By Beverley Brown Losey, Solo Law Practice, Retired Public Health Nurse

4311.0: Tuesday, November 18, 2003 – Board 6

Abstract #54478

Access to Social Security Disability Insurance Benefits, Supplemental Security Income, Medicare, and Medicaid for the Disabled Population

by Beverley Brown Losey, Solo law practice, retired public health nurse,

I. INTRODUCTION

Critical to health care access for the vulnerable, disabled population is the availability of health insurance. Those with terminal or long-term disabilities may be eligible for Medicare or Medicaid under the Social Security Disability Insurance Benefits or Supplemental Security Income programs. Social Security Disability Insurance Benefits and Medicare are part of the package of Social Security benefits for covered workers and their families. Supplemental Security Income and Medicaid are part of the benefits “…to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level.” 20 CFR 416.110.

While disability for these programs is not based solely upon a medical diagnosis, treatment notes are a primary source of documentary evidence of disability. Thus, descriptive treatment notes are important for an accurate determination of disability.

A basic understanding of how adjudicators and judges determine disability can clarify what descriptive information may evidence disability. Social Security uses a five-step sequential evaluation process to determine disability for both programs. 20 CFR 404.1520, 416.920.

II. STEP 1 – DISABILITY IS A LEGAL NOT MEDICAL DETERMINATION

In nonlegal terms, Step 1 is whether the individual works at substantial gainful activity. Careful consideration of this Step 1 makes it clear that disability is a legal not strictly a medical determination because the standard is “If you are working and the work you are doing is substantial gainful activity, we will find that you are not disabled regardless of your medical condition…” [Emphasis added.] 20 CFR 404.1520(b), 416.920(b). This means that a severely medically challenged person in a wheelchair with numerous treatment requirements may not qualify for disability benefits due to work activity.

As a general rule, it is best to ask the Social Security Administration to make a legal determination about whether a medically challenged person is engaged in substantial gainful activity. First, the amount of earned income that determines substantial gainful activity is periodically adjusted. Next, a medically challenged person may have tried but not succeeded at work. Or, the medically challenged person may be on a payroll but not actually performing the work, either because coworkers are helping the person or because the employer is being charitable. Further, a medically challenged person may subtract the costs of impairment-related work expenses, such as crutches or attendant care services. See 20 CFR 404.1572-404.1576; 416.973-416.976.

III. STEP 2 – A SEVERE IMPAIRMENT THAT IMPACTS WORK

If the medically challenged person does not engage in substantial gainful activity, the adjudicator proceeds to Step 2. At Step 2, the question is whether there is a medical impairment that is severe enough to impact physical or mental work. At Step 2, medical documentation is evidence of the medical impairment(s). Medical documentation can also establish that the impairment “significantly” limits the ability to do basic mental and physical work activities. 20 CFR 404.1520(c); 416.920(c).

Examples of basic physical work activities include walking, sitting, standing, lifting, pushing, handling, seeing, hearing and speaking. Examples of basic mental work activities include carrying out simple instructions, relating to the public, co-workers, and supervisors, and tolerating routine work setting changes. 20 CFR 404.1521; 416.921. Chart notes documenting difficulties walking into the office, getting onto the examination table, sitting for instructions show limits in physical work activities. Chart notes documenting difficulties understanding and following health procedures, difficulties with reception and other office staff, difficulties concentrating and remembering instructions show limits in mental work activities.

IV. STEP 3 – MEDICAL LISTINGS

Step 3 is whether the impairment is the same or equivalent to an impairment in the Social Security “Listing of Impairments”. Social Security has a list of 14 body systems or categories: musculoskeletal, special systems and speech, respiratory, cardiovascular, digestive, genito-urinary, hemic and lymphatic, skin, endocrine, multiple body, neurological, mental, neoplastic, and immune. 20 CFR 404, Subpart P, App. 1. If the medically challenged person’s impairment meets or equals in severity a listed impairment, the person is determined to be disabled at this step. Social Security can retain medical experts at disability hearings to give testimony about whether an impairment meets or equals a listed impairment.

An example of a listing is 1.05 A that provides that disability is established when the following criteria are meet: “1.05 Amputation (due to any cause). A. Both hands;”.

V. STEP 4 – PERFORM PAST RELEVANT WORK

If disability is not established by meeting or equaling a medical listing, the sequential process continues to Steps 4 and 5. Step 4 is whether the individual can perform past relevant work. At Step 4, the medical challenged person’s residual functional capacity is compared with the physical and mental demands of past relevant work. If the past work can be performed, the medically challenged person is not eligible for disability benefits. 20 CFR 404.1520(e); 416.920(e).

Generally, past relevant work is work that has been performed in the last fifteen years and was performed long enough for the person to have learned the work. 20 CFR 404.1565(a), 416.965(a).

In determining residual functional capacity, the “total limiting effects’ of all impairments are considered. 20 CFR 404.1545(e); 416.945(e). Physical abilities, such as sitting, standing, lifting, manipulating objects, and mental abilities, such as following instructions, relating to others in workplace, and tolerating work pressures are assessed. 20 CFR 404.1545; 416.945. Observations from treating sources, family, and others are considered as evidence of limitations. Accurate and complete treatment notes concerning functional limitations document the disability and are valuable to an accurate determination of disability. For example, allergies may restrict an individual to a clean work environment. Dizziness and balance problems may restrict a person from working with certain machinery or heights. Factors such as pain or fatigue that limit a person’s ability to maintain attendance or maintain focus and task persistence reduce the residual functional capacity for work.

Obviously, vocational information is needed to determine the exertional and skill levels of past relevant work. Social Security uses publications such as the Dictionary of Occupational Titles and vocational experts to determine work requirements. 20 CFR 404.1566(d); 416.966(d). The medically challenged person may be able to obtain a letter or other documentary evidence from a former employer or co-worker to establish the inability to perform that past work.

VI. STEP 5 – PERFORM ANY WORK

Step 5 is whether or the individual can perform any work that exists in significant numbers in the national economy regardless of lack of job openings or inability to be hired. 20 CFR 404.1566, 416.966. At Step 5, the individual’s age, education, vocational experience, and functional, exertional and non-exertional limitations are considered. So, as at Step 4, descriptive chart notes concerning the individual’s ability to perform physical and mental aspects of work are invaluable to an accurate determination of program eligibility and access health care.

Work can be classified as sedentary, light, medium, heavy and very heavy and as unskilled, semi-skilled, and skilled. Skills can be classified as transferable to other work or not transferable. Though there are other factors, the lifting requirements for sedentary work is not more than 10 pounds; for light work it is not more than 20 pounds; for medium work it is not more than 50 pounds; for heavy work it is not more than 100 pounds; and for very heavy work it is more than 100 pounds. Unskilled work can be learned in a short period of time on the job. 20 CFR 404.1567-1568; 416l.967-968.

When a medically challenged person has strength or exertional limitations, Social Security uses the Medical-Vocational Guidelines to evaluate the ability to do other work. 20 CFR 404, Subpart P, App. 2. The Medical-Vocational Guidelines contain tables for sedentary, light, and medium work. The factors considered in making the disability decision are the individual’s age, education, previous work experience. Under these Medical-Vocational Guidelines, it is easier for an older individual to qualify for disability; it is easier for a person with limited education to qualify for disability; it is easier for a person who has an unskilled work history or who has no transferable skills to qualify for disability. 20 CFR 404, Subpart P, App. 2.

When the medically challenged person has non-exertional limitations that limit the person’s ability to meet other than the strength demands of jobs, the Medical-Vocational Guidelines do not direct the determination of disability or non-disability. 20 CFR 404.1570(c),(d); 416.970(c),(d). These non-exertional limitations include limits from pain, fatigue, anxiety, and depression. When these non-exertional limitations are observed, descriptive chart notes can greatly assist in the accurate determination of disability.

VII. ALCOHOL AND SUBSTANCE ABUSE / PRESRIBED TREATMENT

Currently, if a person is determined to be disabled at Step 3 or Step 5 of the sequential evaluation process, the person would not be eligible for benefits if alcoholism or substance abuse is a material factor. “The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol.” 20 CFR 404.1535(b)(1), 416.935(b)(1).

In addition, benefits can be denied for failure to follow prescribed treatment in certain situations. Failure to follow prescribed treatment can be excused for religious reasons or because of its nature or magnitude or due to prior unsuccessful treatment. 20 CFR 404.1530; 416.930.

Here again, chart notes describing the patient’s condition, functioning during periods of sobriety and efforts to follow prescribed treatment are invaluable.

VIII. CONCLUSION

While disability determinations for eligibility for Social Security Disability Insurance Benefits and Medicare and/or Supplemental Security Income and Medicaid, are not solely a medical determination, accurate and complete health care provider records and chart notes are important documentary evidence. Chart notes providing the diagnosis, severity of the impairment, exertional and non-exertional functional limitations, and impact or absence of any alcohol or substance abuse, are invaluable for an accurate determination of disability.

Internet references:

http://www.ssas.com/ (Professional & public with bulletin board and links to resources and agencies)

http://www.ssa.gov (Official government web page)