I. Long-Haul COVID and Post-COVID Syndrome as a Disability: What is Known So Far
As of the writing of these materials, Social Security has published limited guidance for adjudicators or judges regarding how to evaluate a “long haul” COVID claim. There are two “Emergency Messages” that address COVID-19:
Emergency Message 21032
Emergency Message 21032 (EM-21032) – offers policy guidance for evaluating adult disability cases that include an allegation or diagnosis of Coronavirus Disease 2019 (COVID-19).
EM-21032 acknowledges that COVID-19 is an infectious disease that is primarily a respiratory disease but that emerging data suggests that it may also lead to cardiovascular, renal, dermatalogic, neurological, psychiatric and other complications. SSA also notes that COVID-19 is a new disease and the medical community is still learning about the severity of the illness, its long term effects and emerging variants of the virus.
Per EM-21032, COVID-19, on its own, cannot meet a listing (but it can meet a listing as part of a combination of impairments). Further, an acute respiratory infection cannot substitute for a chronic respiratory impairment as provided for in Listing 3.
In order to be classified as a “medically determinable impairment” a claimant must provide:
– a report of a positive viral test for COVID
– a diagnostic test (i.e., a chest X-ray) with findings consistent with COVID
– a diagnosis of COVID-19 with signs consistent with this viral infection.
In sum EM-21032 recognizes that COVID-19 is an infectious condition that can lead to disabling symptoms impacted one or more body systems but at this point COVID-19 is not a listing level impairment.
Emergency Message 20060
Emergency Message 20060 (EM-20060) provides instructions to SSA personnel about flagging COVID-19 cases. This EM appears to be more focused on collecting data about COVID-19 claims to be used in future rulemaking.
EM-20060 does reference two CDC publications about COVID:
– https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects/index.html and
– https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html
HHS.gov has also published a page entitled Guidance on “Long COVID” as a disability under the ADA, Section 504 of the Rehabilitation Act of 1973 and Section 1557 of the Patient Protection and Affordable Care Act at https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html
II. SSA Emergency Message EM-20060 Guidance
As noted above EM-20060 is primarily concerned with flagging COVID cases for future rulemaking. However, Section B of the EM reads as follows:
Coronavirus Disease 2019 (COVID-19) is an infectious disease caused by a newly discovered coronavirus. COVID-19 symptoms can range from no symptoms to severe illness. While COVID-19 is primarily a respiratory disease, emerging data suggest that it may also lead to cardiovascular, renal, dermatologic, neurological, psychiatric, or other complications. For more information, see Long-Term Effects of COVID-19 | CDC. Older adults and people of any age with underlying medical conditions, including, but not limited to, diabetes, heart and lung disease, chronic kidney disease, cancer, and obesity, may be at increased risk for more severe illness. For more information, see People with Certain Medical Conditions and Risk for Severe COVID-19 Illness | CDC. COVID-19 is a new disease, and the medical community is still learning about the severity of the illness and its long-term effects.
Note that in the EM, SSA classified COVID-19 as “primarily a respiratory disease” with emerging data suggesting that it can lead to other complications. So, when representing a long COVID client, it makes sense to evaluate your case by looking as an impairment that impacts the body systems identified by SSA.
III. Disability Determination for Long COVID Symptoms: Meeting the Impairment Under Other Listings
A. Respiratory
As noted above, EM-21032 and EM-20060 contain the assertion that COVID-19 is primarily a respiratory disease so a good place to start your evaluation of a long haul case would be Listing 3 (Chronic Respiratory Disorders).
More specifically, the following listings would seem to be the most applicable to a COVID claim:
– Listing 3.02 (Chronic Respiratory Disorders)
– Listing 3.03 (Asthma)
– Listing 3.09 (Chronic pulmonary hypertension due to any cause)
– Listing 3.14 (Respiratory Failure resulting from any underlying chronic respiratory disorder except cystic fibrosis
Listings 3.02 and 3.03 contain tables that reference a claimant’s height and performance on a spirometry, DLCO, ABG or pulse oximetry test (see the preamble to Listing 3). These tests yield objective results, although the values reflect very severe respiratory limitations.
Listing 3.09 requires pulmonary artery pressure equal to or greater than 40mm Hg as determined by a cardiac catheterization (normal pulmonary artery pressure is 18 to 25 mm Hg)
Listing 3.14 references cases where mechanical ventilation is required at least twice within a 12 month period, with incidents at least 30 days apart.
In practice, Listings 3.02 and 3.03 usually apply when claimants have declining pulmonary functioning over a period of years, whereas Listing 3.09 and 3.14 usually apply in more acute cases when damage and loss of function is likely to be chronic going into the future.
In my practice I have found that it is difficult to win a respiratory case at a hearing. Listing level cases that meet 3.02, 3.03 and 3.09 yield objective test results and these cases are usually approved at initial or reconsideration.
Given the relative recency of COVID, however, it would be wise to consider the respiratory listings for long COVID clients who have severe and permanent breathing problems.
If, however, your client is not at listing level for breathing issues, you can certainly argue that breathing restrictions limit functional capacity.
Here, too, experience tells me that breathing restriction cases are difficult if that is your client’s only impairment. However, reduced breathing capacity combined with other medical issues can result in a finding that your client’s capacity for competitive work has been so reduced that the client would not be reliable 8 hours a day, 5 days a week.
B. Cardiovascular
Social Security is silent regarding any direct association between COVID-19 and cardiovascular disease. However, there is evidence that “cardiovascular disease is both a risk factor and potential outcome of the direct, indirect and long term effects of COVID-19 (https://www.nature.com/articles/s41569-022-00697-7).
The cardiovascular listing is at https://www.ssa.gov/disability/professionals/bluebook/4.00-Cardiovascular-Adult.htm and it describes significant limitations in cardiovascular functioning (i.e., an ejection fraction of 30% or less), chronic venous insufficiency, peripheral arterial disease, etc.).
Cardiovascular issues can also support an argument for disability under the grid rules or in a functional capacity argument. I have represented several clients with venous insufficiency and/or peripheral arterial disease whose conditions worsened significantly after COVID.
More specifically, I have represented clients with circulatory problems who have seen the incidence of DVTs increase after COVID and who have been directed to keep their legs at or above heart level.
COVID-19 often generates an inflammatory autoimmune response, so claimants with heart issues associated with inflammatory process could be impacted. According to JAMA (March 2022)
Patients with COVID-19 were at increased risk of a broad range of cardiovascular disorders including cerebrovascular disorders, dysrhythmias, ischemic and non–ischemic heart disease, pericarditis, myocarditis, heart failure, and thromboembolic disease.
At the 12-month mark, compared with the contemporary control group, for every 1000 people, COVID-19 was associated with an extra:
- 29 incidents of any prespecified cardiovascular outcome
- 48 incidents of major adverse cardiovascular events (MACEs), including myocardial infarction, stroke, and all-cause mortality
- 86 incidents of dysrhythmias, including 10.74 incidents of atrial fibrillation
- 72 incidents of other cardiovascular disorders including 11.61 incidents of heart failure and 3.56 incidents of nonischemic cardiomyopathy
- 88 incidents of thromboembolic disorders, including 5.47 incidents of pulmonary embolism and 4.18 incidents of deep vein thrombosis
- 28 incidents of ischemic heart disease including 5.35 incidents of acute coronary disease, 2.91 incidents of myocardial infarction, and 2.5 incidents of angina
- 48 incidents of cerebrovascular disorders, including 4.03 incidents of stroke
- incidents of inflammatory disease of the heart or pericardium, including 0.98 incidents of pericarditis and 0.31 incidents of myocarditis
Patients with more severe disease—determined by whether they recuperated at home, were hospitalized, or were admitted to the intensive care unit—had higher risks. But the risks were evident even among those who were not hospitalized with COVID-19. Other subgroup analysis found increased risks regardless of age, race, sex, obesity, smoking, hypertension, diabetes, chronic kidney disease, hyperlipidemia, and preexisting cardiovascular disease.
The study’s overall findings were consistent when outcomes were compared between patients with COVID-19 and the control group of pre-pandemic patients.
Even if your client’s cardiac function is not at listing level, I think there is opportunity to argue that your client’s functional capacity for work is less that what would be required at an entry level sedentary job due to shortness of breath, chest pain, loss of exertional capacity, circulatory problems and other symptoms of a damaged cardiovascular symptom.
For claimants over the age of 50, the grid rules could apply if your client’s doctors will limit the client to the light or sedentary exertional level.
C. Neurocognitive
According to the NIH, neurocognitive changes associated with COVID-19 infections remain “poorly understood” (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7924920/), There have been studies to suggest that unemployment and lockdown measures have contributed to psychological distress, excessive alcohol use, excess smoking, and physical inactivity.
However, as we are emerging from strict lockdown protocols, it remains to be seen if the psychological issues are permanent and/or vocationally relevant.
Researchers are beginning to study physiological changes related to the impact of the COVID-19 virus on the central nervous system and neurotransmitter systems (i.e., loss of taste or smell) but the literature is sparse in identifying vocational impairments associated with these changes.
Social Security disability claimants with existing psychological or psychiatric issues may experience an exacerbation of existing symptoms. Further many mental health patients either stopped treatment or were limited to online counseling.
Patients who experienced extreme COVID symptoms, extended hospitalizations, and documented neurological damage caused by the virus will have more success relating loss of vocational capacity directly to the virus.
My experience has been that neurocognitive cases are difficult to win without evidence of ongoing psychiatric treatment and a report from a neuropsychologist demonstrating significant impairment.
I have been contacted by some potential clients who allege disability based on PTSD arising from COVID hospitalizations and residual weakness, loss of strength, loss of capacity for daily activities but I have yet to be convinced that the PTSD argument is strong enough to support a finding of disability.
D. Post-Intensive Care Syndrome (PICS)
Per a recent article on the National Institute of Health website, PICS is relatively newer term that was introduced almost 10 years ago to health-care professionals involved in the treatment of patients discharged after critical care to identify the impairments that are usually missed by clinicians and administer tailored care to address these impairments. Hospitalizations because of COVID-19 may demand recognition of PICS more than ever, and sooner than later. See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7301100/.
Symptoms of PICS include acute respiratory distress, neurocognitive deficits, an increased risk of conditions like diabetes, hypertension, asthma, COPD, muscle atrophy, depression, and anxiety.
To put this another way, PICS is characterized by conglomeration of symptoms involving physical strength deficits, cognitive decline, and mental health disturbances observed after discharge from critical care that persist for a protracted amount of time.
In the Social Security disability context, however, the question arises as to whether your client’s deficits can be associated with specific functional capacity limitations that SSD adjudicators and judges rely upon to evaluate cases.
Perhaps the best profile for a PICS claimant would be a COVID patient who was subject to mechanical ventilation and an extended hospital stay, along with functional capacity evaluations from both a mental health provider and a physical medicine provider who can speak to the claimant’s loss of overall functioning.
E. Musculoskeletal Pain
SSA’s musculoskeletal listing can be found at https://www.ssa.gov/disability/professionals/bluebook/1.00-Musculoskeletal-Adult.htm. As you may know, SSA changed Listing 1, effective April 2, 2021.
The net effect of these changes was to make it more difficult for claimants to meet a listing based on a musculoskeletal impairment. Given that spine and joint issues are perhaps the most common source of disability complaints and the narrative in Congress that the SSD system is rife with fraud, this change should not be surprising.
In a post-COVID-19 context, there is evidence that the coronavirus can create an inflammatory response that can impact claimants systemically. Per the NIH, myalgias (muscle pains), arthralgias (joint pain) are present in over 15% of COVID patients (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8464590/)
The problem, as those of who have tried fibromyalgia, Lyme disease, CRPS and similar cases is that it can be very difficult to quantify the degree of functional impairment associated with joint or muscle pain.
Further, at least at this point, the literature continues to describe COVID-19 as primarily a respiratory illness and it will be difficult to convince Social Security disability decisionmakers that your client’s post-COVID muscle and joint pain is severe and longstanding enough to preclude all work.
It is certainly a reasonable argument to contend that a claimant with a severe COVID case (i.e., one that required extended hospitalization and a long recovery) would result in an overall decompensation in terms of physical capacity but absent signficant respiratory symptoms, it seems unlikely that muscle and joint pain alone would be enough meet SSA’s definition of disability.
F. Others
As noted above, COVID 19 causes systemic inflammation and thus can create impairments in multiple body systems. Further, any claimant with pre-existing weakness (either physical or mental) may see previously dormant symptoms arise.
It is always a good idea to review the listings (see my website at https://meetalisting.com) for a possible listing level argument or at least to identity the most affected body system.
At this point, however, the respiratory (Listing 3) and the cardiovascular listing (Listing 4) appear to be the most relevant listings for patients recovering slowly from COVID-19.
IV. Proving the Severity and Long Duration of COVID Impact on Activities of Daily Living (ADL)
As noted above, you can argue that “long COVID” is a systemic inflammatory response to a primarily respiratory virus.
For claimant who have been hospitalized for weeks or months, and especially those who have been subject to mechanical ventilation, it is very likely that their respiratory capacity has been reduced (possibly permanently) and that their overall physical functioning has been subject to decompensation.
Keep in mind that the threshold issue in an SSD case has to do with your client’s capacity to function reliably at a simple, entry-level, sedentary job. Any medical or mental health issue that interferes with reliability can be part of your argument.
Unless you can meet a respiratory (Listing 3) or cardiovascular (Listing 4) listing, your argument for disability will be based on either a grid rule argument or a functional capacity argument.
If your client is over the age of 50, and certainly if he/she is over the age of 55, you should look at the grid rules. While the grid rules do require a documented and medically supported loss of exertional capacity, you are not limited to musculoskeletal impairments to prove that your client’s functional capacity is limited to light or sedentary work.
Claimants with limited cardiovascular functioning, circulatory problems, neuropathy, respiratory issues, and other conditions may be limited by those conditions to light or sedentary work.
If you are arguing for disability based on functional capacity (Step V of the Sequential Evaluation Process) then every impediment to your client’s activities of daily living (both physical and mental are relevant). Given that Long Covid appears to be a systemic disorder, you can improve your chances by asking medical providers for both physical and mental health functional capacity forms.
V. Tests, Medical Records, and Other Evidence
Objective test results always move the meter with Social Security so any medical test that documents an objective medical issue should be used.
Similarly, non-medical evidence in the form of statements from former co-workers, supervisors, and friends and relatives attesting to your client’s loss of functioning can be helpful.
The record in your client’s disability case should reflect a narrative about how a functioning, productive individual lost the capacity to function as a reliable worker due to the symptoms that arose his/her COVID infection. Further, you should counsel your client to avoid presenting himself or herself with an “attitude of entitlement.” Instead your client should make it clear that he/she is currently struggling with functional deficits brought about by long Covid but that he/she intends to seek any and all available treatment and will make every effort to return to the workforce.
VI. Tips for Better Briefs and Hearings: Lessons From Recent Rulings
As noted above, Social Security’s Emergency Message 21032 contains the most specific guidance issued to date about how SSA decision makers are to evaluate COVID-19 cases. Not surprisingly this Emergency Message encourages decision makers to carefully evaluate both the severity and likely duration of symptoms, and to evaluate symptoms in terms of how the virus has affected your client’s respiratory, cardiovascular and other body symptoms.
When preparing your case for hearing, therefore, do not assume that evidence of a COVID-19 infection or even a diagnosis of “long COVID” will be enough to win. Instead identify the body systems impacted (starting with the respiratory and the cardiovascular systems), the damage to the functioning of those systems and produce evidence showing that these symptoms have lasted or are expected to last 12 consecutive months.
In many respects, SSA treats long COVID cases in a similar manner to autoimmune cases. SSA acknowledges that COVID and autoimmune disorders do exist but the claimant retains the burden of identifying the affected body system, providing evidence (in the form of treatment records and functional capacity evaluations) about the duration and severity of a claimant’s impairment.