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Social Security Disability Benefits for Soft Tissue Injuries / Burns

Bowman, DePree & Murphy

How Does the Social Security Administration Decide if I Qualify for Disability Benefits for Soft Tissue Injuries / Burns?

If you have soft tissue injuries / burns, Social Security disability benefits may be available. To determine whether you are disabled by soft tissue injuries / burns, the Social Security Administration first considers whether your soft tissue injuries are severe enough to meet or equal a listing at Step 3 of the Sequential Evaluation Process. See Winning Social Security Disability Benefits for Soft Tissue Injuries by Meeting a Listing.

If your soft tissue injury / burn is not severe enough to equal or meet a listing, the Social Security Administration must assess your residual functional capacity (RFC) (the work you can still do, despite your soft tissue injuries), to determine whether you qualify for benefits at Step 4 and Step 5 of the Sequential Evaluation Process. See Residual Functional Capacity Assessment for Soft Tissue Injuries.

About Soft Tissue Injuries / Burns and Disability

What Is a Soft Tissue Injury?

The Social Security Administration allows a disability for soft tissue injury (e.g., burns) of an upper or lower extremity, trunk, or face and head.

Examples of soft tissue injuries include nerve injuries, injuries to tendons and ligaments, injuries to arteries and veins, injuries to the lymphatic system, injuries to muscle, and injuries to skin.

The most likely accidents to produce these types of injuries are automobile, motorcycle, and work-related accidents. If your injury is caused by another party’s negligence or wrongdoing, you can hire a personal injury lawyer to file a lawsuit.

In some cases, surgery may be required to restore function to a limb, such as vascular repair, re-attachment of ligaments and tendons, as well as nerve, vascular, and tendon grafts.

Severe burns are particularly likely to require extensive and prolonged reconstructive surgery to deal with scarring after the burn injury itself has healed.

Degrees of Burning

The various degrees of burning injury are as follows (see Figures 1 – 4 below):

  • First degree: the injury is limited to the outer layer of skin (epidermis).
  • Superficial second degree: there is injury to both the outer layer of skin (epidermis) and the outer layer of the dermis (living skin layer beneath the epidermis).
  • Deep second degree: There is injury through the epidermis and deep into the dermis.
  • Third degree: There is full-thickness injury through the epidermis and dermis into the fat layer beneath the skin (subcutaneous fat).
  • Fourth degree: there is injury through the skin and subcutaneous fat into underlying muscle or bone.

Skin 1 1)

Figure 1: Features of normal human skin.

Burn First Degree 1)

Figure 2: A first-degree burn.

Burn Second Degree 1)

Figure 3: A second-degree burn.

Burn Third Degree 1)

Figure 4: A third-degree burn.

How Are Burns Evaluated?

Electrical, chemical, or thermal burns frequently affect other body systems (e.g., musculoskeletal, special senses and speech, respiratory, cardiovascular, renal, neurological, or mental).

Therefore, the Social Security Administration evaluates burns the way it evaluates other disorders that can affect the skin and other body systems. That is, it uses the listing for the predominant feature of your impairment.

For example, if your soft tissue injuries are under continuing surgical management, then your impairment is evaluated under the 1.08 listing for soft tissue injuries. However, if your burns do not meet the requirements of listing 1.08 and you have extensive skin lesions that result in a very serious limitation that has lasted or can be expected to last for a continuous period of at least 12 months, the Social Security Administration will evaluate them under a different listing (listing 8.08).

When to Determine the Claim

If you have extensive second or third degree burns to the hands, elbows, or knees that have just begun treatment at the time of application for benefits, the Social Security Administration should not guess that full function will be restored. Rather, the claim should be held for some months until a realistic assessment of probable outcome can be determined. By then, the long-term surgical management plan will have acquired more definite form.

Winning Social Security Disability Benefits for Soft Tissue Injuries 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 burn injuries are severe enough to meet or equal a 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 Social Security Administration presumes would prevent a person from performing substantial work. If your burn injuries are severe enough to meet or equal the listing, you will be considered disabled.

Listing 1.08

The Social Security Administration listing for soft tissue injury is 1.08. That listing applies to soft tissue injury (e.g., burns) of an upper or lower extremity, trunk, or face and head that is under continuing surgical management for the purpose of the salvage or restoration of major function, but the major function was not restored or is not expected to be restored within 12 months.

Meeting Listing 1.08 for Soft Tissue Injuries

This listing applies only to people who are under the ongoing care of a surgeon who is treating extensive soft tissue injuries. If you have soft tissue injuries that are not healed, but you are not under the continuing care of a surgeon, then you cannot qualify under this listing.

To qualify for a disability under this listing, the Social Security Administration must be able to obtain medical evidence showing a definite treatment plan by the surgeon. Vague statements by the surgeon involving possibilities for further surgery, or that you “will be disabled for 12 months” are not sufficient.

The phrase “under continuing surgical management” in the listing means that you are undergoing surgical procedures and any other associated treatments for the purpose of salvaging or restoring the functional use of the affected part. The treatment may include such things as post-surgical procedures, surgical complications, infections, or other medical complications, related illnesses, or related treatments that delay the individual’s attainment of maximum benefit from therapy.

The listing requires that a “major function” is not able to be restored due to a soft tissue injury of the upper or lower extremity, trunk or face.

A major function of the face and head means activities involving vision, hearing, speech, mastication (chewing), and the initiation of the digestive process.

After maximum benefit from therapy has been achieved (i.e., there have been no significant changes in physical findings or on appropriate medically acceptable imaging for any 6-month period after the last definitive surgical procedure or other medical intervention), you are evaluated on the basis of your residual limitation.

A finding that the listing is met must be based on a consideration of the symptoms, signs, and laboratory findings associated with recent or anticipated surgical procedures and the resulting recuperative periods, including any related medical complications, such as infections, illnesses, and therapies that impede or delay the efforts toward restoration of function.

Residual Functional Capacity Assessment for Soft Tissue Injuries

What Is Residual Functional Capacity?

If your soft tissue injury 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 heavymediumlight, or sedentary work in spite of your impairments. The lower your RFC, the less the Social Security Administration believes you can do.

Soft Tissue Injuries and Residual Functional Capacity

If you have completed whatever reconstructive surgery is available, but don’t qualify under the listing, you may still have significant residual limitations that could potentially result in a medical-vocational allowance.

There are too many possibilities to list all the possible residual limitations, but pay particular attention to:

  • Muscle weakness and sensory changes from neurological injury.
  • Restrictions in joint motion from damaged soft tissues around joints even if the joints themselves are intact.
  • The degree of retained manipulatory ability in the hands.

Severe burns around joints can also result in scarring that greatly limits the use of a limb, even if there is nothing else wrong with that limb.

In older claimants with adverse vocational profiles in which a medical-vocational allowance would result from even modest long-term residual functional capacity limitations, the long-term outcome of treatment should be assessed before deciding that there will be improvement to non-allowance level severity. Therefore, the Social Security Administration may hold the claim for some months, even when it is clear that the listing is not satisfied.

It is not unusual for claimants to apply for disability benefits soon after a severe soft tissue injury. If injuries are extensive, the Social Security Administration adjudicator should not try to guess that staged surgical procedures will not satisfy the 12 month duration requirement. It may be necessary for the Social Security Administration to delay determination. The treatment outcome of nerve grafts, for example, is not easily predictable. Even if the surgeon relates to the Social Security Administration that there will be no further surgical procedures (in which case this listing cannot be satisfied), it still may be necessary for the Social Security Administration to hold the claim to determine the final outcome for Residual Functional Capacity purposes, if there is the possibility of eventual medical-vocational allowance.

Getting Your Doctor’s 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.