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);
- 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
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:
- Disorientation to time or place or
- Memory impairment, either short-term (inability to learn new information) or long-term (inability to remember information that was previously learned) or
- Perceptual or thinking disturbances (hallucinations, delusions) or
- Change in personality or
- Disturbance in mood or
- Emotional lability (explosive temper outbursts, sudden crying, etc.) and impairment in impulse control or
- 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
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:
- Repeated episodes of decompensation, each of extended duration or
- 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
- 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. Mr. Kaplen is a professorial lecturer in law at The George Washington University Law School, where he teaches a course in traumatic brain injury law. Mr. Kaplan serves on the board of directors for the New York State Academy of Trial Lawyers.