Vertigo and other vestibular dysfunction conditions can support a finding of disability under Social Security’s rules.
When considering your disability claim, Social Security will focus on how your symptoms impair your capacity to work. In other words, does your condition make it impossible for you to perform reliably at even a simple, entry-level job. Your vestibular system functions as your body’s gyroscope and helps you keep your balance, so people with problems in this area will experience:
- balance issues
- nystagmus (involuntary movement of the eyes)
Further, since vestibular diseases send conflicting signals to the brain, many patients experience cognitive problems, short term memory loss, difficulties with concentration and problems focusing. Essentially your brain will divert some of its processing power to your senses and thus will have less capacity for higher functioning..
Some vestibular problems such as benign paroxysmal positional vertigo are self limiting and will resolve spontaneously in a few weeks or months. More serious problems may become chronic and may not be curable at all, even after months or years of rehabilitation therapy. These chronic cases may qualify a patient for Social Security disability.
How Do We Present a Winning Claim?
There are three possible arguments that we can use to win your vestibular disability claim – all of which could apply:
- Meet or equal a listing
- Meet a grid rule
- Prove that your functional capacity for work would be so reduced by your symptoms that you would not be a reliable employee at even a simple, entry-level job
Meeting or Equaling a Listing
The listing that applies to vertigo and associated problems is Listing 2.07, which reads as follows:
2.07 Disturbance of labyrinthine-vestibular function (Including Ménière’s disease), characterized by a history of frequent attacks of balance disturbance, tinnitus, and progressive loss of hearing. With both A and B:
A. Disturbed function of vestibular labyrinth demonstrated by caloric or other vestibular tests; and
B. Hearing loss established by audiometry.
You can present a listing level argument by asking your treating physician (preferably a neurologist) to write a letter or complete a checklist form that tracks the elements of the listing. Judges will expect to see more than just a narrative report or form – there should be supporting documentation in the form of regular treatment reports.
Recently I was discussing this 2.07 listing with a client of mine and she pointed out that hearing loss – which is element of the listing – is not necessarily associated with vertigo or vestibular system problems. Therefore a treating physician who wants to support you with a narrative would not necessarily be able to conclude that you meet the listing if you do not have hearing loss. In such a case, the physician could conclude that you equal the listing if your capacity to concentrate was impaired to a level that equated to your lack of concentration due to hearing loss.
A grid rule argument can also support a vestibular dysfunction Social Security disability claim. The grid rules, also known as the medical-vocational guidelines, direct a judge to find a claimant disabled even if that claimant can do some level of work but there is little or no likelihood of a job being available for that claimant. Specifically the grid rules apply to claimants over the age of 50 who have a limited education (usually high school graduate or less) and a minimally skilled work background. However the grid rules can apply to claimants with college degrees whose past work did not yield transferrable skills.
The grid rules apply only apply to claimants whose limitations affect their physical capacity to perform work. Vestibular disorders can result in physical limitations because a person without a reliable sense of balance might have limitations to his capacity to lift, carry, stand, walk, crouch, climb, crawl, etc.
Functional Capacity Argument
Functional capacity arguments are the most common arguments used in Social Security disability hearings. Social Security intentionally makes the listings difficult to meet and the grid rules do not always apply, especially to younger claimants. The functional capacity theory of disability gives your judge the greatest degree of discretion to approve your case.
When making a functional capacity argument on behalf of a client, I identify specific work activity limitations that arise from my client’s vestibular dysfunction. For example, a claimant with severe vertigo would not be able to perform jobs that require even occasional use of ladders, ropes, scaffolds, or work around unprotected heights or hazardous machinery.
Further, a claimant with severe vertigo or related problems might experience episodes of nausea, or headaches arising from nystagmus.
Ideally, a long time treating doctor would complete a functional capacity evaluation form at my request that identifies limitations like these and the likely frequency that they would occur. If, for example, a treating doctor opines that my client would experience nausea two hours per day, five days per week, and that when this nausea arose, my client would need to lie down with her eyes closed, any vocational expert would testify that a two hour break twice a week or longer would be excessive for any employer.
Finally, assuming that my client has a long treatment record from a specialist the judge is more likely than not to accept my client’s testimony as credible.
Conclusions. Assuming that a claimant who has been diagnosed with vertigo or a similar vestibular dysfunction has been receiving treatment and the severity of her symptoms is well documented, judges are more likely than not to accept her testimony as credible and approve her claim. In my experience the judge will be most concerned about whether my client’s symptoms are chronic and severe enough to result in an unacceptable number of unscheduled breaks during the work day.