As an attorney representing clients in Social Security disability benefits claims, I have helped a number of people who suffered from traumatic brain injuries, or TBI. In just the last couple weeks, I have helped 4 people in this situation. Some discussion of the challenges proving disability in these cases may help others. Please feel free to pass this blog along to others.
Over the years, my clients with TBI have been in bad car accidents, have fallen from heights, have suffered from failed suicide attempts, or were victims of violent assault. Some suffered brain trauma from medical conditions such as a stroke. Whatever the cause, what does Social Security look for when evaluating such a person’s ability to work a full-time job?
First, let’s go to the “Listings,” or definitions, of disability the Social Security Administration uses to initially evaluate TBI. Under the title “organic mental disorders,” Social Security lays out what combined functional limitations would automatically result in disability for TBI:
12.02 Organic mental disorders: Psychological or behavioral abnormalities associated with a dysfunction of the brain. History and physical examination or laboratory tests demonstrate the presence of a specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.
A. Demonstration of a loss of specific cognitive abilities or affective changes and the medically documented persistence of at least one of the following:
1. Disorientation to time and place; or
2. Memory impairment, either short-term (inability to learn new information), intermediate, or long-term (inability to remember information that was known sometime in the past); or
3. Perceptual or thinking disturbances (e.g., hallucinations, delusions); or
4. Change in personality; or
5. Disturbance in mood; or
6. Emotional lability (e.g., explosive temper outbursts, sudden crying, etc.) and impairment in impulse control; or
7. Loss of measured intellectual ability of at least 15 I.Q. points from premorbid levels or overall impairment index clearly within the severely impaired range on neuropsychological testing, e.g., Luria-Nebraska, Halstead-Reitan, etc;
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
C. Medically documented history of a chronic organic mental disorder of at least 2 years’ duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.
These definitions appear clear enough, but these standards are difficult to prove in practice. Why?
Let’s discuss the reality of TBI, which many of you reading this may already know too well. The brain is complicated. Brain injuries can cause much physical and mental damage depending on the type of injury. In some ways, the brain can recover over time — especially for those who are younger. In other ways, the brain cannot fully recover. TBI can involve a very complicated and drawn out recovery. It is always good to work for improvement, but recovery can be elusive.
In Social Security’s world, it is not enough to have behavioral changes from TBI. Social Security needs objective measures of cognitive dysfunction. For example, you can have a personality change from a TBI, but this does not necessarily result in marked limitations in social functioning as required by the “B” criteria of the Listing above. In other cases, short-term memory is affected, but not long-term. How exactly does this correspond to the ability to concentrate? A common thread in many of my TBI clients is a very short-temper. How do you objectively measure these problems to prove disability?
Neuropsychological testing. In my legal experience, this testing is the gold standard for TBI cases. If I go to a hearing, I can argue testing results that objectively measure the damage to cognitive function. I did it at a hearing today. “Neuropsych” testing teases out many intangibles of cognitive dysfunction in ways that traditional mental health treatment cannot. Personality “quirks” that come out during a 1/2 hour mental health appointment may actually be pathology from a TBI. How do you get this testing? Ask your mental health provider. Psychologists giving these tests have specialized training. This testing can help you recover from a TBI. Results can direct psychological treatment and strategies for occupational therapy. I have seen some providers order neuropsych testing relatively soon after a TBI and another at a later interval to measure improvement against the original baseline test.
If you or a loved one believe you have problems associated with a TBI, even post-concussion syndrome, make sure to point out your specific concerns to the doctor. The doctor can only treat problems he or she knows about. Describe your concerns, big and small, and ask questions about the right treatment for you or your loved one. If you have further questions about how to argue for Social Security Disability benefits for TBI or any other disability, you should contact an attorney in a law firm about your specific legal situation.
Only lawyers in law firms can give you legal advice. If you wish to contact us, you can reach Hoglund Law Offices at 1-800-850-7867. We have licensed lawyers to assist you. You can also visit our website at HoglundLaw.com.
Andrew W. Kinney, Esq.
Hoglund Law Offices