What is the Compassionate Allowance Rule?

Is having cancer an automatically disabling condition for Social Security Disability?

Our answer is simple but it requires a lengthy explanation.  The answer is No – Cancer is not an automatic disabling condition.  But let me explain.

The problem with this question is that we have learned that cancer is not a simple disease.  There are lots of different cancers.  Cancers have different causes; they are all treated differently.

There are only a very few diseases that the government has deemed to be so disabling that the mere diagnosis is enough to win.  Lou Gehrig’s disease (ALS) is the most common one.  But that is a very, very small category.  If you have ALS and you’re not working, you are disabled as soon as you get a note from your doctor saying you have it and attaching records showing this.  There is no case easier than this and frankly no disease worse than this that I can imagine.  But ALS is a rare exception to the rule that there are no automatic disabilities. 

The Compassionate Allowance Program

Quite a few years ago to great publicity, the then Commissioner announced a program called “Compassionate Allowances.”  The Compassionate Allowance rule was to be that for certain rare disorders, you simply submit the diagnosis along with the records proving you have this condition and you will have a favorable decision within a few weeks.  They created a whole list of compassionate allowances, mostly very rare, esoteric types of cancer.  I have had dozens of people with conditions that qualify for the Compassionate Allowance.  Even though I write to the government and explain the disease falls under Compassionate Allowance, explaining my client has it and the application should be granted right away, it almost never happens.

A colleague of mine is very ill and wrote his own application citing the Compassionate Allowance and even attached a copy of where it was listed in the Federal Register.  He waited 8 months before the government decided his disability case.

He eventually got his disability without any difficulty at the initial stage but not any quicker than a routine case.   The Compassionate Allowance announced with so much fanfare simply does not function as far as I can see.  We’re often raising it in letters at the hearing level to note to the judge at the hearing that the client should have been granted at the initial stage months and months ago and that the ALJ should now expedite the case.  So the fact that they say they have such a policy doesn’t mean they’ve trained their staff as to what to do with these cases.  But again, the compassionate allowances are by their very nature very unusual types of cancers and it is unlikely that the people looking at the file understand the specific criteria.  These rare disabilities are complicated medically.

So there is no list for disabilities that if you have it, you automatically must be found disabled.  The government does create a list of what they call per se disabling conditions.  Lawyers call this conditions “Listed Impairments”.  There are a lot of Listed Impairments but it is never simply a diagnosis and you are disabled.  The diagnosis alone is never enough. 

The conditions – the diagnosis – or a per se disability is fairly common.  For example, if you have a herniated disc you might have a Listed Impairment  but in addition to a MRI showing the herniation, you must prove quite a few other things as well.  There must be a  finding of neurologic deficits down to particular dermatomes corresponding to the MRI herniation. You must have nerve loss, a limited  range of motion and appropriate muscle weakness.  This is a lot harder to show than merely showing a herniation.  All these findings  must be in the medical records and that makes those cases difficult.  Having a herniated disc is simply not enough.  In fact, there are many people that have herniated discs who don’t even know it.  Having a condition that sounds severe such as a herniated disc or a heart attack is not enough.  And many common cancers like prostate and breast cancer, while potentially life threatening, are not automatic disabilities. 

What wins a Disability case is your doctor explaining why your disease or condition is disabling which is why having a treating doctor is so important.  Your doctor must tell us why you can’t work a full-time job.  There are people who have breast cancer who undergo what is now fairly routine treatment and do fine.  There are people who have the exact same condition who don’t do so well.  There are men with prostate cancers who have radiation or surgery and go on with their lives while other men who because of the residuals from the disease or treatment can never work again on a regular, full-time basis.  So it is not the diagnosis but the extent of the disease or treatments that make you disabled.  A herniated disc even after surgery can be so painful that you cannot work.  On the other hand, some athletes have surgery and go back to playing football.  It all depends on how it affects you.  It is not the diagnosis that makes you disabled but how your condition affects you and your ability to work that makes you disabled.

As always, the most important person to discuss this with is your doctor.  If the doctor thinks the residuals are very severe, then we will be glad to represent you.  On the other hand if the doctor is indifferent, uncooperative or thinks that your symptoms shouldn’t be so bad, then you have a more difficult case.  Getting the best doctor who knows your condition is always the key to a Disability case.  Getting the best person to represent you helps too!

The Right Representation Matters

If you have a disability and the prognosis is that your disability is expected to last a year or more (or one that has lasted that long) and your doctor says you cannot work anymore, you may be able to apply for Social Security Disability benefits. And Binder & Binder® can help. Our advocates represent tens of thousands of people each year throughout the United States, Puerto Rico, the Virgin Islands and all U.S. territories. The people we help are affected by many different types of accidents, injuries and pain that prevent them from working. If you’re suffering from a disabling condition, contact us to talk about getting the benefits you need.