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When is Emphysema Considered a Disability by Social Security?

Posted on in Social Security Disability

b2ap3_thumbnail_disability-benefits-lawyer-emphysema-Chicago.jpgWhile many Social Security Disability Insurance claims are assessed based on a number of subjective factors, there are certain objective standards that can establish a person's right to receive benefits. Social Security operates according to a detailed set of regulations that specify how an administrative law judge (ALJ) must assess particular disorders. At least that is how the system is supposed to work.

Social Security Misunderstands Its Own Emphysema Regulations

In practice, ALJs often play games with the regulatory standards, looking for any way to justify denying a legitimate claim. Consider a recent example in Illinois—a case which involves a common ailment often seen in disability cases: emphysema.

Emphysema is a form of lung disease, typically associated with long-term use of tobacco products. Emphysema damages the air sacs within the lungs, which in turn reduces the amount of oxygen that can enter the bloodstream. Obviously, this type of breathing problem makes it impossible for many people to continue working a full-time job.

Social Security regulations use a statistical measure known as the “forced expiratory volume” or FEV to assess emphysema-related disability claims. Basically, a doctor uses an instrument to measure the applicant's FEV, or how much air he or she can exhale while making a forced breath. If the FEV is below a certain figure, accounting for the applicant's height and weight, he or she is automatically classified as disabled and entitled to Social Security benefits.

The applicant in this case tested with an FEV value below the regulatory standard. But the ALJ said the FEV results were not good, because according to a medical expert who reviewed the test–—but did not conduct them—the applicant “was coughing,” and “no two test results were within 5 percent of each other.”

On appeal, a federal magistrate said the ALJ's reasoning was based on faulty premises. For one thing, there was no evidence that the applicant was coughing or “wheezing” during his FEV tests. Even if he was, Social Security's own regulations state that wheezing “is common” among emphysema patients “and does not preclude testing.”

As for the 5 percent finding, the magistrate noted Social Security's rules are somewhat “byzantine” and confusing on this point. Essentially, Social Security requires at least two “satisfactory” FEV tests, meaning neither should “differ from the largest value by more than 5 percent.” In fact, there were three valid tests in this case. The ALJ and the medical expert incorrectly assumed that those tests had to be within “5 percent of each other.” However, that is not what the regulation requires, the magistrate said. For this and other reasons, the court ordered Social Security to reconsider the applicant's disability status.

Get Help With Your Social Security Claim

Social Security rules can be overwhelming. Even the agency's own officials sometimes do not understand them. This is why it is important to work with an experienced Chicago disability benefits lawyer who knows the law and can help Social Security in understanding your case. Call Pearson Disability Law, LLC, if you need to speak with a Social Security attorney today.



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