In every Social Security Disability case, the adjudicator must determine the claimant’s residual functional capacity, otherwise known as the “RFC.” Unfortunately, disability lawyers and judges often forget the importance of nebulizer treatments when determining RFC.
The judge in an SSD case makes an RFC determination by evaluating the most a claimant can do despite their limitations. The judge is required to consider all relevant evidence, including medical records, physical and mental abilities, and a claimant’s subjective evidence of symptoms. Usually, lawyers and judges think of a person’s ability to lift, walk, and stand when determining the RFC. However, going through frequent treatments also plays a large part in a person’s ability to work.
Nebulizer treatments tend to require frequent usage and are not easily portable. One client at Ramos Law needed to use a nebulizer every 4 to 5 hours during the day, which, a vocational expert determined, would prevent him from performing any job. The judge, who decided the case before Ramos Law became involved, initially overlooked the claimant’s need for regular nebulizer treatments and denied the case. The case is now pending at the Federal Court level.
Unfortunately, the effects of therapies such as the need to use a nebulizer are often overlooked. For this reason, it is important to provide sufficient evidence to prove that the claimant’s treatments affect their RFC. In an ideal situation, a client would need records of specific medical treatment and prescriptions by a doctor, and proof that the claimant actually needs and uses the treatment. Usually the treatment must be provided by a specialist, and there must be documentation of the treatment’s continuation throughout their visits with the doctor. The treating physician should also provide a written opinion stating the need for the treatments. Insurance records could also serve as proof that the claimant purchased the prescribed treatment and that its medical necessity has been established by an independent party.
As mentioned above, cases where judges overlook the effect nebulizer treatments in the RFC determination are not uncommon. Here are a few examples of Federal District Courts cases where the courts have emphasized the importance of considering nebulizer treatments in RFC determinations:
Deso v. Astrue, 2011 U.S. Dist. LEXIS 137646 (D. Vt. 2011);
Holland v. Apfel, 1998 U.S. Dist. LEXIS 15674 (E.D. Pa. Feb. 23, 1998); (Approved and adopted in Holland v. Apfel, 1998 U.S. Dist. LEXIS 5891 (E.D. Pa. Apr. 28, 1998)); and Konoloff v. Comm'r of Soc. Sec., 2016 U.S. Dist. LEXIS 42127 (N.D. Ind. Mar. 30, 2016)
Moreover, an ALJ cannot impose in his own lay opinion of the claimant’s need, or lack thereof, for nebulizer use. This is the case even when the evidence in a case might reflect that a pulmonary condition is well controlled. See Begolke v. Astrue, 2007 U.S. Dist. LEXIS 41747, 2007 WL 5555951 (W.D. Wis. June 7, 2007)
