Case Strategy for Disability Claims
Based on Polycythemia Vera

How receptive are Social Security disability judges to rare diseases like Polycythemia Vera?  If you have been diagnosed with PV you certainly know what it is, but for those not familiar with this disease, it is a blood disease in which the body makes too many blood cells. The excessive numbers of red blood cells make the blood thick, meaning that PV patients are at greater risk for heart attacks, strokes, and blood clots.  In some cases, the excessive blood cells are not fully formed, meaning that the body does not get sufficient oxygen or iron.  PV may be treated with medications and it is often treated with phlebotomy (draining blood from the system).

Although there is a Social Security listing for Polycythemia Vera, the judge assigned to your case may not be familiar with the disease, its treatment, complications, or vocational implications. Thus, you and your lawyer may need to educate your judge about this condition.   Because there is a listing for PV, I would start with a listing argument, but I would also prepare a functional capacity argument as well.  In my limited experience with PV, my clients have had to deal with PV as well as other disease issues.

The Listing Argument for Disability Arising from Polycythemia Vera

One way to win your Social Security disability case is to argue that you meet a “listing.”  The listings are detailed descriptions of medical conditions published by the Social Security Administration in the Code of Federal Regulations.  When you look at the table of contents for the listings, you will see that Social Security has broken down the body into fourteen (14) different systems.  For example, there are listings for the musculoskeletal system, the cardiovascular system, the digestive system, etc.  The listing for Polycythemia Vera may be found at Listing 7.09, within the general classification of hematological disorders.  Within this Hemic and Lymphatic System, you will find specific conditions and associated diagnoses.

If your medical condition exists at listing level, you qualify automatically for disability benefits. Remember that Social Security’s definition of disability looks for a medical condition that prevents you from engaging in work-like activity.  If your condition exists at a listing level, Social Security presumes that your capacity for work would be so limited that you would not be able to work in a competitive work environment (8 hours a day, 5 days a week).  In the case of listing 7.09,

Social Security is looking for Polycythemia Vera with a certain level of complication (erythrocytosis, splenomegaly, and leukocytosis or thrombocytosis).

Because listing level conditions automatically qualify you for benefits, Social Security has made the listings very difficult to meet.  Usually, but not always, listing level cases are identified at the initial and reconsideration levels of appeal and approved there.  However, the combination of delays in the evaluation process, and the complexity of many medical charts, and the relative rarity of a disease like PV, a viable listing level case of PV can easily slip thorough and end up before an ALJ at a hearing.

The listing for Polycythemia Vera is short – the entire listing reads as follows:

7.09    Polycythemia vera (with erythrocytosis, splenomegaly, and leukocytosis or thrombocytosis). Evaluate the resulting impairment under the criteria for the affected body system.

Here are brief descriptions for the four complications identified in the listing:

• Erythrocytosis – excess of red blood cells
• Splenomegaly – enlargement of spleen often caused by excessive red blood cells being destroyed in the spleen
• Leukocytosis – a raised white blood cell count, often associated with an infection
• Thrombocytosis – excessive platelets in the blood, which can lead to blood clots

Because PV is a somewhat rare condition, there is a good chance that most affected claimants will be treating with a specialist, or at least with a physician who is familiar with this condition.  As such, it should not be difficult to get the treating doctor to complete a checklist that tracks the listing.

Ultimately to meet a the PV listing, you will need to show that your disease has caused some complication – either organ damage (such as damage to the kidneys, liver or heart) or a blood chemistry disorder.

By necessity, medical treatment of a PV patient involves blood work and the lab results will most likely track the extent and duration of your condition.

If my client has a cooperative physician I ask the doctor to fill out a checklist that tracks the listing or to write a brief narrative stating that his patient’s condition exists at listing level.

The Functional Capacity Argument for Disability arising from Polycythemia Vera

The idea behind this argument is simply that you are a less reliavle worker due to your disease.

Most polycythemia vera cases that I have worked on involve a listing level disease – in other words, my client’s blood chemistry readings had deteriorated to the point where vascular complications had developed, or kidney or liver failure had begun.

In PV cases involving younger claimants, or cases in which the lab tests do not show an extensive progression of the disease, your judge may not be prepared to find that your condition meets or equals the listing at 7.09.  Some judges are not willing to assume anything about any medical condition even chronic, congenital conditions that are unlikely to respond well to treatment or to allow an afflicted claimant to continue working.

In these cases, a “functional capacity” argument would be a good alternative to a “listing” argument.  Unlike the listing argument, which focuses on the underlying medical condition (thickening of the blood and associated organ damage), a functional capacity argument looks more to how your CV disease affects your capacity for work.  For example, in the CV cases that I have tried, my clients have complained of:

• pain (that arises from blood clots and damage to the kidneys)
• stiffness
• poor sleep
• anemia
• drowsiness from medications
• constipation and/or diarrhea from medications

As you can see, these complications arise from the disease but they are not necessarily “medical” in nature.  Nevertheless, these symptoms have significant work capacity implications.

For example, a CV patient who experiences a high level of pain would have difficulty maintaining attention and concentration at any type of job and might work at an unacceptably slow pace.

A claimant who needs multiple unscheduled bathroom breaks and who takes 10 to 15 minutes in the restroom would have a difficult time keeping his job.

When making a “functional capacity for work” argument you will want to convince the judge that despite your sincere desire to work, the symptoms arising from your condition and/or side effects from your medications leave you unable to perform reliably at even a simple, unskilled job – even one with a sit-stand option and minimal contact with the public, co-workers or supervisors.

In my practice, I use functional capacity checklist forms to solicit opinions from your treating doctors about various work functions, most of which relate to your reliability and stamina.  If your doctor will cooperate, a functional capacity form that identifies numerous reliability issues can and will result in a favorable decision – especially in cases involving a chronic, life-long medical condition like polycythemia vera.