Disability benefits are difficult to navigate for someone with SD, but not impossible
by Mark D. DeBofsky
DeBofsky Sherman Casciari Reynolds, P.C.. | Chicago, IL
Among the challenges presented by spasmodic dysphonia (SD), qualifying for disability benefits can be both difficult and frustrating. The process is complex, confusing, and extremely difficult to navigate without the assistance of an experienced attorney. Yet despite these challenges, both the Social Security Administration and private disability insurers recognize the impact of SD on the ability to work; and depending on the severity of the illness and the quality and quantity of the evidence presented, an award of benefits may be achieved. The purpose of this article is to offer general suggestions. Specific legal advice must only be obtained from the attorney.
Establishing a disability
There are two kinds of evidence in disability claims: medical and vocational. Since a diagnosis itself is almost never enough to establish disability, a heavy emphasis is placed on vocational evidence. This type of evidence considers the claimant’s age, education, work experience, and other relevant factors such as the ability to read and write English or perform mathematical calculations depending on the nature of the job. Such evidence is crucial in answering the question of whether a given individual is “disabled.”
To answer that question, the public agency or insurer looks to three factors: a statutory or contract definition of disability (Social Security is the most stringent and requires a complete inability to perform any job), a medical condition that imposes work-related restrictions, and an analysis as to how those restrictions interfere with the ability to perform either a particular job, a range of jobs, or any job.
SD cases, however, present special challenges since it is much harder to obtain evidence of impairment and because SD imposes non-exertional impairments. An exertional impairment is much easier to assess because it examines whether someone has the strength to perform a job – lift a required amount of weight, stand for a particular length of time, etc. In contrast, someone with a non-exertional impairment may be capable of physically performing all of the strength requirements of a job but still be unable to do that job if the occupation requires the ability to generate audible speech through the course of a work day.
Social Security’s definition of a disability
Many people with SD who have dealt with Social Security disability are familiar with Social Security Listing 2.09 which provides that Social Security disability payments will be made if an individual suffers: Loss of speech due to any cause, with inability to produce by any means, speech that can be heard, understood, or sustained. Social Security further points out that “the ability to produce speech by any means includes the use of mechanical or electronic devices that improve voice or articulation.” Meeting or equaling a “listing” usually results in an award of benefits, but even if the listing section is not met, if there is another neurological cause for the disorder, such as Parkinson’s disease, the claim may still qualify.
Recognizing that there is currently no definitive “gold standard” diagnostic test for SD, the more detailed the clinical examination findings (from both the physician and the speech language pathologists who work with the physicians) and other positive test findings such as laryngeal electromyography (EMG), the more likely the diagnosis will be accepted. In addition, proof also includes the claimant’s own regularly kept diary of symptoms, plus observations made by friends, family members or co-workers that might reflect on pre- and post-disability functioning. It is also appropriate to submit other documentation such as video recordings that depict disability and personalize your claim to the insurance company claim analyst.
It is not uncommon that insurers will rely heavily on physicians who merely review medical records rather than examine the claimant even though every insurance policy gives the insurer the right to have the claimant examined. Thus, the more detailed the records as to both clinical findings and test results, the less likely a non-examining doctor will be able to challenge such findings.
Social Security disability claims based on SD alone are particularly difficult since there are many occupations that do not require the ability to speak; however, disability insurance claims are often based on an inability to perform a particular job or a job that would lead to earnings commensurate with pre-disability salary levels. Many claims are denied for the following:
An attorney is required
The law varies from state to state and different public disability programs utilize differing standards and procedures for adjudicating disability claims. It is therefore important to secure experienced, competent counsel to assist in these cases.