Disability and the Failure to Follow Prescribed Medical Treatment, or Inability to Access Medical Treatment.

How does the Social Security Administration address situations where an individual has a disability, but does not follow prescribed medical treatment, or who does not obtain treatment due to inability to afford care and due to a lack of health insurance?  Social Security Regulation (“SSR”) 82-59 addresses these situations.

SSR 82-59 provides that an individual with a disabling impairment which is amenable to treatment that could be expected to restore the person’s ability to work must follow the prescribed treatment in order to be found to be under a disability, unless there is a justifiable cause for the failure to follow the prescribed treatment.  Thus, in adjudicating claims where there is evidence of a failure to follow prescribed treatment, or of a lack of care due to lack of access, the adjudicator must first make a finding that, without the care, the person would be disabled.  Then, the adjudicator must further find that the recommended treatment, if undertaken, could be reasonably expected to restore the person’s ability to work.  Finally, the adjudicator must determine whether the failure to follow the prescribed treatment was justifiable. If there is no justification for the failure to follow the prescribed treatment, then the adjudicator is to find the individual to not be under a disability.

If the failure is justified, however, then the person will be found to be under a disability.

SSR 82-59 provides a non-exhaustive list of circumstances which, if properly documented in the evidence, will be found to provide justification for the failure to follow prescribed treatment.  These include:

● A valid religious objection to the treatment (e.g., members of the Christian Scientist faith). ● The individual has such an intense fear of surgery that the operation would be contraindicated. ● There is disagreement between two licensed practitioners as to whether the treatment should be done. ● The recommended treatment is a surgical procedure, where the person is disabled due to the failure of a previous surgery of a similar nature. ● The recommended treatment involves amputation of an extremity (i.e., at or above the level of the ankle or wrist, not simply of a digit or digits). ● Where a person cannot obtain the recommended treatment due to an inability to afford the care, coupled with a lack of health insurance which would cover such care, the failure to obtain the care may be justified.  However, the person must show that he or she has attempted, without success, to access any community resources which could provide such care at no cost (e.g., community-based health clinics or private free clinics).

Asthma and Disability

The Social Security Administration provides for disability benefits in some circumstances involving respiratory conditions such as asthma, COPD, emphysema, chronic bronchitis, etc., may be disabling.  These impairments are governed by Listing 3.00, Part 404, Subpart P, Appendix 1 of the Social Security Law.  Your  respiratory impairment may be documented based on symptoms, physical signs, laboratory abnormalities, and response to a regimen of treatment prescribed by your doctor.  But, it must be established by medical evidence which is sufficiently detailed to allowed the Social Security Administration to evaluate the severity of your condition.

If you have been diagnosed with Asthma, your condition may entitle you to disability if you have had chronic asthmatic bronchitis and your breathing ability is significantly reduced as shown on breathing tests known as pulmonary function studies.  This could include impairments in either getting enough oxygen into your lungs or getting the used up oxygen back out of your lungs.  There is not one particular number that you have to provide Social Security to determine if you are eligible based on this listing.  Rather, they would need to know your height as well as your breathing test results.  The specific number will vary depending on height.  If your breathing studies are not severe enough to meet these numbers, there is another way that you may still be entitled to disability benefits.  If your Asthma is being treated by a medical doctor and you take the medications prescribed for this condition, in the amount and frequency prescribed, but you still have asthma attacks, you may still be able to prove you are disabled.  If you are taking your medications like you are supposed to, but you continue to have Asthma attacks that do not respond to at-home medications and require you to have emergency visits with your doctor, or require you to go to urgent care or to the emergency room, you may still be eligible for disability.  These attacks must be occurring at least one every 2  months or at least six times a year (in-patient hospitalizations may count as 2 attacks).  It is important that you document any attacks that did not respond to at-home treatment and required you to go to for emergency treatment.

If you have asthma and you need help determining if you should file for Social Security disability benefits, please call us at (216)621-2034.

The Social Security Administration issued a press release on Wednesday February 19th announcing a new expedited disability process for Veterans filing for Social Security Disability.  The plan is for the expedited process is scheduled to commence mid-March 2014.

In order to receive expedited service, the Veteran must tell Social Security they have a VA disability compensation rating of 100% permanent and total disability and provide proof of this rating with a their VA Notification letter.   Note that the VA rating only expedites Social Security disability claims processing, and does not provide any guarantees of approval for Social Security disability benefits.  The Veteran must still meet the criteria and requirements for Social Security disability allowance.  Like other claims, in order to establish Social Security disability, the Veteran generally needs to be receiving ongoing treatment for impairments preventing their ability to perform substantial gainful activity.  VA disability ratings matter to some degree but are not binding on the Social Security Administration.

Individuals who suffer from lupus (systemic lupus erythematosus) may be entitled to disability benefits under Social Security Listing 14.02.  The listing provides the criteria for disability as follows:

A. Involvement of two or more organs/body systems (i.e. lungs, musculoskeletal system, kidneys, skin, etc)

1. One of the organs/body systems involved to at least a moderate level of severity; and

2. At least two of the constitutional symptoms or signs (such as severe fatigue, fever, malaise, or involuntary weight loss). Or

B.   Repeated manifestations of SLE, with at least two of the constitutional symptoms of signs (noted above) and one of the following at a marked level:

1. Limitation in activities of daily living.

2. Limitation in maintaining social functioning.

3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence or pace.

If your symptoms meet the above criteria, then Social Security should determine that you are disabled. Even if you do not exactly either of those two requirements, you may still be found disabled if the symptoms which you are experiencing would keep you from performing work on a sustained basis (i.e. 8 hours a day, 5 days a week).  For example, if you have fatigue and pain which would cause problems with concentration, would cause you to be absent from work or would cause you to need frequent breaks, Social Security may also determine that you are disabled.  If your conditions meets any of these criteria, please feel free to contact our office for further assistance.

If you are 55 years old or older and can no longer perform your past job, you may be eligible for Social Security disability benefits or Supplemental Security Income (SSI).  Social Security’s regulations contain medical-vocational guidelines(also know as “the Grids”) that consider a person’s age, education and work experience along with his or her medical conditions when determining disability. These rules recognize that it is more difficult to find work as a person gets older (even above age 50) and is limited by the physical demands of work activity because of a medical condition.

Social Security will initially evaluate your case and determine whether your medical impairments meet their definition for disability outright by referring to specific medical criteria known as the Listings.  However, if your condition (or combination of impairments) does not meet or equal Social Security’s initial requirements, it will be evaluated under the Grids by determining what level of physical activity you are still able to perform along with your age, education level and any acquired work skills.  In many situations, someone who is age 55 and limited to sedentary or light work will be considered “disabled” by Social Security’s guidelines.

Can I work while my application for disability is pending with the Social Security Administration?

A common dilemma for people applying for disability is financial.  How are they supposed to meet their family’s basic survival needs if their condition prevents them from working?  The problem is compounded by what can be a lengthy administrative process, i.e., a long delay, before an application is approved.  How do people survive in the interim?  Should they return to work despite their condition, putting their health in further jeopardy?  Will the judge view this limited work as a showing the claimant has the ability to work full time?

Unfortunately, there are guidelines  rather then a definitive answer.  Generally speaking the definition of disability under the Social Security Act is the  inability to engage in “substantial gainful activity” for at least a 12 month period due to a medically determinable impairment.  The disabling impairment can be mental or physical or a combination of both.  The Social Security Administration sets a monthly amount of earnings which it considers substantial gainful activity.  For the year 2014, that amount is $1070 gross earnings per month.  Consistent earnings over that amount will prevent you from being eligible to collect disability benefits even if your actual medical condition itself otherwise meets the medical criteria for disability.

As a result, one is permitted to work while their application for disability benefits is pending. However, the amounts they are allowed to earn are quite limited.  Earning more then the allowed substantial gainful activity amount on a consistent basis can disqualify you from obtaining any benefits, notwithstanding the severity of your condition.  Even earning the amount limit for a few months may bring work ability issues into question.  This work activity becomes a question of fact for an administrative law judge as to the true capability of a claimant.  While we have the ability to make a number of arguments in favor of disability and limited working potential, judges have significant discretion in this area.

According to the American Diabetes Association, about 25.8 million American children and adults suffer from some form of Diabetes. The full name of this condition is diabetes mellitus, and there are two major types: type 1 and type 2. Both are chronic disorders that can result in serious complications. One may be entitled to social security disability benefits if complications from a diabetes mellitus diagnosis prevent that person from working. Diabetes mellitus is listed under listing 9.00 of the Social Security Administration’s (SSA) Impairment Listing Manual.

Both type 1 and type 2 diabetes mellitus disrupt the body’s production of several hormones, including insulin, which is important for absorbing glucose from the bloodstream into body cells. This disruption is generally manifested in 1 of 2 ways: Hyperglycemia or hypoglycemia, both of which carry their own complications that may result in a person’s inability to work.

Both types of diabetes mellitus cause hyperglycemia, or an abnormally high level of blood glucose, which can produce acute and long-term complications. These complications include Diabetic ketoacidosis which may result in complications like dehydration, electrolyte imbalance, and insulin deficiency. Several problems can result from treatment, including cardiac arrhythmias, intestinal necrosis, and cerebral edema and seizures. Further, chronic hyperglycemia can result in disabetic retinopathy, coronary or artery disease and peripheral vascular disease, diabetic gastroparesis, diabetic nephropathy, as well as others. Each of these individual complications resulting from hyperglycemia due to diabetes mellitus are evaluated under different listings by SSA.

Another complication resulting from diabetes mellitus is hypoglycemia, or an abnormally low level of blood glucose. This can lead to complications including seizures, loss of consciousness, or altered mental and cognitive functioning, which are evaluated by SSA under separate listings.

Proving disability based on a diagnosis of diabetes mellitus may be complex because the claim will likely be based on multiple complications rather than a diagnosis of diabetes mellitus alone. Our law office frequently deals with disability claims arising out of a diagnosis of diabetes mellitus. Enlisting the help of an experienced social security disability attorney may be essential to your claim for benefits. Feel free to call should you have any questions.

You may be concerned about the ways in which the current government shutdown will affect your disability benefits, or how your application for disability benefits will be effected.

While the government is, in fact, “shut down” for the time being, some essential parts remain open. This holds true with respect to the Social Security Administration (SSA). While parts of SSA will shut down until Congress once again funds the government and the shutdown ends, other parts will remain functional. One thing that will be unaffected by the shutdown is the payment of Social Security Disability and Supplemental Security Income (SSI) benefits. The payment of these benefits will continue without interruption.

With regard to pending applications for benefits, local offices will continue to process new applications and requests for reconsideration. Additionally, previously scheduled hearings are expected to be conducted. However, the real change comes with regard to scheduling new hearings and the Appeals Council. Currently, SSA will not be scheduling new hearings and the Appeals Council will not be reviewing new cases.

In sum, people will continue to receive their Social Security Disability Insurance and Supplemental Security Income (SSI) benefits. Those with a scheduled hearing will still have their hearing. Also, those who would like to file a new application, request for reconsideration, or request a hearing may do so. However, there will be delays in scheduling those hearings and receiving decisions from the Appeals Council.

During this time, we will continue to work hard for each and every one of our clients. We expect SSA to be fully operational in the very near future, although we cannot be certain when that will be. Until then, if you have any questions feel free to call and we will do our best to answer any questions you may have about your claim.

Any health condition that impairs a person’s ability to breathe can be extremely traumatic and debilitating. One such condition is Asthma, which is a relatively well-known impairment characterized by constriction and inflammation of the airways that makes it difficult for the afflicted individual to breathe. A diagnosis of Asthma can have a substantial effect on a person’s ability to work, and may lead to entitlement for disability benefits.

The Social Security Administration (SSA) evaluates Asthma under Section 3.03 of the Impairment Listing Manual. In order to meet the criteria of Listing 3.03, a person must have a diagnosis of asthma with either Chronic Asthmatic Bronchitis or Attacks.

If a person has Asthma with Chronic Asthmatic Bronchitis (3.03A), that individual will be evaluated under Listing 3.02A, which sets forth criteria for chronic obstructive pulmonary disease. Listing 3.02A evaluates an individual’s impairment by utilizing the results of a lung functioning test. You may view the chart on which a person’s results are evaluated here:

https://www.ssa.gov/disability/professionals/bluebook/3.00-Respiratory-Adult.htm#3_02

Alternatively, a person may have Asthma with Attacks rather than Chronic Asthmatic Bronchitis. If this is the case, the person will be evaluated under listing 3.03B. The listing’s definition of “Attacks” can be found in section 3.00C- “prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting.” Also, a person must have an attack every 2 months or at least 6 times a year. An evaluation period of 12 months is required in order to determine the frequency of attacks.

As with any claim for disability benefits, it is important to have a strong history of continuing medical treatment. This is especially important for conditions that effect your ability to breathe, since often times SSA will evaluate your condition by examining medical test results and doctor’s opinions about your condition. If you do not meet the criteria set forth in a listing, SSA will conduct a Residual Functional Capacity analysis to determine if your condition prevents you from being able to work.

If you have any questions regarding your disabling condition, please feel free to give us a call.