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Figuring Out Social Security Benefits After a TBI Michael V. Kaplen, Esq., BrainLine (page 2 of 3) Page 2 of 3

The evidence standards of the Social Security administration can be found online at: http://www.ssa.gov/disability/professionals/bluebook/evidentiary.htm.

Your healthcare provider should include all of your physical, cognitive, and emotional impairments in his report to the Social Security administration.

Frequent cognitive impairments include memory loss, concentration difficulties, confusion, impairments in multi-tasking (executive functioning), lack of initiative, and cognitive fatigue. These impairments can frequently be documented objectively by neuropsychological testing, which should be included with the application.

Physical symptoms include balance problems, sight disorders, sensitivity to light and sound, hearing disorders, dizziness, ringing in the ears (tinnitus), sleep problems, nausea, and vomiting.

Emotional issues following a brain injury include anxiety disorders, depression, lack of self awareness of one's disabilities, social issues, and confabulation (making things up).

How is traumatic brain injury considered by Social Security?
The Social Security administration has certain categories of impairments. These are contained in the Social Security administration's manual of impairment, often referred to as the "blue book." The blue book ratings can be viewed at http://www.ssa.gov/disability/professionals/bluebook/.

Traumatic brain injury (TBI) is not categorized as a specific impairment. It comes under the definition of "cerebral trauma" (11.18), which then refers you to other sections where the cerebral trauma is evaluated.

The "cerebral trauma" is then evaluated to see if it fits the definition of:

11.02: Convulsive epilepsy, grand mal, or psychomotor or
11.03: Non-convulsive epilepsy, petit mal, psychomotor, or focal seizure or
11.04: Central nervous system vascular accident, (i.e. stroke) or
12.02: Organic mental disorder

Epilepsy impairments
In looking at the epilepsy impairments (11.02 and 11.03), the Social Security administration asks the important question "Does the person still have the impairment?" (i.e. "Is he still suffering from seizures, even though he is taking his prescribed medication?") The degree of impairment will be determined by the type, frequency, duration, and the sequelae of the individual's seizures. It is important for the physician or anyone who has observed the seizures to describe them in some detail.

It is important to show Social Security that the seizure disorder significantly interferes with the person's daily activities.

Central nervous system disorders
In cases of central nervous system disorders such as strokes or brain tumors (11.04), the degree of paralysis, tremor, involuntary movements, or gait disorder needs to be documented. Also, if the individual has visual impairment, this needs to be documented as well. For visual impairments, reading difficulties are important to document. The assessment of impairment is related to the degree that these impairments interfere with the ability to ambulate and interfere with a person's ability to use his fingers, hands, or arms.

In all cases, if the individual requires assistance from devices or another individual to function, including walking, taking care of their basic needs (cooking, cleaning, personal hygiene), and living independently, this should be addressed and documented.

Organic mental disorders
The last category, organic mental disorders (12.02) also requires careful documentation regarding the extent of the disorder and how it impairs the ability of the individual to work. It is the most comprehensive category and the one most frequently relied upon by people living with all degrees of TBI. It is very important that the documentation required for this section comes from a qualified professional such as a neuropsychologist.

The applicant must first satisfy the required level of disability. The individual must demonstrate that he or she:

A. Suffers from a loss of specific cognitive abilities or psychological changes with medical documentation of at least one of the following:

1. Disorientation to time or place or
2. Memory impairment, either short-term (inability to learn new information) or long-term (inability to remember information that was previously learned) or
3. Perceptual or thinking disturbances (hallucinations, delusions) or
4. Change in personality or
5. Disturbance in mood or
6. Emotional lability (explosive temper outbursts, sudden crying, etc.) and impairment in impulse control or
7. Loss of intellectual ability of at least 15 points on IQ testing

AND that this impairment results in at least TWO of the following criteria:

B. 1. Marked restrictions 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

OR

C. A medically documented history of a chronic organic mental disorder of at least two 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 one or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.

Filing for Social Security disability benefits is a long and tedious process. It is important to gather all your records and set aside sufficient time to complete the application. Never submit a partially completed application and always seek assistance if you are having difficulty collecting the required paper work or filling out the application.

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 and a brain injury video blog on legal issues.

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