Oh, My Aching Back: Establishing Presumptively Disabling Low Back Impairments in Social Security Disability Determinations
by Anthony M. Gawienowski¹ and David W. McGhee²

When a person files for disability benefits at a Social Security Administration office, back pain is often alleged.³ This article addresses recent changes in the regulations that establish how the Social Security Administration determines when certain medical conditions resulting in low back pain are presumptively disabling.⁴

Disability as a matter of law requires that a person have a medically determinable disorder (impairment) that prevents this person from engaging in substantial gainful activity.⁵ The initial time frame is a continuous 12-month period, which may be prospective or retrospective, or with the expectation that death will result. Because death is not generally associated with low back pain, this issue is not developed in this article. The interpretation of the commissioner of the Social Security Administration is that both the impairment and the resulting disability must exist or be expected to exist for the requisite 12-month period.⁶

When the Social Security Administration makes a disability determination, it utilizes a process featuring three general inquiries: Are you working? What prevents you from working? Can you perform the work you used to perform or other work that exists in significant numbers in the national economy?⁷ This article addresses the medical-legal criteria involved at the second inquiry when a person alleges disabling low back pain. These medical-legal criteria are important because they can be used to establish presumptive disability.

The initial set of medical-legal criteria the Social Security Administration uses to address the question, "What prevents you from working?" is the Appendix 1 to Subpart P of Part 404 – Listing of Impairments (the listings).⁸ The listings are classified into 14 sections by individual body systems.⁹ Section 1.00 relates to the musculoskeletal system and contains two separate elements, a general or narrative introduction and the "Category of Impairments," which are the listed musculoskeletal impairments.¹⁰

The listings contain examples of impairments frequently encountered in the disability program.¹¹ Presently, the listings contain more than 100 individually designated impairments.¹² The criteria set out in each listing include specific symptoms, signs, and laboratory findings (symptoms) that characterize those impairments that the commissioner has determined are "severe enough to prevent a person from performing any gainful activity."¹³ The requisite criteria are set out in the general introduction, as well as in the individual listing. The listings are intended to help ensure that determinations and decisions regarding disability have a sound medical basis, that each claim receives equal treatment through the use of specific criterion, and that persons who are disabled can be readily identified and awarded benefits, assuming all of the other entitlement or eligibility factors are met.¹⁴

The listings are of great value in the disability determination process because a person who meets the requisite listing criteria is presumptively disabled without further inquiry into their ability to perform work.¹⁵ This includes situations where a person worked with the impairment and the record shows that the impairment medically met the listing, even during the period when the person worked. The Social Security Administration refers back to the requirements that the impairment and disability must exist or be expected to exist for at least 12 months. When the person's impairment medically meets the appropriate listing criteria, there is no requirement to prove that the person's impairment is any different than it was while the person worked. This does not apply to those situations where the person continues to work.

When using the listings to establish disability, one should be aware that: at this stage of the process the person alleging disability bears the burden of proof;¹⁶ to meet a listing, the person needs to prove that the impairment meets each specified medical criterion;¹⁷ and whether a person's impairment actually meets a listing is an issue reserved to the commissioner and is not characterized as strictly a medical issue regarding the nature and severity of the claimant's impairments.¹⁸ A finding that a person has an impairment that meets a listing is an administrative finding that directs the determination or decision of disability. This characterization that meeting a listing is an administrative finding on an issue reserved to the commissioner explains why the Social Security Administration often gives little weight to a medical report that simply states that a person is disabled or that an impairment meets all of the criteria for a listing, unless the report also describes how the impairment meets each relevant criterion.¹⁹

In 2001, the Social Security Administration changed the listings for musculoskeletal impairments, effective in February 2002.²⁰ These are the most significant changes to the Musculoskeletal System Listings since 1985²¹ and the development process started in 1993.²² The Social Security Administration updated the musculoskeletal listings to reflect advances in medical knowledge and treatment of musculoskeletal impairments as well as advances in the methods used to evaluate musculoskeletal impairments.²³ The Social Security Administration recognized that there is a significant degree of interest in the listings used to adjudicate musculoskeletal system impairments because they represent a high percentage of cases adjudicated under the listings.²⁴

The current listing addressed in this article is listing 1.04A for disorders of the spine,²⁵ which generally replaced listing 1.05C.²⁶ With former listing 1.05C and now with listing 1.04A, the Social Security Administration has used a listing to cover disorders of the spine, including herniated discs, "spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis [and] vertebral fractures"²⁷ since March 27, 1979. Current listing 1.04 relaxes some of the requirements of former listing 1.05C, making it easier for a person to show disability resulting from a spine disorder.²⁸ We hope that explaining the changes the Social Security Administration made in replacing former listing 1.05C with current listing 1.04A provides persons involved in these cases the means to more effectively argue that a low back impairment meets each requisite criterion.

Former listing 1.05C required proof that specified symptoms existed, proof that each symptom persisted for at least three months despite prescribed therapy, and the expectation that the requisite symptoms would last for at least 12 months. The emphasis was upon the symptoms.

The first group of former listing 1.05C symptoms was pain, muscle spasm and significant limitation of motion in the spine. Current listing 1.04A addresses pain and range of motion differently and does not require proof of muscle spasm.

The second group of former listing 1.05C symptoms was the appropriate radicular distribution of significant motor loss with muscle weakness, sensory loss and reflex loss. Current listing 1.04A requires the presence of similar symptoms but does not require the presence of each of these symptoms.

Current listing 1.04A applies to those disorders of the spine that result in the "compromise of a nerve root" (or the spinal cord) where there is "[e]vidence of nerve root compression characterized by [symptoms of] neuro-anatomic distribution of pain, limitation of motion of the spine and motor loss . . . accompanied by sensory [loss] or reflex loss." When the lower back is involved, there is an additional criterion for positive straight-leg raising tests. We have only addressed those back disorders and symptoms generally associated with disorders affecting the lumbar spine and/or the sacral spine. There are different listing criteria for neck pain and upper extremity impairments that generally relate to disorders of the cervical spine and the thoracic spine. There are additional listings for low back disorders that we do not address in this article.

Current listing 1.04A applies when an identified, or medically determined, spinal disorder results in the compromise of a nerve root or the spinal cord. The medical evidence must establish three separate points or sets of criterion, which we refer to as Point A, Point B and Point C. Point A is a medically determinable impairment. Point B is proof that this medically determinable impairment results in impingement of a nerve root or the spinal cord. Point C is an additional set of physiological signs and symptoms expected to exist when a medically determinable impairment that impinges upon a nerve root or the spinal canal results in disabling low back pain.

In our experience, it is common for an advocate to develop the medical record showing there is a medically determinable impairment, Point A, and not fully develop the record that the requisite signs, symptoms and functional limitations resulting from this impairment are also present (Point B and Point C). Alternatively, advocates develop the medical record showing the requisite signs, symptoms and functional limitations (Point B and Point C), but do not fully develop the record with diagnostic imaging identifying an impairment that impinges on a nerve root or the spinal cord (Point A). It is also common for an advocate to develop a medical record showing a medically determinable impairment and pain (Point A and Point B) without addressing the additional set of physiological signs (Point C). When these omissions occur, the person with the low back pain has not met the burden of proof. Please note, we do not infer that a person in these circumstances cannot be determined to be disabled, but the process moves from medical-legal steps to functional analysis steps.

Why, this sounds much like the Byzantine complexity involved in dealing with the "Infernal" Revenue Code. Well, yes, for every short concise description of the medical criteria to establish disability, layers and layers of minutiae exist, which employees of the Social Security Administration and the state disability determination agencies use to make appropriate determinations in disability cases. Our intent in revealing the layers and layers of minutiae is not to create a circumstance where one might feel like abandoning hope before delving into Social Security disability medical-legal issues. Our intent is to assist those who feel trapped by providing a point-to-point roadmap that can more easily lead to the determination that a person's low back impairment is presumptively disabling.

First, one starts at Point A with evidence of a medically determinable impairment that results in nerve root compression or spinal cord compression. Often, the readily available medical evidence shows that a person reports pain and testing identifies the other signs and symptoms described in current listing 1.04A. However, these signs and symptoms are Point B and Point C, which are further ahead on the roadmap.

Current listing 1.04A initially requires a diagnostic imaging test indicating a condition that results in nerve root compression or spinal cord compression. This current listing 1.04A requirement of a diagnostic imaging test differs from former listing 1.05C, which did not explicitly require diagnostic imaging tests or proof of nerve root compression or spinal cord compression.

A diagnostic imaging test indicating nerve root compression or spinal cord compression is Point A, establishing a medically determinable impairment and, more appropriately, the beginning of the roadmap when advocating that a person is disabled because they meet current listing 1.04A. Without a medically determinable impairment, the analysis either comes to a complete halt or moves past the listings to an analysis of functional limitations. This is a different analysis and not covered in this article.

Therefore, at Point A, one needs a medically determinable impairment indicated by an appropriate diagnostic imaging test. Medically acceptable imaging techniques include, but are "not limited to, x-ray imaging, computerized axial tomography (CAT scan)," computerized tomographic (CT) scans, "magnetic resonance imaging (MRI) [scans], with or without contrast material, myelography, and radionuclear bone scans.²⁹ 'Appropriate' means that the technique used is the proper one to support the evaluation and diagnosis of the impairment."³⁰

X-rays are a common and relatively inexpensive diagnostic imaging technique for revealing a medically determinable impairment. Are low back x-rays sufficient to identify nerve root compression for current listing 1.04A purposes?

X-rays can identify congenital or acquired skeletal abnormalities, such as degenerative joint disease, spondylosis and spondylolisthesis.³¹ However, an x-ray is not designed to identify a herniated disc.³² An x-ray is not, therefore, going to reveal all the possible medically determinable impairments that result in nerve root compression.

Another common diagnostic imaging test for spinal disorders is a CAT scan or a CT scan. A CT scan of the lumbar spine can provide "adequate diagnostic information" of a herniated disc, "if disk protrusion or rupture has occurred. Because the neural canal is larger in the lumbar area,"³³ a CT scan may also reveal "soft tissue lesions . . . as well as spinal canal stenosis" (narrowing). "However, if more than one [disc] level [each disc sits between two vertebrae, so a reference to the L5/S1 disc or the L5/S1 level is a reference to the space between the fifth lumbar vertebrae and the first sacroiliac vertebrae] is involved or if previous disk disease has been treated surgically, [a] CT [scan] without myelography [might] not provide sufficient diagnostic information."³⁴

Magnetic Resonance Imaging (MRI) scans of the lumbar spine have generally replaced all of the other medical tests as the initial diagnostic imaging procedure of choice.³⁵ "MRI scans are useful to [reveal] the thecal sac, the disks and the vertebral elements."³⁶

Will the Social Security Administration pay for an MRI scan, CT scan or another radiological type of examination, which are described as appropriate imaging tests to reveal those medically determinable impairments that result in nerve root compression?³⁷ Section 1.00C2 of Appendix 1 to subpart of part 404, in Code of Federal Regulations, states:

Purchase of certain medically acceptable imaging. While any appropriate medically acceptable imaging is useful in establishing the diagnosis of musculoskeletal impairments, some tests, such as CAT scans and MRIs, are quite expensive, and we will not routinely purchase them. Some, such as myelograms, are invasive and may involve significant risk. We will not order such tests. However, when the results of any of these tests are part of the existing evidence in the case record we will consider them together with the other relevant evidence."³⁸

Based on this statement, the usual answer is "no." Therefore, the Social Security Administration relies on referrals for these diagnostic imaging tests from treating physicians or from examining physicians for other programs, such as workers' compensation or the Veteran's Administration, in the disability determination process.

In some cases, we have observed the use of electrodiagnostic procedures, including nerve conduction studies (NCS), electromyography (EMG) and sensory nerve conduction threshold (sNCT) tests. Section 1.00C1 specifies that electrodiagnostic procedures may be useful in establishing a clinical diagnosis, but electrodiagnostic procedures do not constitute alternative criteria to the requirements of current listing 1.04A.³⁹

Point A is reached when one has a diagnostic imaging test that reveals an anatomical abnormality that results in nerve root compression or spinal cord compression. What one needs next are medical signs or laboratory findings that demonstrate pain and other signs and symptoms that could reasonably be expected to result from this anatomical abnormality, which are Point B and Point C on the roadmap.⁴⁰ Current listing 1.04A does not require objective medical findings that directly support the existence or severity of a person's pain, which is a subjective symptom. One only needs evidence that the pain is in an appropriate location or follows an appropriate path or distribution.

In former listing 1.05C, evidence of pain was required, but there was no reference to the distribution of this pain. Instead, former listing 1.05C required the presence of pain and the presence of radicular distribution of significant motor loss.

Point B is pain with an appropriate neuro-anatomic distribution. What is the neuro-anatomic distribution of pain? Well, each spinal nerve affects different areas of the body. So, if one wants to establish the existence of nerve root compression in the area between the 5th lumbar vertebrae and the 1st sacroiliac vertebrae (the L5/S1 level), the pain and corresponding symptoms should follow the same path as the nerves at the L5/S1 level. Practically speaking, if an MRI shows a herniated disc at L5/S1, the corresponding low back pain should, to some degree, radiate into the buttock, posterior thigh and calf.⁴¹ Coughing, sneezing or the Valsalva maneuver may aggravate the radiating pain.⁴² Bending or sitting will characteristically accentuate the pain, and lying down will characteristically relieve the pain.⁴³ "Most commonly, the back pain is described as deep, aching, and constant" back pain that is termed "lumbago," while the sharp shooting pain traveling from the buttock down the leg posteriorly to the foot or toes is termed "sciatica."⁴⁴

We cannot stress enough how much it helps in the disability determination process when a medical report identifies the neuro-anatomical distribution of symptoms, similar to the above described symptoms. While the path that a person's pain follows may appear self-evident to the advocate, the reporting physician and the person experiencing the pain, why leave this issue open to interpretation – especially at this stage in the disability determination process, when the applicant has the burden of proof? It is not uncommon in our experience for a medical report to describe sciatica without identifying the significance of this symptom or the complete path followed by this radiating pain.

We have not addressed any objective tests establishing the appropriate neuro-anatomical distribution of the symptoms. Generally, when a person alleges radiating low back pain, their description of their symptoms to treating or examining medical professionals is sufficient to establish or discount the appropriate neuro-anatomical distribution of these symptoms.⁴⁵

With a diagnostic imaging test indicating a low back impairment and the appropriate neuro-anatomical distribution of the symptoms, one has evidence of nerve root compression, because the evidence shows that the pain is consistent with a nerve root being compressed or irritated. Thus, one has progressed from Point A to Point B on the roadmap. To reach Point C, one has the burden of adducing evidence of additional symptoms consistent with the presence of disabling low back pain.

Point C is medical evidence demonstrating limitation of motion of the spine, motor loss with sensory loss or reflex loss, and positive straight-leg raise tests.

One mandatory symptom at Point C is limitation of motion. This is a change from former listing 1.05C, which required significant limitation of motion. Now any limitation of motion is sufficient when accompanied by the other current listing 1.04A criteria.⁴⁶

Limitation of motion covers a broad area of observations. Evidence of limitation of motion sufficient to meet the current listing 1.04A criterion requires specific observations.⁴⁷ Reports from physical examinations should include a detailed description of the person's gait and range of motion of the spine. Motion of the spine should be given quantitatively in degrees from the vertical position (zero degrees). Observations of the person's movements during the examination should be reported, including getting on and off the examination table. A more casual description may still be sufficient to meet current listing 1.04A, but guidelines provided in § 1.00E1 stress the need for detail.

Another mandatory symptom at Point C is motor loss. Requisite motor loss can be established by evidence of muscle weakness or by evidence of muscle atrophy and muscle weakness.⁴⁸ Section 1.00E1 describes the relevant signs of motor loss as including limitations in the person's ability to walk on the heels, walk on the toes, squat, or to arise from a squatting position. Former listing 1.05C required significant motor loss of an appropriate radicular distribution.

Muscle weakness tests are tests performed to assess the strength of specific muscles (in the legs or feet) for signs of nerve root compression. The strength of the muscle or muscles being tested is usually reported on a grading system of 0 to 5.⁴⁹ The grading system should have 0 being complete loss of strength and 5 being maximum strength. If a different grading system is used to report muscle weakness, this can result in confusion.

Former listing 1.05C required evidence of muscle weakness. Current listing 1.04A requires evidence of motor loss, which must include evidence of muscle weakness.

Evidence of muscle atrophy can also serve as evidence of motor loss, but only when associated with muscle weakness. Section 1.00E1 notes that medical evidence sufficient to establish the requisite muscle atrophy requires circumferential measurements of both thighs and both lower legs. These measurements must be taken at a stated point above the knee and below the knee and given in inches or centimeters. Atrophy, as evidence of motor loss, must be associated with muscle weakness. Atrophy in the absence of muscle weakness does not establish motor loss for current listing 1.04A purposes.⁵⁰

Another mandatory symptom at Point C is sensory loss or reflex loss. This is stated in the alternative in current listing 1.04A. Therefore, either sensory loss or reflex loss, not necessarily both, is required. The rationale is that both findings are not always present at the same time in cases of nerve root compression.⁵¹ Former listing 1.05C required evidence of both sensory loss and reflex loss.

Tests identifying sensory loss measure the ability to feel light touch, a pinprick, heat or cold.⁵² Sensory patterns can be variable. As a rule, reduced feeling or hypesthesia on the dorsum (top) of the foot is a common symptom of nerve root compression. "[S]ensory deficit on the little toe and the lateral surface of the foot is more frequent with L5-S1 disease, and deficit on the big toe and medial aspect of the foot is more frequent with L4-L5 disease."⁵³

Reflex loss can be identified by testing the deep tendon reflexes (DTRs), where tendons are tapped with a rubber reflex hammer.⁵⁴ If there is nerve root compression in the lower back, there may be little or no reflex in either the knee (patellar tendon) or the ankle (Achilles tendon). There may be times where DTR test results are described as indicating reflex changes, illustrated by different findings for each leg, rather than reflex loss.⁵⁵ When dealing with the listing criteria, we suggest that it is important that the medical reports relied upon to establish disability reflect terminology consistent with the terminology used in the listing.

The final mandatory symptom at Point C is a new criterion for positive straight-leg raising tests in both the sitting and supine positions.⁵⁶ Former listing 1.05C did not require positive straight-leg raising tests. Instead, the tests were included in former Section 1.00B as two of many alternative tests.

A straight-leg raise test is positive when sciatic pain is reported before 70 degrees and/or pain is aggravated with dorsiflexion of the foot and relieved by knee flexion.⁵⁷ A straight-leg raising test is also positive when the maneuver elicits an abnormal sensation, such as pain, tingling or numbness, which radiates down the leg beyond the knee.⁵⁸ Remember that documentation of a positive response in both the sitting position and the supine position is required to meet this current listing 1.04A criterion. Discrepancies between the seated straight-leg raising test results and the supine straight-leg raising test results suggest malingering.⁵⁹

Former listing 1.05C required the presence of muscle spasm. Current listing 1.04A does not require the presence of muscle spasm. It does not harm the case when there is evidence of muscle spasm, but muscle spasm is no longer a mandatory symptom.⁶⁰

The former listing 1.05C duration requirements are different from the current listing 1.04A duration requirements. Former listing 1.05C required proof that the person's symptoms persisted for at least three months despite prescribed therapy and the expectation that the requisite symptoms would last for at least 12 months.

Current listing 1.04A does not detail how long the requisite symptoms must persist as a prerequisite to meeting the listing, there is no longer a requirement for prescribed therapy, and there is no longer the need for a medical opinion that the requisite symptoms would last at least 12 months or medical evidence that the symptoms had persisted for at least 12 months.⁶¹ Instead, the revised musculoskeletal listings require a "longitudinal clinical record" sufficient to assess the "severity and expected duration of [the] impairment."⁶² When there is no longitudinal clinical record, the evaluation is to be based on all of the available evidence.⁶³

Current listing 1.04A does not specifically reference pain relief modalities or forms of treatment; rather, the reference is to a longitudinal clinical record. The position of the Social Security Administration is that current listing 1.04A presupposes that the active compromise of a nerve root results in certain symptoms, such as significant disability due to pain.⁶⁴ When a symptom, such as pain, is one of the criteria for a listed impairment, the symptom must be present in combination with the other criteria.⁶⁵ However, unless the listing specifies otherwise, there is no need to provide information regarding the intensity, persistence or limiting effects of the symptom.⁶⁶

When one has a diagnostic imaging test, such as an MRI, that reveals an anatomical abnormality of the lower back (Point A), a description of low back pain with an appropriate neuro-anatomic distribution (Point B), and additional signs and symptoms that indicate nerve root compression (Point C), the trip through the layers of minutiae is complete and the impairment meets each mandatory listing 1.04A criterion. Having completed the journey, one arrives at presumptive disability.

Advocates often provide commercially prepared or personally drafted forms to physicians and other medical professionals to complete as part of a medical report. In other situations, when a patient requests a report for disability determination purposes, the physician uses a form that was prepared successfully for other patients. If these forms and the medical report do not reflect the current listing 1.04A criteria and the current terminology, there can be problems establishing that a low back impairment medically meets the current listing 1.04A criteria. Hopefully, our roadmap provided above will aid in understanding and identifying these changes, because medical records and reports that show that a low back impairment meets the former listing 1.05C criteria will not always show that the same impairment meets the current listing 1.04A criteria.

Footnotes

¹ Anthony M. Gawienowski is an attorney-adviser with the Region VII Decision Writing Unit of the Social Security Administration's Office of Hearings and Appeals in Kansas City. He received his B.A in 1981 from the University of Massachusetts at Amherst, and his J.D. in 1984 from the University of Missouri - Columbia. The views expressed in this article are those of the authors and do not necessarily represent the views of the Social Security Administration or the United States.

² David W. McGhee is an attorney-adviser with the St. Louis office of the Social Security Administration's Office of Hearings and Appeals. He received his B.A in 1989 from the University of Kansas, his M.A. in history in 1992 from Kansas State University, and his J.D. in 1995 from the University of Kansas. The views expressed in this article are those of the authors and do not necessarily represent the views of the Social Security Administration or the United States.

³ Musculoskeletal Disorders and the Workplace: Low Back and Upper Extremities, 38 (IOM 2001). See http://books.nap.edu/catalog/10032.html.

⁴ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58009-58046 (Nov. 19, 2001). These final rules became effective on February 19, 2002. These new rules apply to all new applications filed on or after February 19, 2002, as well as all cases pending on February 19, 2002.

⁵ 42 U.S.C. 416(i), 20 CFR §§ 404.1505 and 416.905 and Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58010 (Nov. 19, 2001). The duration issue is addressed in 42 U.S.C. § 423(d)(1)(A) and 42 U.S.C. § 1382c(a)(3)(A).

⁶ Barnhart v. Walton, 535 U.S. 212 (2002).

⁷ Fines v. Apfel, 149 F.3d 893, 895 (8th Cir 1998), 20 CFR §§ 404.1520 and 416.920 and SSR 86-8, Titles II and XVI: The Sequential Evaluation Process. Available at http://www.ssa.gov/OP_Home/rulings/di/01/SSR86-08-di-01.html.

⁸ 20 C.F.R. Pt. 404, Subpt. P., App. 1 (2002) (The Listings); see, also 20 CFR §§ 404.1569 and 416.969.

⁹ 20 C.F.R. §§ 404.1525(c) and 416.925(c).

¹⁰ Id.

¹¹ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58010 (Nov. 19, 2001).

¹² Id.

¹³ 20 C.F.R. §§ 404.1525 and 416.925.

¹⁴ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58010 (Nov. 19, 2001).

¹⁵ 20 C.F.R. §§ 404.1520(c) and 416.925(c) and Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999).

¹⁶ Fines, 149 F.3d at 895.

¹⁷ Marciniak v. Shalala, 49 F.3d 1350, 1353 (8th Cir. 1995) citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

¹⁸ 20 C.F.R. §§ 404.1527(e) and 416.927(e), and SSR 96-5p, Policy Interpretation Ruling Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner. Available at http://www.ssa.gov/OP_Home/rulings/di/01/SSR96-05-di-01.html.

¹⁹ The analysis adopted by the 8th Circuit Court of Appeals is that: "A treating physician's opinion should not ordinarily be disregarded and is entitled to substantial weight." Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). If "a treating physician's opinion . . . is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record," the opinion should be given controlling weight. Id. However, "statements that a claimant could not be gainfully employed 'are not medical opinions but opinions on the application of the statute, a task assigned solely to the discretion of the [commissioner].'" Cruze v. Chater, 85 F.3d 1320, 1325 (8th Cir. 1996) (quoting Nelson v. Sullivan, 946 F.2d 1314, 1316 (8th Cir. 1991)). "A treating physician's opinions must be considered along with the evidence as a whole, and when a treating physician's opinions are inconsistent or contrary to the medical evidence as a whole, they are entitled to less weight." Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002).

²⁰ For a discussion of the issues raised when a listing changes while an application is in litigation, see Ingram v. Barnhart, 303 F.3d 890, 894 (8th Cir. 2002) and Curran-Kicksey v. Barnhart, 315 F.3d 964 (8th Cir. 2003).

²¹ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58011 (Nov. 19, 2001).

²² Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58010 (Nov. 19, 2001).

²³ Id.

²⁴ Id.

²⁵ 20 C.F.R. Pt. 404, Subpt. P, App. 1 (2002). 1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence 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).

²⁶ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58018 (Nov. 19, 2001). 1.05 Disorders of the spine: C. Other vertebrogenic disorders (e.g., herniated nucleus pulposus, spinal stenosis) with the following persisting "for at least 3 months despite prescribed therapy" and expected to last 12 months. With both 1 and 2: 1. Pain, muscle spasm, and significant limitation of motion in the spine; and 2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. (Former listing.)

²⁷ 20 C.F.R. Pt. 404, Subpt. P, App. 1 (2002). "Radiculopathy is a disease of the roots of the spinal nerves. Spondylosis is a defect in the spinal arch – the part of the vertebrae that lies behind the nerves and the spinal cord. Spondylolisthesis is the slippage of a vertebra on the vertebra below. Spinal stenosis is a narrowing of the spinal canal, usually due to osteoarthritis and sometimes with pressure on the nerve root." Musculoskeletal Disorders and the Workplace: Low Back and Upper Extremities 19 (IOM 2001). See http://books.nap.edu/catalog/10032.html.

²⁸ Curran-Kicksey v. Barnhart, 315 F.3d 964 (8th Cir. 2003).

²⁹ 20 C.F.R. Pt. 404, Subpt. P, App. 1 (2002), Part A-1.00(c)(1).

³⁰ Id.

³¹ David A. Morton, Social Security Disability Medical Tests, §§ 1.7 and 1.16 (2002).

³² Current Surgical Diagnosis & Treatment 956 (Lawrence W. Way et al. eds., 11th ed. 2003).

³³ Way at 957.

³⁴ Way at 957.

³⁵ Way at 957 and Morton § 11.18.

³⁶ Way at 957.

³⁷ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58013 (Nov. 19, 2001).

³⁸ See, also 20 CFR §§ 404.1519k, 404.1519m, 416.919k and 416.919m (2002).

³⁹ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58029 (Nov. 19, 2001).

⁴⁰ Id. at § 1.00B2d.

⁴¹ Way at 956.

⁴² Way at 956 and Morton at § 1135. The Valsalva maneuver: Attempting to exhale with the mouth and nose closed.

⁴³ Way at 956.

⁴⁴ Way at 956.

⁴⁵ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58013 (Nov. 19, 2001).

⁴⁶ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58018 (Nov. 19, 2001).

⁴⁷ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58014 (Nov. 19, 2001). Sections 1.00D and 1.00E, and Morton § 1.21. Section 1.00G provides that measurements of joint motion are based on the techniques described in the chapter on the extremities, spine, and pelvis in Guides to the Evaluation of Permanent Impairment (Linda Cocchiarella & Gunner B.J. Andersson, eds. 2001).

⁴⁸ 20 C.F.R. Pt. 404, Subpt. P, App. 1 (2002). Section 1.00E.

⁴⁹ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58030 (Nov. 19, 2001).

⁵⁰ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58033 (Nov. 19, 2001).

⁵¹ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58018 (Nov. 19, 2001).

⁵² Way at 956.

⁵³ Id.

⁵⁴ Morton § 11.9.

⁵⁵ Thomas E. Bush, Social Security Disability Practice § 231 (2d ed. 2001).

⁵⁶ Morton § 11.33.

⁵⁷ S. Bigos, O. Bowyer, G. Braen, et al. Acute Low Back Problems in Adults. Clinical Practice Guideline, Quick Reference Guide Number 14. U.S. Department of Health and Human Services, Public Health Service, Agency for Health Care Policy and Research, AHCPR Pub. No. 95-0643 (December 1994).

⁵⁸ Id.

⁵⁹ Morton § 11.33.

⁶⁰ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58014, 58018 and 58024 (Nov. 19, 2001).

⁶¹ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58018 (Nov. 19, 2001).

⁶² 20 C.F.R. Pt. 404, Subpt. P, App. 1 (2002). Section 1.00H.

⁶³ Id.

⁶⁴ Revised Medical Criteria for Determination of Disability, 66 Fed. Reg. 58030 (Nov. 19, 2001).

⁶⁵ 20 C.F.R. §§ 404.1525(f) and 416.925(f) (2002).

⁶⁶ 20 C.F.R. §§ 404.1525(f) and 416.925(f) (2002).

JOURNAL OF THE MISSOURI BAR
Volume 59 - No. 3 - May-June 2003