Can I Get Social Security Disability Benefits for Asthma?
If you have asthma, Social Security disability benefits may be available. To determine whether you are disabled by asthma, the Social Security Administration first considers whether your asthma is severe enough to meet or equal a listing at Step 3 of the Sequential Evaluation Process. See Winning Social Security Disability Benefits for Asthma by Meeting a Listing. If you meet or equal a listing because of asthma, you are considered disabled. If your asthma is not severe enough to equal or meet a listing, Social Security Administration must assess your residual functional capacity (RFC) (the work you can still do, despite your asthma), to determine whether you qualify for benefits at Step 4 and Step 5 of the Sequential Evaluation Process. See Residual Functional Capacity Assessment for Asthma.
Asthma is a type of chronic obstructive lung disease (COPD). It is a chronic inflammatory disease of the breathing or bronchial tubes (see Figure 1 below). Muscles in the bronchial tubes constrict due to irritation, which can be an innate problem or can be caused by inhaling certain substances. In addition to constriction, inflammation causes swelling and excess mucus that further narrows the bronchial tubes. The combination of constricting muscles and inflammation obstructs the flow of air in the lungs. Asthmatic attacks can cause shortness of breath, chest tightness, wheezing, and coughing.
Asthma can also be called asthmatic bronchitis, chronic asthmatic bronchitis, or reactive airways disease. Asthma frequently begins in childhood or adolescence, but can occur at any time in adult life.
Severity of Asthma Attacks
Asthma attacks can be mild and infrequent, responding to an inhaled bronchodilator. They can also be frequent and severe enough to be life-threatening. A diagnosis of asthma alone does not mean you are entitled to Social Security disability benefits. When properly treated, people with asthma have participated in the Olympics, professional sports, amateur sports, and school-related sports without danger or difficulty.
Treatment for Asthma
For years researchers have studied genetic, environmental, and immunological factors that may play a role in asthma. Despite gaps in knowledge, they have made considerable progress in treatment. Both the inflammation and the bronchial narrowing must be controlled for effective treatment. Patients with chronic asthma who receive inhaled steroids to reduce inflammation along with bronchodilators to relax tight muscles do better than those who receive bronchodilators alone. Many asthma patients do not receive the proper type or optimum dose of medications. Also, some asthma patients continue to smoke cigarettes, and others cannot or will not follow prescribed therapy.
Asthma Attack Triggers
Asthma is worsened by the air pollution common in larger cities. Intense emotion, cold air, dusts, pollens, and other types of air particulates can bring on an attack. Asthma attacks can be related to exposure to various pollutant or industrial gases, particularly sulfur dioxide (SO2) and nitric oxide (NO2). Respiratory viral infections can make bronchial inflammation worse and can precipitate asthmatic attacks. Allergic rhinitis (“hay fever”) and sinusitis are associated with worse asthmatic symptoms. Some medications tend to increase bronchial mucous secretion and bronchial constriction and can worsen symptoms. Heartburn can worsen bronchial irritation if stomach acid is inhaled into the airway. So multiple medical and environmental factors must be evaluated and controlled for the best therapeutic results.
Individuals with asthma can also have other types of obstructive or restrictive lung disease, which can complicate diagnosis, treatment, and the Social Security disability determination. Smokers with emphysema and chronic bronchitis have inflammation of their airways that results in broncho-constriction, although they would not be considered to have true asthma. They may be treated with bronchodilator drugs, such as theophylline, if the constriction is reversible. But be aware that the Social Security Administration will not assume that you have a particular condition just because you take a particular medication.
Winning Social Security Disability Benefits for Asthma by Meeting a Listing
To determine whether you are disabled at Step 3 of the Sequential Evaluation Process, the Social Security Administration will consider whether your asthma is severe enough to meet or equal the asthma listing. The Social Security Administration has developed rules called Listing of Impairments for most common impairments. The listing for a particular impairment describes a degree of severity that the Social Security Administration presumes would prevent a person from performing substantial work. If your asthma is severe enough to meet or equal the asthma listing, you will be considered disabled.
The listing for asthma is 3.03, which has two parts: A and B. You will be eligible for Social Security disability benefits if you meet either part.
According to this listing, if you are diagnosed with chronic asthmatic bronchitis, you will be evaluated under the criteria for chronic obstructive pulmonary disease in listing 3.02A (Chronic Pulmonary Insufficiency), which provides that a claimant is disabled if he or she has:
Chronic obstructive pulmonary disease due to any cause, with the FEV1 equal to or less than the values specified in Table I corresponding to the person’s height without shoes.
FEV1 is measured by a spirometer. The device measures the volume of air that you can inhale and exhale and displays the result on a graph called a spirogram. Spirometry is the most important test for evaluating obstructive lung disease. FEV1, which stands for forced expiratory volume in one second, decreases in proportion to the severity of the lung disease. In other words, the lower your FEV1, the more severe your lung disease is.
Meeting Social Security Administration Listing 3.03B for Asthma
A Social Security disability claimant with asthma meets listing 3.03(B) and is disabled if he or she has:
Attacks in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each in-patient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks.
Attacks of asthma are defined as:
Prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting.
Therefore, not every asthma attack counts. To meet Listing 3.03B, you must have attacks that require a trip to the ER or treatment by a doctor to control. Attacks that you can control yourself with your inhaler or home nebulizer do not count.
Documentation of your medical treatment is the key to winning a disability claim under listing 3.03B. Note the phrase “in spite of prescribed treatment…” If you don’t have a medical history, you cannot possibly qualify under part B since you cannot satisfy the requirement of being under the care of a physician.
Residual Functional Capacity Assessment for Asthma
What Is RFC?
If your asthma 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.
The Social Security Administration should carefully assess your RFC assessment because the severity of asthma may fluctuate depending on how effective treatment has been. Consequently, your RFC should not be based as strongly on the results spirometric testing (testing of how much air a person can inhale and exhale) as it is for other types of chronic obstructive pulmonary disease (COPD). See Meeting Social Security Administration Listing 3.03A for Asthma for more on spirometry.
Your own reports of your symptoms can be especially important. See how Keeping a Symptom Diary and Record of PEF Can Help You Win Social Security Disability Benefits.
Exercise-induced asthma, also known as exercise-induced bronchoconstriction (EIB), is particularly difficult for the Social Security Administration to evaluate since the severity will not necessarily be revealed by spirometry (testing of how much air you can inhale and exhale) which is obtained while you are at rest and not exercising. See Meeting Social Security Administration Listing 3.03A for Asthma for more on spirometry. However, if you have this type of asthma, your doctor’s medical records that document the details and severity of your attacks have considerable credibility with Social Security Administration—especially if those records document a problem over a long period before you applied for benefits. See also how Keeping a Symptom Diary and Record of PEF Can Help You Win Social Security Disability Benefits.
In determining your RFC, Social Security Administration must consider whether your condition is aggravated by environmental factors and whether you must avoid jobs that would expose you to those factors. Avoiding exposure to dust, gases, pollution, and inadequate ventilation may be especially important to a person with asthma.
Sometimes a person’s asthma attacks are precipitated by substances inhaled in the workplace (allergens). If your symptoms get better over the weekend and worsen during the week when you go back to work, something at your job may be causing your attacks. If so, it is important that problems related to workplace exposure be documented in your medical records. Make sure you report them to you doctor. Exposure to even small doses of the problem substance can precipitate worsening of asthma or even be lethal. Animal studies have demonstrated life-threatening reactions (e.g., fall in blood pressure) in as little as a millionth of a gram (microgram) of allergen delivered to the bronchial tree of susceptible dogs.
In determining whether you can do past relevant work at Step 4 of the Sequential Evaluation Process and whether you can do any other work at Step 5 of the Sequential Evaluation Process, the Social Security Administration should not find that you can do work that would bring you into contact with a substance that is known to precipitate your asthma.
Here is a list of typical allergens and the type of work that would typically expose a person to them.
Occupational hazards for asthma sufferers are not limited to the above examples; several hundred work-related allergens have been identified. Industrial workers can be exposed to various enzymes, chemical fumes, metallic dusts, plastics, or other particulate chemicals that are potential sources of asthma.
In addition to limitations from exposure to specific allergens to which you may be exquisitely sensitive, the Social Security Administration should not find that you can do any jobs involving exposure to excessive dust or fumes of any kind as the irritating effect on the bronchial mucosa could worsen your symptoms.
Keeping a Symptom Diary and Record of PEF Can Help You Win Social Security Disability Benefits for Asthma
If you have asthma, you should keep a diary of your symptoms and also a record of your peak expiratory flow (PEF). The symptom diary should relate your symptoms to your activities. Documentation of worsening air flow under different conditions, like exercise in cold air, not only helps your treating physician give the most appropriate therapy but also helps the Social Security Administration understand how severe your asthma is.
You can measure PEF with a small, hand-held device known as a peak flow meter. PEF is useful in monitoring fluctuations in your condition. All that is required is blowing into the peak flow meter, but proper effort and technique must be used. Your treating physician should be able to train you to use the meter properly.
In evaluating how severe your asthma is, the Social Security Administration considers two issues:
- 1) How well is your asthma controlled in regard to normal lung function, and
- 2) How stable is the control?
Without knowing the answer to both of these questions, it is difficult for the Social Security Administration to assess severity of your condition. A person who has normal PEF values may still be impaired, because control might fluctuate. Similarly, a person might have good control but the baseline chronic lung disease is so severe that marked limitation is present.
The Social Security Administration will look at the FEV1, as measured by formal spirometry (a test that measures how much air you can inhale and exhale), to determine the severity of the chronic and unchanging component of your lung disease. See Meeting Social Security Administration Listing 3.03A for Asthma for more on spirometry. But spirometry testing doesn’t provide information about severity of your asthma that may fluctuate day to day. PEF values and a symptom diary can provide that information.
If your case is a borderline case that nearly meets a listing, a detailed symptom diary and PEF information could make the difference. They may provide the Social Security Administration with sufficient information to find that your disability is equivalent to a listing and that you are entitled to disability benefits. And even if you do not qualify for disability benefits under a listing, a diary and PEF information could have a considerable impact on the Social Security Administration’s determination of your RFC. See Residual Functional Capacity Assessment for Asthma.
Even if you don’t measure PEF with a meter, keep a symptom diary. A diary of symptoms without PEF measurements is better than no information about symptoms, or just general comments about shortness of breath. But a diary in combination with PEF measurements is best. Even if you keep a dairy, you may not notice deterioration in your condition. PEF measurements allow earlier awareness of air flow deterioration, and may provide additional useful objective information regarding functional limitations.
Getting Your Doctor’s Medical Opinion About What You Can Still Do
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: