Lung infections can certainly make someone unable to work. An acute (one-time/finite) lung infection may cause someone to miss a significant amount of work. However, Social Security Disability is not payable for a short-term illness which only makes someone miss work for less than a year. This is known as the durational requirement. On the other hand, Social Security Disability can be available if chronic lung infections make someone unable to sustain regular work for a year or longer or if a lung infection results in long-term residual impairment that prevents work. Each of these possibilities will be discussed in this article.
Chronic Lung Infections Can Qualify You for Social Security Benefits
Regular lung infections can be caused by viruses and bacteria, or they can be fungal. Chronic Obstructive Pulmonary Disease (COPD) is one of the two most common pulmonary impairments which come up in disability cases (asthma is the other). COPD is by definition obstructive, meaning it blocks airflow and makes it difficult to breathe in air (as opposed to a restrictive lung disease, which can make it hard to expel deoxygenated air to make room for new air). COPD can be emphysematous, meaning it can be result of gradual damage to lung tissue, like what is caused by smoking. COPD can also be diagnosed if someone suffers from chronic bronchitis. This can also be caused by smoking, and involves long-term inflammation of the bronchi (the passages of the lungs). Chronic bronchitis is not caused by a virus or bacteria, but people with chronic bronchitis tend to get lung infections more easily.
Social Security for COPD
If you're seeking Social Security benefits for COPD, a judge will first consider the "listing", which involves an evaluation of the results of a Pulmonary Function Study (PFS), a simple test which measures someone’s FEV1 (forced expiratory volume), or the amount of air which can be forced from the lungs in one second. If the FEV1 value is low enough, the COPD will be found to meet Listing 3.02, and the claim can be approved on that basis. If the PFS does not show listing-level COPD, a judge will consider whether the exertional limitations caused by the COPD render a person disabled. A judge should also consider whether recurrent lung infections would make someone unable to work on a regular and continuing basis. If someone’s COPD would be expected to cause regular lung infections which would make someone unable to work more than a few times a month, on average, the COPD and associated lung infections should result in a finding of disability.
Social Security for Fungal Lung Infections
Fungal infections can be particularly stubborn. These include pulmonary aspergillosis and histoplasmosis. Both of these can result in serious symptoms and necessitate regular medical treatment that could make someone unable to work regularly for a year or longer. In these situations, these fungal infections can be disabling. This may seem straightforward, but because these infections are relatively rare and medically complex, which can create challenges.
I remember a case in which I represented a client with pulmonary aspergillosis. It clearly made our client disabled; anti-fungal agents could not eliminate the infection and the client had undergone countless medical procedures with no end in sight. However, at the hearing, it became very clear that this impairment was simply too complex for the judge to understand, even though she had consulted a medical expert. To get the claim approved, I had to work closely with my client’s doctor to obtain a medical opinion that very clearly explained the nature of my client’s impairment and why it made her unable to participate in regular employment. Then, we had to seek a second hearing with a second medical expert.
After all that, the judge finally approved the claim, but the moral of the story is that you can’t just count on judges to understand complex medical issues and approve meritorious claims. The case needs to be prepared extensively for the hearing, often with the development of medical opinion evidence from reliable doctors so the judge can be assured she is making the right decision when approving a claim.
Long-Term Residual Impairment from a Lung Infection
If a lung infection has caused long-term damage, a judge will evaluate the damage like COPD, analyzing the pulmonary listings and considering if the associated exertional limitations make someone unable to work. It seems that this is something judges will be seeing more and more as those who have had a COVID-19 lung infection begin to see the long-term effects of the disease. Studies show that half of the patients recovering from COVID “have persistent symptoms and lower lung function as long as 2 months after infection.”
Can COVID-19 Qualify You for Social Security Disability?
Recently, the U.S. Departments of Justice and Health & Human Services released guidance on “Long COVID” as a disability under the Americans with Disabilities Act (ADA).
While this does not directly apply to Social Security Disability cases, it provides some important insights. It’s consistent with a conclusion that the Social Security Administration should consider “long COVID” a medically-determinable impairment and evaluate its resulting limitations under its five-step disability evaluation process. It also provides a long list of symptoms that could reasonably be expected to result in work-related limitations, such as fatigue, shortness of breath, and chest pain. Importantly, it confirms that the lung damage resulting from a COVID infection could be experienced with co-morbid heart damage, kidney damage, neurological damage, and lingering mental health problems.
The new guidance also provides a list of “reasonable modifications,” accommodations which may need to be made for someone with long COVID, including allowing a student additional time on a test, allowing a customer waiting in line to sit without losing their place, and allowing someone to be accompanied by a service animal.
In a Social Security case, a need for accommodations like this could be disabling. Employers are not required to continue to pay employees who need additional time to complete job tasks. Social Security considers someone’s ability to work in a “competitive economy,” in which employers are expected to replace employees who cannot meet productivity requirements. If the residual impairment caused by a COVID infections leaves someone unable to satisfy the productivity expectations associated with simple, entry-level work, that person should be considered disabled because they cannot sustain “competitive employment.”
Does Your Lung Infection Prevent You from Working?
If someone is unable to stand long enough to wait in line, they could not be expected to handle the standing required of light duty work. This could be very important in proving that someone cannot perform their past work, which is often the most crucial issue in a Social Security case. Employers may allow valuable skilled employees to bring service animals to work, but most disability claimants do not have the education and experience to get this kind of accommodation from an employer. Thus, the need for a service animal can be disabling.
It’s important to note that under the important U.S. Supreme Court case of Cleveland v. Policy Management Systems Corporation (1999), even if an employer is required to provide reasonable accommodation for an impairment under the ADA, this does not mean that the impairment is not disabling for purposes of a Social Security Disability case.
How Our Social Security Attorneys Build Your Case
Social Security judges are still figuring out how to deal with COVID-related issues. I have already had numerous cases in which a client is immunocompromised and/or at great risk for significant or lethal COVID complications, and has been advised by doctors to avoid being around others to minimize infection risk. This would seemingly contraindicate being around others in the workplace and thus make someone unable to work. However, because judges have not been provided with clear guidance on this new issue, they are reluctant to accept this logical conclusion. In these situations, I have had to be very aggressive in preparing and asserting this argument. My office has worked to obtain statements from doctors to show why the claimant should not be around others in the workplace. I have then obtained testimony from vocational experts about how such a limitation is inconsistent with regular employment. Without such a clear, strong showing, a judge would be likely to ignore this issue and make an unfair decision.
If you suffer from recurrent lung infections or long-term impairment caused by a lung infection (COVID otherwise), you should consider whether your employer will provide you with accommodations that enable you to continue working. If not, contact our Social Security attorneys today for a consultation.