by Stanley M. Rosenberg
All Rights Reserved
From the Editor: The process of obtaining Social Security disability benefits is not automatic. There are very specific criteria to be met, and administrative procedures to be followed. Departure from "the rules" can lead to denial of benefits. You may find it wise to consult a lawyer specializing in this area of legal expertise. Stanley Rosenberg is one such attorney.
Social Security Disability and diabetes have been the subject of significant litigation since I last wrote on this subject for VOICE OF THE DIABETIC (Vol. 13, No.2, April 1998). It is time for an update. In the following text, I will first attempt to lay out the entitlement, and then comment on the current state of the law.
Since all law dealing with Social Security is Federal, there are no state-to-state variations. The beginning of all Social Security cases, if you become disabled, is to go to your local neighborhood office, with your birth certificate in hand, and apply for benefits. If you have worked for the last ten years, and have at least 40 Quarters, you are covered for regular Social Security. If not, you can only receive SSI, which is payable only to people with limited assets and children under 18. The maximum monthly payment for SSI is $520.00, while regular SSA benefits can go to $1750 per month.
The SSA gives you a Medicare Card while SSI gives you a Medicaid Card. Under either of these entitlements, you must show that you suffer from a severe disability that will disable you for at least one year. Thus is born the requirement that whoever seeks a disability claim need only "approach the gate" if his disability is severe.
The question of Severity must go through a five step process to see if payment can be made. This is officially done at the hearing when the judge issues a decision on the case. The steps are:
1. An individual who is working and engaging in substantial gainful activity will not be found to be disabled regardless of medical findings. 20CFR404. 1520(B)
2. An individual who does not have a severe impairment will not be found to be disabled. 20 CFR Sec. 404. 1520
3. If an individual is not working, and is suffering from a severe impairment which meets the duration requirements and which meets or equals a listed impairment in appendix I, Subpart P, Reg. 4, a finding of "Disabled" will be made without considering vocational factors. 20 CFR Sec. 404, 520
4. If an individual is capable of performing work she or he has done in the past, a finding of "not disabled" must be made. 20CFR Sec. 404. t 520(E)
5. If an individual, given his or her age, education, and past work experience, can perform any other work that exists in substantial numbers in the national economy: if' "yes," the claim is denied; if "no," the claimant is disabled and the claim approved.
Listings published by the Federal Government cover all types of known disabilities. For more information, call the Social Security Administration, Office of Disability, Telephone: 1-800-772-1213; Web site: www.ssa.gov; or contact your local Social Security office. Ask for SSA PUB No. 64-039, ICN 468600.
The listings for diabetes and the endocrine system are found under Sec. 900. Briefly, the listings require: A. Neuropathy (significant and persistent disorganization of motor function which disturb gait and movement) or, B. acidosis occurring once every two months, confirmed by chemical tests or; C. amputation at or above tarsal region (foot) or; D. visual impairment requiring blindness in one and significant reduction in the other (see your MD, as he is familiar with the Social Security Blindness Requirements).
So it is not enough to have any of the 500 other things that diabetics suffer, such as brittleness, dizziness, poor circulation; but there are add-ons such as strokes, peripheral vascular disease and bone conditions that can push you over the line.
What the courts say is always important. Each year thousands of your neighbors go before the courts to seek the sustenance of Social Security, with widely varying results. There is usually a judge waiting at the end of the tunnel unless you are really sick. Get some help before you go in there, because he may not be your friend, and losing is more expensive than paying a lawyer. For God's sake don't go in there if you are working part-time. It is very difficult to get a judge to look seriously at you if you are working. You will get the "fish eye."
Finally, new cases come out of the courts continuously, reshaping and evaluating the process. Here are a few, as space does not permit a Law Review length article:
Dixon V. Massanari 270 F3RD, 171 (7th Circuit 2001)
A 50 year old diabetic woman who needed a kidney stent in 1991 because of poor kidney function due to diabetes was ruled "not disabled" after the stent improved and she stated she could do limited sedentary work and only miss three weeks per year. The Administrative Law Judge correctly terminated benefits for SSI. (Note: SSI benefits are for people who do not meet the insurance requirements or have not worked significantly or are children under 18. The maximum monthly benefit is $545.00, whereas regular Social Security has a current maximum of $1800.00 per month.)
Kidney diseases are not treated under Sec. 9.00 but are separately considered under 6.02. Kidney diseases and conditions are almost always awarded benefits. Cunningham V. Apfel 222 F2ND496 (8th Circuit 2000) deals with the important issue of end-organ damage and ocular disease. Cunningham, a 60-year-old woman electronics assembler, was denied benefits for hypertension, diabetes, back and leg problems and pain, heart disease, carpal tunnel syndrome, chronic COPD. Her right hand constantly would fall asleep since 1994. There was no end-organ damage or neuropathy, and at the hearing she was found able to do her prior work. On appeal, to the Federal District Court, the ALJ decision was reversed by the Federal Judge as the record did not support Cunningham's ability to use her hands or consider the combined effects of all her impairments, and it improperly disregarded testimony of the Treating Physician (Note: The treating physician must be given preference over non-treating physicians or those who do not examine the claimant. Often judges will pick the conclusion least favorable to the claimant, to beat him in his claim.)
I have attempted to cover a very wide subject, and to fit my material into a small space allowance. If you have further questions about diabetes and social security, call my law office at: 305-932-0350, or write to: Stanley M. Rosenberg , 2450 NE Miami Gardens Dr., Miami, FL 33180; e-mail: [email protected]. There are no charges for these services. If the case merits, I often take cases outside my jurisdiction. Also, please remember, I have not treated herein any of the diabetes complications -- such as stroke, heart disease, neurologic disease, etc.