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Ginsberg Law Offices

Skilled Worker With Circulation and Respiratory Problems Considers Disability

Hi.  Last year I had a stint and have been on medication since.  My employer is eliminating my position (a technical, computer related job) in order to force me to retire.  I have circulation issues in my legs and breathing issues and bruise extensively .  Do I have any chance of qualifying for disability?

Jonathan Ginsberg responds:  Here is how I would analyze your situation.  Based on what you have written, I would develop two different theories of disabiltiy. Theory one would ask whether you meet a listing.  If you look at the adult listings, Listing 4.00 (Cardiovascular System) and Listing 3.00 (Respiratory System) would seem to hold the most promise.  If you look at Listing 4.00, there are sublistings for Chronic Venous Insufficiency (4.11) and Peripheral Arterial Disease (4.12).  I would discuss with your cardiologist whether or not your condition rises to listing level.

Similarly, you could look at the sublistings for respiratory problems.  My concern here is that the respiratory listings look to specific breathing tests and the resulting measurements.  My experience has been that breathing issues need to be pretty severe to meet a respiratory listing.

Theory two would be to argue that your functional capacity for work has been so reduced by your multiple medical problems that you would not be able to sustain competitive work as a result of these problems.  Generally, when arguing for disability based on functional capacity, you implicitly acknowledge that your condition does not rise to listing level severity, but you contend that the overall impact of your conditions, side effects of medications, associated fatigue and depression – all taken as a whole – leave you unable to work.

In order to win a functional capacity argument, you will need help from a treating physician who would be willing to go on record (by completing a functional capacity form) about the specific limitations arising from your condtion.

Without knowing anything about the severity of your condition or what the medical records say, I would not be in a position to evaluate your case, but assuming that you have medical support and that your job reliability and attendance would be a problem, I think you would have a reasonable agrument for disability.

One final thought – the Americans With Disabilities Act (the ADA) requires larger employers to make "reasonable accomodations" for individuals with disabilities.  Here, you imply that your employer is not willing to take these steps.    Therefore, it might be worth a call to an employment attorney to evaluate the viability of an ADA claim.