You might think that someone with breast cancer would automatically be approved for disability, especially with a need to undergo chemotherapy and/or radiation. However, Social Security’s rules do not make it so easy. If you have breast cancer, a skilled Social Security attorney can help show the SSA how your disease makes you unable to work so you can receive disability benefits.
How Social Security Handles Breast Cancer Claims
Social Security’s Listing 13.10 applies to breast cancer. It indicates that someone with breast cancer should be considered disabled if the medical record shows certain metastases, if the cancer recurs despite anticancer therapy, if someone has a rare small cell/oat cell breast cancer, or if someone requires surgery to restore function of their hand/arm due to problems caused by lymphedema. If someone doesn’t satisfy this listing (and many cases of breast cancer won’t), that person has to prove that they are unable to work in order to get disability.
This listing leaves many cases of breast cancer in a “gray area” where the case adjudicator can unfairly deny your disability benefits. I have had new clients call me after being denied, despite having terminal breast cancer with a history of double mastectomy. In these situations, our disability team can take on their cases and fight for them until Social Security approves their claims. Fortunately, a situation like this gives us many good arguments to make.
Nonetheless, Social Security’s evaluation process is structured in a way that often leaves symptoms like fatigue and malaise unaccounted for. When considering a physical impairment, a Social Security adjudicator is asked to determine how long a person can sit or stand, how much they can lift, and how far they can walk. They are trained to consider things like MRI reports and a doctor’s clinical observations about a patient’s gait. The evaluation system generally isn’t conducive to an adjudicator recognizing how someone’s fatigue may limit their ability to work on a full-time basis. The same is true of malaise (which means just not feeling very well).
How a Social Security Attorney Can Help You Disability Claim for Breast Cancer
Certainly, anticancer therapy can create significant fatigue and malaise, along with a whole host of other side effects.
However, without an experienced disability attorney on your side to present these issues, a judge will be inclined to blissfully ignore them (avoiding the effort of “thinking outside the box”), deny your claim, and move on to the next case.
Also, there’s no doubt that cancer can take an emotional toll, potentially leaving someone anxious and depressed. If you develop these mental issues, your attorney can help a judge understand that there is more to your case than breast cancer, and this may be a “game changer” for your case. Here’s an example of how:
Anyone over the age of 50 should be considered disabled if they are incapable of doing past work (or using skills from past work) and aren’t physically capable of doing anything more strenuous than sedentary work. (An office job is the quintessential example of sedentary work; this is work which does not require significant standing, walking, or lifting).
If a judge considers the case of a 52 year-old former office worker with breast cancer, the judge could recognize that physical limitations make the person incapable of anything other than sedentary activity, but deny the claim because they ignore issues of fatigue and malaise and conclude that the person is capable of returning to their sedentary office job. However, judges also recognize that anxiety and depression can result in compromised focus and concentration, and can also make someone less capable of regularly interacting with others in the workplace. If these issues make the individual incapable of their former office work, that person should be found to be unable to do that work and approved for disability. While someone with breast cancer may not think their anxiety and depression are particularly relevant to their case, this example shows that these mental disorders can be very important.
Furthermore, it’s important to keep in mind that Social Security is always evaluating someone’s ability to work on a “regular and continuing basis” – a five day a week, eight hour a day work schedule, or something equivalent. Breast cancer symptoms and the side effects of anticancer therapy can create a major disruption in someone’s ability to do this. But again, judges like to blissfully ignore how often someone’s symptoms would make them absent from work or off-task at work. They know that the vocational (job) experts who testify at Social Security hearing will say that employers insist on regular attendance and staying on task at work. Employers are in business to make money, and if an employee is regularly missing work or needs frequent unscheduled breaks, employers will let that employee go and hire someone else. So if a judge even raises this issue, they know this can create an obstacle to denying the claim because these sustainability issues can make someone unable to sustain full-time work and therefore be disabling. That’s why it’s best to have an attorney who will be sure and bring this up. Even if the judge nonetheless ignores this important issue, raising it at the hearing can strengthen appeal arguments based on this factor.
3 Things to Know About Applying for Social Security for Breast Cancer
Here are some other things to keep in mind if you have breast cancer and are considering applying for disability:
- While Social Security Disability is only payable for impairments which are expected to last a year or longer, or result in death, you don't need to wait a full year to apply after stopping work. Even if you think you may get back to work within a year, it would likely be best to apply for disability benefits now. You can always withdraw your claim if you go back to work.
- If you have been unable to work for a year or longer due to breast cancer, have had your claim denied, and then go back to work, you don't have to give up. You can still pursue past due benefits for the time you were unable to work. And if the cancer comes back and you have to stop working agian, you won't have to go through the process of filing all over again.
- Anytime anyone's disability claim is approved, the claim can be reviewed at any time so Social SEcurity can evaluate any potential improvement. If you have been receiving disability but thin you may be able to go back to work, don't hesitate. Be sure and check in on Social Security's Trial Work Period, which can enable someone to try going back to work without losing benefits.
Our Social Security Disability Lawyers Are Here to Help You Get Your Benefits
Of course, many other questions may arise for someone in this challenging and stressful situation. Our lawyers are here to help. From the initial application to appeals, and all the way to Federal court if necessary, our Social Security attorneys have been securing disability benefits for people just like you since 1936. Please feel free to contact us for a free, no-obligation consultation. As always, our Zero-Fee Guarantee means that you pay us NOTHING until we win your case.
