Make Sure You Take The Right Steps To Win Your Claim For Asthma Disability Benefits
Dont make the common mistakes that could cost you the LTD benefits you deserve. Youre more likely to get your claim approved when youre represented by an experienced, accredited LTD disability attorney. Marc Whitehead & Associates have been helping disabled workers and veterans all over the US obtain the LTD benefits they are qualified for, even after their claims had been denied. Contact us online or call to request a free consultation with one of our disability benefits lawyers. We will fully review the legal, medical and vocational issues of your case, as well as your ability to survive in the workplace. If your claim was denied, we can determine why and help you submit a winning appeal.
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Can I Appeal The Va’s Decision
The VA is often not correct in its decision. Our team of highly experienced VA benefits attorneys can help you review your VA rating and appeal the VAs decision so that you can receive the benefits you deserve. We can help you create a request for the VA to review their decision by presenting statements, testimony, and other evidence. This can also include receiving an Independent Medical Examination which is similar to the C& P exam but conducted by a private doctor. The IME will also generally include a medical nexus opinion if the examiner can link the condition to your military service.
The IME can give you further evidence to present to the VA. The IME doctor can also provide additional evidence supporting your worsening asthma. You may also want to explore the potential for non-medical, or lay evidence, such as buddy letters or statements from fellow servicemembers who were either eyewitnesses to an in-service event which caused your asthma. Fellow servicemembers may also be able to testify that they witnessed your asthma getting worse throughout your time in the military.
Can An Employer Require Medical Examinations Or Ask Questions About A Disability
If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability. An employer can ask if you can perform the duties of the job with or without reasonable accommodation. An employer can also ask you to describe or to demonstrate how, with or without reasonable accommodation, you will perform the duties of the job.
An employer cannot require you to take a medical examination before you are offered a job. Following a job offer, an employer can condition the offer on your passing a required medical examination, but only if all entering employees for that job category have to take the examination. However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employerâs business. The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.
The results of all medical examinations must be kept confidential, and maintained in separate medical files.
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What Should Be In Your Medical Record
Your medical records should contain documentation of each of your asthma attacks that required hospitalization or emergency treatment, including spirometry test results and the results of arterial blood gas studies while you are in the hospital. The record of each episode should also include what treatment was administered, and for how long, and how well you responded to the treatment. Your doctor should also give you spirometric tests when you are not having an attack to record whether there is baseline airflow obstruction .
In addition, your medical records must show that you have been complying with the at-home treatment ordered by your doctor .
The SSA will want medical records documenting your asthma attacks for at least one year, or the agency will wait until you have been evaluated for one year before issuing a disability decision.
Medical Conditions That Qualify For Disability Benefits
You may be wondering what are the medical conditions that qualify for disability? And is my diagnosis on that list? We give a list of medical conditions below, but as you will learn, any medical condition can potentially qualify for disability benefits. The focus is always on the extent of the disability caused by your medical condition. And whether the extent of your disability meets the requirements for various disability benefits plans and programs. This article lists common disabling conditions. I then review the eligibility criteria for the most common disability benefits. So, you can know if your medical condition can qualify for benefits.
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Is Asthma Legally Considered To Be A Disability In The United States
Asthma is one of the most common health conditions in the United States, impacting the lives of around 25 million people.
Asthma is a respiratory condition with no cure, and its symptoms can dramatically affect someones daily life. If you struggle with the symptoms of this chronic condition, you may wonder whether asthma is considered a disability in the United States.
How To Ask For Accommodations
If you have allergies or asthma and want to feel more comfortable in your environment, you can talk to a manager, school administrator, employer, or other person in charge. Theyâll help you figure out the best way to get reasonable changes or services.
There are many resources you can use to get advice or ideas on how to ask for accommodations. The U.S. Department of Justice has a hotline that you can call and ask questions. That phone number is 800-514-0301. You can visit www.ada.gov for more information.
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Do People With Disabilities And Their Safety Assistants Need Special Safety Briefings From Air Carrier Personnel
Air carriers must conduct an individual safety briefing for each person, and that persons attendant, who may need the assistance of another person to move quickly to an exit in the event of an emergency. Air carriers may offer an individual briefing to any other passenger, but must not require an individual to have such a briefing, unless they meet the requirement of the previous sentence. Individual safety briefings should be done as inconspicuously and discreetly as possible. The air carrier cannot require a passenger with a disability to demonstrate that s/he has listened to, read, or understood the information presented.
Description Of The Condition
Asthma is an illness in which there is a narrowing of the airways or bronchial tubes to the lungs resulting in breathing difficulties . Most experts agree that asthma is characterized by airways obstruction , inflammation, and hyper-responsiveness to a variety of stimuli .
The Lung Association. Facts About Your Lungs.
U.S. Public Health Service. Definition & Diagnosis. In: Guidelines for the Diagnosis & Management of Asthma. Expert Panel Report. Natl. Asthma Educ. Pgm. Bethesda, MD: National Heart, Lung & Blood Institute, National Institutes of Health Publication No. 91-3042A, 1991, pp.1-13.
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Inability To Work Due To Asthma
Most long term disability insurance policies define disability as a medical condition that prevents you from performing the duties of your occupation. Getting approved for long term disability due to your asthma will require explaining to your insurance company the specific ways that your asthma symptoms prevent you from working.
For example, poorly controlled asthma may result in frequent and unexpected sick days forcing you to miss an important meeting or causing you to fall behind on your work. Your coughing and constant shortness of breath may keep you up most of the night, resulting in severe fatigue and an inability to concentrate the following day. Or, a stress-induced coughing or wheezing episode may frequently come on at very inopportune times such as in the middle of a presentation or during a telephone call with a new client.
If your asthma symptoms are induced by physical exertion, traveling to meetings while carrying your heavy briefcase may cause shortness of breath, coughing, wheezing, and chest pains. If you make it to your meeting after experiencing these symptoms, you may not be in the right frame of mind to successfully conduct your business.
The Impact Of Asthma On Daily Life
Asthma is often under-diagnosed and under-treated, particularly in low- and middle-income countries.
People with under-treated asthma can suffer sleep disturbance, tiredness during the day, and poor concentration. Asthma sufferers and their families may miss school and work, with financial impact on the family and wider community. If symptoms are severe, people with asthma may need to receive emergency health care and they may be admitted to hospital for treatment and monitoring. In the most severe cases, asthma can lead to death.
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What Is The Medical Vocational Allowance For Asthma
The Medical Vocational Allowance exception makes it easier for people who cant work because of their medical condition but who dont meet the listing requirements in the Blue Book to get disability benefits.
To qualify under this exception, file a claim for disability benefits and check the box that asks for a Residual Functional Capacity evaluation. The Social Security Administration will perform the Residual Functional Capacity evaluation. They will examine your skills and your medical condition to see what type of full-time work you can do.
If the SSA determines there is no full-time work you can do, then you can qualify for disability benefits.
Physical Or Mental Impairments
To be disabled under the ADA, you must have a physical or mental impairment. Not everything that keeps you from doing activities is an impairment. But, the ADA uses a broad definition.
A physical impairment is any medical disorder, condition, or loss that affects the body. These can be:
A mental impairment is any mental or cognitive disorder. This includes:
- Intellectual disability,
What qualifies for the ADA?
Physical or mental impairments covered by the ADA include:
- AIDS, and its symptoms
- Bisexuality or homosexuality
Does drug addiction qualify?
Casual drug use is not an impairment. This applies to unlawful drugs and to prescription drug use. There are few situations where drug addiction qualifies under the ADA. One is if someone has a history of addiction or is thought to be addicted to drugs.The addiction could qualify as an impairment. It is not an impairment if someone has a history of addiction and is now using illegal drugs.
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Residual Functional Capacity Assessment For Asthma
What Is RFC?
If your asthma is not severe enough to meet or equal a listing at Step 3 of the Sequential Evaluation Process, the Social Security Administration will need to determine your residual functional capacity to decide whether you are disabled at Step 4 and Step 5 of the Sequential Evaluation Process. RFC is a claimantâs ability to perform work-related activities. In other words, it is what you can still do despite your limitations. An RFC for physical impairments is expressed in terms of whether the Social Security Administration believes you can do heavy, medium, light, or sedentary work in spite of your impairments. The lower your RFC, the less the Social Security Administration believes you can do.
The Social Security Administration should carefully assess your RFC assessment because the severity of asthma may fluctuate depending on how effective treatment has been. Consequently, your RFC should not be based as strongly on the results spirometric testing as it is for other types of chronic obstructive pulmonary disease . See Meeting Social Security Administration Listing 3.03A for Asthma for more on spirometry.
Your own reports of your symptoms can be especially important. See how Keeping a Symptom Diary and Record of PEF Can Help You Win Social Security Disability Benefits.
Asthma Triggers in the Workplace
Here is a list of typical allergens and the type of work that would typically expose a person to them.
What Is Severe Asthma
Asthma is a chronic disease that affects your breathing. During an asthma attack, your airways narrow and produce excessive mucous, leading to the typical symptoms of coughing, wheezing, and shortness of breath. Many people with asthma use a quick-acting rescue inhaler to help open up the airways when symptoms arise, as well as long-acting medications like inhaled steroids to decrease inflammation and prevent future attacks.
About 5% of asthmatics have what is known as severe asthma. In some cases, severe asthma remains uncontrolled no matter what type of treatment is attempted. Other cases of severe asthma require high doses of inhaled steroids or oral steroids, along with other long-acting medications, to control it. People with severe asthma may still suffer from asthma attacks even when they are doing everything right. They may find themselves frequently in the emergency room or hospitalized due to the severity of their attacks.
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How Can You Medically Qualify For Asthma Disability Benefits
Asthma can make it impossible to work, especially if you work in an industry where there are often pollutants in the air.
The Social Security Administrations Blue Book contains a list of the conditions that qualify for disability benefits. It has a listing for asthma. To meet the requirements you must have a diagnosis of asthma and it must be severe enough to require intensive treatments and make it impossible for you to work. The SSA considers intensive treatments to be:
- intravenous bronchodilator
- antibiotic administration
- prolonged bronchodilator therapy in a hospital, emergency room or similar setting
If you dont meet the requirement for intensive treatment or if your asthma flares arent prolonged or daily, you can still qualify for Social Security disability benefits under Medical Vocational Allowance.
Social Security’s Listing For Childhood Asthma
Social Security’s childhood listing for asthma requires that your child has had three “exacerbations” or complications requiring hospitalization in the previous one-year period. The hospitalizations must have lasted at least 48 hours each and must have occurred at least 30 days apart.
For claims that were filed before October 7, 2016, the old listing applies. It required that a child have asthma attacks that were serious enough to require medical attention at least once every two months, or six times a year, despite taking asthma medications. The old listing also included other ways your child could qualify under the listing. For instance, your child could qualify if, due to asthma, he or she had abnormal growth relative to other children of the same age. Also, a child could qualify using results from a spirometer, if the child had the same level of forced expiatory volume as required to get disability for childhood COPD. The new asthma listing does not discuss forced expiatory volume, but a child can still qualify under the COPD listing for chronic asthmatic bronchitis if he or she has a low FEV1.
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How Does The Social Security Administration Decide If I Qualify For Disability Benefits For Asthma
If you have asthma, Social Security disability benefits may be available. To determine whether you are disabled by asthma, the Social Security Administration first considers whether your asthma is severe enough to meet or equal a listing at Step 3 of the Sequential Evaluation Process. See Winning Social Security Disability Benefits for Asthma by Meeting a Listing. If you meet or equal a listing because of asthma, you are considered disabled. In this case, if you are wondering is asthma considered a disability, then the answer would be yes. However, if your asthma is not severe enough to equal or meet a listing, Social Security Administration must assess your residual functional capacity , to determine whether you qualify for benefits at Step 4 and Step 5 of the Sequential Evaluation Process. See Residual Functional Capacity Assessment for Asthma.
How Does The Ada Work
The ADA helps people with asthma and allergies create safer, healthier environments where they work, shop and eat. It also helps people who attend public schools and non-religious private schools, even if those schools do not receive federal funding. For example, a private preschool may have to allow a child to use a quick-relief asthma inhaler during the day. Or, a company cannot refuse to hire a qualified person with food allergies because they may have to make the lunchroom allergy friendly.
In most cases, everyone works together to improve conditions and promote equal access and include those with disabilities. This is called an accommodation. Accommodations are made on an individual basis because the needs of each person vary depending upon the situation.
Examples of accommodations could include:
- Reorganizing work spaces to reduce odors
- Restricting the use of allergens in classrooms
- Removing old carpet
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Evolving Legal Definition Of Disability
Human rights law is constantly developing, and certain conditions, characteristics or experiences that are disputed as disabilities today may come to be commonly accepted as such due to changes in the law reflecting medical, social or ideological advancements.
Conditions that were questioned in the past have now been accepted as disabilities within the meaning of the Code. For example, when the OHRC published its 2001 Disability Policy, environmental sensitivities were just beginning to be recognized as a human rights issue. In Ontario, the HRTO has held in at least one case that environmental sensitivities can be a disability within the meaning of the Code.
Example: A woman with multiple chemical sensitivities who was living in a multi-unit apartment building was made ill by exposure to fumes given off by chemicals used in paints and varnishes at the building. As a result, she was prevented from accessing areas where the fumes were present, including her own bedroom. Presenting medical documentation from her doctor, the woman asked her housing provider to accommodate her by using less toxic materials and by granting her a temporary unit transfer, but it refused to do so. The HRTO confirmed that multiple chemical sensitivities are a disability under the Code, and found that the housing provider violated the Code by failing to provide accommodation.
Subsection 10 of the Code, supra note 7.
From the Preamble to the CRPD, supra note 6 at p. 3.
Mercier, supra note 17.