Here’s a hypothetical question that really isn't so hypothetical: Patient A is immunocompromised due to a history of treatment for cancer. Patient A has been told by her doctor that she should not leave the house except to go to medical treatment until the threat of being infected with Covid-19 has completely passed. That threat will not completely pass until well over half of the population has immunity to Covid-19 either because they have had the disease or because they have been immunized for the disease. This may not happen in the next year. Patient A's old job did not allow working from home. Does patient A meet the definition of disability in the Social Security Act? In answering this question, you're not allowed to assume away the premises of the question because you think the Covid-19 threat will somehow disappear on its own or that immunocompromised people don't really need to strictly avoid risk of exposure to Covid-19.
Assuming they don't otherwise meet a listing or fall into a disabling grid category...
ReplyDeleteI think it depends on if their RFC allows for a significant number of jobs that can be done remotely.
An illiterate 61-year-old who has never used a computer or had other skills that transfer to remote work, who is also off task a lot due to medication side effects, pain, and need for frequent bathroom breaks? Disabled.
A 38 year old who needs to isolate from others but has worked as a receptionist before and can still do sedentary work? Sign her up for a remote job at a call center.
When did the Act get amended to permit claimants to get benefits for impairments they might get?
ReplyDeleteAlso, the vast majority of people who actually have had COVID-19 have minimal or no symptoms, and nobody has had it for at least 12 months.
ALJs may use hypothetical questions to VEs, but they can't base decisions on hypothetical impairments causing hypothetical limitations.
Remember that disability is not a question of whether an individual could actually get a job or work at a job due to something like a stay-at-home order. Disability is whether an individual is prevented from engaging in substantial gainful activity due to a medically determinable impairment.
ReplyDeleteHere, the question does not state what the disabling impairment is, although future medical treatment is alluded to. Does the prior cancer treatment cause residual limitations? The hypothetical does not say so. Merely being "immunocompromised" is not a medically determinable impairment.
I doubt anyone would fault a claimant for not trying to work in a pandemic, although losing your job due to the stay-at-home order (and not an injury or worsening medical condition) does not bode well for one's claim. Here, without a severe impairment at least, there is no way this person is disabled.
The big issue upcoming will be trying to prove disability during a time when people are restricted from having in-person doctor's appointments, and how SSA handles this hurdle when deciding claims.
being immunocompromised is certainly medically determinable--white blood cell count, CD4 count, etc. and it could meet the durational and severity requirements for step 2.
ReplyDeleteanother angle to consider is whether someone severely immunocompromised as a result of cancer or other treatment might equal the HIV listing (especially parts H or I) or the non-HIV immune listing.
I think a doctor just saying "look if you get covid it could be bad for you, stay home as much as possible" is not going to do it. But I'm sure there will be at least one step 5 award somewhere where immunosuppression is one of the limitations leading to a finding of an insufficient number of jobs.
How would you add that scenario to a hypothetical question? ...limited to work environment at one's home? ...limited to a sterilized work environment away from all others (coworkers, supervisors, general public)?
ReplyDeleteIf an agoraphobe can meet the requirements for disability because they can't leave their home, I don't see why this hypothetical person wouldn't also.
ReplyDelete@6:19
ReplyDeleteNot sure if you are joking. Assuming you are not, the hypothetical presented isn't relying on the hypothetical infection of covid-19, it's the elevated risk of infection due to an extant condition resulting in the immune system being compromised, resulting in the claimant being instructed to remain home-bound by their treating provider. Actually, that's an instruction I've seen even in normal circumstances, when the individual is of particular risk for infections (i.e. chemo of long duration, with comorbidities of obesity, diabetes, etc.)
I don't see why it would not be covered under the act as written. Assuming the claimant's extant condition would result in immuno-suppression for 12 months, I don't see why it would not be covered under the act.
I asked a similar hypo to a VE about a week ago and the ALJ instructed the VE not to answer that hypo because it was not "sufficiently put in vocation terminology and therefore outside the scope of the VE's expertise"
ReplyDelete@12:00
ReplyDelete"Would an individual of the claimant's age, work experience, and education be able to perform the claimant's past work or alternative work in the national economy if they are unable to leave their residence."
To receive benefits, the disability must last for 12 months or longer. So unless you can prove the COVID-19 pandemic will more likely than not be present and spreading at a rate sufficient to preclude the patient from having any contact with others for 12 months or longer (pro-tip: you can't), then this issue doesn't seem relevant at all.
ReplyDelete@8:49
ReplyDeleteThe impairment must have lasted, or be expected to last, 12 months or longer. So no, you don't need to prove objectively that COVID-19 will last at least 12 months, just establish that is the expected duration. The estimates I've seen as to when a vaccination will be available range from 12-24 months, so that actually would meet the duration, barely.
Regardless, I'm not certain that's the relevant issue. The issue is how long the compromised immune system will last. Sometimes that can be months, sometimes years. It just depends on the nature of the impairment.
@9:55 AM
ReplyDeleteWrong. Read: https://www.ssa.gov/OP_Home/rulings/di/03/SSR73-07-di-03.html
@12:07
ReplyDelete9:55 here. I'm correct.
See above.
@5:44 PM
ReplyDeleteCitation please? I gave you a citation, and I'm not sure how it could be more clear. To qualify, a person's disability must last twelve months or be expected to last for twelve months.
@6:49
ReplyDeleteI cited you to my original post. Re-read my post if you want, but you are disagreeing with a statement I did not make. My post is consistent with SSR 73-7c.
I'll summarize: the covid-19 pandemic doesn't need to last 12 months, the claimant's impairment which restricts them to their home needs to last 12 months, or be expected to last 12 months. If the restriction is solely contingent on the pandemic (which would be odd), that would still arguably qualify given the estimates are vaccination will be 12-24 months. Obviously it would come down to the language of the physician's limitations, but assuming the physician is relying on the expected duration of the pandemic, or assuming the physician's restriction is not contingent on the covid-19 pandemic (more likely), I don't believe the lack of absolute certainty as to the duration of the pandemic is at issue.
This is also probably an irrelevant debate, as at the time of any hearing, the pandemic will likely be over. Maybe a closed period award at most.
@11:20 AM
ReplyDeleteI think you've misunderstood my comment or changed your argument. What I said is that if the restriction preventing work (i.e., the probability of catching COVID-19) does not last for twelve months or longer, then the individual is not entitled to benefits. It is not enough to simply have medical condition that lasts twelve months or longer. In addition to proving that they have a medical impairment lasting or expected to last 12 months or longer (or result in death), a claimant must show that they are medically unable to work for a period of time lasting, or expected to last, for twelve months or longer. That is what the SSR says, and what every circuit in the U.S. has said.
If you're saying that a claimant does not need to "prove" that the COVID-19 pandemic will likely last twelve months or longer, but merely "establish" that it will likely last for twelve months or longer, then I have no clue what it is you're arguing. Because those words are clearly synonymous.
Carry on if you want. But I believe this discussion has run its course at this point.