Multiple Sclerosis (“MS”) is a disease of the brain and spinal cord. The disease damages the protective layer that surrounds the nerves. The effect of the damage is a slowing or complete stopping of signals between the brain and the rest of the body. When the signals are interfered with, certain problems occur including:
- muscle weakness
- visual disturbances
- coordination and balance difficulties
- certain sensory phenomenon such as numbness, tingling, and “pins and needles”
- thinking and memory issues
There is no known cause for the disease. There is no cure for MS. According to the National Institute of Neurological Disorders and Stroke, there is no single test for MS. Instead, a physician uses a number of medically accepted diagnostic techniques with which to diagnosis MS. These techniques include examination (both physical and neurological), medical history and imaging studies (such as an MRI).
The Commissioner of Social Security recognizes MS as one a neurological impairment that can qualify as a disabling impairment without regard to consideration of the age, education or work experience of the person claiming disability. The Commissioner has set out her criteria regarding MS in Listing 11.09 Multiple Sclerosis. To meet the criteria a person must have been diagnosed with MS, and must have either disorganization of motor functioning (as described by the Commissioner); or a visual or mental impairment listed in other sections of the listings; or significant, reproducible fatigue with substantial weakness on repetitive activity.
Disorganization of motor function can include paralysis, tremor or other types of involuntary movements. Whether the disorganization of motor function is a significant impairment is dependent on the amount of interference the disorganization causes with movement or with hands, fingers and arms.
The mental impairment function actually refers to Listing 12.02 Organic Mental Disorders. This listing centers on a loss of specific cognitive abilities including: disorientation to time and place; memory impairment; perceptual or thinking disturbances; changes in personality; disturbances on mood; emotional lability and loss of measured intellectual ability.
The fatigue element must be not only reproducible but also result from a neurological issue which is known to be involved with MS.
The difficulty in meeting the MS listing is that there is a substantial amount of “gray area” within which the examiner must decide whether the listing criteria has been met. An additional difficulty in meeting the MS listing is that many of the criteria are not matters commonly charted by physicians. Even so, lay evidence (non-medical) may be used to establish facts upon which a conclusion may be drawn that a person meets the listing. Allord v. Barnhart, 455 F.3d 818 (7th Cir. 2006).
Normally, it is difficult to prove that a condition meets or equals a listing. But even if the listing for MS is not met, there is still an opportunity to be awarded disability. That opportunity is by the employment of Steps 4 and 5 of the Sequential Evaluation Test. At Step 4, the person with MS must show that he/she cannot perform the work which he/she had done for the last 15 years because of the symptoms caused from the MS. At Step 5, he/she must show that there is no other work available that exists in substantial numbers in several regions of the country which can be performed due to the MS.