Sleep apnea must be considered severe for SSA to approve the claim
Sleep apnea is a sleep disorder that can affect anyone. People who suffer from sleep apnea repeatedly start and stop breathing while they sleep. There are two types of sleep apnea: obstructive sleep apnea (more common) and central sleep apnea, both of which can qualify for SSDI or SSI. Generally, sleep apnea is diagnosed by a general practitioner who would refer you to a sleep disorder center for a nocturnal polysomnography, or sleep study test. Similar tests can also be performed at home. You may also be referred to a specialist, such as an ENT (ears, nose, throat doctor – also called an otolaryngologist), a cardiologist, or a neurologist. You are at greater risk for sleep apnea if you are male, if you are overweight and if you are above age 60. Symptoms of sleep apnea include daytime sleepiness, snoring, frequent awakening during the night, insomnia, etc. These symptoms, depending on their severity, can be disabling pursuant to Social Security regulations.
Will SSA approve my claim based on sleep apnea?
To determine whether you meet their definition of being disabled, Social Security relies on a variety of factors, including the severity of your symptoms, the effectiveness of treatment options, the strength of your medical evidence, your age, your education level and the type of work you have done. To be approved, your allegations of sleep apnea must be supported with strong medical evidence.
How does SSA determine if my sleep apnea qualifies for Social Security Disability or SSI benefits?
Social Security employs a 5-step sequential evaluation process to determine if you qualify for disability benefits under the SSDI and/or SSI programs. At each phase of a disability claim, there is an adjudicator, or decision-maker. At the Initial Application and Reconsideration phases, the decision-maker is a DDS Examiner who works in consultation with a DDS Physician. At the Hearing phase, the decision-maker is the Administrative Law Judge who often consults with a Medical Expert (ME). The following evaluation is employed by the adjudicator at each phase.
Step 1: Non-Medical Criteria. First and foremost, you cannot be working above what Social Security calls a Substantial, Gainful Activity (SGA) level. Basically, you cannot be earning more than $1,090 on a gross (pre-tax) monthly basis. The SGA rule is the most important non-medical criteria, but there are other non-medical criteria that also must be satisfied in order for the claim to progress to a complete medical review at Step 2. No matter how severe and disabling your sleep apnea may be (even if it is well-supported by years of medical evidence), if you do not meet the non-medical eligibility requirements, your claim will not advance to Step 2 and your claim will be technically denied. You can appeal a technical denial but, in general, if the facts are correct, the appeal will not be successful.
Step 2: Severe Impairment. The question at Step 2 is simply, “Is your sleep apnea severe?” To answer this question, all medical evidence is assembled. If you have an Attorney or Non-Attorney Representative, they should be heavily involved in this process. The adjudicator can also request that you complete Activities of Daily Living and Vocational Questionnaires, which provide an opportunity to communicate how your symptoms have impacted your ability to function normally. The adjudicator may also schedule a Consultative Examination (CE) with a doctor who is contracted by DDS to perform medical evaluations on their behalf. Once all evidence has been assembled, the adjudicator reviews the information and decides whether or not your symptoms are severe. To be considered severe, the symptoms must limit your ability to perform basic work-like activities. If your symptoms are determined to be non-severe, your claim will be denied at Step 3 and you would have the opportunity to appeal this denial. However, if the condition is determined to be severe, your claim progresses to Step 3 for further analysis.
Step 3: Medical Listings. At Step 3, the question is whether your sleep apnea meets or equals a medical “Listing.” Social Security has broken down the human body and mind into 14 different Impairment categories, called the Listing of Impairments. Sleep apnea and other sleep disorders are typically evaluated under Listing 3.09 Cor Pulmonale Secondary to Chronic Pulmonary Vascular Hypertension, which is a subset of Listing 3.00 Respiratory System impairments. Disability under Listing 3.09 requires clinical evidence of cor pulmonale (pulmonary heart disease) with either (a) mean pulmonary artery pressure greater than 40mm Hg; or (b) arterial hypoxemia. Sleep apnea can also be evaluated under Listing 3.10 Sleep-Related Breathing Disorders. Disability under this section requires a sleep-related breathing disorder, as evaluated under Listing 3.09 (chronic cor pulmonale), above, or under Listing 12.02 Organic Mental Disorders. Diagnosis and evaluation of these impairments must be supported by medical records from a treating physician. If the adjudicator reviews your medical records and determines you meet the above listing, you are found to be Disabled at Step 3 and you are eligible to receive disability benefits. If, however, you do not meet a medical listing, the claim proceeds to Step 4.
Step 4: Past Work. The objective of Step 4 is to determine whether you have the ability to perform work you have performed previously. To determine what you are capable of doing, the adjudicator develops your Residual Functional Capacity (RFC). Your RFC identifies what you can still do after considering all of your medical symptoms, including your sleep apnea. The adjudicator will estimate your ability to perform such functions as remembering, communicating, understanding, etc. Your RFC might contain some of the following limitations: inability to follow short instructions, inability to recall information, limited ability to interact with the public, inability to work in coordination with others, etc.
Once the adjudicator has developed your RFC, they will then list your Past Relevant Work (PRW), which is any job you performed during the 15 year period immediately preceding the Alleged Onset Date (AOD) of your disability. In general, if there is a job that you performed within 15 years of your AOD in which you worked close to full-time for a period of at least a few months, that job will likely be considered Past Relevant Work.
After finalizing your list of Past Relevant Work, the adjudicator must now classify it. The type of work you have done in the past will be classified by both exertional level and by skill level. Once all of your PRW has been classified, the adjudicator must then determine whether you have the functional ability to perform any of your past work. If the adjudicator determines you can still perform the functions required in you past work, despite your sleep apnea and related symptoms, you will be found Not Disabled and denied. You would then have the opportunity to appeal this denial. However, if you cannot perform your prior work, the analysis proceeds to Step 5.
Step 5: Other Work. Step 5 considers whether you can perform any other type of work, even if you have not performed it in the past. The adjudicator utilizes the same Residual Functional Capacity (RFC) developed in Step 4, and also considers your Age, Education, and Work Experience.
To start, Social Security classifies your Education level as follows:
• Illiterate (or unable to communicate in English)
• Marginal (generally 6th grade or less)
• Limited (generally 7th through 11th grades)
• High school (and above)
The Education level is important as it affects the skill level of different jobs that you might be able to perform. For example, if you have a Marginal education, then you would be limited to performing Unskilled jobs, but if you have a High school education then you would be expected to be able to perform both Semi-Skilled and Skilled jobs.
The adjudicator will then consider your Work Experience, specifically any skills and abilities you acquired from your past work. The fact that you are now at Step 5 means the adjudicator determined at Step 4 that you can no longer perform your past work. However, the adjudicator will consider whether any of the skills and abilities you learned from your past work would transfer to a different job. For example, a Nurse who can no longer perform her past work due to her sleep apnea symptoms might have acquired skills which would transfer to a job that she may still be able to perform, such as a ticket taker or toll booth operator that may require less concentration and interaction.
Finally, the adjudicator will consider the last factor, Age. Social Security evaluates adults in several Age categories:
• Younger (ages 18-49)
• Closely approaching advanced age (ages 50-54)
• Advanced age (ages 55-59)
• Closely approaching retirement age (ages 60+)
While Younger individuals have the burden of proving they are unable to perform any type of work, the burden is lessened in the more advanced age categories. Social Security refers to this premise as the Medical-Vocational Guidelines, or the “Grid Rules” because the key factors are laid out in a grid with the final column being a determination of either Disabled or Not Disabled. Basically, the older, less educated and the fewer transferable skills you acquired in your past work, the more likely you are to be found Disabled.
If the adjudicator determines you can perform some other type of work, based on your age, education, and prior work experience, you would be found Not Disabled and denied. You would have the opportunity to appeal this denial. If, however, the adjudicator determines you cannot perform any other type of work, you would be found Disabled and approved for disability benefits at Step 5.
Conclusion: Will my disability claim be approved?
The process of obtaining Social Security disability benefits is complex, and disability due to sleep apnea is particularly challenging, but certainly possible. If you would like to discuss the specifics of your case with a disability expert now, please contact us. We will do everything possible to get your claim approved.