Social Security Disability and Vestibular Disorders

By Joshua W. Potter
(Potter, Cohen, & Samulon, Attorneys at Law, Pasadena, Calif.)

Social Security provides two basic programs for people who are unable to work because of disability. One program is known as Title II. It is based upon FICA (Federal Insurance Contribution Act) contributions from work. (These contributions are commonly referred to as Social Security taxes or Social Security withholding.) The other program, Title XVI, which is poverty-based, is known as S.S.I. (Supplemental Security Income). The test for disability is the same in either program: "the inability to perform any substantial gainful activity because of a medically determinable condition."

The Title II program provides disability benefits for people who have worked, who have contributed to the fund through FICA deductions from their paychecks, and who are unable to perform their past work or any other work within the national economy. The Title XVI program, S.S.I., is designed as a safety net for people who have insufficient earnings to qualify for the Title II program.

The Social Security program provides for the orderly processing and resolution of claims. The Commissioner of Social Security invites applications for disability benefits. If you file a claim, it may be accepted initially, or it may be rejected. You may appeal a claim that is initially rejected, but you must do so within 65 days of the date on the rejection notice. If you fail to appeal within this time but still want to continue your claim, you must start the process anew.

If your initial claim is rejected, the first appeal you can file is called a Request for Reconsideration, by which you invite the Government to have a second look at the earlier determination. Often these "second looks" do not result in a change of opinion. If the Government does not change its opinion and you wish to continue your claim, within 65 days of this second rejection notice, you must request a hearing before an Administrative Law Judge. The judge, while part of the same agency, is charged with taking a more detailed and independent look at the claim.

Processing times for each of the three steps (initial claim, appeal, request for a hearing before a judge) outlined above vary from region to region within the U.S. It is not uncommon for the entire process to take more than l 2 months.

Initial reviews are a mysterious process during which it may appear that highly relevant medical evidence is dismissed while results of less thorough medical examinations are taken as the best possible medical evidence. Some claimants have complained that whole categories of medical evidence have been overlooked and that the denial notices seem to make little sense. Claimants usually receive the most impartial and thorough review of their claims during the third step, the hearing before an Administrative Law Judge.

It is important to remember that not everyone who approaches the disability process meets the strict criteria established by the Commissioner of Social Security, the courts, and internal Social Security Administration regulations. The initial application and the Request for Reconsideration involve a winnowing process by which the Government encourages people to return to work. The administrative hearing is no less rigorous. The whole process requires tenacity and methodical organization.

Specific rules govern the process for some of the vestibular disorders. Appendix I, Rule 2.00(B)(2), of the regulations says: "2. Vertigo associated with disturbances of labyrinthine-vestibular function, including Meniere's disease: These disturbances of balance are characterized by an hallucination of motion or loss of position sense and a sensation of dizziness which may be constant or may occur in paroxysmal attacks. Nausea, vomiting, ataxia, and incapacitation are frequently observed, particularly during the acute attack. It is important to differentiate the report of rotary vertigo from that of 'dizziness' that is described as lightheadedness, unsteadiness, confusion, or syncope.

"Meniere's disease is characterized by paroxysmal attacks of vertigo, tinnitus, and fluctuating hearing loss. Remissions are unpredictable and irregular, but may be long lasting; hence, the severity of impairment is best determined after prolonged observation and serial reexamination."

Someone whose medical records and testimony closely match those criteria may do better than someone else with a vague match and may eventually be granted disability benefits.

At the hearing level, the Judge will consider the rule making that exists within the Code of Federal Regulation and within the Social Security Rulings (S.S.R.s). At the hearing level, the Judge may also consider the impact of vestibular dysfunction on someone's capacity and ability to perform past work or alternate work. Thus, the complexity of the process is dramatically increased at the hearing level.

It is profoundly important to be organized and to be a master of the medical record when presenting a claim before an Administrative Law Judge. Social Security will allow family members, friends, representatives, or attorneys to represent claimants. The playing field is as level as the skill level of the representative.

Many attorneys agree to undertake representation on a contingent basis for 25 percent of the back benefits yet no more than $4,000. The contingent nature of this agreement means that the attorney undertakes the risk of not being paid if disability cannot be established.

If you file a claim that is unsuccessful at the first three levels, you may still appeal to the Appeals Council within 65 days of rejection of your claim by the Administrative Law Judge. However, the Appeals Council is generally not swift to act and issues extremely brief decisions that usually uphold the decision of the Administrative Law Judge.

It is possible to appeal your claim further to the United States District Court, which follows the Code of Federal Regulations and case law in reaching a decision. If you are unsuccessful at this level, it is possible to proceed to the United States Court of Appeal, which takes a narrow look at questions of law. The court of final recourse is, of course, the U.S. Supreme Court, which confers no automatic review but may, on rare occasion, agree to hear issues arising out of Social Security claims.

You can find attorneys through local lawyers' referral panels or law societies or through the National Organization of Social Security Claimants' Representatives, (800) 431-2804.