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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”



Obtaining Social Security Benefits for Patients with Liver Disease


prepared by Prepared by Jeffrey A. Rabin, Esq. for Hepatitis Magazine

Social Security disability benefits are often the ultimate safety net for persons suffering from medical impairments that make it impossible for them to work. For most people, however, struggling through the Social Security Administration's bureaucracy is frustrating, confusing and slow. For people suffering with Hepatitis C and liver disease, the requirements of the Act can appear overwhelming. This article briefly explains the essence of the Social Security Disability program and how it applies in claims related to Hepatitis C and liver disease. You may also want to visit the Social Security Administration Web site for further information.

Two Different Programs - Non Medical Requirements

There are two programs under the Social Security Act providing benefits for persons who are unable to work. The first is the Social Security Disability Insurance (SSDI) program found in Title II of the Social Security Act. The second is the Supplemental Security Income program found in Title XVI of the Social Security Act. The medical test for both programs is identical. The differences are in the non-medical eligibility requirements.

SSDI benefits are paid to totally disabled individuals who have worked and paid into the Social Security system with the FICA taxes that are deducted from paychecks. These FICA taxes are similar to insurance premiums paid for automobile, homeowners or other private insurance. The FICA payments, which are matched by employers, buy coverage under the Social Security Retirement, Disability and Medicare programs. For SSDI, the general rule of thumb is that a worker must have worked and paid FICA taxes for at five of the ten years prior to the date of becoming totally disabled. SSA will pull the work history for the ten years prior to the onset of becoming totally disabled, and make sure that FICA taxes were paid for at least 5 of those years.

If approved for SSDI the Social Security Administration issues a monthly check based upon how much was earned and paid into the Social Security system. Benefits are also paid to dependent children who are under 16 years old, or who are under 18 years old and still in high school. Medicare eligibility begins twenty-nine months after the onset date of total disability.


The SSI program requires that an individual be totally disabled and "indigent." "Indigent" basically means that the Claimant has little or no income and less than $2,000.00 in non-exempt assets. A home and furniture are not counted. A car with a value of up to $4,000.00 is exempt. Bank accounts, IRAs, profit sharing plans, cash value life insurance and similar assets are all included in determining assets.

In the year 2001 SSI will pay a basic monthly benefit of $530.00 which may be supplemented by some states. A disabled person receiving SSI will also be eligible for food stamps and a Medicaid card from the state.


Medical Requirements for Eligibility

The Social Security disability program is designed to pay benefits to people suffering from medical problems causing symptoms so severe that it becomes impossible to function at any type of work. Issues of employability, job existence, insurability and location or desirability of alternative work will not be considered, although age and education are often important factors. This is a medical program that focuses upon medically proven symptoms and their impact on the ability to perform work activities.

Therefore, the focus in on function, not on diagnosis; SSA often admits that claimants have medical problems and are "impaired," however, it denies that they are "totally disabled." The debate is over what the claimant can "do" despite the medical problems.

The determination of disability focuses on "proof" of both the medical problem and the severity of the symptoms. The difficulty in claims based upon Hepatitis C and Liver disease is in proving the severity of the symptoms - articularly the fatigue which is often the most disabling feature.

What is Proof?

The Act and Regulations require an analysis of medical records such as doctors' office notes, physician reports and medical test results. The written statements of the Claimant, and the testimony of the Claimant at a hearing, are generally given little weight if not supported by the medical evidence. It is absolutely critical that a Claimant seeking this assistance actively treat with appropriate medical specialists and involve those doctors in the application process.

It is difficult to have a claim approved if the treating doctors report that the Claimant retains the ability to work.

The Medical Standards

A. Meeting or Equaling the Listings of Impairments

Essentially there are two ways to prove disability in Social Security claims. The first requires medical proof that meets specific medical standards contained in Social Security's Regulations. These standards are known as the "Listings of Impairments." If medical proof meets or equals the appropriate standard the Claimant may be presumed disabled and benefits awarded, as long as the non-disability requirements of the law are also met.

The Listing for liver diseases is fairly complex and specific. There is no specific Listing for Hepatitis C. The Listing used by SSA for person with liver disease is found at Section 5.05 of the Listings of Impairments:


5.05 (Chronic liver disease (e.g., portal, postnecrotic, or biliary cirrhosis; chronic active hepatitis; Wilson's disease). With:

A. Esophageal varices (demonstrated by X-ray or endoscopy) with a documented history of massive hemorrhage attributable to these varices. Consider under a disability for 3 years following the last massive hemorrhage; thereafter, evaluate the residual impairment; or

B. Performance of a shunt operation for esophageal varices. Consider under a disability for 3 years following surgery; thereafter, evaluate the residual impairment; or

C. Serum bulirubin of 2.5 mg. per deciliter (100 ml.) or greater persisting on repeated examinations for at least 5 months; or

D. Ascites, not attributable to other causes, recurrent or persisting for at least 5 months, demonstrated by abdominal paracentesis or associated with persistent hypoalbumnemia of 30 gml per deciliter (100 ml.) or less; or

E. Hepatic encephalopathy. Evaluated under the criteria in listing 12.02; or

F. Confirmation of chronic liver disease by liver biopsy (obtained independent of social security disability evaluation) and one of the following:

-Ascites not attributable to other causes, recurrent or persisting for at least 3 months, demonstrated by abdominal paracentesis or associated with persistent hypoalbuminemia of 3.0 gm. per deciliter (100 ml.) or less; or

-Serum bilirubin of 2.5 mg. per deciliter (100 ml.) or greater on repeated examinations for at least 3 months; or

-Hepatic cell necrosis or inflammation persisting for at least 3 months, documented by repeated abnormalities of prothrombin time and enzymes indicative of hepatic dysfunction.

Even a cursory review of the Listing makes it obvious that this is a medical standard that will not be met by the medical evidence in most claims. The Listings are intended to be a difficult standard. Liver transplant claims will likely be analogized to the Listing for kidney and heart transplants. Those Listings presume disability for one year from the transplant. After that, SSA will conduct a review to determine whether the organ is functioning and whether the Claimant remains disabled. A Claimant with liver disease should provide a copy of this Listing to the treating physician to obtain a medical opinion as to whether this standard has been satisfied.

B. Residual Functional Capacity is reduced to extent that no work activity could be performed.

The alternative means of proving a claim for Social Security Disability benefits is to provide medical proof of symptoms from the impairment which are so severe that the person could not function at any type of work. The focus is upon the medical proof as it relates to the ability to perform work activities. The difficulty, however, is in proving the both the symptoms and their severity.

For Hepatitis C Claimants it is fatigue which most often persuades Social Security Administrative Law Judges to award this assistance. It is critical that patients fully describe this problem, if it exists, every time they visit the doctor's office. Social Security will obtain and review all of the medical records and search for consistent complaints of severe fatigue. One of the most common problems is the failure of the patient to fully discuss symptoms with the physician creating a lack of evidence relating to severe fatigue in the doctors' notes.


The Application Process

There  are multiple levels of review under the Social Security Act. In an effort to increase productivity, and decrease processing time, the Social Security Administration is testing different review models across the country. This article will describe the basic system which is still in place throughout most of the United States.

A claim is initiated by filing an application, either over the telephone, or, preferably, in person at the local Social Security Administration District Office. The application will require a list of all of the jobs performed during the last 15 years, a list of all medical providers, a list of current medications and a copy of the Claimant's birth certificate.

After the application is filed, the Social Security Administration will send the file to a Disability Determination Service (DDS) run by the State. Each state has a contract with SSA to do the first two levels of review. At the DDS the file will be assigned to an adjudicator who will be responsible for gathering medical documentation, getting any additional information from the Claimant, arranging for consultative examinations and obtaining medical and vocational opinions from the DDS's internal experts. A written decision is issued in about 90 days on average, although the time frame can vary widely. Historically only about 35% of claims are paid at this level.

If denied, the second step is the filing of a Request for Reconsideration at the SSA District Office. A Claimant is allowed 60 days from the date of the initial denial to file this appeal, although there is usually little to gain by waiting. The Request for Reconsideration is also processed by the state DDS. Historically only about 17% of claims are approved at this level and SSA is testing elimination of this step.

The third level of review, for those claims denied at Reconsideration, is the hearing before the Administrative Law Judge (ALJ). These are informal administrative hearings held before independent judges who hear testimony, review the medical records and issue written decisions. A great deal of progress has been made in reducing the backlog in setting hearing dates. While time frames vary widely across the nation, many hearing office backlogs are six months or less - far shorter than the one to two year delays which existed in the recent past.

The hearing is critical because it is the only time that a Claimant has the opportunity to see, and talk to, the decision maker. Up until this time all decisions are made based upon medical reports and written questionnaires. This is the only time in the process where the decision maker gets to see and question the Claimant. Further, all other reviews are based upon the record made at the ALJ hearing. ALJs are now approving just over 50% of the claims they review.

The final two steps in the review process are the Appeals Council, and if unsuccessful, filing a complaint in United States District Court. These reviews are primarily based upon the medical evidence and testimony from the ALJ hearing. The backlog at the Appeals Council is now almost two years. Only a small percentage of claims are reversed by the Appeals Council and federal courts.

NOTE: SSA has begun testing different application processes in different parts of the nation. Some Claimants will now have face to face meetings with claims managers at the initial level; some will not have a reconsideration stage; some will not have Appeals Council review. All Claimants will have an opportunity for an Administrative Law Judge hearing.



The system is designed so that Claimants are not required to obtain representation. However, statistics clearly establish that people with representation have much higher success rates.

Familiarity with SSA's Regulations, Rulings, the federal caselaw interpreting the Act and SSA's internal guidelines called the POMS and HALLEX help guide preparation of a claim. Representatives do not have to be licensed attorneys and there are paralegals and other non-attorneys who do provide representation. This law firm's practice is to become involved in a claim as early in the process as possible. The more a Claimant understands the system, the greater the chance the assistance will be granted at some point in the process.



Hopefully, however, this brief analysis will provide some insight into the disability system. While the tests are stringent, millions of Americans are able to get this assistance. For persons with Hepatitis C and liver disease, the medical standards can be satisfied with cooperative physicians who understand the issues being decided.


Author Information

Jeffrey A. Rabin, Esq. - Persons requiring more information may contact Jeffrey A. Rabin, an attorney in the Chicago, Illinois region, whose law practice focuses exclusively in the represenation of disabled individuals seeking SSA benefits, and disabled veterans seeking VA benefits. He represents people nationally and is a member of the executive committee of the ATLA Social Security Disabililty Committee. He is also active in a variety of local and national advocacy and law-related organizations working on behalf of disabled individuals. Mr. Rabin graduated from DePaul University College of Law in 1980. Mr. Rabin may be contacted by e-mail at, or by telephone at 1-888-LAW-0600, or 847-299-0008. He is also known as HOST PRC, where he volunteers in the Pain Relief Center of America On-Line, hosting a chat the first Wednesday of each month and answering SS law questions on a message board.

Prepared by:
Jeffrey A. Rabin, Esq.
Jeffrey A. Rabin & Associates, Ltd.
640 Pearson St. Suite 300
Des Plaines, IL 60016