Claimant: 24 year old male
Past work: fast food worker, laborer
Education: 11th grade
Hearing Info: this was an SSI only case.
My client applied for benefits in December, 2006. As this was an SSI only case, the application date serves as the date of onset. My client had been incarcerated at a facility for handicapped inmates from 2002 through November, 2006, and he applied for benefits upon being released.
My client has been deaf since birth. Audiology records from childhood as well as more recently show that he has significant hearing loss in tones associated with human speech.
In addition to his hearing loss, the medical record and educational records show that my client has had learning disabilities that seem to be associated with Attention Deficit Hyperactivity Disorder and possible bi-polar disorder.
Hearing Strategy: The listing for hearing loss may be found at 2.08 and it sets out clearly the extent of hearing loss that one must have to be considered disabled. Specifically a claimant can meet the listing if his speech discrimination is less than 40% in the better ear. In my client’s case, a recent audiology report states that his speech discrimination is 20% in the right ear and 28% in the left ear. Thus, I felt that we had a listing level case.
As noted in the Hearing Loss (Deafness) case strategy summary published on this website, however, it has been my experience that Social Security ALJs usually want to see more than documented hearing loss. I suspect that many of the judges believe that even a totally deaf person with no other limitations could perform some sort of repetitive work job, despite what the listing says.
Rather than fight that battle, I wanted to be prepared to show the judge that my client had other issues than his hearing loss.
Hearing Report: Our case was scheduled for 1pm, but the cases before us were running late and we did not get called into the hearing office until 2:30pm. A big reason for this delay has to do with issues that Social Security is having with its “fax into evidence” system. Under this system, attorneys are given a sheet of paper with a bar code that will serve as the cover sheet for records submitted by fax. In theory, these records will automatically or semi-automatically be associated with a file based on the bar code reference, and will save the human staff at the hearing office from having to process the paper.
In reality, this new evidence submission system has many glitches, the main one being that there are not enough fax machines to handle the task. Here, we attempted to submit close to 100 pages of evidence by fax, but we were never able to get through. It would appear that Social Security needs more fax receiving stations or perhaps the ability to buffer fax transmissions to free up the lines. In any case, I ended up hand delivering my 100 page proffer of evidence (along with proof of our multiple unsuccessful fax attempts) and I was most likely not the first lawyer to do this.
When we entered the hearing room, therefore, the judge (who I like and was well known to me) was prepared to move quickly. He opened by stating that “I suspect I know what you are going to argue today – that your client has a substantial hearing loss complicated by emotional and mental health problems.” When I acknowledge that this was indeed what I planned to argue the judge replied that he was prepared to accept this argument and “expedite the proceedings” but that he needed a bit more information about the claimant’s mental health issues.
The judge then swore the witnesses, including a vocational witness, the claimant and the claimant’s surrogate mother, and he began asking questions about the claimant’s mental health issues and difficulties he has had with his past work. As my client could not hear, his surrogate mother answered most of the questions.
I asked only a few followup questions including one where I brought out that the claimant suffered from asthma.
After taking testimony the judge turned to the vocational witness and asked the following:
Q: Assume an individual with the claimant’s age, education and work background. Assume I find that he has the capacity for medium work (can lift 50 lbs. occasionally and 25 lbs. frequently. Assume further that:
- he must avoid temperature extremes, dust and fumes
- he must avoid verbal communication
- he as very limited hearing and should avoid jobs where the inability to hear might compromise the safety of the claimant or of the claimant’s co-workers
- he has a poor ability to maintain attention and concentration for extended periods of time
- he has a poor ability to complete tasks in a timely manner because of a poor ability to maintain pace and persistence of a task.
Based on this hypothetical, the vocational witness announced that the hypothetical claimant could not return to past work, or to any work in the national economy.
Knowing that this was a good time to keep my mouth shut, I asked no questions of the vocational witness.
Summary: I think that this case followed the pattern of other deafness cases – even though my client met the listing, the judge felt more comfortable approving the case because we had other impairments to add to the listing level hearing loss.