Diabetes Related Amputations and SSA Disability

Many Americans suffer from diabetes. Since 1970, there has been a decrease in age-standardized death rates in 4 (stroke, heart disease, cancer and accidents) of the 6 leading causes of death in the United States. Diabetes is the sixth leading cause of death in this country, and death rates for diabetes have, by contrast, increased by 45% since 1987.

Despite the growing prevalence of diabetes among the U.S. population and increase in death rates related to this condition, SSA disability awards for diabetes have not substantially increased over the past ten years. Only 2.9% of all disability beneficiaries were awarded for endocrine disorders in 2000. The total for 2008 was only slightly higher at 3.03%.

Bad Listing Changes

One possible reason for the dearth of awards may be the changes to the listing for diabetes at 9.08 in 2001. At that time SSA eliminated the criteria for amputations at 9.08C which read:

Amputation at, or above, the tarsal region due to diabetic necrosis or peripheral arterial disease.

The Agency justified the elimination of this criteria with the following explanation:

Since we last published these listings, significant refinements in surgical techniques (e.g., development of improved soft tissue flaps) to cover the bone stump have been made. This has resulted in more durable stumps. Engineering advances have produced prosthetic devices which minimize and distribute stress so that some individuals wearing artificial limbs after amputation above the tarsal level for any reason (including diabetes mellitus, and vascular and arterial disease) are able to work.

Prosthetics for Diabetes Related LEA

Since the publication of the new listing criteria for amputations, the incidents of diabetes related lower extremity amputations (LEA) has risen considerably. However, it is doubtful that diabetics have benefitted from the engineering advances referenced above. LEA resulting from diabetes is generally associated with diabetic neuropathy or poor circulation in the feet and legs. Both of these conditions would logically complicate the ability to use a prosthetic device, which requires adequate healing and nerve restoration.

In fact, not only are diabetics less likely to heal well enough to use a prosthetic, they are also more likely to endure more amputations. In a study published well before the listing changes, from 9 to 20 percent of people with diabetes, who had already experienced an amputation, underwent a second amputation within 12 months of the first surgery. Five years after the first surgery, 28 to 51 percent of diabetic amputees had undergone a second amputation. Similar data were confirmed more recently in studies in Texas.

Lack of Access to Preventative Medical Care

One clear factor associated with LEA complications in diabetics is access to health care. This was noted by researchers in 1989. Despite evidence that preventive foot-care programs can decrease the incidence of lower-extremity ulcers and amputations by 44 to 85% percent, there are still many people with diabetes, young and old, who have no access to preventive services for routine foot care or diabetes management.

In my own practice I have seen quite a few diabetics who under-go amputations and who are never fitted for prosthetic devices. When I query my clients, they often say that their providers have not even discussed artificial limbs as a treatment option. While these clients testify to this reality, most ALJs will not consider that the claimant either meets or equals the listing for an amputation. One reason is the actual language in the new listing.

One or both lower extremities at or above the tarsal region, with stump complications resulting in medical inability to use a prosthetic device to ambulate effectively, as defined in 1.00B2b, which have lasted or are expected to last for at least 12 months.

Claimants May Still Be Found Disabled

The new regulation requires that an examiner evaluate “the condition of the stump” without the prosthesis when there is an allegation of a medical inability to use a prosthetic device.

It seems that even though a claimant may not meet the listing if they have some other reason why they cannot use a prosthesis, they can still be found disabled if they establish an inability to pay for a prosthetic device. Most ALJ’s won’t accept this concept but the regulation states:

It is unnecessary to evaluate an individual’s ability to walk without the device. This is because we recognize that individuals with the type of lower extremity amputation described in final listing 1.05B, will have an inability to ambulate effectively, as defined in 1.00B2b, when they are not using prosthesis. This would be true whether they do not use prosthesis because they cannot afford one, because prosthesis has not been prescribed for them, or for other reasons.

Although the regulations do not include issues of cost and availability of treatment, SSR 82-59 does include an individual’s inability to afford treatment and/or accessibility in the local community as a justifiable cause for failing to follow treatment and therefore would not preclude a finding of disability.

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