Shouldn't a Broken Leg That Doesn't Heal Qualify for Disability Benefits?

Question:

I applied for Social Security Disability benefits after I fractured my femur and needed to use a walker, so I wasn't able to work. Social Security denied me because they said I was likely to recover and return to "ambulation within 12 months of onset." I appealed the denial, and it's now been almost a year, and I am still unable to walk without a walker or two crutches. Do I need to wait for my hearing date to prove I'm disabled, since it's obvious I'll meet the 12-month requirement?

Answer:

Social Security denies most cases of broken bones because they're expected to heal within a year. Only fractures that cause other complications are usually granted disability benefits at the initial application stage.

However, Social Security is aware that some broken legs don't heal within a year, either due to improper healing, the bones not rejoining, or shortening of the bone.

Social Security is supposed to grant disability benefits to those with a break in their femur, tibia, or tarsal bones if, six months after the injury, your medical records show the bones have not rejoined and your doctor says that you won't be able to walk without a walker or crutches for at least a year. Unfortunately, Social Security tends not to believe that you won't be able to walk within 12 months of your original injury. (Even if you're expected to walk with a cane before the end of a year, that means you're unlikely to qualify for disability.) Your denial notice may have said something like, "Sufficient restoration of function in your leg is expected within 12 months, leaving no significant limitation of your ability to perform basic work-related functions."

Because of this, Social Security typically only grants disability to applicants with fractures when it's been over a year and the disability applicant still can't walk. This often happens at appeal hearings, which usually don't happen for a year or more after the initial application, which is why applicants with bone fractures have a high rate of winning benefits on appeal.

In your case, there are a couple of ways you can try to get approved without waiting for a hearing.

On-the-record review. Request that a Social Security judge give your case an "on-the-record" (OTR) review. When you request an OTR, you're saying the judge doesn't need to see you in person or hear your testimony because your case is so clear cut. Your medical files show that you still qualify for disability because it's been 12 months and you still can't walk.

Attorney advisor opinion. Request that a Social Security staff attorney review your case. You can ask for an attorney advisor opinion on your case if you have new evidence that makes it clear you qualify for disability – evidence that wasn't available when you applied for disability or asked for a reconsideration review. In your case, you now have solid evidence that your inability to "ambulate" would last at least 12 months, which should qualify you for benefits.

To request an OTR or attorney advisor opinion, contact your Social Security hearing office (Office of Hearings Operations ), or find a disability lawyer to help you. To learn more about these methods, see Nolo's new article on getting a faster disability decision.