Social Security recognizes that cancer can be disabling, both in terms of the effect of the disease, the psychological implications of a cancer diagnosis, and – of course – the treatment. There are a several winning case strategies that you can use when you are asserting that you meet Social Security’s definition of disability due to cancer. Sometimes more than one argument for disability may apply in a case, since your capacity to function may change during the extended time you undergo treatment.
Your cancer diagnosis may also give rise to other medically determinable conditions that can support your claim for SSDI or SSI. For example you may be dealing with feelings of depression, or you may have a compromised immune system due to your medications. All of these factors will be taken into consideration by your Administrative Law Judge.
Finally, you should be aware that Social Security has recently added several cancer diagnoses to its list of conditions that may qualify your for what is known as a “compassionate allowance.” You can read more about compassionate allowances and review the list by clicking on the link to an article I wrote about this program on my blog. Not every cancer diagnosis qualifies for a compassionate allowance but it is worth reviewing the list (which does change periodically) since the administrative claims representative may not be up to date on all conditions that qualify for a compassionate allowance.
Strategy 1 – Meet a Listing
Social Security has published a listing for cancer, which they call “malignant neoplastic diseases.” You can look at the listing by clicking on the link. A “listing level” condition represents a medical problem that by its very nature is disabling. In other words, SSA recognizes that if you meet one of the cancer listings, the adjudicator or judge can presume that your capacity to engage in work has been drastically reduced. By contrast a non-listing level case would require us to produce additional evidence about your work capacity limitations.
Generally listing level cancers are those that have metastasized beyond the original site of the cancer. For example, Listing 13.10 describes breast cancer that has metastasized beyond the regional lymph nodes despite treatment. Listing 13.14A describes inoperable lung cancer that has spread beyond the local lymph nodes.
The Listings also include cancers that have or may respond to treatment but the treatment regimen – such as chemotherapy and/or radiation – creates such significant side effects that a patient would not be a reliable worker for at least the period of time in which he was receiving and recovering from treatment.
Listing 13.28, for example provides that a patient who has received stem cells as treatment for cancer will be considered disabled for at least 12 months from the date of the first transplantation. Listing 13.02 provides that a patient with soft tissue tumors of the head and neck will be considered disabled for at least 18 months from the date of diagnosis. And 13.00G discusses how Social Security decision makers are to consider the effects of treatment such as chemotherapy and radiation and that those side effects can be used to reach a finding that a listing level impairment exists.
My experience has been that most listing level cases are approved at the initial and reconsideration appeal stages. The key to success in this regard is to enlist your doctor’s help. Make sure that your doctor has access to Social Security’s Blue Book, and more specifically that he reviews Listing 13.00. Your doctor needs to draft a narrative report that specifically identifies the listing that applies in your case and his report must track the language of the listing as closely as possible. On your disability report forms, state very clearly that your case should be reviewed as a listing level case and identify the specific listings that apply – do not assume that the Social Security Adjudicator will recognize that your claim meets or equals a listing.
Strategy 2 – Functional Capacity
In addition to arguing that your case meets or equals a listing, you can, at the same time, pursue a functional capacity argument for disability. Some adjudicators and many judges read the Listings literally (perhaps overly so) and if even a minor element is not present, they will not find that your case meets a listing. There is no problem whatsoever with including a functional capacity argument in addition to your listing argument in your forms or at your hearing. Sometimes both arguments will apply.
A functional capacity argument arises from Social Security’s definition of disability – that you are unable to engage in substantial gainful activity (i.e. work) because of a medically determinable condition or conditions that has lasted or is expected to last 12 consecutive months or result in death.
A functional capacity argument can work well for a cancer patient who is in remission but who undergoes annual or semi-annual maintenance treatments that involve chemotherapy. Such a person might be fully functional for six months at a time, but during the 4 weeks of maintenance chemotherapy that person would miss 2 to 3 days per week and would need to take multiple unscheduled breaks during the 4 week period and perhaps for several weeks thereafter. Such a person would not meet the listing after the initial treatment but might remain disabled on the basis of impaired functional capacity.
A functional capacity argument might also apply if the cancer and resulting treatment left you with permanent changes, such as vertigo, nausea or depression.
Strategy 3 – Meet a Grid Rule
Social Security’s Medical-Vocational Guidelines (the “grid rules”) recognize that claimants over the age of 50 will have a more difficult time finding entry level work, especially if they have a limited education and minimal work skills. You can read more about the grid rules by clicking on the link.
The grid rules only apply in cases where there is a physical impairment, and, of course, many cancers result in decreased physical capacity and sometimes a reduction in your skill set because of the effect of treatment.
Brain Tumors and Social Security Disability – these are the written materials from Jonathan’s presentation to the Piedmont Brain Tumor Support Group in March, 2018.