Hearing Loss and Social Security
 Disability - Strategies for Winning

  Social Security recognizes that hearing loss may support a finding of disability under the law.  Social Security considers hearing loss as a “non-exertional” impairment, meaning that the problems associated with deafness do not affect your physical capacity for work, but, instead, affect the performance of work by interfering with your understanding or processing of information.

  If you have hearing loss, there are two arguments you can make to prove your disability: you can argue that your hearing loss is severe enough to meet or equal a listing, or you can argue that your hearing loss, in conjunction with one or more other impairments so reduces your capacity to perform even basic work that you could not sustain any type of employment.

The “2.08 Listing Argument”

   As a starting point in any hearing loss case, you can argue that your deafness meets the “listing” for hearing loss as defined by the Social Security Administration at Listing 2.08.  Listing 2.08 reads as follows:

2.08  Hearing Impairments (hearing not restorable by a hearing aid) manifested by:

A.  Average hearing threshold sensitivity for air conduction of 90 decibels or greater, and for bone conduction to corresponding maximal levels, in the better ear, determined by the simple average of hearing threshold levels at 500, 1000, and 2000hz. (see 2.00B1); or

B.  Speech discrimination scores of 40 percent or less in the better ear.

Note that the listing refers to hearing “not restorable by a hearing aid.”   If you cannot afford hearing aids, butr  your doctor or audiologist suggests in his notes that a hearing aid would bring some improvement, it will be difficult to meet this listing.

You will see that the listing references a very specific type of testing.  If you think that you meet Listing 2.08, I would recommend that you take a copy of the listing to your doctor or audiologist and ask that the test numbers described in the listing be referenced in any report issued in your case.

Finally, it has been my experience that judges can be reluctant to issue awards based solely on the listing, especially if you have been able to work in a non-sheltered work environment in the past.  I have tried cases where the medical record clearly shows that my client meets Listing 2.08, but the judge granted the case under the functional capacity argument discussed below.

Hearing Loss and a Residual Functional Capacity Argument

   A more common argument that I have used to win hearing loss cases relates to the loss of “functional capacity” for work often seen in the cases of individuals with severe hearing loss.  Specifically, when I use this argument, I take the position that my client’s severe hearing loss in combination with one or more other impairments has left my client without the capacity to reliably perform competitive work in the local or national economy. 

  For example, I have argued that severe hearing loss combined with adult ADHD, or combined with depression has created such an impediment to work that my client has no realistic chance to get any type of job.  This is especially true in the case of older claimants who most likely did not have access to the specialized education that hearing impaired individuals might have today.

  You can argue that hearing impairment can, on its own, eliminate entire categories of jobs because of problems you would have functioning in these categories of jobs, such as:

• jobs that require proximity to hazardous equipment
• jobs that require regular interaction with the public, co-workers, or supervisors
• jobs that require periodic or regular verbal instruction

  These limitations alone would significantly decrease the numbers of jobs out there - if you have other issues that create additional limitations the job base may very well shrink to the point where, for all practical purposes, you are not employable outside of a structured work setting.

Examples of Winning Work Limitations

    Your RFC argument will have the best chance of success if you can identify other specific work limitations that arise from non-hearing related conditions or from your medications that would prevent you from getting through a workday. 

•   your need to take frequent unscheduled breaks
   
•  you would likely miss three or more days of work per month
   
•   you would likely suffer “decompensation” at work (i.e. emotional breakdown)
   
•   you would likely have problems getting along with co-workers or supervisors
   
•   you would not be able to follow simple instructions
   
•   your concentration and attention are “severely” impaired
   
•   you experience audio or visual hallucinations
   
•   you experience feelings of paranoia or delusions

   Note that this list of work limitations is just an example -  you don’t need to show all of these work limitations to win your case.

   An RFC argument is a legal argument and many of the terms that are used by Social Security have specific legal meanings.  Examples of terms with special meaning include “marked limitation,” “substantial work,” “decompensation,” “frequent,” “often,” and “poor performance.”  Because of the legal nature of this type of argument, you are well served by retaining the services of an experienced and capable Social Security disability lawyer.

Conclusion - You Will Need Your Doctor or Audiologist’s Support

   Social Security recognizes that claimants suffering with severe hearing loss may meet the requirements for disability because of the severity of symptoms and the impact of those symptoms on the claimant’s ability to perform even basic work activities.  A treating doctor who understands the “big picture” about Social Security claims can be a big help to you in pursuing your claim.  Neurologists and other doctors who treat hearing loss are trained to encourage their patients and avoid labeling them as “disabled.”  Therefore, when you apply for disability ask your doctor to help you by using Social Security’s listing language and by identifying practical hearing loss limitations that apply to you.

Case Study #1: 24 year old male SSI claim - involving moderate to severe hearing loss and adult ADD

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