Disability for Breast Cancer

According to the Centers for Disease Control and Prevention, cancer is the No. 2 cause of death in Americans, second only to heart disease. Even when diagnosed early and attacked with the latest treatments, cancer still has the power to kill. Unfortunately, many survivors are unable to recover fully from the disease, and have difficulty completing the very tasks that they so ably performed before being afflicted with the disease.

I represent a 59 year old property manager, which is a job that requires standing and walking most of the day, and lifting up to 20 pounds. The claimant has breast cancer; a MUGA scan revealed malignant neoplasm. Her application for Social Security Disability (“SSD”) benefits was approved by an administrative law judge (“ALJ”) on-the-record. Consequently, the claimant did not need to appear for a hearing. 

The claimant submitted a report from her internist that provided a less than sedentary residual functional capacity (“RFC”). Even if the claimant had a sedentary RFC, the medical-vocational rules would require finding the claimant disabled. Nonetheless, the ALJ approved the claimant's OTR on the grounds that her cancer qualified as a compassionate allowance. 

The MUGA scan was significant because the courts have held that the opinion of a treating physician is entitled to controlling weight where that opinion is based upon electrodiagnostic testing. In addition to the MUGA scan, an ultrasound revealed suspicious abnormalities, and then a biopsy revealed infiltrating ductal carcinoma.