If you have been diagnosed with a severe respiratory diseases like emphysema, interstitial lung disease, COPD or severe asthma, you will likely fare well in a Social Security disability hearings if your record contains the right type of evidence. Your judge will expect to see medical evidence documenting significantly reduced lung capacity, scarring of lung tissue, and testing which shows below average blood oxygen or need for oxygen supplementation.
In every Social Security disability case, including pulmonary disease cases, there are three strategies you can use to win. At your hearing, we can present any or all of these arguments.
I. The Listing Strategy – many people incorrectly think that Social Security disability looks solely at your medical problems. In fact, SSA looks at your medical problems only to the extent that those problems impact your capacity to work.
There are some medical problems, however, which are so severe that SSA will assume a disabling level of work impairment. Medical impairments which meet this level of severity are set out in a publication called the Blue Book, which set out Social Security’s Listings of Impairments.
A condition that is “listing level” tracks the language of the listing. Interstitial lung disease would fall within Listing 3 – Respiratory Diseases. There is no specific listing for interstitial lung disease but there are two listings that could apply:
Listing 3.02 (Chronic Pulmonary Insufficiency) can be met if your measured lung capacity falls below set limits based on your height. As you probably know, lung function can be measured objectively by spirometry testing. The listing goes into some detail setting out the specific types of tests that will be accepted.
You will need to seek treatment with a pulmonologist and you will need spirometry test results if you hope to meet a listing. My experience has also been that diminished lung function tests must appear in more than one test date – ideally we would need to show that your condition is getting worse over time or at least remaining static.
Listing 3.03 (Asthma) references the same requirements for objective lung function testing as Listing 3.02, above, but adds another option. You can meet this listing if your medical record shows “attacks requiring physician intervention” occurring at least once every 2 months (or 6 times per year), despite medication and other treating. A 24 hospital visit counts as “two attacks.”
When I am representing a client with any severe respiratory disease I will communicate with the treating pulmonologist to generate a report that identifies a listing level condition. A strong report from a treating pulmonary doctor along with supporting test results and an on-going treatment record can support a listing argument.
II. The Functional Capacity Argument – here, we will argue that your lung disease (and/or other physical or mental conditions) has so eroded your capacity to get through a workday, that you would not be a reliable worker 8 hours per day, 5 days per week, ongoing.
I would use this argument if your pulmonary function tests were not quite a listing level, but your treating doctor was willing to go on record to say that you would likely need to take excessive unscheduled breaks from work during the day because of symptoms arising from your lung disease.
Most cases at the hearing level are decided under a functional capacity theory of disability and we can get creative to show that your combination of impairments negatively affects your reliability.
III. The Grid Rule Argument is applicable if you are over the age of 50, have limited work skills and a high school or less education. These rules reflect the reality that simple, entry-level, sit-down jobs are in very short supply for less educated people over the age of 50.
Under the grid rules, you can still be found disabled even if you retain some limited capacity to work because no jobs actually exist. Lung diseases tend to reduce your capacity to exert yourself and thus you may qualify under one of the grid rules.
You can learn more about the grid rules at my web site GridRules.net or by calling me to discuss.
Big Picture Analysis
My experience has been that Social Security judges are receptive to claimants who have significant breathing problems if the medical evidence shows that the problem is longstanding and not getting better.
- the judge will expect to see at least two spirometer test results spanning a year – longer if possible
- the judge will expect to see treatment records from a pulmonologist – it is much more difficult to win if your treating doctor is a family doctor
- the judge will expect that you have been compliant with all recommended medications
- if you have been a smoker, the judge will expect that you have stopped smoking, or at the least, you are obtaining medical help to stop the smoking habit. You do not want to come to a hearing and testify that you are “in the process of trying to stop” without medical help.
If you are dealing with a significant breathing problem, please contact me – I am happy to answer any questions you may have about the disability process.