The Social Security Administration has published a Notice of Proposed Rule-Making (NPRM) in the Federal Register to change its neurological listing of impairments. As has been the case for some years now, the NPRM dramatically lengthens the preamble to the listings and tightens the requirements of the listings in numerous ways.
As a comparison, the current listing for non-convulsive seizures requires that they occur "more frequently than once weekly." The proposed rule would require that the seizures occur "at least once a week." You look at that and think there's not much difference. You might think that if anything the proposed rule is less difficult to meet since it only requires that seizures occur weekly rather than more than weekly. However, ask anyone who suffers from epilepsy how often their seizures occur and they always say "They don't occur on any schedule." Let's say claimant A has 25 seizures in a three month time period but happens to have one week during this time during which he or she has no seizures. Claimant A meets the current listing but not the proposed listing. The current listing permits averaging. The proposed rule doesn't. That's a significant tightening.
For another comparison, the proposed listing for multiple sclerosis qualifies the degree of disorganization of motor function needed to meet the listing by adding the word "extreme." There would have to be "extreme limitation" of motor function in order to meet the proposed listing. This is a major change even though, in effect, nothing of consequence other than one word has been changed.
The public is allowed to comment on the NPRM. Social Security must consider the comments. The process takes a year or more at best. The history of these things is that Social Security blows off all comments based upon anything other than grammatical errors unless the comments come from some major organization focused on a particular disease and the comments are forceful and backed up with lobbying. Since most such organizations are focused on research and happy talk about employment opportunities and not on disability benefits, they either don't comment on the NPRM or offer weak comments and don't lobby. If that happens, the NPRM is adopted essentially intact and more people who suffer from seizures or MS get denied and become impoverished.
6 comments:
As an ALJ, I've found a number of claimants with MS disabled, but I've never found that they met the Listing; disabiity has been premised on their credbile and supported complaints of fatigue. These changes will not alter that approach.
Bravo @ 11:56 AM. Sadly, a large number of your brethren do not share your same thoughts. If its not objective, its not present seems to be the mantra of the new crop of ALJs these days.
How do we comment on the proposed regulations? I'm a disability attorney who works closely with the MS Society. This language reflects a lack of knowledge of how MS affects people.
MS is characterized is unpredictable. Some days the patient will suffer from extreme limitations. Other days the patient will be nearly healthy. The exacerbations are impossible to predict since it's an autoimmune disease.
Long story short, I'd like to add some comments from an attorney's point of view and open up the floor for the MS Society to add its wisdom.
An attorney should know that the NPRM contains specific instructions on how to submit comments. It's the very first section.
Is this really such a big deal? How many cases are awarded by meeting a Listing? Very few for us. It's almost always a step 5 approval. With a dx and tx for MS, there should be plenty of records to corroborate a claimant's testimony of disabling symptoms of fatigue, pain, and LE weakness.
@ 5:22...exactly. If an attorney has got involved, it's likely already past the DDS level. Therefore, the likelihood that a claimant actually meets a listing is pretty slim. More likely a step 5 decision.
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