Social Security Disability and COVID-19: Long Haul COVID & Strategies for Your Disability Claims and Appeals

January 26, 2022

https://www.cliffordlaw.com

As the COVID-19 pandemic continues to persist nationwide, the impact it will have on the Social Security disability system is still widely unknown, but the number of potential claims could be staggering.

In just the United States alone, approximately 57 million COVID-19 cases have been reported with over 800,000 deaths.  Studies are showing that 25% of patients develop long-term symptoms that last for months. COVID-19 long-haulers are expected to be the largest influx of new disability applications in modern history.

One of the questions that many disability applicants will have is whether a person suffering from the long-term effects COVID-19 can qualify for Social Security disability benefits?

What is Long-Haul COVID-19?

According to the CDC, long-haul COVID-19 involves a range of new or ongoing symptoms that can potentially last months after first being infected.

The most common lasting symptoms of long-haul COVID are:

  • Shortness of Breath
  • Fatigue
  • Cough
  • Chest Pain
  • Joint Pain

Other symptoms include:

  • Cognitive Issues
  • Depression
  • Headaches
  • Heart Palpitations
  • Muscle Aches

Some patients experience multi-organ effects that cause damage to the heart, lungs, kidneys, skin, and other organ systems such as brain function and autoimmune conditions.

What You Should Know About Post-Intensive Care Syndrome

COVID-19 patients who were hospitalized and on ventilators for an extended period because of severe illness can experience post-intensive care syndrome.  

Post-intensive care syndrome refers to health effects that include severe weakness, problems with thinking and judgment, and post-traumatic stress disorder that began while in intensive care and continues well after they have returned home. Although much less common, children can experience the same long-term effects that adults do. However, medical experts are continuing to learn more about the long-term effects associated with COVID-19, who gets them, and why.

Determining Disability

The Social Security Administration (“SSA”) defines disability as the “inability to engage in any substantial, gainful activity (“SGA”) by reason of any medically determinable physical or mental impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of 12 months.”

To meet this definition, SSA uses a five-step sequential evaluation process:

  • Are you engaging in Substantial Gainful Activity (SGA)? If the answer is yes, then you are not disabled.
  • Do you have a severe medically determinable physical or mental impairment that meets the 12-month duration requirement? If the answer is no, you are not disabled.
  • Does your severe medical impairment(s) meet or equal one of SSA’s Listing of Impairments? If the answer is yes, then you are disabled. If no, the evaluation continues.
  • Considering your functional limitations, known as the residual functional capacity (“RFC”), can you perform any of your past relevant work (“PRW”). If the answer is yes, then you are not disabled.
  • Considering your age, education, work experience, and RFC, can you make an adjustment to perform any other work available in significant numbers in the national economy. If the answer is no, then you are disabled.

Is COVID-19 at Least Equal to an Existing SSA Recognized Impairment?

The first argument to consider for disability as a long-haul COVID-19 patient is at Step 3 with meeting or equaling one of the Listings of Impairments.

While SSA recognizes COVID-19 as a medical impairment, it does not have a specific medical Listing for COVID-19.  However, SSA does have Listings for related impairments such as chronic respiratory disorders, heart disease, chronic kidney disease, cancer, neurological disorders, post-traumatic stress disorder (PTSD) and immune system disorders that could be applicable. For example, because of organ damage, a patient with chronic kidney disease may be pushed to getting long-term dialysis after COVID-19. In that scenario, under Listing 6.03, a patient with chronic kidney disease who is receiving long-term dialysis qualifies for disability. This is just the tip of the iceberg as many pre-existing conditions, or new impairments themselves, could arise or get worse after the illness.

Is COVID-19 Affecting Your Residual Functional Capacity?

Another argument for disability is based on the RFC finding used in the sequential evaluation at Steps 4 and 5. RFC is a medical assessment of what an individual can do in a work setting in spite of the functional limitations and environmental restrictions imposed by all of his or her medically determinable impairment(s).

The RFC finding considers physical abilities like lifting and carrying, sitting, standing and walking, reaching, handling, and stooping. The mental abilities assessed include things like the ability to understand, remember, and carry out instructions; and respond appropriately to supervisors, co-workers, and work pressures in a work setting. Other abilities like vision and hearing are also considered.

The long-term effects of COVID-19 could potentially affect some or all the work activities that are considered in determining a person’s RFC. Shortness of breath, fatigue, and joint pain would inhibit a person’s ability to perform physical work activities like standing, walking, lifting, and carrying. Long-term cognitive or mental health effects from post-intensive care syndrome or post-traumatic stress disorder could limit the ability to perform the mental requirements of work such as understanding, remembering, or carry out instructions. If the totality of the RFC is limiting enough to prevent PRW and any other work in the national economy, a finding of disability would be appropriate.  

In addition, the need for regular medical care, chronic pain, fatigue, and post-exertional malaise could affect someone’s ability to stay focused on tasks at work or affect their ability to show up or stay at work on a regular basis. SSA rules and regulations require that RFC assessments consider an individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. Therefore, if an individual is unable to complete a normal workday or workweek because of long-term symptoms related to COVID-19, a finding of disability would be proper because they could not sustain work activities on a regular and continuing basis.

Conclusion – You Do Have Options for Claiming Disability for Your Long-Haul COVID

The previous discussion covered some of the potential avenues for how a person suffering from the long-term effects of COVID-19 could qualify for Social Security Disability benefits. If you are out of work because of long-haul COVID-19, you should consider consulting with an experienced attorney who understands the disability process and can advise you on your options. Data from SSA shows that experienced disability representation can significantly improve your chances for success. In 2018 alone, 58.7% of represented claimants received a fully or partially favorable decision on their disability claim compared to only 17.4% of those without representation.

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