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Michael V. Kaplen, Esq., BrainLine (page 1 of 3) Page 1 of 3
I was injured in a car accident two years ago and sustained a serious traumatic brain injury. Now, I'm not able to work and my doctors tell me I'm permanently disabled. I applied for Supplemental Security Income through Social Security and was just denied. What am I supposed to do now?
Unfortunately, your situation is not unusual. But here are some suggestions and ideas that may help.
Don't take "no" for an answer
People who have sustained a brain injury often face a great deal of frustration when applying for Social Security benefits, but they should never give up if their first claim is denied. Never take the denial by the Social Security administration as the final answer. In many instances, the applicant is granted benefits after reconsideration or after an appeal, so it is important to pursue your rights in a timely fashion.
File your request for reconsideration or appeal in a timely manner
It is important to know that following a denial, an applicant has up to 60 days to ask for reconsideration and to file an appeal with the Social Security administration. You can go to your local Social Security office and obtain the necessary forms to apply for benefits, ask for reconsideration, and file an appeal. You can also obtain the forms online at http://www.ssa.gov/online. After you fill them out, file them with your local Social Security office.
Why was my application for benefits turned down?
Applications for Social Security disability benefits are frequently turned down because the applicant did not supply sufficient information to document their disability, the Social Security administration did not obtain all of the claimant's records, or the claim was not properly considered by the claims examiner. In asking for a reevaluation or preparing for a hearing, it is vital that proper information be submitted to substantiate the claim of disability.
Obtain legal assistance to help you
Because a person with a brain injury can sometimes get frustrated easily, be a poor record keeper, or experience problems focusing and relating information, it makes sense to seek assistance filling out the required Social Security paperwork. In addition to family and friends, there are attorneys who will help people with Social Security appeals on a contingency fee basis, meaning that the individual does not have to pay the attorney a fee unless he or she is successful in obtaining benefits. The fees that these attorneys can charge are limited by the rules of the Social Security administration to no more than 25 percent of past due benefits up to a maximum of $5,300.
How are disability claims evaluated?
Social Security disability claims are evaluated not on the basis of the severity of the original brain injury sustained by the applicant, but by the level of recovery and by the Social Security administration's own definition of disability. In short, the Social Security administration looks at the deficits an individual currently has and determines if those deficits prevent the individual from obtaining any sort of gainful employment. It is not enough that the individual is disabled; the disability must prevent the person from gainful employment.
What records do I need to submit?
Any application for Social Security benefits, applications for reconsiderations following a denial, and requests for a hearing should contain ALL of the claimant's medical records following his or her brain injury. These records should include not only the original hospital or emergency room records but the records from any physician or other healthcare professional who has evaluated the individual.
Records should be requested from neuropsychologists, neurologists, eye care specialists, vestibular specialists, rehabilitation specialists, psychologists, and neuropsychologists as well as from the applicant's family physician. In addition to forwarding records to the Social Security administration, it is helpful if a healthcare practitioner also writes a narrative report outlining the nature of the person's current complaints, his or her current disabilities, any testing done to support the medical conclusions, and a firm, definite statement that the individual is disabled and unable to be gainfully employed as a result of the injury and disability.
Many individuals who are applying for benefits — and even their healthcare providers — mistakenly believe that it is sufficient to merely state that the person sustained a TBI, is suffering from post-concussive syndrome or other TBI-related condition, and is currently disabled and unable to work. It is important that the application and supporting documents clearly outline the full extent of the impairments that the person with TBI experiences.
It is important for people with a brain injury to obtain assistance in filling out the Social Security administration's questionnaire where applicants are asked to set forth their disabilities and impairments. It is also important that individuals seek assistance in obtaining their medical information so that a complete set of documents can be considered. In many instances, a properly filled out questionnaire along with proper documentation will prevent a claim from being denied in the first instance, or be accepted on reevaluation without a need for a hearing.
What should my healthcare provider include?
Here is what the Social Security administration states should be included in medical reports submitted on behalf of a claimant:
Medical reports should include:
Michael V. Kaplen, Esq., is a partner in the New York law firm, De Caro & Kaplen, LLP. He is the chairperson of the New York State Traumatic Brain Injury Services Coordinating Council and the immediate past president of the Brain Injury Association of New York State. He has been named a New York Super Lawyer for the years 2006, 2007, and 2008 and one of the top 100 trial lawyers in New York State by the American Association of Trial Lawyers. Mr. Kaplen's legal practice focuses primarily on representing persons with brain injury caused by automobile accidents, medical malpractice, and other forms of negligence. He is a noted national author and lecturer on Legal Issues and Advocacy in the field of traumatic brain injury. He publishes a web blog on the latest news and information on traumatic brain injury at www.braininjury.blogs.com.
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