“Can I get Disability for Lupus?”

LUPUS DISABILTY

Social Security Disability Benefits are available to those no longer able to work because of Systemic Lupus Erythematosus (“SLE” or “Lupus”).  Like all disabilities, Lupus is analyzed by the Social Security Administration under the  5-step sequential evaluation process.  Maybe you are here  to get an answer to your question: “Can I get disability for Lupus?”.  The answer is yes, here are the details. This discussion will take you through how the 5-step sequential evaluation process is applied to a Texas Lupus claim.  Just click on the step icon to read the text on the right.

At this initial step in the Sequential Evaluation Process the social security decision-maker asks a very simple question: are you working?  There is nothing unique about a Lupus based disability claim when work activity is being considered.  See https://www.disabilityapproved.com/are-you-disabled/ if you want more detail about what social security means by “work”.

At step 2 of the Sequential Evaluation Process, the social security disability decisionmaker asks a simple question: Is the condition “severe”?  Sounds like a simple question – of course, Lupus is VERY “severe”.  The term “severe”, however, for social security disability purposes has very specific legal meaning.

The same social security rules and regulations apply to every state in the nation, yet there can be different interpretations in the different federal appeals court circuits (another reason you need to hire a local disability lawyer and not a national disability lawyer or firm because your disability lawyer needs to know the disability case law in their circuit!).

In the Fifth Circuit Court of Appeals – that includes the state of Texas – there is a specific interpretation of what “severe” really means.  A condition is not severe only if  it has “such minimal effect on that individual that it would not be expected to interfere with the individual’s ability to work.” Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985).

So exactly what does this “mumbo-jumbo” mean when considering a Lupus social security disability case in Texas under step 2 of the Sequential Evaluation Process?  Its means that the social security disability decisionmaker almost never finds that the claimant’s Lupus is “non-severe”.  Very few Lupus disability cases are decided at Step 2.

 

 

 

 

 

 

 

Social security regulations define a severe impairment as “any impairment or combination of impairments which significantly limits [one’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c).

At step 3, once the decision maker has determined that you are not working and that your Lupus is indeed “severe” as that term is used by the Social Security Administration, it is possible to reach a favorable decision if the signs and symptoms of your Lupus “meet” the conditions set out in the Listing for Systemic lupus erythematosus.  There is widespread misinformation about Lupus and meeting the listing, and I have seen many social security disability attorney we sites that seem to add to that confusion.  This is because few make it clear that meeting the Lupus the listing is not the only way to secure disability benefits for Lupus; rather, it represents medical consensus on what a  case of Lupus looks like that is so severe there is no doubt it is disabling.  Many online resources talk of the “Blue Book”  – a simple collection of the Listings – and give the impression that failing to meet a Listing for Lupus is the end of the matter.  In fact, meeting a Listing for Lupus represents a minority of favorable disability decisions for Lupus.   With that background, let’s look at what it takes to meeting the listing for Lupus.  There are 2 seperate paths to meeting the Lupus listing.  Both require the following: At least two of the constitutional symptoms or signs:

  • severe fatigue
  • fever
  • malaise
  • involuntary weight loss

In addition to this “foundation” finding of “constitutional symptoms or signs”, meeting the Lupus listing requires either of the following:

PATH 1PATH 2
Repeated symptoms of lupus,
AND one of the following at the "marked level":

* Limitation of activities of daily living.

* Limitation in maintaining social functioning.

* Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.
One of the organs/body systems involved to at least a moderate level of severity
.

If you can do any of the work you have done in the past 15 years despite your Lupus symptoms you will not qualify for social security disability benefits.  The social security administration decision-maker in Texas – whether it be the Texas Disability Determination Services or an Administrative Law Judge at the Office of Hearing Operations – cannot award you disability benefits if he or she finds you could return to any of the jobs that you held in the last 15 years despite your Lupus symptoms. Seems like a clear enough question, but lay persons can often be confused at Step 4 about what exactly is meant by ability to return to Past Relevant Work. Over now a quarter of a century handling only social security disability cases in Dallas Fort Worth I have heard claimants give these kinds of answers to that question:

They would not take me back at that job now..” “That job requires a lot more training now” “That job had changed and it is too technical for me now” “My old job doesn’t exist any more. All those jobs have gone to Mexico”

These answers reflect a misunderstanding of what social security means by ability to return to work. It does not mean could you secure that job; it means could you now perform the job you had many years ago. Part of the confusion with what social security means by inability to return to past relevant work may be grounded in the fact that  this Step 4 question  is a hypothetical question. A hypothetical question is based upon assumptions rather than facts.  Most lay persons understandably assume their disability claim is decided on facts.  What in the world is an administrative law judge hearing about if not facts?  The problem is the ability to return to a past job is really not a fact.  Certainly if a disability claimant had in fact tried and failed to return to EVERY job they had held in the prior 15 years  due to their Lupus symptoms we would indeed have factual information to answer our Step 4 question with a resounding”no”: thein fact tried to return to past relevant work and failed! But this is seldom the situation. The social security decision-maker must make an educated guess as to whether the claimant could return to past relevant work by examining the medical records and facts, and examining the claimant. In nearly every one of the hundreds of administrative law judge hearing I have held the client is asked a “what-if” question:

“If you were offered that same job (a job the claimant did in the last 15 years) could you do it?”

If a claimant offers some of the answers I have highlighted above – answers that center on the availability of the job and not the ability to do the job – it will not help the case. The judge asks this question wanting to know whether the claimant believes he or she could physically perform the job.  It is not that the judge is trying to trick you into saying you could return to past work. In fact, answering yes to the “what-if” question about ability to return to work is not the kiss of death for a disability case.  Most administrative law judges understand that claimant’s have pride and a solid work ethic, and may evn be willing to try and go back to work.  But they will want to know more and ask follow up questions to try and tease out whether the  claimant really thinks they can return to work, or whether they are ashamed to admit they can’t work any more. This question to the claimant about their opinion on their ability to return to past work is important because the claimant is the only person who truly understands what he or she is going  through, and what their Lupus will let them do.  Their opinion is a vital fact for the judge to have in addressing the hypothetical question: “Could you do your Past Relevant Work”? Regardless of what the claimant says about ability to return to work, the social security  decision-maker must determine what residual functional capacity (“RFC”)  category the claimant falls in.  RFC is simply what vital job-related abilities remain despite the Lupus symptoms.  RFC is usually expressed in terms of these categories:  “Heavy”, “Medium”, “Light” and “Sedentary”.  This RFC found by the decision-maker must be consistent with a past relevant work job in order to support a decision that the claimant can return to past relevant work.  By way of example, a Lupus claimant with joint and muscle pain so severe that they could do only a sit down job (“sedentary”) couldnot be found capable of returning to jobs that were performed at the “light” exertional level, since light work requires the ability to stand and walk for most of a normal 8 hour work day.

This is the last, and usually most important step in securing social security disability benefits based on Lupus. You proved at Step 4 that you are unable to go back to prior work, but to secure social security disability you must prove you cannot do any work in the national economy.   At step 5 of the Sequential Evaluation Process the social security decision-maker must answer the question: could you do any other work despite your Lupus symptoms? Here at step 5 your age, education and the type of past work becomes important.  In general, it is harder to get disability at a young age.  Over the age of 50 the social security administration rules concedes that it is harder to transfer job skills to a new occpuation, or learn a new skill.  So sometimes, “winning” at Step 4 – that is, a finding of inability to return to past relevant work – will seal the deal for a Lupus sufferer over the age of 50 where past work was performed at least at a “light” level and the claimant has no skills that would transfer to a “sedentary” job.   This is because the so-called “Grid” rules direct a specific finding of “disabled” or “not disabled” based upon age and vocational factors.  Here is an example:
Under 50Over 50
Past Relevant Work: LightPast Relevant Work: Light
Residual Functional Capacity: SedentaryResidual Functional Capacity: Sedentary
No skills transferrable to SedentaryNo skills transferrable to Sedentary
NOT DISABLED under Grid Rule 201.18DISABLED under Grid Rule 201.10
Can I get Disability for Lupus?

Attorney Stanley Denman has won hundreds of Lupus social security disability cases in Dallas Fort Worth over the past 25 years of exclusive disability representation. He is a frequent speaker at North Texas Lupus support groups, as well as the “Rally for Lupus” sponsored by the LONE STAR CHAPTER of the Lupus Foundation of America.

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