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SSA Issues EM on Cases Involving COVID-19

Michelle Michelle April 30, 2021

On April 16, 2021, the Social Security Administration (SSA) issued Emergency Message (EM) 21032, Evaluating Cases with Coronavirus Disease 2019 (COVID-19), providing guidance regarding the adjudication of claims involving an allegation or diagnosis of COVID-19. While there are no changes made under this EM, the guidance outlines a number of existing rules and policies that may come in to play with this new category of claims.  Effective December 16, 2020, SSA has been flagging cases where there is an allegation of COVID-19 as a medical condition.  See EM 20060.

 

There are a few aspects of the EM-21032 that could prove useful.  First, the EM clarifies that a diagnostic test with a positive result for the virus is not required.  A medically determinable impairment can be established by a positive test but also by a diagnosis “with signs consistent with COVID-19 (e.g., fever, cough, etc.)”  This is important given the unreliability and unavailability of testing, particularly at the start of the pandemic.  It also reminds adjudicators of the policies allowing for onset date to be inferred when medical evidence is not available. Id., citing to POMS DI 25501.450.

 

Also helpful is the EM’s discussion of the durational requirement.  It notes that the long-term effects of COVID-19, a new impairment caused by COVID-19, or any pre-existing impairment that worsened due to COVID-19 should be considered related to the period of acute COVID-19 infection for purposes of determining the durational period.  As an example, it warns of the rehabilitation period that could be necessary following a period of ventilator therapy.

 

Rather than an exhaustive list of symptoms, SSA cites to the CDC’s current guidance regarding long-term effects for the latest information and acknowledges that the medical community is still learning about the disease.  The EM recognizes the uncertain and evolving nature of the disease and its long-term effects. “While COVID-19 is primarily a respiratory disease, emerging data suggests that it may also lead to cardiovascular, renal, dermatologic, neurological, psychiatric, or other complications.”

 

The EM does recognize some specific symptoms commonly occurring among so-called “long-haulers”: fatigue, shortness of breath, joint pain, and difficulty thinking and concentrating.  Yet, a major concern among advocates is that subjective symptomology such as these are routinely discounted by adjudicators.  A recent article about these claims discussed this issue and asked whether an influx of COVID-19 claims may result in policy reform.  SSA’s current regulations and policies – most especially its demotion of treating physician evidence and emphasis on objective evidence – represent serious obstacles to changing how SSA evaluates cases involving subjective symptoms.

 

These challenges are compounded by lack of treatment and medical records to document the full extent of a claimant’s limitations.  This is especially so for low-income and Black and brown claimants, whose claims are often hindered by the lack of access to treatment and other disadvantages related to poverty and racial inequality.

 

EM-21032 does make some mention of lack of treatment in the context of COVID-19. Citing to POMS DI 24501.021C, the EM instructs adjudicators to consider:

 

[i]ssues 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.

 

Adjudicators are also encouraged to look at equivalence if particular evidence is not available to satisfy a listing.  As there is no specific listing for COVID-19, claims should be reviewed for medical equivalence to existing listings.  “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.”

 

SSA has stated that the EM was developed based on information from various resources including the CDC, the National Institutes of Health, and SSA’s National Disability Forum outreach events held on September 22, 2020, November 18, 2020, and April 15, 2021.

EM-21032 has a retention date of October 16, 2021.  SSA may still issue an SSR on the topic but SSR development and issuance is a relatively long process and SSRs are not as easy to revisit as an EM.  With information about both the science and claims still changing, it is likely that we will see this EM renewed and updated prior to the potential issuance of an SSR.