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SSA Guidance on Evaluating Cases with COVID-19

On April 16, SSA published EM-21032, which “provides policy guidance for evaluating adult disability cases that include an allegation or diagnosis of Coronavirus Disease 2019 (COVID-19).” The EM explains that SSA will establish COVID-19 as a medically determinable impairment (MDI) when evidence from an acceptable medical source (AMS) indicates:

 

  • “A report of a positive viral test for SARS-CoV-2, • A diagnostic test with findings consistent with COVID-19 (e.g., chest x-ray with lung abnormalities, etc.), or
  • A diagnosis of COVID-19 with signs consistent with COVID-19 (e.g., fever, cough, etc.).” However, the EM notes that “a positive antibody test, on its own, does not establish an MDI of COVID-19 because a positive antibody test may indicate that a person has had different Coronavirus or received a vaccination for COVID-19.” The EM also instructs not to establish COVID-19 as an MDI “when a person alleges he or she is medically at high risk for COVID-19 or if the evidence indicates a false positive viral test.” EM-21032 does not contain any special policy for assessing the severity of COVID-19; the EM just states that “existing policy” should be followed to determine whether COVID-19 is a severe impairment. In regards to the duration requirement for disability, the EM states that “[i]f a person recovers from acute COVID-19 with no residual symptoms, limitations, or restrictions, [SSA] generally would not expect COVID-19 to meet the duration requirement. Some people may have symptoms associated with COVID-19 that last for months or even longer after recovery from acute illness. In these cases, COVID-19 may meet the duration requirement when a person develops: • Long-term effects of COVID-19, • One or more new MDIs caused by COVID-19, or
  • Any existing MDI(s) have worsened because of COVID-19.” The EM clarifies that while two or more unrelated MDIs cannot be combined to meet the duration requirement, “if COVID-19 causes a new MDI(s) or worsens an existing MDI(s), [SSA] consider[s] these MDIs related.”

 

The EM also contains information about projecting the severity of COVID-19 “if it is unclear whether or when the MDI(s) will resolve” and about cases requiring medical deferment “to determine whether COVID-19, or a new or worsening MDI(s) resulting from COVID-19, meets the 12-month duration requirement.” EM-21032 explains that “COVID-19 is a new disease and the trajectory of improvement or worsening may be difficult to predict in some cases. If the medical evidence indicates a person is in hospice or palliative care with no possibility of recovery, [SSA] may be able to make a favorable determination without medical deferral.” EM-21032 also states that while most cases involving COVID-19 do not result in death, “in some cases, a person may die within in a short period after contracting the COVID-19 infection.” Therefore, the EM reiterates that “[SSA] may establish disability for a person who has an incapacitating MDI that results in death before it has lasted 12 months (DI 23510.001B). For COVID-19 resulting in death, follow existing policy for processing death cases (DI 23510.000).” For evaluating symptoms of COVID-19, the EM states that “COVID-19 symptoms may range from no symptoms to severe illness. In cases when longterm symptoms develop, those symptoms may include, but are not limited to, fatigue, shortness of breath, joint pain, and difficulty thinking and concentrating.” The EM then instructs to “follow existing policy for evaluating symptoms related to COVID-19, or any new or worsening MDI as a result of COVID-19 (DI 24501.021)” and notes that “issues related to the COVID-19 pandemic, including, but not limited to, evictions, medical facility closures, quarantines, job loss, and insurance loss, may affect a person’s ability to seek treatment to minimize symptoms. 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 (DI 24501.021C).”

 

For evaluating COVID-19 at step three, EM-21032 explains that “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.” When making the RFC assessment, 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 in the RFC. When assessing the RFC, evaluate both stamina and endurance based on individual case facts (DI 24510.005C.2). In the situation when the person’s MDI(s) does not meet or equal a listing, but evidence clearly indicates he or she is unable to sustain any work related activities for a continuous period, consider an RFC for complete inability to do sustained work-related activity (DI 24510.057B.2.b).” The EM notes that SSA does “not include in the RFC any prophylactic limitations or restrictions intended to limit possible exposure to COVID-19 or any other infectious disease (e.g., face covering, telework, etc.). For example, a recommendation that a person must telework due to high medical risk for COVID-19 is not a functional limitation resulting from an MDI or impairment-related symptom (DI 24510.001A.1).” EM-21032 explains that existing policy should be followed for determining the established onset date (EOD) and notes that the EOD may need to be inferred “when medical evidence from the acute COVID-19 infection is not available.” EM-21032 also explains that since COVID-19 is a new disease, “the trajectory of improvement may be difficult to predict in some cases,” and notes that existing policy should be followed when scheduling diaries for continuing disability reviews.