A Social Security Lawyer’s Top 7 Questions about Getting Benefits for Asthma & COPD


Top 7 Questions about Getting Social Security Benefits for Asthma & COPD

At administrative hearings with Social Security judges, our Hoglund Lawyers review and argue asthma and chronic obstructive pulmonary disease (COPD) claims for our clients in particular ways.  Here are some answers to common questions from our clients at Hoglund Law Offices who cannot work due to asthma and other kinds of breathing problems.  (You should get an attorney for advice that applies to you.)

7.  What are Social Security disability benefits?

Social Security disability benefits (and Supplemental Security Income benefits) are monthly disability benefits payable to you if you are unable to work (or are expected to be unable to work) full-time for 1 year or more for medical reasons.

6.  Can I apply if I can only work part-time?

Yes, but you cannot be going to work and regularly earning above certain monthly amounts.  For 2010, this “substantial gainful activity” amount is $1,000 gross per month.  This changes annually.

5.  What does Social Security review in asthma claims?

In asthma and/or COPD claims, Social Security generally reviews:

  • Your diagnoses;
  • Your pulmonary function test results;
  • The frequency and severity of your asthma attacks or breathing issues; and
  • The nature of your treatment (such as ER visits, nebulizer treatments, etc.)

The most important documentation of your breathing issues comes from testing of your ability to breath with and without medications.  Pulmonary function tests measure the amount and/or speed of air you can breathe in and out.  Imaging studies may also reveal other kinds of structural breathing problems.

Important notes:  Make sure to talk with your doctor about whether you should have pulmonary function tests and how often.  Also, make sure to discuss any day-to-day breathing issues you are having with your doctor – including fatigue and shortness of breath.  Logically, the more your doctor knows, the more your doctor can understand how you are doing on your current medications.  This also creates a “track record” of how you are functioning when this comes up at Social Security hearings.  Your Hoglund Law Offices attorney can explain more about this.

4.  When does Social Security find disability in asthma and/or COPD cases?

The general rule of thumb is that the more your asthma limits your ability to function, the greater chance you will be found disabled.  The Social Security Administration often looks to the frequency and severity of your asthma attacks and other breathing issues to determine whether your asthma significantly limits your ability to function.  For example, if you have been hospitalized frequently (such as once every two months) for control of your asthma, or if you require an oxygen tank, it may be easier to prove why you cannot work full-time.

3.  What factors does Social Security use in evaluating asthma/COPD cases?

Social Security focuses on objective findings that your doctors records from your medical appointments.  Social Security calls these findings “listings.”  Listings are found in Social Security’s regulations.  The primary listing for disabling asthma is respiratory system listing 3.03.  Note that it includes findings about your height because your testing results relate to your height.

Note:  “Meeting” or almost meeting (“equaling”) the listing requirements below can allow an approval, but approval is also possible by proving you cannot medically work full-time.  Listing 3.03 (set out below) gives you an idea about how Social Security evaluates asthma:

 3.03 Asthma.  With:   

1.  Chronic asthmatic bronchitis. Evaluate under the criteria for chronic obstructive pulmonary disease in 3.02A;

[3.02A states:]

                        A. Chronic obstructive pulmonary disease, due to any cause, with the FEV1equal to or less than the values specified in table I corresponding to the person’s height without shoes. (In cases of marked spinal deformity, see 3.00E.);

TABLE I

Height without shoes
(Centimeters)
Height without shoes
(Inches)
FEV1 equal to or less than (L, BTPS)
154 or less 60 or less 1.05
155 -160 61-63 1.15
161 – 165 64-65 1.25
166 – 170 66-67 1.35
171 – 175 68-69 1.45
176 – 180 70-71 1.55
181 or more 72 or more 1.65

OR

  1. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each in-patient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks.

[3.00C states that the “attacks” are defined as prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting.  Hospital admissions are defined as inpatient hospitalizations for longer than 24 hours.  The medical evidence must also include information documenting adherence to a prescribed regimen of treatment as well as a description of physical signs.  For asthma, the medical evidence should include spirometric results obtained between attacks that document the presence of baseline airflow obstruction.]

2.  Does age matter?

Yes.  If you are 50 or older when Social Security reviews your claim, the legal standards (called “medical-vocational guidelines”) favor you over those younger than 50.

Important note:  Your claim may take 2 or more years from when you apply.  Consider that you may be 50 (and get the legal benefit of your age) at least by the time of a hearing.  Your attorney should factor this in when evaluated your claim.

1.  How can I make sure Social Security knows how bad my asthma and/or COPD is?

Social Security’s decisions are primarily driven by your medical treatment records.  You should get the appropriate treatment with doctors and associated professionals that you trust.  If you feel you are not getting relief for your breathing problems, mention your concerns to your doctor.  Also, even if you have may have no immediate options for improvement, you should maintain at least some regular visits to your doctors so they can understand (and document) the progress of your problems over time.  Your attorney can explain how this may impact the strength of your claim.

Remember, only a lawyer at a law firm can give you legal advice.  If you wish to hire us, you can reach us at Toll-Free: 1-800-850-7867.  Only a quarter of back-pay if you win!

“Trust a Hoglund Lawyer.”

Andrew W. Kinney, Esq.

Andrew Kinney, Esq., with Tracy Bishop

© 2010, Hoglund Law Offices.  Reprint with written permission.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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