As a former Social Security Administration (SSA) adjudicator, I rarely looked for and/or considered listing-level impairments. Listings require a significant level of medical analysis, and I thought, "I'm an attorney, not a medical professional." It was intimidating and time-consuming because I had to do additional research, which was difficult in a production-paced environment. This is one reason why SSA adjudicators utilize medical experts throughout the adjudicative process. More importantly, this is also why it is essential to submit a clear and succinct brief guiding an ALJ and/or Appeals Council judge (AAJ) through a listing-level argument.
Now, as a Social Security Disability (SSD) brief writer, I intentionally look for listing-level impairments when I draft a brief for my SSD clients. I frequently find listing-level criteria when, previously, I would have dismissed the argument without a second thought. My clients and I have won at the hearing and Appeals Council level with listing-level arguments on multiple occasions. Most recently, the Appeals Council issued a fully-favorable decision based on my listing-level argument.
Ten Ways to Argue a Listing-Level Impairment
Once you've identified the primary impairment(s) in the case, review the listing-level criteria for that impairment so you know what to look for in the record.
You can argue that symptoms meet or medically equal the listed impairment. Medically equaling a listed impairment is used when a specific criterion is missing in the evidence, the impairment is not a listed impairment but is analogous to a listed impairment, and one of the criteria is not as severe as the Listing requires.
Include the listing-level criteria at Step 3 in the prehearing brief. Underline the relevant listing-level criteria to guide the adjudicator’s attention.
Include medical evidence at Step 3 that supports the listing-level criteria. You can bullet-point any relevant evidence and/or create a succinct narrative.
Do not discuss age, education, and PRW for a listing-level argument. These factors are not typically relevant for most Listings.
Focus the argument on the specific evidence of the Listing. It must be a focused argument.
Make your listing-level argument is succinct and focused on specific medical techniques. For example, some Listings require proof of an intelligence test, pulmonary function test, or laboratory work.
Include date-specific diagnoses or symptoms. Listings often require date-specific diagnoses or symptoms such as an intellectual disorder that began prior to age 22 and/or disability from the date of diagnosis.
Preview the preamble to each group of Listings for clarification on criteria such as what ambulating effectively means for Listings 1.02 and 1.04.
If you have both mental and physical listing-level impairments, argue the physical argument first. SSA adjudicators are more likely to support the physical listing-level impairment.