Revised EM on Evaluating Evidence in Cases Involving the Musculoskeletal Disorders Listings

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 EM 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 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, was issued to address the widespread barriers to health care that many experienced during the pandemic:

“Since the outset of the COVID-19 national public health emergency, many individuals have experienced barriers that prevent them from timely accessing healthcare. In response to those barriers, we are issuing this rule to temporarily revise our requirement in the Listing of Impairments (listings) that, for purposes of applying several of our musculoskeletal disorder listings, all relevant medical criteria be present simultaneously or “within a close proximity of time,” which we define as being “within a consecutive 4-month period.” While this rule is in effect, we will find that the evidence of a musculoskeletal disorder is present “within a close proximity of time” if the available evidence establishes such a condition within a consecutive 12-month period. We expect that this temporary change to our rules will allow us to make findings of disability in appropriate cases in which individuals have experienced barriers to access to healthcare because of the COVID-19 national public health emergency.”