with your symptoms, including pain, or with your
musculoskeletal functioning. Accordingly, we will not use findings
on imaging or other diagnostic tests as a substitute for findings on
physical examination about your ability to function, nor can we
infer severity or functional limitations based solely on such tests.
d. For our rules on purchasing imaging and other diagnostic
tests, see Sec. Sec. 416.919k and 416.919m of this chapter.
4. Operative reports. If you have had a surgical procedure, we
need a copy of the operative report, including details of the
findings at surgery and information about any medical complications
that may have occurred. If we do not have the operative report, we
need confirmatory evidence of the surgical procedure from a medical
source (for example, detailed follow-up reports or notations in the
medical records concerning the surgical procedure in your medical
history).
5. Effects of treatment.
a. General. Treatments for musculoskeletal disorders may have
beneficial or adverse effects, and responses to treatment vary from
person to person. We will evaluate all of the effects of treatment
(including surgical treatment, medications, and therapy) on the
symptoms, signs, and laboratory findings of your musculoskeletal
disorder, and on your musculoskeletal functioning.
b. Response to treatment. To evaluate your musculoskeletal
functioning in response to treatment, we need the following: A
description, including the frequency of the administration, of your
medications; the type and frequency of therapy you receive; and a
description of your response to treatment and any complications you
experience related to your musculoskeletal disorder. The effects of
treatment may be temporary or long-term. We need information over a
sufficient period to determine the effects of treatment on your
current musculoskeletal functioning and permit reasonable
projections about your future functioning. We will determine the
amount of time that constitutes a sufficient period in consultation
with a medical consultant on a case by case basis. In some cases, we
will need additional evidence to make an assessment about your
response to treatment. Your musculoskeletal disorder may meet or
medically equal one of these listings regardless of whether you were
prescribed opioid medication, or whether you were prescribed opioid
medication and did not follow this prescribed treatment.
6. Assistive devices.
a. General. An assistive device, for the purposes of these
listings, is any device that you use to improve your stability,
dexterity, or mobility. An assistive device can be worn (see
101.00C6b and 101.00C6c), hand-held (see 101.00C6d), or used in a
seated position (see 101.00C6e). When we use the phrase ``documented
medical need,'' we mean that there is evidence from a medical source
that supports your medical need for an assistive device (see
101.00C2b) for a continuous period of at least 12 months (see
101.00c2a). This evidence must describe any limitation(s) in your
upper or lower extremity functioning and the circumstances for which
you need to use the assistive device. We do not require that you
have a specific prescription for the assistive device.
b. Prosthesis(es). A prosthesis is a wearable device, such as an
artificial limb, that takes the place of an absent body part. If you
have a prosthesis(es), we need evidence from a medical source
documenting your ability to walk, or perform fine and gross
movements (see 101.00E4), with the prosthesis(es) in place. When
amputation(s) involves one or both lower extremities, it is not
necessary for the medical source to evaluate your ability to walk
without the prosthesis(es) in place. If you cannot use your
prosthesis(es) due to complications affecting your residual limb(s),
we need evidence from a medical source documenting the condition of
your residual limb(s) and the medical basis for your inability to
use the device(s).
c. Orthosis(es). An orthosis is a wearable device, such as a
brace, that prevents or corrects a dysfunction or deformity by
aligning or supporting the affected body part. If you have an
orthosis(es), we need evidence from a medical source documenting
your ability to walk, or perform fine and gross movements (see
101.00E4), with the orthosis(es) in place. If you cannot use your
orthosis(es), we need evidence from a medical source documenting the
medical basis for your inability to use the device(s).
d. Hand-held assistive devices. Hand-held assistive devices
include walkers, canes, or crutches, which you hold onto with your
hand(s) to support or aid you in walking. When you use a one-handed,
hand-held assistive device (such as a cane) with one upper extremity
to walk and you cannot use your other upper extremity for fine or
gross movements (see 101.00E4), the need for the assistive device
limits the use of both upper extremities. If you use a hand-held
assistive device, we need evidence from a medical source describing
how you walk with the device.
e. Wheeled and seated mobility devices. Wheeled and seated
mobility devices are assistive devices that you use in a seated
position, such as manual wheelchairs, motorized wheelchairs,
rollators, and power operated vehicles. If you use a wheeled and
seated mobility device, we need evidence from a medical source
describing the type of wheeled and seated mobility device that you
use and how you use the assistive device, including any
customizations or modifications to the assistive device itself or
for your use of the assistive device. For example, if you use a
wheelchair that typically requires the use of both hands but has
been customized for your use with one hand, then we will evaluate
your use of the assistive device using the criteria in 101.00E3b and
not 101.00E3a.
(i) Wheeled and seated mobility devices involving the use of
both hands. Some wheeled and seated mobility devices involve the use
of both hands to use the assistive device (for example, most manual
wheelchairs). If you use a wheeled and seated mobility device that
involves the use of both hands, then the need for the assistive
device limits the use of both upper extremities.
(ii) Wheeled and seated devices involving the use of one hand.
Some wheeled and seated mobility devices involve the use of one hand
to use the assistive device (for example, most motorized
wheelchairs). If you use a wheeled and seated mobility device that
involves the use of one upper extremity and you cannot use your
other upper extremity for fine or gross movements (see 101.00E4),
then the need for the assistive device limits the use of both upper
extremities.
7. Longitudinal evidence.
a. We generally need a longitudinal medical record to assess the
severity and duration of your musculoskeletal disorder because the
severity of symptoms, signs, and laboratory findings related to most
musculoskeletal disorders may improve over time or respond to
treatment. Evidence over an extended period will show whether your
musculoskeletal functioning is improving, worsening, or unchanging.
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b. For 101.15, 101.16, 101.17, 101.18, 101.20C, 101.20D, 101.22,
and 101.23, all of the required criteria must be present
simultaneously, or within a close proximity of time, to satisfy the
level of severity needed to meet the listing. The phrase ``within a
close proximity of time'' means that all of the relevant criteria
must appear in the medical record within a consecutive 4-month
period. When the criterion is imaging, we mean that we could
reasonably expect the findings on imaging to have been present at
the date of impairment or date of onset. For listings that use the
word ``and'' to link the elements of the required criteria, the
medical record must establish the simultaneous presence, or presence
within a close proximity of time, of all the required medical
criteria. Once this level of severity is established, the medical
record must also show that this level of severity has continued, or
is expected to continue, for a continuous period of at least 12
months.
8. Surgical treatment or physical therapy. For some
musculoskeletal disorders, a medical source may recommend surgery,
or physical therapy (PT). If you have not yet had the recommended
surgery or PT, we will not assume that these interventions will
resolve your disorder or improve your functioning. We will assess
each case on an individual basis. Depending on your response to
treatment, or your medical sources' treatment plans, we may defer
our findings regarding the effect of surgery or PT, until a
sufficient period has passed to permit proper consideration or
judgment about your future functioning. When necessary, we will
follow the rules on following prescribed treatment in Sec. 416.930
of this chapter, including consideration of your reasons for failure
to follow prescribed treatment.
D. How do we consider symptoms, including pain, under these
listings?
1. Musculoskeletal disorders may cause pain or other symptoms;
however, your statements about your pain or other symptoms will not
alone establish that you are disabled. We will not substitute an
alleged or a reported increase in the intensity of a symptom, such
as pain, no matter how severe, for a medical sign or diagnostic
finding present in the listing criteria. Pain is included as just
one consideration in 101.15A, 101.16A, and 101.18A, but it is not
required to satisfy the criteria in 101.15, 101.16, and 101.18.
2. To consider your symptom(s), we require objective medical
evidence from an acceptable medical source showing the existence of
a medically determinable musculoskeletal impairment that we could
reasonably expect to produce the symptom(s). See Sec. 416.929 of
this chapter for how we evaluate symptoms, including pain, related
to your musculoskeletal disorder.
E. How do we use the functional criteria to evaluate your
musculoskeletal disorder under these listings?
1. General. The functional criteria for children age 3 and older
are based on impairment-related physical limitations in your ability
to use both upper extremities, one or both lower extremities, or a
combination of one upper and one lower extremity. We will use the
relevant evidence that we have to compare your musculoskeletal
functioning to the functioning of children your age who do not have
impairments. The required impairment-related physical limitation of
musculoskeletal functioning must have lasted, or be expected to
last, for a continuous period of at least 12 months. We do not use
the functional criteria in 101.20A, 101.20B, 101.21, or 101.24.
2. Medical and functional criteria, birth to attainment of age
3. The medical and functional criteria for children in this age
group are in 101.24.
3. Functional criteria, age 3 to attainment of age 18. The
functional criteria are based on impairment-related physical
limitations in your ability to use both upper extremities, one or
both lower extremities, or a combination of one upper and one lower
extremity. A musculoskeletal disorder satisfies the functional
criteria of a listing when the medical documentation shows the
presence of at least one of the impairment-related limitations cited
in the listing. The functional criteria require impairment-related
physical limitation of musculoskeletal functioning that has lasted,
or can be expected to last, for a continuous period of at least 12
months, medically documented by one of the following:
a. A documented medical need (see 101.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i));
b. An inability to use one upper extremity to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 101.00E4), and a documented medical
need (see 101.00C6a) for a one-handed, hand-held assistive device
(see 101.00C6d) that requires the use of your other upper extremity
or a wheeled and seated mobility device involving the use of one
hand (see 101.00C6e(ii));
c. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete
age-appropriate activities involving fine and gross movements (see
101.00E4).
4. Fine and gross movements. Fine movements, for the purposes of
these listings, involve use of your wrists, hands, and fingers; such
movements include picking, pinching, manipulating, and fingering.
Gross movements involve use of your shoulders, upper arms, forearms,
and hands; such movements include handling, gripping, grasping,
holding, turning, and reaching. Gross movements also include
exertional abilities such as lifting, carrying, pushing, and
pulling.
F. What do we consider when we evaluate disorders of the
skeletal spine resulting in compromise of a nerve root(s) (101.15)?
1. General. We consider musculoskeletal disorders such as
skeletal dysplasias, caudal regression syndrome, tethered spinal
cord syndrome, vertebral slippage (spondylolisthesis), scoliosis,
and vertebral fracture or dislocation. Spinal disorders may cause
cervical or lumbar spine dysfunction when abnormalities of the
skeletal spine compromise nerve roots of the cervical spine, a nerve
root of the lumbar spine, or a nerve root of both cervical and
lumbar spines. We consider spinal nerve disorders that originate in
the nervous system (for example, spinal arachnoiditis), under the
neurological disorders body system, 111.00.
2. Compromise of a nerve root(s). Compromise of a nerve root,
sometimes referred to as ``nerve root impingement,'' is a phrase
used when a physical object, such as a tumor, herniated disc,
foreign body, or arthritic spur, is pushing on the nerve root as
seen on imaging or during surgery. It can occur when a
musculoskeletal disorder produces irritation, inflammation, or
compression of the nerve root(s) as it exits the skeletal spine
between the vertebrae. Related symptoms must be associated with, or
follow the path of, the affected nerve root(s).
a. Compromise of unilateral nerve root of the cervical spine.
Compromise of a nerve root as it exits the cervical spine between
the vertebrae may affect the functioning of the associated upper
extremity. The physical examination reproduces the related symptoms
based on radicular signs and clinical tests appropriate to the
specific cervical nerve root (for example, a positive Spurling
test).
b. Compromise of bilateral nerve roots of the cervical spine.
Although uncommon, if compromise of a nerve root occurs on both
sides of the cervical spinal column, functioning of both upper
extremities may be limited.
c. Compromise of a nerve root(s) of the lumbar spine. Compromise
of a nerve root as it exits the lumbar spine between the vertebrae
may limit the functioning of the associated lower extremity. The
physical examination reproduces the related symptoms based on
radicular signs and clinical tests. When a nerve root of the lumbar
spine is compromised, we require a positive straight-leg raising
test (also known as a Las[egrave]gue test) in both supine and
sitting positions appropriate to the specific lumbar nerve root that
is compromised.
G. What do we consider when we evaluate lumbar spinal stenosis
resulting in compromise of the cauda equina (101.16)?
1. General. We consider how pain, sensory changes, and muscle
weakness caused by compromise of the cauda equina due to lumbar
spinal stenosis affect your functioning. The cauda equina is a
bundle of nerve roots that descends from the lower part of the
spinal cord. Lumbar spinal stenosis can compress the nerves of the
cauda equina, causing sensory changes and muscle weakness that may
affect your ability to stand or walk. Pain related to compromise of
the cauda equina is nonradicular because it is not typically
associated with a specific nerve root (as is radicular pain in the
cervical or lumbar spine).
2. Compromise of the cauda equina due to lumbar spinal stenosis
can affect your ability to walk or stand because of neurogenic
claudication (also known as pseudoclaudication), a condition usually
causing nonradicular pain that starts in the low back and radiates
bilaterally (or less commonly, unilaterally) into the buttocks
[[Page 78185]]
and lower extremities (or extremity). Extension of the lumbar spine,
which occurs when you walk or stand, may provoke the pain of
neurogenic claudication. The pain may be relieved by forward flexion
of the lumbar spine or by sitting. In contrast, the leg pain
associated with peripheral vascular claudication results from
inadequate arterial blood flow to a lower extremity. It occurs
repeatedly and consistently when a person walks a certain distance
and is relieved when the person rests.
H. What do we consider when we evaluate reconstructive surgery
or surgical arthrodesis of a major weight-bearing joint (101.17)?
1. General. We consider reconstructive surgery or surgical
arthrodesis when an acceptable medical source(s) documents the
surgical procedure(s) and associated medical treatments to restore
function of, or eliminate motion in, the affected major weight-
bearing joint(s). Reconstructive surgery may be done in a single
procedure or a series of procedures directed toward the salvage or
restoration of functional use of the affected joint.
2. Major weight-bearing joints are the hip, knee, and ankle-
foot. The ankle and foot are considered together as one major joint.
3. Surgical arthrodesis is the artificial fusion of the bones
that form a joint, essentially eliminating the joint.
I. What do we consider when we evaluate abnormality of a major
joint(s) in any extremity (101.18)?
1. General. We consider musculoskeletal disorders that produce
anatomical abnormalities of major joints of the extremities, which
result in functional abnormalities in the upper or lower extremities
(for example, chronic infections of bones and joints, and surgical
arthrodesis of a joint). Abnormalities of the joints include
ligamentous laxity or rupture, soft tissue contracture, or tendon
rupture, and can cause muscle weakness of the affected joint(s).
a. An anatomical abnormality is one that is readily observable
by a medical source during a physical examination (for example,
subluxation or contracture), or is present on imaging (for example,
joint space narrowing, bony destruction, ankylosis, or deformity).
b. A functional abnormality is abnormal motion or instability of
the affected joint(s), including limitation of motion, excessive
motion (hypermobility), movement outside the normal plane of motion
for the joint (for example, lateral deviation), or fixation of the
affected joint(s).
2. Major joint of an upper extremity refers to the shoulder,
elbow, and wrist-hand. We consider the wrist and hand together as
one major joint.
3. Major joint of a lower extremity refers to the hip, knee, and
ankle-foot. We consider the ankle and hindfoot together as one major
joint.
J. What do we consider when we evaluate pathologic fractures due
to any cause (101.19)? We consider pathologic fractures of the bones
in the skeletal spine, extremities, or other parts of the skeletal
system. Pathologic fractures result from disorders that weaken the
bones, making them vulnerable to breakage. Pathologic fractures may
occur with osteoporosis, osteogenesis imperfecta or any other
skeletal dysplasias, side effects of medications, and disorders of
the endocrine or other body systems. Under 101.19, the fractures
must have occurred on separate, distinct occasions, rather than
multiple fractures occurring at the same time, but the fractures may
affect the same bone(s) multiple times. There is no required time
that must elapse between the fractures, but all three must occur
within a 12-month period; for example, separate incidents may occur
within hours or days of each other. We evaluate non-healing or
complex traumatic fractures without accompanying pathology under
101.22 or 101.23.
K. What do we consider when we evaluate amputation due to any
cause (101.20)?
1. General. We consider amputation (the full or partial loss or
absence of any extremity) due to any cause including trauma,
congenital abnormality or absence, surgery for treatment of
conditions such as cancer or infection, or complications of
peripheral vascular disease or diabetes mellitus.
2. Amputation of both upper extremities (101.20A). Under
101.20A, we consider upper extremity amputations that occur at any
level at or above the wrists (carpal joints), up to and including
disarticulation of the shoulder (glenohumeral) joint. If you have
had both upper extremities amputated at any level at or above the
wrists up to and including the shoulder, your impairment satisfies
the duration requirement in Sec. 416.909 of this chapter. For
amputations below the wrist, we will follow the rules described in
101.00R. We do not evaluate amputations below the wrists under
101.20A because the resulting limitation of function of the
thumb(s), finger(s), or hand(s) will vary, depending on the extent
of loss and corresponding effect on fine and gross movements.
3. Hemipelvectomy or hip disarticulation (101.20B). Under
101.20B, we consider hemipelvectomy, which involves amputation of an
entire lower extremity through the sacroiliac joint, and hip
disarticulation, which involves amputation of an entire lower
extremity through the hip joint capsule and closure of the remaining
musculature over the exposed acetabular bone. If you have had a
hemipelvectomy or hip disarticulation, your impairment satisfies the
duration requirement in Sec. 416.909 of this chapter.
4. Amputation of one upper extremity and one lower extremity
(101.20C). Under 101.20C, we consider the amputation of one upper
extremity at any level at or above the wrist and one lower extremity
at or above the ankle. If you have a documented medical need for a
one-handed, hand-held assistive device (such as a cane) or a wheeled
and seated mobility device involving the use of one hand (such as a
motorized wheelchair), then you must use your remaining upper
extremity to hold the device, making the extremity unavailable to
perform other fine and gross movements (see 101.00E4).
5. Amputation of one lower extremity or both lower extremities
with complications of the residual limb(s) (101.20D). Under 101.20D,
we consider the amputation of one lower extremity or both lower
extremities at or above the ankle. We also consider the condition of
your residual limb(s), whether you can wear a prosthesis(es) (see
101.00C6b), and whether you have a documented medical need (see
101.00C6a) for a hand-held assistive device(s) (see 101.00C6d) or a
wheeled and seated mobility device (see 101.00C6e). If you have a
non-healing residual limb(s) and are receiving ongoing surgical
treatment expected to re-establish or improve function, and that
ongoing surgical treatment has not ended, or is not expected to end,
within at least 12 months of the initiation of the surgical
management (see 101.00L), we evaluate your musculoskeletal disorder
under 101.21.
L. What do we consider when we evaluate soft tissue injury or
abnormality under continuing surgical management (101.21)?
1. General.
a. We consider any soft tissue injury or abnormality involving
the soft tissues of the body, whether congenital or acquired, when
an acceptable medical source(s) documents the need for ongoing
surgical procedures and associated medical treatments to restore
function of the affected body part(s) (see 101.00P1). Surgical
management includes the surgery(ies) itself, as well as various
post-surgical procedures, surgical complications, infections or
other medical complications, related illnesses, or related
treatments that delay your attainment of maximum benefit from
therapy (see 101.00P2).
b. Surgical procedures and associated treatments typically take
place over extended periods, which may render you unable to perform
age-appropriate activity on a sustained basis. To document such
inability, we must have evidence from an acceptable medical
source(s) confirming that the surgical management has continued, or
is expected to continue, for at least 12 months from the date of the
first surgical intervention. These procedures and treatments must be
directed toward saving, reconstructing, or replacing the affected
part of the body to re-establish or improve its function, and not
for cosmetic appearances alone.
c. Examples include malformations, third- and fourth-degree
burns, crush injuries, craniofacial injuries, avulsive injuries, and
amputations with complications of the residual limb(s).
d. We evaluate skeletal spine abnormalities or injuries under
101.15 or 101.16, as appropriate. We evaluate abnormalities or
injuries of bones in the lower extremities under 101.17, 101.18, or
101.22. We evaluate abnormalities or injuries of bones in the upper
extremities under 101.18 or 101.23.
2. Documentation. In addition to the objective medical evidence
we need to establish your soft tissue injury or abnormality, we also
need all of the following medically documented evidence about your
continuing surgical management:
a. Operative reports and related laboratory findings;
b. Records of post-surgical procedures;
c. Records of any surgical or medical complications (for
example, related infections or systemic illnesses);
d. Records of any prolonged post-operative recovery periods and
related treatments (for example, surgeries and treatments for
burns);
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e. An acceptable medical source's plans for additional
surgeries; and
f. Records detailing any other factors that have delayed, or
that an acceptable medical source expects to delay, the saving,
restoring, or replacing of the involved part for a continuous period
of at least 12 months following the initiation of the surgical
management.
3. Burns. Third- and fourth-degree burns damage or destroy nerve
tissue, reducing or preventing transmission of signals through those
nerves. Such burns frequently require multiple surgical procedures
and related therapies to re-establish or improve function, which we
evaluate under 101.21. When burns are no longer under continuing
surgical management (see 101.00P1), we evaluate the residual
impairment(s). When the residual impairment(s) affects the
musculoskeletal system, as often occurs in third- and fourth-degree
burns, it can result in permanent musculoskeletal tissue loss, joint
contractures, or loss of extremities. We will evaluate such
impairments under the relevant musculoskeletal disorders listing,
for example, 101.18 or 101.20. When the residual impairment(s)
involves another body system, we will evaluate the impairment(s)
under the listings in the relevant body system(s).
4. Craniofacial injuries or congenital abnormalities. Surgeons
may treat craniofacial injuries or congenital abnormalities with
multiple surgical procedures. These injuries or abnormalities may
affect vision, hearing, speech, and the initiation of the digestive
process, including mastication. When the craniofacial injury-related
or congenital abnormality-related residual impairment(s) involves
another body system(s), we will evaluate the impairment(s) under the
listings in the relevant body system(s).
M. What do we consider when we evaluate non-healing or complex
fractures of the femur, tibia, pelvis, or one or more of the
talocrural bones (101.22)?
1. Non-healing fracture. A non-healing (nonunion) fracture is a
fracture that has failed to unite completely. Nonunion is usually
established when a minimum of 9 months has elapsed since the injury
and the fracture site has shown no, or minimal, progressive signs of
healing for a minimum of 3 months.
2. Complex fracture. A complex fracture is a fracture with one
or more of the following:
a. Comminuted (broken into many pieces) bone fragments;
b. Multiple fractures in a single bone;
c. Bone loss due to severe trauma;
d. Damage to the surrounding soft tissue;
e. Severe cartilage damage to the associated joint; or
f. Dislocation of the associated joint.
3. When a complex fracture involves soft tissue damage, the
treatment may involve continuing surgical management to restore or
improve functioning. In such cases, we may evaluate the fracture(s)
under 101.21.
N. What do we consider when we evaluate non-healing or complex
fractures of an upper extremity (101.23)?
1. Non-healing fracture. A non-healing (nonunion) fracture is a
fracture that has failed to unite completely. Nonunion is usually
established when a minimum of 9 months has elapsed since the injury
and the fracture site has shown no, or minimal, progressive signs of
healing for a minimum of 3 months.
2. Complex fracture. A complex fracture is a fracture with one
or more of the following:
a. Comminuted (broken into many pieces) bone fragments;
b. Multiple fractures in a single bone;
c. Bone loss due to severe trauma;
d. Damage to the surrounding soft tissue;
e. Severe cartilage damage to the associated joint; or
f. Dislocation of the associated joint.
3. When a complex fracture involves soft tissue damage, the
treatment may involve continuing surgical management to restore or
improve functioning. In such cases, we may evaluate the fracture(s)
under 101.21.
O. What do we consider when we evaluate musculoskeletal
disorders of infants and toddlers from birth to attainment of age 3
with developmental motor delay (101.24)?
1. General. Under 101.24, we require reports from an acceptable
medical source(s) to establish a delay in your motor development as
a medically determinable impairment. Examples of disorders we
evaluate under this listing include arthrogryposis, clubfoot,
osteogenesis imperfecta, caudal regression syndrome, fracture
complications, disorders affecting the hip and pelvis, and
complications associated with your musculoskeletal disorder or its
treatment. Some medical records may simply document your condition
as ``developmental motor delay.''
2. Severity of developmental motor delay. To evaluate the
severity of your developmental motor delay, we need developmental
test reports from an acceptable medical source, or from early
intervention specialists, physical and occupational therapists, and
other sources.
a. If there is a standardized developmental assessment in your
medical record, we will use the results to evaluate your
developmental motor delay under 101.24A. Such an assessment compares
your level of development to the level typically expected for
children of your chronological age. If you were born prematurely, we
use your corrected chronological age for comparison. See Sec.
416.924b(b) of this chapter.
b. If there is no standardized developmental assessment in your
medical record, we will use narrative developmental reports from a
medical source(s) to evaluate your developmental motor delay under
101.24B. These reports must provide detailed information sufficient
for us to assess the severity of your motor delay. If we cannot
obtain sufficient detail from narrative reports, we may purchase
standardized developmental assessments.
(i) A narrative developmental report is based on clinical
observations, progress notes, and well-baby check-ups, and must
include your developmental history, examination findings (with
abnormal findings noted on repeated examinations), and an overall
assessment of your development (that is, more than one or two
isolated skills) by the medical source.
(ii) Some narrative developmental reports may include results
from developmental screening tests, which can show that you are not
developing or achieving skills within expected timeframes. Although
medical sources may refer to screening test results as supporting
evidence in the narrative developmental report, screening test
results alone cannot establish a medically determinable impairment
or the severity of developmental motor delay.
P. How will we determine whether your soft tissue injury or
abnormality or your upper extremity fracture is no longer under
continuing surgical management or you have received maximum benefit
from therapy?
1. We will determine that your soft tissue injury or
abnormality, or your upper extremity fracture, is no longer under
continuing surgical management, as used in 101.21 and 101.23, when
the last surgical procedure or medical treatment directed toward the
re-establishment or improvement of function of the involved part has
occurred.
2. We will determine that you have received maximum benefit from
therapy, as used in 101.21, if there are no significant changes in
physical findings or on appropriate imaging for any 6-month period
after the last surgical procedure or medical treatment. We may also
determine that you have received maximum benefit from therapy if
your medical source(s) indicates that further improvement is not
expected after the last surgical procedure or medical treatment.
3. When you have received maximum benefit from therapy, we will
evaluate any impairment-related residual symptoms, signs, and
laboratory findings (including those on imaging), any complications
associated with your surgical procedures or medical treatments, and
any residual limitations in your functioning (see 101.00R).
Q. How do we evaluate your musculoskeletal disorder if there is
no record of ongoing treatment?
1. Despite having a musculoskeletal disorder, you may not have
received ongoing treatment, may have just begun treatment, may not
have access to prescribed medical treatment, or may not have an
ongoing relationship with the medical community. In any of these
situations, you will not have a longitudinal medical record for us
to review when we evaluate your disorder and we may ask you to
attend a consultative examination to determine the severity and
potential duration of your disorder. See Sec. 416.919a(b) of this
chapter.
2. In some instances, we may be able to assess the severity and
duration of your musculoskeletal disorder based on your medical
record and current evidence alone. If the information in your case
record is not sufficient to show that you have a musculoskeletal
disorder that meets the criteria of one of the musculoskeletal
disorders listings, we will follow the rules described in 101.00R.
R. How do we evaluate musculoskeletal disorders that do not meet
one of these listings?
1. These listings are only examples of musculoskeletal disorders
that we consider severe enough to result in marked and severe
functional limitations. If your impairment(s)
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does not meet the criteria of any of these listings, we must also
consider whether you have an impairment(s) that meets the criteria
of a listing in another body system.
2. If you have a severe medically determinable impairment(s)
that does not meet a listing, we will determine whether your
impairment(s) medically equals a listing. See Sec. 416.926 of this
chapter. If your impairment(s) does not meet or medically equal a
listing, we will determine whether it functionally equals the
listings. See Sec. 416.926a of this chapter.
3. We use the rules in Sec. 416.994a of this chapter when we
decide whether you continue to be disabled.
101.01 Category of Impairments, Musculoskeletal Disorders
101.15 Disorders of the skeletal spine resulting in compromise
of a nerve root(s) (see 101.00F), documented by A, B, C, and D:
A. Neuro-anatomic (radicular) distribution of one or more of the
following symptoms consistent with compromise of the affected nerve
root(s):
1. Pain; or
2. Paresthesia; or
3. Muscle fatigue.
AND
B. Radicular distribution of neurological signs present during
physical examination (see 101.00C2) or on a diagnostic test (see
101.00C3) and evidenced by 1, 2, and either 3 or 4:
1. Muscle weakness; and
2. Sign(s) of nerve root irritation, tension, or compression,
consistent with compromise of the affected nerve root (see 101.00F2)
3. Sensory changes evidenced by:
a. Decreased sensation; or
b. Sensory nerve deficit (abnormal sensory nerve latency) on
electrodiagnostic testing; or
4. Decreased deep tendon reflexes.
AND
C. Findings on imaging (see 101.00C3) consistent with compromise
of a nerve root(s) in the cervical or lumbosacral spine.
AND
D. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months, and medical documentation
of at least one of the following:
1. A documented medical need (see 101.C6a) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)); or
2. An inability to use one upper extremity to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 101.00E4), and a documented medical
need (see 101.00C6a) for a one-handed, hand-held assistive device
(see 101.00C6d) that requires the use of the other upper extremity
or a wheeled and seated mobility device involving the use of one
hand (see 101.00C6e(ii)); or
3. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete
age-appropriate activities involving fine and gross movements (see
101.00E4).
101.16 Lumbar spinal stenosis resulting in compromise of the
cauda equina (see 101.00G), documented by A, B, C, and D:
A. Symptom(s) of neurological compromise manifested as:
1. Nonradicular distribution of pain in one or both lower
extremities; or
2. Nonradicular distribution of sensory loss in one or both
lower extremities; or
3. Neurogenic claudication.
AND
B. Nonradicular neurological signs present during physical
examination (see 101.00C2) or on a diagnostic test (see 101.00C3)
and evidenced by 1 and either 2 or 3:
1. Muscle weakness.
2. Sensory changes evidenced by:
a. Decreased sensation; or
b. Sensory nerve deficit (abnormal sensory nerve latency) on
electrodiagnostic testing; or
c. Areflexia, trophic ulceration, or bladder or bowel
incontinence.
3. Decreased deep tendon reflexes in one or both lower
extremities.
AND
C. Findings on imaging (see 101.00C3) or in an operative report
(see 101.00C4) consistent with compromise of the cauda equina with
lumbar spinal stenosis.
AND
D. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months, and medical documentation
of at least one of the following:
1. A documented medical need (see 101.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)); or
2. An inability to use one upper extremity to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 101.00E4), and a documented medical
need (see 101.00C6a) for a one-handed, hand-held assistive device
(see 101.00C6d) that requires the use of the other upper extremity
or a wheeled and seated mobility device involving the use of one
hand (see 101.00C6e(ii)).
101.17 Reconstructive surgery or surgical arthrodesis of a major
weight-bearing joint (see 101.00H), documented by A, B, and C:
A. History of reconstructive surgery or surgical arthrodesis of
a major weight-bearing joint.
AND
B. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months.
AND
C. A documented medical need (see 101.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)).
101.18 Abnormality of a major joint(s) in any extremity (see
101.00I), documented by A, B, C, and D:
A. Chronic joint pain or stiffness.
AND
B. Abnormal motion, instability, or immobility of the affected
joint(s).
AND
C. Anatomical abnormality of the affected joint(s) noted on:
1. Physical examination (for example, subluxation, contracture,
or bony or fibrous ankylosis); or
2. Imaging (for example, joint space narrowing, bony
destruction, or ankylosis or arthrodesis of the affected joint).
AND
D. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months, and medical documentation
of at least one of the following:
1. A documented medical need (see 101.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)); or
2. An inability to use one upper extremity to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 101.00E4), and a documented medical
need (see 101.00C6a) for a one-handed, hand-held assistive device
(see 101.00C6d) that requires the use of the other upper extremity
or a wheeled and seated mobility device involving the use of one
hand (see 101.00C6e(ii)); or
3. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete
age-appropriate activities involving fine and gross movements (see
101.00E4).
101.19 Pathologic fractures due to any cause (see 101.00J),
documented by A and B:
A. Pathologic fractures occurring on three separate occasions
within a 12-month period.
AND
B. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months, and medical documentation
of at least one of the following:
1. A documented medical need (see 101.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)); or
2. An inability to use one upper extremity to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 101.00E4), and a documented medical
need (see 101.00C6a) for a one-handed, hand-held assistive device
(see 101.00C6d) that requires the use of the other upper extremity
or a wheeled and seated mobility device involving the use of one
hand (see 101.00C6e(ii)); or
3. An inability to use both upper extremities to the extent that
neither can be
[[Page 78188]]
used to independently initiate, sustain, and complete age-
appropriate activities involving fine and gross movements (see
101.00E4).
101.20 Amputation due to any cause (see 101.00K), documented by
A, B, C, or D:
A. Amputation of both upper extremities, occurring at any level
at or above the wrists (carpal joints), up to and including the
shoulder (glenohumeral) joint.
OR
B. Hemipelvectomy or hip disarticulation.
OR
C. Amputation of one upper extremity, occurring at any level at
or above the wrist (carpal joints), and amputation of one lower
extremity, occurring at or above the ankle (talocrural joint), and
medical documentation of at least one of the following:
1. A documented medical need (see 101.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)); or
2. A documented medical need (see 101.00C6a) for a one-handed,
hand-held assistive device (see 101.00C6d) requiring the use of the
other upper extremity or a wheeled and seated mobility device
involving the use of one hand (see 101.00C6e(ii)); or
3. The inability to use the remaining upper extremity to
independently initiate, sustain, and complete age-appropriate
activities involving fine and gross movements (101.00E4).
OR
D. Amputation of one or both lower extremities, occurring at or
above the ankle (talocrural joint), with complications of the
residual limb(s) that have lasted, or are expected to last, for a
continuous period of at least 12 months, and medical documentation
of 1 and 2:
1. The inability to use a prosthesis(es); and
2. A documented medical need (see 101.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)).
101.21 Soft tissue injury or abnormality under continuing
surgical management (see 101.00L), documented by A, B, and C:
A. Evidence confirms continuing surgical management (see
101.00P1) directed toward saving, reconstructing, or replacing the
affected part of the body.
AND
B. The surgical management has been, or is expected to be,
ongoing for a continuous period of at least 12 months.
AND
C. Maximum benefit from therapy (see 101.00P2) has not yet been
achieved.
101.22 Non-healing or complex fracture of the femur, tibia,
pelvis, or one or more of the talocrural bones (see 101.00M),
documented by A, B, and C:
A. Solid union not evident on imaging (see 101.00C3) and not
clinically solid.
AND
B. Impairment-related physical limitation of musculoskeletal
functioning that has lasted, or is expected to last, for a
continuous period of at least 12 months.
AND
C. A documented medical need (see 101.00C6a) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)).
101.23 Non-healing or complex fracture of an upper extremity
(see 101.00N), documented by A and B:
A. Nonunion or complex fracture, of the shaft of the humerus,
radius, or ulna, under continuing surgical management (see 101.00P1)
directed toward restoration of functional use of the extremity.
AND
B. Medical documentation of an inability to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 101.00E4) that has lasted, or is
expected to last, for a continuous period of at least 12 months.
101.24 Musculoskeletal disorders of infants and toddlers, from
birth to attainment of age 3, with developmental motor delay (see
101.00O), documented by A or B:
A. A standardized developmental motor assessment that:
1. Shows motor development not more than one-half of the level
typically expected for the child's age; or
2. Results in a valid score that is at least three standard
deviations below the mean.
OR
B. Two narrative developmental reports that:
1. Are dated at least 120 days apart; and
2. Indicate current motor development not more than one-half of
the level typically expected for the child's age.
* * * * *
104.00 Cardiovascular System
* * * * *
F. Evaluating Other Cardiovascular Impairments
* * * * *
9. What is lymphedema and how will we evaluate it?
* * * * *
b. Lymphedema does not meet the requirements of 4.11 in part A,
although it may medically equal the severity of that listing. We
will evaluate lymphedema by considering whether the underlying cause
meets or medically equals any listing or whether the lymphedema
medically equals a cardiovascular listing, such as 4.11, or a
musculoskeletal disorders listing, such as 101.18. If no listing is
met or medically equaled, we will evaluate any functional
limitations imposed by your lymphedema when we consider whether you
have an impairment that functionally equals the listings.
* * * * *
109.00 Endocrine Disorders
* * * * *
C. How do we evaluate DM in children? Listing 109.08 is only for
children with DM who have not attained age 6 and who require daily
insulin. For all other children (that is, children with DM who are
age 6 or older and require daily insulin, and children of any age
with DM who do not require daily insulin), we follow our rules for
determining whether the DM is severe, alone or in combination with
another impairment, whether it meets or medically equals the
criteria of a listing in another body system, or functionally equals
the listings under the criteria in Sec. 416.926a of this chapter,
considering the factors in Sec. 416.924a of this chapter. The
management of DM in children can be complex and variable from day to
day, and all children with DM require some level of adult
supervision. For example, if a child age 6 or older has a medical
need for 24-hour-a-day adult supervision of insulin treatment, food
intake, and physical activity to ensure survival, we will find that
the child's impairment functionally equals the listings based on the
example in Sec. 416.926a(m)(2) of this chapter.
* * * * *
114.00 Immune System Disorders
* * * * *
C. Definitions
* * * * *
6. Documented medical need has the same meaning as in 101.00C6a.
7. Fine and gross movements has the same meaning as in 101.00E4.
8. Major joint of an upper or a lower extremity has the same
meaning as in 101.00I2 and 101.00I3.
9. * * *
* * * * *
12. Severe means medical severity as used by the medical
community. The term does not have the same meaning as it does when
we use it in connection with a finding at the second step of the
sequential evaluation process in Sec. 416.920 of this chapter.
* * * * *
D. How do we document and evaluate the listed autoimmune
disorders?
* * * * *
4. Polymyositis and dermatomyositis (114.05).
* * * * *
c. Additional information about how we evaluate polymyositis and
dermatomyositis under the listings.
* * * * *
(ii) If you are of preschool age through adolescence (age 3 to
attainment of age 18), weakness of your pelvic girdle muscles that
results in your inability to rise independently from a squatting or
sitting position or to climb stairs may be an indication that you
are unable to walk without assistance. Weakness of your shoulder
girdle muscles may result in your inability to perform lifting,
carrying, and reaching overhead, and also may seriously affect your
ability to perform activities requiring fine movements. We evaluate
these limitations under 114.05A.
* * * * *
6. * * *
a. General. The spectrum of inflammatory arthritis includes a
vast array of disorders that differ in cause, course, and outcome.
Clinically, inflammation of major joints in an
[[Page 78189]]
upper or a lower extremity may be the dominant manifestation causing
difficulties with walking or fine and gross movements; there may be
joint pain, swelling, and tenderness. The arthritis may affect other
joints, or cause less limitation in walking or fine and gross
movements. However, in combination with extra-articular features,
including constitutional symptoms or signs (severe fatigue, fever,
malaise, and involuntary weight loss), inflammatory arthritis may
result in an extreme limitation.
* * * * *
e. * * *
(i) Listing-level severity in 114.09A and 114.09C1 is shown by
the presence of an impairment-related physical limitation of
functioning. In 114.09C1, if you have the required ankylosis
(fixation) of your cervical or dorsolumbar spine, we will find that
you have a listing-level impairment-related physical limitation in
your ability to see in front of you, above you, and to the side,
even though you might not require bilateral upper limb assistance.
(ii) Listing-level severity in 114.09B and 114.09C2 is shown by
inflammatory arthritis that involves various combinations of
complications (such as inflammation or deformity, extra-articular
features, repeated manifestations, and constitutional symptoms and
signs) of one or more major joints in an upper or a lower extremity
(see 114.00C8) or other joints. Extra-articular impairments may also
meet listings in other body systems.
* * * * *
114.04 Systemic sclerosis (scleroderma). As described in
114.00D3. With:
* * * * *
B. One of the following:
1. Toe contractures or fixed deformity of one or both feet and
medical documentation of at least one of the following:
a. A documented medical need (see 114.00C6) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)); or
b. An inability to use one upper extremity to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 114.00C7), and a documented medical
need (see 114.00C6) for a one-handed, hand-held assistive device
(see 101.00C6d) that requires the use of the other upper extremity
or a wheeled and seated mobility device involving the use of one
hand (see 101.00C6e(ii)); or
2. Finger contractures or fixed deformity in both hands and
medical documentation of an inability to use both upper extremities
to the extent that neither can be used to independently initiate,
sustain, and complete age-appropriate activities involving fine and
gross movements (see 114.00C7); or
3. Atrophy with irreversible damage in one or both lower
extremities and medical documentation of at least one of the
following:
a. A documented medical need (see 114.00C6) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)); or
b. An inability to use one upper extremity to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 114.00C7), and a documented medical
need (see 114.00C6) for a one-handed, hand-held assistive device
(see 101.00C6d) that requires the use of the other upper extremity
or a wheeled and seated mobility device involving the use of one
hand (see 101.00C6e(ii)); or
4. Atrophy with irreversible damage in both upper extremities
and medical documentation of an inability to use both upper
extremities to the extent that neither can be used to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 114.00C7); or
C. Raynaud's phenomenon, characterized by:
* * * * *
2. Ischemia with ulcerations of toes or fingers and medical
documentation of at least one of the following:
a. A documented medical need (see 114.00C6) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)); or
b. An inability to use one upper extremity to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 114.00C7), and a documented medical
need (see 114.00C6) for a one-handed, hand-held assistive device
(see 101.00C6d) that requires the use of the other upper extremity
or a wheeled and seated mobility device involving the use of one
hand (see 101.00C6e(ii)); or
c. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete
age-appropriate activities involving fine and gross movements (see
114.00C7).
* * * * *
114.05 Polymyositis and dermatomyositis. As described in
114.00D4. With:
A. Proximal limb-girdle (pelvic or shoulder) muscle weakness and
medical documentation of at least one of the following:
1. A documented medical need (see 114.00C6) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)); or
2. An inability to use one upper extremity to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 114.00C7), and a documented medical
need (see 114.00C6) for a one-handed, hand-held assistive device
(see 101.00C6d) that requires the use of the other upper extremity
or a wheeled and seated mobility device involving the use of one
hand (see 101.00C6e(ii)); or
3. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete
age-appropriate activities involving fine and gross movements (see
114.00C7); or
* * * * *
114.09 Inflammatory arthritis. As described in 114.00D6. With:
A. Persistent inflammation or persistent deformity of:
1. One or more major joints in a lower extremity (see 114.00C8)
and medical documentation of at least one of the following:
a. A documented medical need (see 114.00C6) for a walker,
bilateral canes, or bilateral crutches (see 101.00C6d) or a wheeled
and seated mobility device involving the use of both hands (see
101.00C6e(i)); or
b. An inability to use one upper extremity to independently
initiate, sustain, and complete age-appropriate activities involving
fine and gross movements (see 114.00C7), and a documented medical
need (see 114.00C6) for a one-handed, hand-held assistive device
(see 101.00C6d) that requires the use of the other upper extremity
or a wheeled and seated mobility device involving the use of one
hand (see 101.00C6e(ii)); or
2. One or more major joints in each upper extremity (see
114.00C8) and medical documentation of an inability to use both
upper extremities to the extent that neither can be used to
independently initiate, sustain, and complete age-appropriate
activities involving fine and gross movements (see 114.00C7); or
B. Inflammation or deformity in one or more major joints of an
upper or lower extremity (see 114.00C8) with:
* * * * *
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart I--Determining Disability and Blindness
0
3. The authority citation for subpart I of part 416 continues to read
as follows:
Authority: Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a),
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and
(p), and 1383(b)); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub.
L. 98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note,
423 note, and 1382h note).
Sec. 416.926a [Amended]
0
4. Amend Sec. 416.926a by removing paragraphs (m)(1) and (2) and
redesignating paragraphs (m)(3) through (5) as (m)(1) through (3).
[FR Doc. 2020-25250 Filed 12-2-20; 8:45 am]
BILLING CODE 4191-02-P