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Tips for Winning a Diabetes Disability Case

by Jonathan Ginsberg, Attorney - Atlanta, Georgia

The main issue in your Social Security disability case is whether or not you are able to work. Although you have to identify a medical reason for your inability to work, you will not win if you focus on the details of your medical condition. Instead, your focus must be the specific ways in which your ability to function has been limited by your diabetic condition.

In many diabetes cases, you will see handwritten notes from either a primary care physician or a neurologist. The good new about this is that many diabetes patients have a consistent history of regular visits to a doctor, as well as a solid professional relationship with that doctor.

You should be aware that diabetes is a fairly common medical condition and Social Security decision makers will look for some very specific things in your medical record. There are basically three ways to win a diabetes case:

(1) you can meet the "listing" for diabetes as set forth at 9.08;

(2) you can prove that your "functional capacity" for work been so diminished by diabetic complications that you would not be able to reliably perform any kind of job - even a simple, sit down type of job?;

(3) your diabetic complications in combination with other medical problems leave you unable to reliably perform any kind of job

 Let’s review each way you can win a diabetes case:

(1) meeting the listing at 9.08. The medical listing at 9.08 says the following:

9.08 Diabetes mellitus. With:

A. Neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station (see 11.00C); or

B. Acidosis occurring at least on the average of once every 2 months documented by appropriate blood chemical tests (pH or pC02 or bicarbonate levels); or

C. Retinitis proliferans; evaluate the visual impairment under the criteria in 2.02, 2.03, or 2.04.

Neuropathy - refers to tingling and numbness in your hands and arms and/or feet and legs. As a practical matter, this numbness and tingling must significantly interfere with your walking or using your arms and it must be long lasting and not improved by medicine.

Acidosis - refers to changes in your blood chemistry caused by uncontrolled blood sugar levels. Here, too, your condition cannot be temporary and it must be unresponsive to treatment over a several month period of time.

Retinitis - refers to significant visual impairment. Uncontrolled diabetes will cause significant damage to the capillaries in the back of you eyes and result in vision problems.

Summary: in general, to prove you meet the diabetes listing, you will need to show that you are a brittle diabetic, that your sugar is out of control despite insulin injections, and that you have permanent neurological symptoms caused by long term high blood sugar. To meet the listing, you will need lab reports showing wildly fluctuating blood sugar and a regular course of generally unsuccessful treatment.

(2) Significant interference with your capacity to engage in competitive work - as noted above, the "listing" for diabetes is difficult to meet and requires a showing of significant and permanent diabetic complications.

You may find that your doctor is not willing to commit to stating that you meet the listing for diabetes. This may be because there are other cases in his office that are worse than yours or because your doctor does not want to be responsible for concluding that you are "disabled." In these situations, you may be able to obtain his support by asking him to give an opinion regarding specific functional limitations that arise from your diabetes.

A "functional capacity" opinion can be provided in a letter format or, preferably, in a checklist form.

As the main issue in a Social Security case has to do with job reliability, you should ask your doctor to comment about how your diabetes would impact your ability to perform specific job tasks and about how it would affect your reliability (i.e. unscheduled breaks or missed days from work).

(3) Diabetic complications in addition to other medical problems - as noted above, diabetes is a medical condition that often gets worse over time. If your complications are only beginning to appear, you may find that your doctor is not willing to commit to the severe limitations set out in the "listing" nor is he willing to identify enough functional capacity limitations to fully disable you.

In this situation, the limitations caused by your diabetes may be only mildly severe, yet still useful in a disability determination. For example, if your diabetes makes it difficult for you to see at night or in the rain, it would serve to limit you from driving jobs. If you experience only occasional numbness in your feet, you would still be unable to perform jobs at unprotected heights or using ladders.

Taken in combination with other limitations, and with the expectation that your condition will worsen, even mild diabetes can help tip the balance in your favor if you have some other significant medical problem. After all, your Judge or someone in his family may be diabetic with firsthand knowledge of how this disease can impact your life.

Make sure that you help your case by reporting your symptoms accurately to your doctor. In each office note, your doctor may write down how you reported feeling, his impressions as to the intensity of symptoms, the onset of new symptoms and your state of mind. 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.

You are responsible for making sure that your doctor’s notes are complete and helpful to your case. Notes that document your illness and your treatment often will not be enough.

Remember that Social Security focuses on work activity limitations. Often, there is nothing in medical records about how much you can lift, how much you can carry, or how long you can sit - unless you make it your business to tell your doctor about these problems.

You should also tell your doctor about pain - the "nerve pain" common in diabetic cases that interferes with concentration, or causes irritability that might cause tension with co-workers. Diabetics with uncontrolled sugar levels often experience mood swings. If your treating physician is not a specialist, he may not note in detail some of the symptoms experienced by diabetes patients - such as visual problems, numbness and tingling, or even depression.

A Social Security adjudicator would not give doctors’ notes a second look if they do not address work activity limitations. Even an experienced Social Security Judge will not presume to guess about specific work limitations from doctors’ notes that only deal with medical issues. 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.

An attorney or claims representative would approach your case by studying your medical record, then creating a checklist form (called a "functional capacity" form) that tracks most of your symptoms. These 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. Experienced representatives should know which vocational factors carry the most weight with Judges in a particular hearing office.

For example, a pain 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.

Diabetes presents special problems in a Social Security case. As noted above, some judges are very hesitant to find that a claimant meets a "listing" unless the claimant is almost totally blind and almost completely numb. Recognize that diabetes is very common in the population at large and that as debilitated as you may be with your diabetes, there is probably someone else out there with worse symptoms.

Diabetic symptoms are also affected by many outside factors, including the weather, your stress level and other medications you may be taking. Therefore, it is extremely important that you provide your doctor with an accurate and complete list of symptoms.

One of the biggest issues seen has to do with the onset of new symptoms. Remember, the first two levels of appeal (the initial application and the reconsideration) may take a year to work through the system. By the time you get to Court, you may have been waiting 18 months. As you know, diabetes is a disease that can produce different symptoms at different times. If you wait until the hearing request to allege symptoms that were not identified in your initial application, the Judge may delay your case further by sending you to one or more consultative examinations (independent medical exams) with Social Security approved specialists. This is especially true if you have developed significant depression after you filed your application.

You can help your case and your lawyer by keeping copies of all the forms and applications you completed for Social Security. If you have, in fact, developed new symptoms, your representative can update your file early enough so that any consultative exams can be scheduled well in advance of your hearing - thus reducing any more delay.

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.

Occasionally, you will find 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.

Would you be surprised to know that most doctor’s notes are handwritten and difficult to read? In several instances, your representative 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 or claim’s representative’s role as one whereby he "translates" medical findings into work limitations.

When your case has been denied at the initial and at the reconsideration levels, your next level of appeal is to request a hearing. Statistics show that claimants have a much better chance of success with a lawyer or representative at the hearing. Legal representatives almost always accept Social Security cases under a contingency fee arrangement, meaning that there are no up front fees and your representative gets paid only if he wins your case.

At a minimum, you can expect your representative to perform the following:

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.

Help you 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.

Summary: Diabetes is a common medical condition and Social Security adjudicators and judges see diabetic claimants frequently. You can make your case stand out by reporting to your doctor about symptoms and limitations that would make it difficult for you to work. Common "work activity" limitations for diabetics include irritability, occasional to frequent distorted vision, occasional to frequent numbness and tingling in the hands and feet, depression, fatigue, frequent urination and excessive thirst which interfere with concentration. Do not exaggerate your symptoms but report them consistently and follow your doctor’s treatment recommendations. You want the Social Security decision maker to conclude that you experience significant work activity limitations despite your best efforts to follow your doctor’s treatment regimen.

About Jonathan Ginsberg - Jonathan is a practicing Social Security attorney in Atlanta, Georgia, and he is the publisher of two "how to" Social Security help books - the Disability Answer Guide (how to fill out adult Social Security disability forms) and the Child SSI Guide (how to fill out child Social Security disability forms).  His comments and opinions about "Tips for Winning a Diabetes Case" should not be considered legal advice as every Social Security disability case is different and depends on your individual case information. 

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