The Cancer Among Us: Malignant Neoplastic Diseases Listings Revised

November 16, 2009

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

The Social Security Administration (SSA) announced in the October 6, 2009 Federal Register final changes to some of the criteria in the Listing of Impairments used to evaluate claims involving malignant neoplastic diseases (cancer). 74 Fed. Reg. 51229. The changes are effective November 5, 2009.

According to SSA, the “revisions reflect our adjudicative experience, advances in medical knowledge, diagnosis, and treatment, and public comments we received in response to a Notice of Proposed Rulemaking (NPRM).”  The NPRM came out in April 2008. The changes will be applied to applications pending or submitted on or after the effective date.

Some minor changes from the NPRM resulted from the public commentary, and are summarized in the Fed. Reg. notice. These included some adjustments to the definitions section.  As often is the case, however, the response to comments contains valuable information for advocates.

SSA “revised the second sentence of current sections 13.00H2 and 113.00H2, which referred only to the ‘original’ tumor and any metastases, to also include recurrences and relapses.  We also added a sentence at the end of final sections 13.00H3 and 113.00H3 to indicate that, if there is a recurrence or relapse after 3 years or another period specified in a listing in this body system, the impairment may again meet or medically equal the requirements of a cancer listing.  These changes are only a clarification of our current rules, and ensure that we will not incorrectly find that people with recurrent tumors are no longer disabled.”

SSA added 113.09C to the thyroid gland cancer Listing for children to match the adults, even though the condition rarely occurs.  The commenter “did not believe the listings are meant to exclude cancers simply because they are rare.”

We may note, of course, that the adult Listings are applicable to children as well (20 C.F.R. §404.1525), making this particular revision redundant.  SSA recognizes as much: “In the NPRM, we explained in proposed section 113.00K4 that we would use listing 13.09C for children with this type of cancer. Because we are adding listing 113.09C, we did not include that paragraph in these final rules.” Nonetheless, we also note that for some adjudicators the decision-making process is enhanced by having it expressly laid out for them.

In refusing to adopt one comment, SSA raises two vital evidentiary requirements distinctions, reiterating its intent as expressed in the NPRM, “to make a minor editorial change to current listing 13.13A1 for highly malignant central nervous system neoplasms to clarify that the requirement for documented metastases applies only to medulloblastoma or other primitive neuroectodermal tumors (PNETs), and not to [other named forms of cancer]. . . . [A]s we explained when we last made comprehensive revisions to the malignant neoplastic diseases body system in 2004 [69 FR at 67024]. . . . we could evaluate medulloblastomas or other PNETs that have not metastasized under listing 13.13A2.”

The final rule adds cancer of the vagina under Listing 13.23C, stating that “The criteria for listing-level cancer of the vulva are also appropriate for cancer of the vagina. Under the prior rules, we would have found medical equivalence to this listing in such cases.”

SSA, however, in reviewing comments on cancers of the female genital tract, pulls the rug out from under claimants who, though afflicted with survivable cancers that can cause minimal reduction in functional ability, nonetheless have to undergo the same debilitating effects of treatment as less fortunate cancer patients. A commenter pointed out that “women with these findings may undergo the same or similar surgery and chemotherapy as women with more advanced disease and that this treatment substantially limits those women's ability for gainful activity.”  But, SSA reasoned, “even though they may be debilitated while they undergo treatment and for some time afterward, many of these women will have only minimal functional limitations 12 months after diagnosis. Therefore, it would be inappropriate for us to keep the prior listing, which would require us to find that all women with the listed criteria are disabled. We must evaluate these cases on an individual basis.”