I have had a spate of cases lately with disability claims involving Listing 1.04A.
Listing 1.04 is entitled "Disorders of the Spine." This listing is for people who have serious back or neck problems (often due to a herniated disc) and are in a great deal of pain. The listing is in play when there is an MRI or other radiological evidence showing compression of the spinal cord nerve root or the spinal cord itself.
Listing 1.04A has several other criteria as well, including neuro-anatomic distribution of pain (in most cases, pain radiating from the lower back to the legs), limitation of motion of the spine, muscle weakness and a postive straight-leg raising test for cases involving the lower back.
These claims are often problematic during the early disability claim process – even when claimant has an MRI showing the nerve root compression, which is the hardest element of the listing to meet. The problem is that the other listing criteria, although present, are rarely noted in the claimant’s medical records. As a result, the listing is almost never met initially. So what to do?
You simply have to set up an orthopaedic exam for this claimant. There is no substitute. Only a medical exam, given for the purpose of determining whether or not the listing is met, will satisfy all of the criteria of the listing.
If the claimant has a treating orthopaedist, I ask the client to set up an appointment, and I write the doctor a nice letter. I enclose a copy of the MRI interpretation and the listing itself, and ask the doctor to examine his patient to determine if the criteria of the listing are met (and to please write me a brief letter with his opinion). That is the ideal situation: an opinion that the listing is met from the claimant’s own treating specialist. When you get that opinion, it can win the case. The claimant meets a listing. Claim granted.
However, sometimes the claimant has been out of work for a while, and has no insurance and no treating specialist. Now what? Well, if everything else about the case is okay, and if the client agrees, I set up a consultative exam with an orthopaedist, and I pay the doctor for the visit. The doctor then writes a brief report discussing whether or not the elements of the listing are met. The cost is usually several hundred dollars. It is a risk, but there is no better way to handle this kind of case.