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SSA Issues an Emergency Message for Evaluating COVID

SSA is now evaluating the long-term effects of COVID-19 when determining disability. On April 16, 2021, SSA issued an Emergency Message (EM) with guidance to its employees for evaluating adult disability cases that include an allegation or diagnosis of COVID-19. Here are the key points of the EM as well as tips for SOAR practitioners to effectively represent SSI/SSDI applicants whose functioning is impacted by COVID-19.

Guidance from the Social Security Administration (SSA) on Post-COVID Syndrome

Since December 16, 2020, the Social Security Administration (SSA) has been “flagging” cases in which there is an allegation of COVID-19 (EM 20060). More recently, on April 16, 2021, SSA issued new instructions to its employees about how an allegation or diagnosis of COVID-19 should be evaluated when determining disability (EM 21032).

  1. Diagnosis: The EM clarifies that a diagnostic test with a positive result for the virus is not required. This is important given the unreliability and unavailability of testing, particularly at the start of the pandemic.  To establish a medically determinable impairment (MDI), SSA needs to see one of the following:
    • positive viral test for SARS-CoV-2 (not an antibody test), or
    • diagnostic test findings consistent with COVID (e.g., a chest x-ray with lung abnormalities), or
    • diagnosis of COVID-19 with signs consistent with COVID (e.g., fever, cough, etc.).
  2. Durational Issues: The COVID-19-related impairment must prevent the claimant from working for at least 12 months (see SSA’s Definition of Disability). However, SSA will consider more than just long-term COVID symptoms when considering duration. Development of new, (e.g., kidney disease), or worsening, (e.g., COPD), MDI(s) may also help meet the 12-month duration requirement. An additional example would be the rehabilitation period that could be necessary following a period of ventilator therapy.

  3. Listing-Level Severity: SSA must also determine whether the MDI is of "listing level" severity.

    • “COVID-19, on its own, cannot meet a listing, but it may equal a listing as an unlisted impairment or as part of a combination of impairments (DI 24508.010). COVID-19 may affect respiratory, cardiovascular, renal, neurological, or other body systems. In most cases, the listing relevant to a new MDI(s) caused by COVID-19, or any MDI(s) that has worsened because of COVID-19 will be the appropriate listing to consider.”
    • For example, Social Security could use the listing for neurocognitive disorders (12.02) to evaluate long-term COVID-19 sufferers who are experiencing cognitive difficulties. Those who have both physical and mental problems could "equal" the listing for traumatic brain injuries.
  4. Functional Limitations: If the claimant doesn’t meet or equal a listing, SSA will assess their residual functional capacity (RFC) to determine whether they have any functional limitations caused by symptoms of COVID-19 or any resulting MDI(s). SSA will consider symptoms as well as stamina and endurance when considering whether the applicant can perform sustained work activity. For example, those who were ventilated or hospitalized with severe COVID-19 may suffer from post-intensive care syndrome (PICS). Patients with PICS often suffer from long-term muscle weakness, fatigue, cognitive deficits, and/or mental health issues like anxiety or depression. Sometimes these conditions are severe enough to qualify for disability.

  5. Lack of Treatment: The EM does make some mention of lack of treatment in the context of COVID-19 which can be very helpful for SOAR applicants. Citing POMS DI 24501.021C, the EM notes that issues related to the COVID-19 pandemic, (e.g., evictions, medical facility closures, quarantines, job loss, insurance loss, etc.), may affect a person’s ability to seek treatment to minimize symptoms. Adjudicators are instructed to consider whether a person’s lack of treatment is the result of these COVID-19 related issues when evaluating the consistency of his or her statements with the objective medical evidence.

SOAR Practice Tips:

  1. Making Sure a COVID-19 Flag is Present: Include COVID-19 as a medical condition or allegation in an initial claim, request for reconsideration, or hearing request to ensure Field Offices and Workload Support Units add a COVID-19 flag. If the claim is pending at Disability Determination Services (DDS) or with an Administrative Law Judge (ALJ), alert adjudicators that the applicant experiences symptoms related to COVID-19. SSA, DDS, or the Office of Hearings Operations (OHO) can add a flag if it was missed at a previous level and is appropriate to an applicant’s claim. Claims with COVID-19 flags will help SSA track and collect data about COVID-19 related disability claims.

  2. Obtaining Supportive Medical Evidence: Remember, medical records don’t always tell the entire story! Statements and other information provided by both medical and non-medical sources should be collected. A description of the symptoms from a person familiar with the applicant and their symptoms should be obtained, especially if an impairment prevents them from adequately describing their symptoms. Lack of treatment records may be due to an inability to access medical services during the pandemic. Encourage the applicant to keep going to their doctor or specialists to document their persistent symptoms.
    • If the applicant is having respiratory issues, get referred to a pulmonologist who can administer lung function tests.
    • If they are fainting after prolonged sitting or standing, or they have chest pain, get a referral to a cardiologist.
    • If they are exhausted after the least bit of activity, they should probably see a rheumatologist.
    • If they are having cognitive issues, be sure to get a neurological evaluation.
  3. Completing Disability Report (SSA-3368) and Disability Appeal Report (iAppeals): Be sure to list COVID-19 as a medical allegation, even if the applicant does not have a formal diagnosis at the time of filing the SOAR-assisted SSI/SSDI application. Include physical, mental, and cognitive symptoms of post-COVID syndrome. Especially with appeals, be sure to include information on new or worsening symptoms/conditions and any additional support needed with activities of daily living (ADLs). Remember, the EM states that “[SSA] must consider functional limitations arising out of any new MDI(s) caused by COVID-19, or any MDI(s) that has worsened because of COVID-19.”  Use the Remarks section to explain the reason the applicant may not have received COVID-19 testing or treatment. If testing has been scheduled, describe the type of testing and specialty area.

  4. Providing Regular COVID-19 Updates to SSA Decisionmakers: Communication is key! For cases pending at DDS or ALJ levels, it is important to provide regular updates related to COVID-19, including testing, treatment, residual symptoms, new limitations, or restrictions. A case may require medical deferment (DI 25505.035) to determine whether COVID-19, or a new or worsening MDI(s) resulting from COVID-19, meets the 12-month duration requirement.  

  5. Visiting SAMHSA SOAR TA Center’s Coronavirus Page: Since we are all learning about the long-term impacts of COVID-19 on disability, the SAMHSA SOAR TA Center regularly updates its COVID-19 Resources page to include the latest on SSA policies, procedures, and practice tips related to this evolving issue.