Because you are disabled.

File for disability benefits.

Appeal your case.

How you presented your initial application was the best you could do at that time given what you knew and were told.

But, if you were not successful, appeal (1) because you are disabled and (2) because you can improve on your presentation.

Saturday, July 1, 2017

Heart Disease & Disability

Here is a summary of a Social Security Disability heart disease case. 

In 2008, the claimant applied.  In 2010, he was denied at his hearing before an Administrative Law Judge (ALJ).  After an appeal to the U.S. District Court, he was granted a remand back to Social Security for another hearing.  In 2013, he had his second hearing (the remand hearing) before the same ALJ (Social Security policy requires that the same ALJ hear the case on a first remand) and was denied again.  After the second ALJ denial, a U.S. District Court judge sustained the ALJ decision.  Then the claimant appealed to the U.S. Circuit Court for the Seventh Circuit.  In January, 2017, the Seventh Circuit overruled in the U.S. District Court judge and sent the case back to Social Security for a third hearing before an ALJ.

Despite the Seventh Circuit’s characterization of the ALJ’s rationale as feeble, absurd, and wrong, the Court did not reverse the last ALJ decision but merely remanded the case.

The claimant will probably not have this third hearing before 2018, ten years after his application.

The Seventh Circuit noted that his long-time treating cardiologist reported that the claimant suffered from:

“congestive heart failure, cardiomyopathy (another disease that diminishes cardiac performance), severe asthma, COPD (chronic obstructive pulmonary disease, actually one or more of a set of distinct diseases, all of which however are debilitating, progressive, and potentially fatal lung diseases), occasional chest pain, obesity (he weighs 350 pounds yet is only 69 inches — five feet nine inches — tall), hypertension, and dyspnea (difficult or uncomfortable breathing, resulting in shortness of breath).”

Due to low ejection fraction percentages, the claimant had a cardiac defibrillator implanted in 2012.  “Other heart problems that he was diagnosed with included diastolic dysfunction, severely dilated left ventricular chamber size, severely dilated left and right atriums, and mild aortic valve insufficiency.”

The Seventh Circuit observed:

“Nor is the ejection fraction the only evidence that [the claimant’s] left ventricle is impaired. If the left ventricle is wider than 6 centimeters in its diastolic state (that is, when it is expanded and full of blood), this indicates a severe thinning of the heart muscle. . . . [The claimant’s] heart measurements have consistently revealed that his left ventricle is more than 6 centimeters wide.”

Diagnoses of two other treating physicians were:

“crackles in the lungs, bronchial markings, a hernia, acute bronchitis, depression, a systolic heart murmur, increased lung markings, increased dyspnea and chest pain, wheezing and coarse breath sounds, edema (swelling) of the ankles, headaches, and pain and swelling in the legs.”

“acute bronchitis and hypertension, coarse breath sounds, shortness of breath, coughing, fatigue, decreased exercise tolerance, severe fatigue, congestive heart failure, chronic obstructive pulmonary disease, obesity, etc., and an ejection fraction, still subnormal, of 35 to 40 percent [and] painful cysts on his legs . . . .”

With respect to the ability to work, despite medical impairments, the Court said:

“[The ALJ’s] conclusion that [the claimant] can sit for at least 6 hours a day at work and stand and/or walk another 2 hours a day, while sleeping 3 hours a day at work and missing 3 or more days of work per month, and keep to this schedule week after week, and continue employed until his sleeping on the job and absenteeism is noticed by the employer is — absurd.” [Emphasis added.]

The Seventh Circuit cited earlier holdings where it had noted:

“failing to recognize the difference between performing activities of daily living with flexibility (and often with help from family and friends) and performing to the standards required by an employer ‘is a recurrent, and deplorable, feature of opinions by administrative law judges in social security disability cases.’” [Emphasis added.]

In discussing pain symptoms, the Court stated that “it was wrong of the administrative law judge to fault [the claimant] for not taking strong opioids for pain, when his medical conditions did not require them and, as is now well known, opioids can be very dangerous.” [Emphasis added.]

Being approved for Social Security disability, if one lives long enough, is not an automatic process.

CHILDRESS v. COLVIN, 845 F.3d 789 (7th Cir. 2017)