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Winning a Liver Disease Disability Case

The Main Issue in Your Case

  If you have been diagnosed with liver disease such as hepatitis or cirrhosis and you are applying for Social Security disability, the main issue in your disability case is whether or not you disease has progressed to the point where you are unable to work.

  The starting point for a Social Security disability liver disease case is to ask your doctor whether your condition meets a “listing.” The Listing for liver disease looks to the laboratory tests performed by your doctor to determine how damaged your liver has become. Common reasons for damage to the liver include cirrhosis, hepatitis (especially hepatitis C) and injury to the liver that would necessitate a liver transplant. Social Security recognizes that if disease or injury has left you with decreased liver function, you are likely to be fatigued, weak and unable to sustain sufficient energy to function as a reliable employee at any type of job.

  Listing 5.05 and Listing 5.09 address liver function specifically, although you may have other associated digestive system impairments that could be relevant for Social Security disability purposes.

  If the damage to your liver has not progressed to the point where you meet a listing, you can still win your claim. If your liver enzyme tests do not show that you meet a listing, but you have another severe medical or mental health condition that would make you an unreliable worker, you can argue for disability on the grounds that your functional capacity for work has been so decreased by your medical conditions that you could not sustain competitive work.

  When you argue for disability based on your decreased functional capacity, you do have to identify the medical or mental health reasons for your inability to work, but you should focus on the specific ways in which your ability to function at work has been limited by your condition.

  For example, if you experienced decreased energy and nausea because of hepatitis or cirrhosis but you also experience depression and irritable bowel syndrome, your combination of impairments may be sufficient to disable you. You will need your doctor to identify specific activity limitations that would cause you to miss time from work.

Are Your Medical Records Sufficient?

  In a liver disease case, your medical file may look like this: your medical records may consist twenty pages of office notes describing thirty office visits over a three year period of time. In each day’s entry, your doctor may write down how you reported feeling, lab reports showing liver enzyme test results, and other observations about your condition. Your doctor also may note what medications you are taking, how well they seem to be working and whether he intends to refer you to a specialist for more tests.

  What is missing here? These notes are perfectly good as documentation of your illness and your treatment. However, they may not help you in your Social Security case.

  Social Security, remember, focuses on work activity limitations. There is nothing in these records about how much you can lift, how much you can carry, or how long you can sit without taking a bathroom or other break. There is also no analysis of your discomfort in terms of the extent to which your pain interferes with concentration, or causes irritability that might cause tension with co-workers.

  A Social Security adjudicator would not give these notes a second look as they do not even begin to suggest limitations on your functioning. Even an experienced Social Security Judge will not presume to derive specific work limitations from this type of office note. Some judges may, however, recognize the significance of a long treatment history, and might be more inclined to accept limitations set out in your testimony. Other judges, however, are less inclined to believe anything unless it is in your record.

Using Social Security’s Special Language

  An attorney would approach this problem by studying your medical record, then creating a checklist form (called a “functional capacity” form) that tracks most of your symptoms, These functional capacity forms (which are based on the official Social Security forms) also include the specific functional limitations set forth in the judge’s handbook used by your Social Security Judge. Most experienced Social Security lawyers have their own set up custom forms.  Experienced lawyers know which vocational factors carry the most weight with judges.

  For example, a nausea limitation that causes interference with concentration such that you would not be able to understand and carry out complex job instructions is not particularly limiting, since many jobs exist that only require you to understand and carry out simple job instructions.

  On the other hand a sitting and standing limitation that says you can stand only 5 minutes at a time and that you must lie down for 30 minutes every three hours is extremely significant since there are no jobs that would permit an unscheduled 30 minute break every three hours.

Getting Cooperation from your Doctor

  Your doctor may truly feel that you cannot work, but if he is not familiar with Social Security practice and procedure, he may not think to complete the most important questions contained in a functional capacity form. Every case is different, however, there are certain activity limitations that seem especially important to Social Security judges. As you might expect, these “threshold” activities relate to job reliability and minimal physical activities.

  You may find yourself with a doctor who “does not want to get involved.” Often this is the result of a bad experience with a legal case in the past - perhaps the doctor was forced to wait around the courthouse for hours, only to be brutally cross-examined by an aggressive lawyer. If your doctor expresses concern about getting involved in a Social Security case, you should explain to him that Social Security judges follow relaxed rules of evidence. Written reports or letters are almost always accepted. Live testimony by the doctor is extremely rare. Further, there is no cross-examination by a hostile lawyer - at the Administrative Law Judge level, there is no “government lawyer” on the other side.

  In addition, if you are approved for Disability (Title II) benefits, you will become eligible for Medicare 24 months after your first date of Title II entitlement. Medicare, of course, can be a source of payment for your doctor, and may result in more cooperation.

  Most caring physicians will agree to spend ten or fifteen minutes to complete a form that can dramatically better your life. If your doctor refuses to cooperate or if he wants to charge you more than $50 to complete a functional capacity form, you may want to think about finding a more cooperative doctor.

Hearing Issues Unique to Arthritis cases

  Liver disease cases often involve issues that may not reflect your case, but have to do with other liver damage cases the judge has seen. To put this another way, you need to be aware that many claimants with liver problems also have alcohol abuse problems - perhaps as many as half the liver disease claims filed involve claimants who have abused alcohol or drugs. If the Judge finds that alcohol or drug abuse is a “material contributing factor” of your disability, he can use that finding to deny benefits. On the other hand, if your liver has been damaged by alcohol or drug abuse to the point where it would not make a difference whether or not you stopped substance abuse, you could still win.

  In any case, if you currently use or abuse alcohol or drugs, please be honest with your lawyer. If your lawyer knows where the potential problems are with your case, he can devise a strategy to get around those problems. 

  If your case involves an unusually advanced case of liver disease you may need to educate your Judge in order to win, whether or not drugs or alcohol is involved.

Preparing your Case File for a Hearing

  Realize that your doctor may not realize that someone else will be reading his office notes; thus terminology accuracy and specificity may not be a priority. Either you or your Social Security representative should review all office notes thoroughly ahead of time to insure that the medical records make sense.

  Would you be surprised to know that most doctor’s notes are handwritten and difficult to read? Sometimes your lawyer will have to work with a doctor’s office to “translate” notes so that they could be understood.

  None of this is to suggest that a doctor with sloppy handwriting or sketchy office notes is not a good, caring physician. To the contrary, your doctor’s main focus is his treatment of you. His notes are simply reminders for him to review prior to your visits. For Social Security purposes, however, your doctor’s office notes can make or break your case - thus your lawyer’s job is to “translate” medical findings into work limitations.

How You Should Prepare for your Hearing

  Statistics show that most Social Security claimants are better off with lawyers than without. Since most cases do not involve up-front fees money should not be an issue. Whether you proceed with a lawyer or not, you and/or your lawyer should perform the following tasks: 

• Review your file thoroughly - make sure that all records of medical treatment are present and up to date.
   
• Decide on a theory of disability - why are you unable to work. You should be able to boil this down to two or three sentences.
   
• Give the Judge specific information. Testimony that “it hurts a lot” or “I can’t walk very far” doesn’t say much. Testimony that “I can only stand and walk for 15 minutes every three hours” gives the Judge a specific vocational limitation.

  Most experienced lawyers prepare for hearings by reviewing your claims file two to six weeks prior to the hearing and summarizing the claims information and medical records. By reviewing your file early, your lawyer has enough time to update records and to properly prepare you for your day in Court.

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