Can I Get Social Security Disability Benefits for Lung Disease?
What Is RFC?
If your lung disease is not severe enough to meet or equal a listing at Step 3 of the Sequential Evaluation Process, the Social Security Administration will need to determine your residual functional capacity (RFC) to decide whether you are disabled at Step 4 and Step 5 of the Sequential Evaluation Process. RFC is a claimant’s ability to perform work-related activities. In other words, it is what you can still do despite your limitations. An RFC for physical impairments is expressed in terms of whether the Social Security Administration believes you can do heavy, medium, light, or sedentary work in spite of your impairments. The lower your RFC, the less the Social Security Administration believes you can do. Claimants close to the listing should be restricted to no higher than sedentary exertion.
Claimants with Both Lung and Heart Disease
The close physiological relationship between the cardiovascular and pulmonary systems means an impairment in one of these systems influences the other. For example, it is very common for a claimant with COPD caused or aggravated by cigarette smoking to also have significant cardiac disease or peripheral vascular disease as separate impairments. Thus, if you have both heart and respiratory impairments, you will have a much worse functional restriction than if you had either alone. For example, if you would be restricted to medium work on the basis of cardiovascular disease and medium work because of respiratory disease, you should receive a RFC for no higher than light work.
Removal of Lung Tissue
Removal of lung tissue (pulmonary resection) can also limit the RFC. The most frequent type of pulmonary resection is a lobectomy associated with surgery for lung cancer. Sometimes, a pneumonectomy involving the removal of an entire right or left lung is performed.
In otherwise healthy lungs, a lobectomy usually results in an exertional restriction to medium work when the results of spirometry are evaluated. In cases of pneumonectomy, an RFC is always required, and even with a healthy remaining lung is usually no higher than light work.
As with other pulmonary impairments, environmental restrictions from exposure to excessive dust and fumes would be indicated on the RFC.
The fact that a treating surgeon may say something in his or her medical notes like, “The patient has fully recovered from surgery and has no difficulty breathing,” does not mean that spirometry does not have to be performed. When significant amounts of lung tissue are removed, there will be some degree of pulmonary limitation.
Most claimants with pulmonary resection associated with removal of a lung cancer are operated on because they have cancer caused by cigarette smoking. Claimants who have smoked long enough to develop lung cancer always have chronic obstructive pulmonary disease and will have pulmonary deficits worse than would be expected if the remaining lung tissue were normal (see Figure 5 below). This is another reason it would be improper for the Social Security Administration to guess about remaining lung function without obtaining spirometry (unless the claim is otherwise allowable). Whether or not a claimant post-resection for lung cancer complains of shortness of breath, the Social Security Administration has a responsibility to evaluate the residual breathing impairment.
Lung Disease With Gas Exchange Impairment
If you have a lung disease that produces gas exchange impairment, you should not receive RFC levels of exertion that could cause you to desaturate (lose oxygen from the blood), so that you become so hypoxemic (oxygen deprived) that you are in danger of a cardiac arrhythmia (and consequent sudden death), or in danger of loss of consciousness. Desaturation can happen so quickly that you have no reliable symptom warning signs.
Whether exercise produces hypoxemia depends on the amount of exercise and severity of the underlying disease, as well as environmental factors such as extreme heat and cold. Exercise arterial blood gas studies (ABGS) that produce actual PaO2 measurements correlated with known levels of exercise is useful. In these instances, your RFC determination should be at least one level below the exercise level at which limiting symptoms or hypoxemia appears. In other words, you should never receive a RFC that corresponds to the exercise test exertional level alone, unless there is no hypoxemia.
To further illustrate, suppose claimant A, with heart disease but no lung disease, reaches an exercise level on a treadmill that indicates the ability to perform light level work. Now consider claimant B, with restrictive lung disease but no heart disease, who does as much exercise on the treadmill, but who develops hypoxemia as measured with ABGS. The latter claimant should receive no higher than a sedentary RFC.
In addition to the objective medical evidence, the opinion of your treating physician about your exercise capacity and symptoms and your own observations and those of your family can be helpful in determining RFC.
Information About Your Activities
You should take care to provide the Social Security Administration with a clear picture regarding the speed at which you can carry out various activities, particularly as limited by shortness of breath. If you state you can climb two flights of stairs, the Social Security Administration might use that information but it is incomplete. There are several pieces of information missing: 1) Are the stairs climbed at a normal pace? 2) Do you have to stop and rest on the way up, limited by shortness of breath?
Similarly, it is misleading to say you can walk 1 block or 2 blocks or 3 blocks. If the pace is slow enough, some people with chronic pulmonary disease can walk several miles. But if it’s a slow struggle, it hardly represents any practical functional capacity.
Use of the arms can bring on rapid shortness of breath. So it is important to provide times for completion of daily activities, if possible. If not, comparisons to normal individuals can help define functional limitation. For example, “I can walk a block before I get short of breath, but I can’t keep up with my wife” is a much more revealing statement than “I get short of breath walking.”
The ability to do heavy, medium, light, or sedentary work is not correlated to any particular pulmonary function test results. However, spirometric or other test values of 80% or more of predicted normal are generally considered a strong argument for a “not severe” impairment that requires no RFC limitations. Intermediate results must be interpreted on a case by case basis considering all of the evidence, including your symptoms. The Social Security adjudicator should keep in mind where along the numerical spectrum your test results lie between meet-level severity and normal values.
Symptoms of shortness of breath correlate only loosely with severity of pulmonary disease as measured by pulmonary function studies. For example, a claimant whose lung function would suggest a capacity for medium work might credibly have shortness of breath that limits him or her to light work—symptoms can certainly produce a greater restriction than is present from a purely physiological standpoint. Some SSA adjudicators may mechanically apply particular test values to particular RFCs. This is improper and not supported by any official policy.
All claimants with respiratory disorders severe enough to warrant a RFC should receive limitations from exposure to excessive dust and fumes. Furthermore, work at cold temperatures can increase symptoms of shortness of breath and decrease exercise capacity in individuals with COPD such as asthma, emphysema, and chronic bronchitis.
Your Doctor’s Medical Opinion Can Help You Qualify for Social Security Disability Benefits
The Social Security Administration’s job is to determine if you are disabled, a legal conclusion based on your age, education and work experience and medical evidence. Your doctor’s role is to provide the Social Security Administration with information concerning the degree of your medical impairment. Your doctor’s description of your capacity for work is called a medical source statement and the Social Security Administration’s conclusion about your work capacity is called a residual functional capacity assessment. Residual functional capacity is what you can still do despite your limitations. The Social Security Administration asks that medical source statements include a statement about what you can still do despite your impairments.
The Social Security Administration must consider your treating doctor’s opinion and, under appropriate circumstances, give it controlling weight.
The Social Security Administration evaluates the weight to be given your doctor’s opinion by considering:
- The nature and extent of the treatment relationship between you and your doctor.
- How well your doctor knows you.
- The number of times your doctor has seen you.
- Whether your doctor has obtained a detailed picture over time of your impairment.
- Your doctor’s specialization.
- The kinds and extent of examinations and testing performed by or ordered by your doctor.
- The quality of your doctor’s explanation of your impairment.
- The degree to which your doctor’s opinion is supported by relevant evidence, particularly medically acceptable clinical and laboratory diagnostic techniques.
- How consistent your doctor’s opinion is with other evidence.
When to Ask Your Doctor for an Opinion
If your application for Social Security disability benefits has been denied and you have appealed, you should get a medical source statement (your doctor’s opinion about what you can still do) from your doctor to use as evidence at the hearing.
When is the best time to request an opinion from your doctor? Many disability attorneys wait until they have reviewed the file and the hearing is scheduled before requesting an opinion from the treating doctor. This has two advantages.
- First, by waiting until your attorney has fully reviewed the file, he or she will be able to refine the theory of why you cannot work and will be better able to seek support for this theory from the treating doctor.
- Second, the report will be fresh at the time of the hearing.
But this approach also has some disadvantages.
- When there is a long time between the time your attorney first sees you and the time of the hearing, a lot of things can happen. You can improve and go back to work. Your lawyer can still seek evidence that you were disabled for a certain length of time. But then your lawyer will be asking the doctor to describe your ability to work at some time in the past, something that not all doctors are good at.
- You might change doctors, or worse yet, stop seeing doctors altogether because your medical insurance has run out. When your attorney writes to a doctor who has not seen you recently, your attorney runs the risk that the doctor will be reluctant to complete the form. Doctors seem much more willing to provide opinions about current patients than about patients whom they have not seen for a long time.
Here is an alternative. Suggest that your attorney request your doctor to complete a medical opinion form on the day you retain your attorney. This will provide a snapshot description of your residual functional capacity (RFC) early in the case. If you improve and return to work, the description of your RFC provides a basis for showing that you were disabled for a specific period. If you change doctors, your attorney can get an opinion from the new doctor, too. If you stop seeing doctors, at least your attorney has one treating doctor opinion and can present your testimony at the hearing to establish that you have not improved.
If you continue seeing the doctor but it has been a long time since the doctor’s opinion was obtained, just before the hearing your attorney can send the doctor a copy of the form completed earlier, along with a blank form and a cover letter asking the doctor to complete a new form if your condition has changed significantly. If not, your attorney can ask the doctor to send a one-line letter that says there have been no significant changes since the date the earlier form was completed.
There are times, though, that your attorney needs to consider not requesting a report early in the case.
- First, depending on the impairment, if you have not been disabled for twelve months, it is usually better that your attorney wait until the twelve-month duration requirement is met.
- Second, if you just began seeing a new doctor, it is usually best to wait until the doctor is more familiar with your condition before requesting an opinion.
- Third, if there are competing diagnoses or other diagnostic uncertainties, it is usually best that your attorney wait until the medical issues are resolved before requesting an opinion.
- Fourth, a really difficult judgment is involved if your medical history has many ups and downs, e.g., several acute phases, perhaps including hospitalizations, followed by significant improvement. Your attorney needs to request an opinion at a time when the treating doctor will have the best longitudinal perspective on your impairment.
Medical Opinion Forms
Medical opinion forms can be great time savers for both your attorney and your doctor, but they must be used with care. Forms may not be appropriate at all in complex cases; and they need to be supplemented in many cases so that all issues are addressed. The best forms are clear and complete but not too long.
When the time is right, here is a form for your disability attorney to use:
Continue to the full version of the Chronic Pulmonary Insufficiency Treating Physician Data Sheet.