Social Security

Revision Statement: We are updating this emergency message to incorporate the Temporary Final Rule (TFR) entitled “Extension of the Flexibility in Evaluating ‘Close Proximity of Time’ to Evaluate Changes in Healthcare Following the COVID-19 Public Health Emergency” 88 FR 67081.

Summary of Revisions

Added to Sections A, B, and E to provide information about the 2023 TFR.
Made minor edits throughout to improve clarity.

A. Purpose

This emergency message (EM) provides instructions for evaluating cases covered under the TFR, "Extension of the Flexibility in Evaluating ‘Close Proximity of Time’ to Evaluate Changes in Healthcare Following the COVID-19 Public Health Emergency,” which extended the flexibility provided in the prior TFR, “Flexibility in Evaluating ‘Close Proximity of Time’ due to COVID-19 Related Barriers to Healthcare.”

Additionally, this EM includes guidance for disability adjudicators on evaluating evidence in cases involving the musculoskeletal disorders listings beginning April 2, 2021.

Specifically, this EM provides additional guidance for evaluating the “documented medical need” for a wheeled and seated mobility device (WSMD) (see paragraph 1.00C6e of DI 34001.010 and paragraph 101.00C6e of DI 34005.101) and applying the “close proximity of time” standard with respect to the imaging requirement (see paragraph 1.00C7c of DI 34001.010 and paragraph 101.00C7c of DI 34005.101) beginning April 2, 2021.

Regional and Central Offices must ensure that all disability adjudicators, including medical consultants, senior attorney adjudicators, Administrative Law Judges, Appeals Officers, Administrative Appeals Judges, and medical support staff receive this revised message.

B. Background

On December 3, 2020, we published new listings for evaluating musculoskeletal disorders that became effective on April 2, 2021. See 85 FR 78164. In addition to other changes, in response to public comments on the notice of proposed rulemaking (NPRM), we included functional criteria for evaluating the documented medical need for WSMDs. The new listings also contain uniform and specific severity criteria for evaluating the effects of a musculoskeletal disorder on a person’s functioning and resolve the inconsistent policy application created by Acquiescence Ruling (AR) 15-1(4), Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013), which was rescinded on the effective date of these new listings.

Since publishing these new listings, we have received inquiries related to how we evaluate the documented medical need for a WSMD, particularly one-handed WSMDs, and the new functional criteria. We have also received questions about the “close proximity of time” standard with respect to the imaging requirement.

On July 23, 2021, we published a TFR that provided additional flexibility in evaluating "close proximity of time" due to COVID 19-related barriers to healthcare, which was effective immediately. That TFR was set to expire six months after the effective date of a determination by the Secretary of Health and Human Services that the COVID-19 national public health emergency (PHE) no longer existed. See 86 FR 38920. The COVID-19 national PHE ended on May 11, 2023.

We published a second TFR on September 29, 2023, that extended the flexibility until May 11, 2025, two years after the end of the COVID-19 national PHE. We extended the temporary flexibility due to ongoing changes in access to and provision of healthcare related to the PHE. During this extension period, we plan to study the changes in healthcare access and delivery to determine whether a permanent change to the "close proximity of time" standard is appropriate. See 88 FR 67081.

This EM provides instructions to promote consistent application of the new musculoskeletal disorders listings with regard to these issues.

C. Considering the most restrictive assistive device for which the claimant has a documented medical need when evaluating the functional criteria

Beginning April 2, 2021, consider the most restrictive assistive device for which the claimant has a documented medical need when evaluating the functional criteria. The “most restrictive device” is the device that involves the greatest limitation on the claimant’s use of the upper extremities, which is the focus of the functional criteria.

We consider assistive devices under both the first and second functional criteria in the musculoskeletal listings. These criteria require:

1. A documented medical need for a walker, bilateral canes, or bilateral crutches or a WSMD involving the use of both hands, or
2. An inability to use one upper extremity to independently initiate, sustain, and complete work-related activities (or, for a child, to perform age-appropriate activities) involving fine and gross movements, and a documented medical need for a one-handed, hand-held assistive device that requires the use of the other upper extremity or a WSMD involving the use of one hand.

The phrase “documented medical need” means that there is evidence from a medical source that supports the medical need for an assistive device for a continuous period of at least 12 months. This evidence must describe any limitation(s) in upper or lower extremity functioning and the circumstances for which the claimant needs to use the assistive device. We do not require that the claimant have a specific prescription for the assistive device. See paragraph 1.00C6a of DI 34001.010 and paragraph 101.00C6a of DI 34005.101.

Example: A claimant alternates between a walker and a motorized (that is, one-handed) WSMD, and has a documented medical need for both devices. When evaluating the claimant’s functioning, consider the two-handed assistive device criterion because the claimant has a documented medical need for a walker, and the walker is the most restrictive assistive device for which the claimant has a documented medical need.

D. Evaluating “documented medical need” for claimants who use a WSMD

The functional criteria are satisfied if the medical evidence shows that a claimant uses a WSMD that involves the use of two hands, such as a standard manual wheelchair, for which the claimant has a documented medical need lasting 12 consecutive months due to a musculoskeletal impairment.

Beginning April 2, 2021, if the claimant uses a WSMD that involves the use of one hand, such as a powered wheelchair or scooter, or if there is not enough evidence to determine what type of WSMD the claimant uses, consider whether the claimant may have a “documented medical need” for a two-handed assistive device that would satisfy the first functional criterion as noted in C.1. above, regardless of whether the claimant actually uses such a device. If a claimant uses a one-handed WSMD for which there is a documented medical need but needs the support of both hands to complete the activities necessary to function in a typical work environment (or, for a child, to perform age-appropriate activities), consider that the claimant has a documented medical need for a two-handed assistive device, which satisfies the first functional criterion noted in section C.1. above.

Example: A claimant who cannot bear weight on their lower extremities due to a musculoskeletal disorder would need the support of two hands to complete activities necessary to function in a typical work environment (or, for a child, to perform age-appropriate activities), such as transferring from their WSMD. Use the first functional criterion to evaluate this case.

Beginning April 2, 2021, when evaluating whether a claimant has a documented medical need for an assistive device that satisfies the functional criterion noted in section C.1. above, consider evidence in the medical record including, but not limited to:

· Documentation of the use and description of any assistive device(s);

· Inability to bear weight on the lower extremities;

· Instability;

· Inability to rise from a seated position without assistance or the use of both arms;

· Significant weakness in the legs; or

· Amputation of the lower extremities at or above the ankle with inability to use a prosthesis.

NOTE: Even if the functional criteria are satisfied, all other criteria must be satisfied in order for the impairment to meet or medically equal the listing.

If the evidence does not support a finding that the claimant’s impairment(s) meets or medically equals the listing, proceed to the next step of the sequential evaluation process. For adults, consider the claimant’s residual functional capacity, including the limited ability to stand and walk and the use of the WSMD. For children seeking Supplemental Security Income (SSI) payments under title XVI, consider whether the impairment(s) functionally equals the listings.

NOTE: The medical-vocational rules for adults and the functional equivalence rules for children seeking SSI have not changed.

E. Evaluating “close proximity of time” during the pandemic period

Beginning April 2, 2021, to satisfy the requirements of Listings 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, 1.22, 1.23, 101.15, 101.16, 101.17, 101.18, 101.20C, 101.20D, 101.22, and 101.23, all required criteria must be present simultaneously, or within a close proximity of time.

The temporary flexibility in evaluating “close proximity of time” provided in the 2021 TFR, as extended by the 2023 TFR, amends the musculoskeletal disorders listings introductory text to define the “pandemic period” as the period beginning on April 2, 2021, and ending on May 11, 2025. See paragraph 1.00C7a of DI 34001.010 and paragraph 101.00C7a of DI 34005.101.

For all claims we determine or decide during the pandemic period, “within a close proximity of time” means that all of the relevant criteria must appear in the medical record within a consecutive 12-month period.

SPECIAL TRACKING: If a claim is adjudicated as meeting or medically equaling one of the relevant listings because all of the relevant criteria appears in the medical record within a consecutive 12-month period, but the evidence does not appear in the record within a consecutive four-month period, use the following instructions to track the claim for future study:

· Disability Determination Services (DDS) adjudicators must enter disability-related list code 215 for “Musculoskeletal Disorders Listings – Proximity of Time Case Study” in item 26 (List No.) on the SSA-831-U3 or item 34 (List No.) of the SSA-832-U3 and SSA-833-U3.

· Hearing-level or Appeals Council (AC) adjudicators must add the case characteristic code “Muscul cases that meet/Eql 12mos b/n 4mos” (MSKM) under the case characteristic type “other” in the Hearings and Appeals Case Processing System (HACPS) and the applicable case processing system (Case Processing and Management System (CPMS) for hearing-level cases, or in the Appeals Review Processing System (ARPS) for AC-level cases.

F. Determining “close proximity of time” with regard to imaging requirements

When evaluating a musculoskeletal disorder under a listing that has imaging requirements, and imaging findings are documented in the medical record, determine whether you can “reasonably expect” the findings on imaging to have been present at the date of impairment or date of onset. See paragraph 1.00C7c of DI 34001.010 and paragraph 101.00C7c of DI 34005.101.

Do not find that a case fails to meet the listing or do not require additional development simply because the imaging was not taken within a “close proximity of time” to the other required listing elements. In most cases, no additional imaging or development is necessary unless there was a potentially corrective surgery or other intervention between the timeframe of the imaging and the other findings.

Use judgment in determining whether you can “reasonably expect” that the findings were present at the date of impairment or date of onset. Consider factors including, but not limited to:

· Are the findings consistent with the other evidence? If the signs and symptoms are consistent with what we would expect from the specific findings, and there is no other explanation for the signs and symptoms (for example, a recent injury), then you will generally “reasonably expect” that the findings would be present.

· What kinds of findings were present on imaging? If the findings on imaging are the kind that generally remain static or worsen, you will generally find that you can “reasonably expect” them to continue to be present. If the findings are the kind that can improve over time, you might not “reasonably expect” them to continue to be present, particularly if they are far removed from the relevant period.

· How recent is the imaging? If the findings are the kind that may improve over time, or if the imaging is several years old, you might not “reasonably expect” the findings to remain present.

· What is the longitudinal medical history? If there was surgery or other intervening treatment that could improve the findings that were seen on imaging, you will generally not “reasonably expect” that the findings would remain present.

G. Evaluating WSMDs outside of the musculoskeletal disorders listings

1. Impairments other than musculoskeletal impairments

Do not apply the musculoskeletal functional criteria to all cases involving use of a WSMD. Only apply these criteria to cases with a musculoskeletal impairment. Continue to evaluate cases involving other body systems under the listings for the relevant body system (for example, neurological or respiratory disorders).

Example: Evaluate the need for a WSMD due to 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 and 111.00.

2. Impairments that do not meet or medically equal a listing

Evaluate WSMDs used for impairments that do not meet or medically equal a listing using the current medical-vocational rules for adults or functional equivalence rules for children seeking SSI. These rules have not changed as a result of the changes to the musculoskeletal disorders listings.

H. Evaluating inability to use one or both upper extremities to independently initiate, sustain, and complete work-related activities (or, for a child, to perform age-appropriate activities) involving fine and gross movements

To perform a work-related activity (or, for a child, to perform an age-appropriate activity) involving fine and gross movements, a claimant must be able to independently initiate, sustain, and complete the activity. Limitation in any one of these parts (initiate, sustain, or complete the activity) may prevent a claimant from completing a work-related activity.

When evaluating upper extremity limitations in the functional criteria, find that the relevant functional criterion is satisfied if the claimant is unable to independently initiate, sustain, or complete work-related activities (or, for a child, to perform age-appropriate activities) involving fine and gross movements due to their musculoskeletal disorder.

For examples of fine and gross movements, see paragraph 1.00E4 of DI 34001.010 and paragraph 101.00E4 of DI 34005.101. These examples illustrate the nature of these areas of musculoskeletal functioning. We do not require documentation of each of the listed examples.

I. Continuing disability reviews (CDRs)

Use the current CDR rules and the Medical Improvement Review Standard (MIRS) to determine whether disability continues, including whether the impairment continues to meet or medically equal the same listing section used to make the most recent favorable decision. See DI 28005.015, DI 28005.030, and DI 28015.050.

References
DI 22505.008 Developing Supplemental Evidence
DI 22505.010 Developing Longitudinal Medical Evidence
DI 28005.015 Step-by-Step Discussion of the Title II and Adult Title XVI Continuing Disability Review (CDR) Sequential Evaluation Process
DI 28005.030 Step-by-Step Discussion of the Title XVI Child Continuing Disability Review (CDR) Sequential Evaluation Process
DI 28015.050 Consideration of Prior Listing
DI 34001.010 Musculoskeletal Disorders (Adult)
DI 34005.101 Musculoskeletal Disorders (Child)