The Listing Strategy
When a Social Security judge considers your disability case, the question he will be asking is whether your the symptoms of your disease have progressed to the point where you are not able to sustain full time employment at any job. Unlike many private long term disability insurance programs, the general standard (and there are a few exceptions) for Social Security disability focuses on your capacity to perform simple, unskilled work. Even if you possess an advanced degree and have worked at a high level supervisory position, Social Security will evaluate your work capacity by evaluating whether or not you can get through an 8 hour workday, 5 days a week performing unskilled work. It does not matter that such a job might bore you to tears or that you could not earn enough at a minimum wage to support yourself or your family – the question is: can you perform the duties of such a job? I often tell my clients to consider whether they could perform any job at all – even simple work such as serving as a ticket taker at a movie theater, a box packer at a factory, or a garment inspector at a manufacturing plant.
Choose a Winning Argument
There are several arguments that attorneys use to prove disability. At your disability hearing, the judge may say to your attorney “counselor, what is your theory of disability in this case?” It is very helpful if you and your attorney have a clear understanding of what you are trying to prove before you appear before the judge.
In my practice, I will usually choose one or more arguments or case theories for liver disease cases. You can read about each of these arguments on this web site. This page will discuss the listing argument and offer suggestions about how to win your Liver Disease case by meeting a listing. Click on the link to read about the functional capacity argument in liver disease cases and the grid rule argument in liver disease cases.
Understanding the “Listing” Argument
In its publication called Disability Evaluation Under Social Security (also known as the “Blue Book”), SSA has published detailed descriptions of a variety of serious medical conditions. There are fourteen “chapters” in the Blue Book – each representing various classes of diseases. For example, Listing 1 describes diseases of the musculoskeletal system, Listing 2 describes visual and hearing loss, and so on. Liver diseases fall within Listing 5, which describes disorders of the digestive system.
Chronic Liver Diseases
Listing 5.05 describes several chronic liver conditions including
- alcoholic liver disease
- non‑alcoholic steatohepatitis (NASH)
- primary biliary cirrhosis (PBC)
- primary sclerosing cholangitis (PSC)
- autoimmune hepatitis
- hemochromatosis
- drug‑induced liver disease
- Wilson’s disease
- serum alpha‑1 antitrypsin deficiency
- Hepatorenal syndrome
- Hepatopulmonary syndrome
- Hepatic encephalopathy
- chronic viral hepatitis infections
- end stage liver disease
Each of these diseases can be identified with very specific lab test results, often by blood chemistry lab tests. Here is what Social Security says about lab tests needed to document liver disease:
Laboratory findings may include, but are not limited to, increased liver enzymes, increased serum total bilirubin, increased ammonia levels, decreased serum albumin, and abnormal coagulation studies, such as increased International Normalized Ratio (INR) or decreased platelet counts. Abnormally low serum albumin or elevated INR levels indicate loss of synthetic liver function, with increased likelihood of cirrhosis and associated complications. However, other abnormal lab tests, such as liver enzymes, serum total bilirubin, or ammonia levels, may have a poor correlation with the severity of liver disease and functional ability. A liver biopsy may demonstrate the degree of liver cell necrosis, inflammation, fibrosis, and cirrhosis. If you have had a liver biopsy, we will make every reasonable effort to obtain the results; however, we will not purchase a liver biopsy. Imaging studies (CAT scan, ultrasound, MRI) may show the size and consistency (fatty liver, scarring) of the liver and document ascitesThe exact type of documentation and the duration of test results for specific diseases are identified at section 5.0 of the listing which identifies medical diagnostic criteria that must be met to meet the requirement.
Liver Transplant
Listing 5.09 provides that a recipient of a liver transplant is to be considered “disabled” for Social Security purposes for 1 year following the transplant, and thereafter using the criteria elsewhere in Listing 5.
Acute/reversible liver diseases
Interesting, Social Security specifically notes that acute liver diseases most likely do not meet Listing 5.05:
Acute hepatic injury is frequently reversible, as in viral, drug‑induced, toxin‑induced, alcoholic, and ischemic hepatitis. In the absence of evidence of a chronic impairment, episodes of acute liver disease do not meet 5.05.
Liver Complications Associated with Other Serious Medical Conditions
While Listing 5 concerns itself with various diseases of the liver, Social Security recognizes that other medical conditions such as kidney disease, cancer, immune system diseases can cause a compromise in liver function. As such other Listings in the Blue Book reference the lab test criteria for Listing 5. Decreased liver function that does to not rise to the listing level at 5.05 may support a listing level argument for another body system.
How Experienced Lawyers Prove Listing Level Liver Disease
Not surprisingly, Social Security makes it very difficult to meet a listing. Often claimants fail to meet the listing not because their condition is not serious enough but because their doctor did not follow the language of the listing exactly when writing office notes. Your doctor’s focus, of course, is on treating you, not writing reports for Social Security – helping your doctor help you, by the way, is where a good disability lawyer can greatly improve your odds of winning.
If you are proceeding without an attorney, you will want to make sure that your doctor understands the Blue Book criteria for liver disease listings at Listing 5.0. If your doctor is not familiar with the Blue Book, you can and should print out Listing 5, take it to your doctor and ask him to prepare a narrative report that discusses whether or not you meet the criteria therein.
Combined with medical records and lab tests that track the diagnostic criteria for the listing, the Social Security adjudicator or judge will have the materials necessary to evaluate your case for a listing level impairment.
Lawyers who regularly practice before Social Security judges often find that a good way to prove that their clients meet this listing involves creating a checklist that tracks the listing. When I am retained by a client who has a chronic liver disease, I will create a checklist for the doctor that identifies both the lab tests and the symptoms for the specific condition that afflicts my client. I will also include a section that describes activity limitations (i.e. how much can my client safely lift, how often might he need to use the restroom) – factors that I know from experience will prove persuasive to disability judges.
A robust checklist will also help if the judge decides to evaluate the case under “functional capacity” criteria. Some judges are reluctant to approve cases using the Listings but are receptive to other arguments. Liver diseases necessarily result in physical activity and mental focus limitations so I like to include such criteria in my checklist so that these limitations can find themselves included in questions that the judge might ask of a vocational expert witness.
If you would like to speak with a lawyer who understands the power and usefulness of a carefully crafted Liver Disease listing checklist, please fill out this disability case evaluation form.