SSA issued an emergency transmittal for orthopedic conditions given the challenges social security disability claimants had in receiving medical treatment for orthopedic conditions during the Covid-19 pandemic. The Law Office of Kathleen M Flynn, LLC www.kathleenflynnlaw.com had many clients who were unable to obtain medical treatment during the Covid-19 pandemic. Some, not all, mental health providers allowed zoom or phone therapy sessions and continue to do so. Conducting physical examinations remotely was and can be more challenging although I have seen a stroke patient examined in the early morning hours remotely.

SSA issued EM-21027 REV 2 on May 12, 2023 “to include guidance related to the end of the COVID-19 national public health emergency on May 11, 2023.” Specifically, the emergency explains that Temporary Final Rule (TFR) that provides for flexibility in evaluating the “close proximity of time” requirement in the musculoskeletal disorders listings will expire on November 11, 2023, unless extended by a final rule published in the Federal Register.

The musculoskeletal listings addressing disability for Adult and Child SSI, SSDI, also called DIB, Disabled Widows/Widowers, and Disabled Adult can be found at 1.00 Musculoskeletal Disorders and 101.00-Musculoskeletal-Childhood (ssa.gov) All of the required criteria in each orthopedic listing “must be present simultaneously, or within a close proximity of time, to satisfy the level of severity needed to meet the listing.” The phrase “within a close proximity of time” means that all of the relevant criteria must appear in the medical record within a consecutive 4-month period except for social security disability claims determined or decided during the pandemic period. For social security disability claims determined or decided during the Covid-19 pandemic, all of the relevant criteria must appear in the medical record within a consecutive 12-month period.

When the criterion is imaging such as x-rays, CT-scans or MRIs, SSA “reasonably expects the findings on imaging to have been present at the date of impairment or date of onset.” For orthopedic medical listings that use the word “and” to link the elements of the required criteria, the medical record must establish the simultaneous presence, or presence within a close proximity of time, of all the required medical criteria. Once this level of severity is established, the medical record must also show that this level of severity has continued, or is expected to continue, for a continuous period of at least 12 months.” SSA – POMS: DI 34001.010 – Musculoskeletal Disorders – 07/22/2021

The TFR on “Flexibility in Evaluating ‘Close Proximity of Time’ Due to COVID-19 Related Barriers to Healthcare,”86 Fed. Reg. 38920 (July 23, 2021), available here.

The Law Offices of Kathleen M Flynn, LLC handles social security disability cases involving orthopedic conditions including but not limited to arthritis, herniated nucleus pulposus of the lumbar, thoracic, cervical spine, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis vertebral fracture, amputations, fractures, complications from hip/knee/ankle surgeries, soft tissue injuries or burns.