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Obtaining disability for Chronic Obstructive Pulmonary Disease – COPD

Appealing for benefits is best done under the guidance of an experienced disability lawyer.

Can I get disability benefits if I am suffering from the effects of Chronic Obstructive Pulmonary Disease (COPD)?

Author: Attorney Greg Reed
Updated: 2/10/2023

Chronic Obstructive Pulmonary Disease (COPD) makes breathing difficult for approximately 16 million Americans. Often misdiagnosed or untreated, COPD can cause long-term disability and is the third leading cause of death worldwide. People with COPD are also at risk of developing heart disease, lung cancer and a variety of other conditions. If you are suffering from the effects of COPD you may qualify for disability benefits.

The SSA recognizes COPD in its Blue Book. To prove disability under this listing, evidence will need to be submitted documenting COPD and its severity.

COPD is a general term that refers to a group of progressive lung diseases characterized by obstructed airflow through airways and out of the lungs.

The condition is usually caused by exposure to cigarette smoke, dust, and other pollutants and fumes (many of them inhaled in a work environment). These irritants damage the lungs over time. COPD can also be caused by a genetic condition called alpha-1 deficiency-related emphysema. Alpha-1 is a protein that protects the lungs.

If you are suffering from COPD and have been denied disability don’t give up! Most are initially denied. Just call 512-454-4000 for a free, no obligation consultation to learn your options and have your questions patiently answered.

COPD mainly refers to emphysema and chronic bronchitis, but also includes refractory (non-reversible) asthma.

In emphysema, damage to air sacs in the lungs called alveoli causes the small sacs to enlarge. Because the alveoli are no longer able to absorb oxygen, less oxygen is delivered to the bloodstream; air becomes trapped in the lungs and it becomes difficult to exhale.

In chronic bronchitis, damage to the bronchial tubes results in coughing and shortness of breath.

The bronchial tubes become irritated, leading to inflammation and more coughing. Bronchitis is considered chronic when a cough lasts for at least three months and occurs two years in a row.

Refractory (non-reversible) asthma is asthma that does not respond to normal asthma medications.

The bronchial airways tighten and swell, and medications typically used to treat asthma fail to reverse tightening and swelling in the airways.

Common symptoms of COPD include:

  •    Shortness of breath and increased breathlessness
  •   Wheezing
  •   Tightness in chest
  •   Frequent coughing
  •   Coughing up blood
  •   Clearing throat first thing in the morning because of mucus in lungs
  •   Unintentional weight loss
  •   Swelling in lower legs

Qualifying for Disability for Chronic Obstructive Pulmonary Disease

There is no cure for COPD, but most people with the disease have a mild form that can be managed with therapy and medications.

The Social Security Administration recognizes severe cases of chronic obstructive pulmonary disease in its Blue Book under Section 3.02 Chronic Respiratory Disorders while asthma is listed as a separate respiratory disorder under Section 3.03.

We evaluate respiratory disorders that result in obstruction (difficulty moving air out of the lungs) or restriction (difficulty moving air into the lungs), or that interfere with diffusion (gas exchange) across cell membranes in the lungs.

Examples of such disorders and the listings we use to evaluate them include chronic obstructive pulmonary disease (chronic bronchitis and emphysema, 3.02), pulmonary fibrosis and pneumoconiosis (3.02), asthma (3.02 or 3.03), cystic fibrosis (3.04), and bronchiectasis (3.02 or 3.07).

To automatically qualify for Social Security Disability benefits under this listing:

  •    You must have three hospitalizations in the past 12 months that lasted at least 48 hours (including time in the ER) and occurred 30 days apart; OR
  •   You must be on a ventilator or non-invasive ventilation with BiPAP, a machine used to facilitate breathing.

If you do not meet the above requirements of being ventilated or hospitalized frequently, you can meet the listing requirements through lung function tests that show extremely limited airflow.

You will need to provide to Social Security results from one of the following tests:

  •    a spirometry test documenting your FEV1 value, the amount of air you can exhale in one second;
  •   a spirometry test documenting your FVC (your “forced vital capacity” value), or the total volume amount of air you exhale);
  •   a DLCO, to measure how much oxygen passes into the lungs;
  •   an ABG (arterial blood gas) test measuring the oxygen and carbon dioxide levels in your blood; or
  •    an oxygen saturation test (SpO2) taken during or after a six-minute walk.

Social Security provides tables that measure FEV, FVC, and ABG, based on gender, age, and height. If you meet the required FEV1, you are considered to be in very poor health and may automatically qualify for disability. For example, for FEV1 value (Table I-B), a man over 20 years old who is six feet tall meets the requirement if he has an FEV1 of 1.85 or below.

You will also need to submit the following medical evidence documenting COPD and its severity:

  •    Your medical history, including any treatments you have received and your responses
  •   Physical exam results
  •   Imaging and computerized tomography such as x-rays and CT scans used to diagnose COPD
  •   Laboratory test results
  •   Documentation that you need supplemental oxygen

If your COPD doesn’t match Social Security’s listing requirements, you may still be eligible for disability benefits if you can show that COPD has reduced your breathing capacity to such an extent that there are no jobs you can do, or no jobs you know how to do or can learn to do given your age, education, and experience.

Your treatment history and doctors’ opinions in this case are very important in getting approved for disability benefits.

You will need a statement from your doctor detailing your limitations and restrictions. For example:

  •    Lifting no more than 20 lbs.
  •   Walking no more than one hour at a time
  •   No working in locations with exposure to dust, fumes or extremes in temperature

Social Security will use your medical records and doctor’s opinion to conduct a residual functional capacity (RFC) assessment to determine if you can perform your last job or any job, taking into account whether or not you are able to drive, your age, and level of education.

For example, let’s say Social Security finds that your old job is too strenuous and you can only do desk work, but you’ve never done desk work. Social Security won’t expect you to return to your old job, and depending on your age and job experience, Social Security might not expect you to learn a new job. Social Security follows a set of medical-vocational grid rules to determine when the agency expects an applicant to learn a new job. Disability applicants who are older than 50 or 55 will often fall under a grid rule, which means they don’t have to learn a new job. If you can’t go back to your old job and you don’t have to learn a new one, Social Security will likely grant you disability benefits.

What if I have an additional issue other than COPD?

Additionally, you may be eligible for Social Security Disability benefits if you have another impairment.

Applicants with COPD often suffer from other medical conditions such as coronary artery disease, high blood pressure or diabetes. By itself one disorder may not meet the requirements of an impairment as stated in Social Security’s Blue Book, but if you have more than one medical condition, Social Security must consider how those health issues, combined together, limit your ability to hold a job and perform necessary daily tasks.

What are the Financial Requirements?

Even if you meet all the medical criteria for a listed impairment, you won’t be approved for SSDI if you don’t meet the basic financial requirements.

In addition to having a disability that has lasted, or is expected to last 12 months, you must also have worked in a job where you paid Social Security taxes long enough and recently enough, and you must not earn more than Substantial Gainful Activity (SGA), which is $1,470 per month in 2023 for nonblind applicants and $2460 per month for blind applicants.

SSI benefits instead of SSDI

If you don’t have enough work credits or earn too much income, you may be eligible for disability benefits through another Social Security program, like Social Security Income (SSI,) or from long-term disability insurance through your employer or a privately purchased policy.

SSI is a program that pays monthly benefits to people with limited income and resources who are disabled, blind, or age 65 or older. It is based on income, not work credits, and is financed by general funds of the U.S. Treasury. Long-term disability insurance (LTD) is coverage to protect your income if you are unable to work due to illness or injury and is purchased as part of a group employment plan or privately through an insurance company. Policies pay between 50-60% of your salary and benefits continue until you return to work, or for the number of years stated in the policy. If you have an LTD policy, remember your coverage is good only as long as you are employed, so it is important not to quit your job before you file a claim. Be sure to check the policy’s definition of “disabled” as each policy will state the definition of “disabled” which is in use. Also note that long-term disability insurance companies can require a claimant to also apply for SSDI.

What is the process to qualify for SSDI?

You can apply for Social Security Disability benefits online, over the phone, or in person at your local Social Security Administration office.

Do not be discouraged if your application is denied – most initial applications are. You will have the opportunity to appeal. There are four steps to the appeal process:

  1.   You file a Request for Reconsideration with the Social Security Administration to completely review the case again.
  2.    If your request for hearing is denied, you can request a hearing before an Administrative Law Judge (ALJ). ALJs are attorneys who work for the Social Security who review SSDI cases and either uphold or overturn decisions to deny SSDI benefits. If you are not represented by an attorney, you should obtain legal counsel at this critical point to raise your chance for success.
  3.   If an AJ does not grant your claim, you can request that the Appeals Council review your case.
  4.   Federal Court review. The final step in the appeal process is filing suit in U.S. District Court.

If you have COPD, and it has affected your ability to work, you may be eligible for Social Security Disability benefits.

However, applying for Social Security Disability benefits is a long process and can take months to years. If you receive a denial, your chances of approval are increased significantly if you have legal representation. At the request for reconsideration and hearing levels, an attorney can collect and submit relevant medical evidence, obtain doctors’ opinions, draft a brief to the ALJ, and prepare you for questioning by the judge. An attorney can also elicit helpful testimony from you and cross-examine vocational and medical experts, demonstrating your inability to work. At the Appeals Council and federal court level, a lawyer can present legal arguments to show your case was wrongfully denied. Fees charged by disability attorneys are regulated by federal law and are usually 25% of disability backpay you are owed. There are no out-of-pocket costs, and if you don’t win your case, you won’t be charged anything.

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Disability benefits are an important source of income for those who are unable to work. If you are not able to work due to accident or illness, you may be eligible for Social Security Disability or Long Term Disability benefits. If you have applied for benefits and been denied, contact the attorneys at Bemis, Roach and Reed for a free consultation. Call 512-454-4000 and get help NOW.

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Author: Attorney Greg Reed has been practicing law for 29 years. He is Superlawyers rated by Thomson Reuters and is Top AV Preeminent® and Client Champion Gold rated by Martindale Hubbell. Through his extensive litigation Mr. Reed obtained board certification from the Texas Board of Legal Specialization. Greg is admitted to practice in the United States District Court - all Texas Districts and the United States Court of Appeals-Fifth Circuit. Mr. Reed is a member of the Travis County Bar Association, Texas Trial Lawyers Association, past Director of the Capital Area Trial Lawyers Association, and an Associate member of the American Board of Trial Advocates. Mr. Reed and all the members of Bemis, Roach & Reed have been active participants in the Travis County Lawyer referral service.

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