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Figuring Out Social Security Benefits After a TBI

Comments [7]

Michael V. Kaplen, Esq., BrainLine

 

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:

  • medical history;
  • clinical findings (such as the results of physical or mental examinations);
  • laboratory findings (such as blood pressure, x-rays);
  • diagnosis;
  • treatment prescribed with response and prognosis;
  • a statement of what the claimant can still do despite his impairments;
  • if the claimant is an adult, age 18 or over, this statement should describe, but is not limited to, the claimant's ability to perform work-related activities, such as sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, traveling;
  • in cases involving mental impairments or cognitive limitations, this statement should describe the claimant's capacity to understand, to carry out and remember instructions, and to respond appropriately to supervision, coworkers, and work pressures in a work setting.

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.

 

Click here to go to About Ask the Expert.

Michael V. Kaplen, Esq. 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.


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Comments [7]

I to am dealing with social security and am a disabled widow who was denied 5 years s.s.I. and s.s.I.d. benefits, I almost hemeraged to death and am in operable and allergic to 30 or so medications. I lost a home, my ability to work, my husband, and almost my life, and as of a year ago I now am a caregiver to a Veteran that is also disabled from T.B.I. from a m.v.a. sometime we get help from churches for a motel stay, but most of the time we hold a sign for help financially. Back in may 2014 I requested a copy of All of our records and found out the adjudication office in stone mountain Georgia is Hiring doctor s to FALSEIFY claims....I filed a dispute and they refuse now to answer me at all..Kenneth's t.b.I. has left him without the ability to write past his name...so when I'm well enough I have to do all the writing of letters and applying for help we were even turned down in ga for even Medicaid... So I have to spend months finding a church that will help with the cost of medical evaluation s and his parents refuse to help him..this have been unreal...i m asking for prayers and encouragement we really need the help financially and otherwise, thank you . p.s. my heart and prayers go out to all who suffer with the residual s of T.B.I..

Sep 23rd, 2014 1:46am

I was in a car wreck on 1/15/1999. It was 5 days after I turned 16 AND I was not driving. I am now 31 years old. My life has been miserable, at best, since my car wreck. I suffered a TBI AND deep vein thrombosis in my left leg. My TBI consists of damage to my right and left frontal lobes as well as damage to the basil ganglia. My blood clot goes from my knee to my hip in my left leg. My brain injury is so much more, but I do not have my medical records with me and have found it almost impossible to remember what all is wrong with my brain. I've been trying for OVER 10 years to get disability and right now, I'm on my third time filing. This time I have some help though as my girlfriend is filling out the paperwork for me. She has my medical records on her at work, so thats why I cannot look up what all damage I have. I have been considered a disabled person in every aspect of life BUT when dealing with Social Security. I even went through vocational rehab for help with my schooling and going to college, which I did and graduated with honors. It took me 10 years to graduate college with a 4 year degree. But still, Social Security kept telling me I'm not disabled. I have not been able to find full time employment my entire life due to my TBI. Right now, my brother is helping me out by letting me work PT for his company, but I feel as if working for him is slowly killing me. Regardless, I still try to push forward. I have NEVER had FT employment for more than 2 months at a time. I cannot handle it. Working FT wears me out to the point I lose my ability to focus/function and then I end up hurting myself even more. I've broken over 12 bones and suffered 3 concussions and 1 TBI and 1 DVT. I raced motocross before my car wreck and did so on a high level. I am jumping around in my story now, or so it feels like, I'm sorry thats not on purpose. so, that's roughly been my life- TBI at age 16 and pretty much life over for me it feels like. Bouncing from job to job that then turned into NO ONE even calling me back for a job interview after I applied to 400+ jobs. If it was not for my AWESOME family, I would be homeless and more than likely, dead. The social security system in America has played a HUGE role in destroying my life after my TBI. Their constant denial of my disabilities has left me feeling like I'm just a big baby looking for free handouts. It's not like that at all though as i WANT to work, but I'm finding out that even working PT is causing my health to deteriorate even faster. I've spent over 10 years lying to myself, thinking that its my own fault that I cant find and keep FT work, but thats not the case, or so I'm finding out now. For the first time, My GF and I are looking through my medical records to see what all is in them.... Turns out theres A LOT MORE in there than what doctors have told me. We contacted a lawyer about filing for disability again and was told to fill it out by ourselves first... then when I was denied, give them a call! So much for getting help filing! My girlfriend accepted the task and has done WONDERFUL things since. What I want EVERYONE with a TBI to know from my experience is this..... Yes, it sucks! Yes, it is a constant struggle and you WILL want to kill yourself from time to time, but please don't as it is NOT the proper answer. The biggest thing to try to understand is that each TBI is different and that each person is different too. What works for patient A WILL NOT work the same for patient B, 99% of the time. Don't give up though! The secret is understanding what YOU have and ACCEPTING the fact that you have it! Learn to function/live within your limitations and come to turns with the fact that you might not be able to do all that you once did. DO NOT LET The Social security system or US Government make you feel like a con-artist. They did that to me and I lost over 10 years of my life due to that! How you say? Well, depression is HUGE with respect to TBI's. Being already depressed and then having the Government tell me I'm not disabled made me feel like it was my fault. So i spent years and years battling the "trying to work with a TBI" rat race. Over the past 10 years, I was able to bring in a COMBINED income of roughly $32,000. Yeah, go ahead and try to live off that! Like I said earlier, I LOVE MY FAMILY AND OWE MY LIFE TO THEM because without them, I'd be homeless or dead. It's not going to be easy, but that does not mean that you aren't disabled. NEVER GIVE UP!!!!!!! I am STILL not considered disabled by the social security system and have NEVER received any governmental help. Does not mean that I do not need help though. If you would like to help, I will graciously accept any and all monetary donations :) I think I left out why I wrote all of this... something to do about a brain injury and SS.... OO! Social security denies OVER 95% of applicants on first go round.... you MUST appeal decision.  I just learned that this last go round and am currently awaiting my third denial paperwork so I can appeal it and hopefully get somewhere! A SS denial DOES NOT MEAN your are NOT disabled! DO NOT GIVE UP!  

(Nickwarner17@gmail.com)

Aug 15th, 2014 1:11pm

My husband had a moderate TBI 3 brain bleeds and brain sheer . Along with both lungs collapsed and broken bones. From A quad wreck. Knowing I was a mess and his memory was gone. I hired A attorney within the first 2 weeks post injury. He was approved for SSD in less then 90 days. I think hiring A attorney to fill out the original application is necessary. And the best decision I made. The big reason for denied is filling the papers out wrong or poor wording.

Mar 14th, 2014 2:32am

When should this process be started. My stepson was in a motorcycle accident and is still in the hosptial - we have only been told that it will be months/years minimum of two years before we know everything permanently lost or residual issues. He has 4 children that will not be provided for by him now....

Apr 3rd, 2012 8:00pm

Just to update the numbers, the maximum fee under SSA's rules and regulations is now $6,000.00. In addition to attorneys, there is a national organization called NADR (National Association of Disability Representatives) made up non-attorney advocates who represent applicants for SSDI/SSI. Also, it is important to remember that even if an individual is found eleigible for disabilty benefits, he or she can still work under the provisions of Social Security's return to work incentives and programs, called PASS plans. PASS stands for Plan to Achieve Self-Sufficiency.

Feb 21st, 2012 7:46pm

We succeeded at stage 2 - after being denied and filing for reconsideration. Took a year. Tip: Be sure you study the SS definition of gainful employment very carefully. It is Key. Good luck and God bless.

Oct 8th, 2011 9:54am

Does this apply to a minor? My daughter suffered a TBI @ age 8, it would be characterized as an organic trauma.

Apr 5th, 2011 5:22pm


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