Disability Arising from Diabetes and Winning Your Social Security Disability Case

Meeting a Diabetes Listing at 9.08

Social Security recognizes that certain medical conditions are so severe and significant that any person so afflicted would not be able to work.  These medical conditions are documented in a Social Security publication called the Blue Book of Disability Evaluation for Social Security.  You can view the Blue Book online by clicking on the link.

The Blue Book organizes medical impairments by “body systems.”  Currently there are fourteen (14) body systems that include both physical and mental health impairments.

Diabetes is described at Listing 9, which covers the Endocrine System.  In addition to diabetes, other endocrine system diseases include thyroid problems and adrenal problems.  The listing for diabetes is quite short - it reads as follows:

Diabetes Mellitus with

A. Neuropathy demonstrated  by significant and persistent disorganization of motor function  in two extremities resulting in sustained disturbance of gross and  dexterous movements, or gait and station (see 11.00C); or

B. Acidosis occurring  at least on the average of once every 2 months documented by appropriate  blood chemical tests (pH or pC0₂ or bicarbonate levels); or

C. Retinitis proliferans; evaluate the visual impairment under the criteria in 2.02, 2.03,  or 2.04.

As you can see, the diabetes listing refers to other listings - for example if you have neuropathy, your ability to engage in gross or fine motor movement needs to be impaired similarly to someone with neurological problems.  If you have retinopathy, your vision issues would be evaluated using the test scores from the visual impairment listing.

In theory, a Social Security adjudicator or judge could reach the conclusion that your condition meets a listing by reviewing your medical records.  In reality, however, adjudicators do not have the time or expertise to interpret medical records and judges expect will want expert help to reach a medical conclusion.

In my practice I have found that the best way to argue for approval based on a listing is to create a listing checklist which tracks both the listing as well as my client’s medical records and ask my client’s treating physician to complete the checklist.  A completed checklist + supporting treatment notes, I believe, offer the best chance at proving a listing.

At hearings, I usually find that judges are reluctant to reach medical conclusions.  In cases where a listing may be appropriate and no medical expert has previously been scheduled, I will ask the judge to call a medical expert to testify at the hearing.

I sense that Social Security trains its adjudicators to limit approvals based on the 9.08 listing to cases where a claimant’s diabetes is out of control and where permanent organ or nerve damage has occurred.  Diabetes is a very common disease in American society and Social Security wants to limit listing approvals to cases where all applicable medical treatment has failed to bring a claimant’s blood sugar under control for an extended period of time.

Arguing for a Functional Capacity Approval
in a Diabetes Case

Most of the diabetes cases I see are not listing level cases.  This may be because the cases that do meet a listing (i.e. the case of a brittle diabetic) have already been approved at the initial application or reconsideration appeal stage.

State Agency adjudicators rarely approve cases under a functional capacity basis because a functional capacity decision involves a review of both objective medical records an a subjective consideration of a claimant’s credibility.  Adjudicators are not trained or authorized to evaluate credibility so most initial application and reconsideration cases are evaluated in terms of the listings only.

Most of the diabetes cases I see involve a variety of complications, including numbness and tingling in the hands and feet, blurred vision, fatigue, out of range blood chemistry levels, frequent urination and other complications.  I suspect that many of my diabetes clients may fulfill the requirements of the 9.08 Listing but they may not have good enough medical care to produce needed documentation.  Usually, but not always, judges expect to see diabetics who are on insulin, as opposed to pills if diabetes in the primary disabling medical condition. 

A functional capacity argument is premised on the idea that your diabetes complications are significant enough that you would not be able to perform a simple, entry level job.  Some of the evidence I have used includes:

• testimony from my client that he needed unexcused breaks to urinate every 45 minutes to an hour
   
• testimony from my client that his lower legs and feet were totally numb and that his vision would deteriorate rapidly in the event of a change in his blood sugar
   
• testimony from my client about vision issues, and extensive numbness in the hands and feet that had lasted for several years, and testimony that he frequently ran out of insulin and testing equipment because of lack of income

Functional capacity arguments often boil down to questions of credibility (believeability) and reliability, so it is important that your testimony paints a picture of a person who wants to work, has suffered financially and emotionally by not working, but who simply cannot reliably perform work.

Grid Rule Arguments and Diabetes Disability Cases

Diabetes complications can also support an argument that a claimant meets a grid rule.  For example, numbness in the feet can leave a claimant unable to stand and walk for more than a few minutes at a time.  If a judge accepts this testimony as being credible, then it might lead to a reduction of a claimant’s capacity from medium to light or from light to sedentary.  Take a look at my site about Social Security’s grid rules for more discussion about how these guidelines work.

Case Studies

Diabetes Case Study #1: 53 year old obese female with high school education and work background as certified nursing assistant

Copyright 2007-2010 Ginsberg Law Offices, P.C., 1854 Independence Square, Atlanta, GA 30338.  770-393-4985  All rights reserved.