December 15, 2018

The Listing Strategy

The main issue in your Multiple Sclerosis Social Security disability case is whether your symptoms have progressed to the point where you cannot work full time.  And when Social Security considers your work capacity, they are asking whether you can do anything at all – for example, could you serve as a ticket taker at a movie theater, a hand packer at a factory, or a garment inspector at a manufacturing plant?

Many people think about disability in terms of their ability to perform their regular job, but this is not how to think about Social Security disability.  Instead, think of an easy, one or two step entry level job.  Could you perform that job eight hours a day, five days per week?

Choose a Winning Argument

There are several arguments that attorneys use to prove disability based on Multiple Sclerosis.  These include the listing argument for Multiple Sclerosis, the residual functional capacity (RFC) argument for Multiple Sclerosis, and the grid rules argument for Multiple Sclerosis.  You can read about each of these arguments on this web site.    This page will discuss the listing argument for Multiple Sclerosis and offer suggestions about how to win your multiple sclerosis case by meeting a listing.

Understanding the “Listing” Argument for MS

Social Security’s listings are detailed descriptions of serious medical conditions.   SSA recognizes that some medical diagnoses are so serious that anyone who meets the listing is automatically disabled.  Not surprisingly, Social Security makes it very difficult to meet a listing, so don’t be discouraged if your medical records do not qualify you.  Often claimants fail to meet the listing not because their condition is not serious enough but because their doctor did not follow the language of the listing exactly when writing office notes.    Your doctor’s focus, of course, is on treating you, not writing reports for Social Security – helping your doctor help you, by the way, is where a good disability lawyer can greatly improve your odds of winning.

Social Security’s Multiple Sclerosis listing may be found at Listing 11.09.  It reads as follows:

11.09 Multiple sclerosis, characterized by A or B:

A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities.

OR

B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following:

  1. Understanding, remembering, or applying information (see 11.00G3b(i)); or
  2. Interacting with others (see 11.00G3b(ii)); or
  3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or
  4. Adapting or managing oneself (see 11.00G3b(iv)).

As you can see from reading the multiple sclerosis listing, you can win using this argument if you are experiencing significant physical, visual or mental problems that arise from your multiple sclerosis diagnosis.   If your doctor is prepared to support you, he needs to associate your condition with the specific limitations set out in the 11.09 listing.

How Experienced Lawyers Prove Listing Level Multiple Sclerosis

Lawyers who regularly practice before Social Security judges often find that a good way to prove that their clients meet this listing involves creating a checklist that tracks the listing.   A robust checklist will also include space for the treating physician to write notes, and it will include questions created by the lawyer that also focus on activity limitations.   Experienced lawyers know that physicians like this checklists because it saves time – the doctors need only check the appropriate boxes and make a few notes and they will be giving the Social Security judge or adjudicator exactly what he/she needs to decide a case.

Obviously it helps greatly if your treating doctor will complete a listing checklist (or will write a detailed narrative report) that supports you.  However, Social Security decision makers will also review treatment notes to confirm that the level of impairment described in the checklist also exists within the pages of the monthly treatment notes.  However, since multiple sclerosis flare-ups tend to result in declining muscle strength over time, the combination of a supportive listing-level checklist and treatment notes confirming an MS diagnosis and impairment in your functioning, Social Security personnel often do not question a treating doctor’s opinion.

If you would like to speak with a lawyer who understands the power and usefulness of a carefully crafted multiple sclerosis listing checklist, please fill out the case evaluation form on the right side of this page.