September 30, 2016

Traumatic Brain Injury

Social Security disability judges recognize that your traumatic brain injury symptoms can leave you unable to work and thus eligible for SSDI or SSI benefits.   SSA will find you disabled if you are unable to perform the duties of a simple, entry level job.   You can greatly improve your chances of winning your claim if you can identify specific limitations that arise from your brain injury.

You Must Produce Evidence to Prove Your Case

Many disability claimants are surprised and even upset to learn that benefits are not awarded automatically.  You may think “I have paid money into the system and now that I need help, they won’t pay me.”   Your frustration is understandable but this is how the system works.  Unlike Social Security retirement, which is triggered once you reach a certain age, the disability program only pays benefits if you meet SSA’s definition of disability:

Social Security will consider you disabled if you are unable to inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 1 To meet this definition, you must have a severe impairment(s) that makes you unable to do your past relevant work or any other substantial gainful work that exists in the national economy.

In support of this definition of disability, SSA has created a complex set of guidelines for decision makers to use when considering your case.  SSA’s rules are contained in Volume 20 of Code of Federal Regulations at Section 404.  Click here to get a sense of what federal rule making looks like.

How Do You Win a TBI Case?

Three different legal arguments for disability are available to you when pursuing benefits for a brain injury claim.  These three approaches are:

  1. meet the disability listing at Listing 11.02, 11.03, 11.04 or 12.02
  2. prove that your brain injury (along with any other medical issue) has  left  you unable to perform reliably the duties of even a simple, entry-level, sit-down type of job (this is the functional capacity argument); or
  3. if you are over the age of 50 that you meet one of SSA’s “grid rules”

You can use any or all of these arguments, depending on the facts and circumstances of your case.

I will go into more detail about each of these arguments but, generally, your focus ought to be on identifying problems you would likely experience trying to work – problems such as attendance issues, the need to take unscheduled breaks, difficulty communicating, slow pace of work, problems concentrating, and difficulty behaving in an emotionally stable manner, to name a few.

How Can You Take on a Massive Government Bureaucracy?

By now you understand that recovering benefits will not be as simple as making an appointment with a Social Security’s representative, explaining your situation and walking out with a check.   Instead, you have to play by SSA’s rules.  This means that you must file an application for benefits, complete dozens of pages of forms, obtain medical records from your doctors and wait for a decision.

And you will wait.  Currently a decision on an application for benefits will take 4 to 6 months.  If you are turned down, you must appeal – that will take another 4 to 6 months.  And if you are turned down again and want a hearing, you can expect to wait a year or longer for a hearing date.  In many jurisdictions a wait of 2 years from application date to hearing date is common.

What Can a Lawyer Do for You?

The law does not require you to hire  a lawyer to present your case to a Social Security adjudicator or to a Social Security judge.  However, if you or a loved one are claiming disability based on a brain injury, a lawyer can be  a great help to you.

  • Social Security judges expect that your medical record will be complete and up to date.  Unfortunately Social Security’s claims reps (the adjudicators who mail you those form notices) are overworked and understaffed.  While they try to request copies of all your medical records, they almost never get everything back in, leaving gaps.   Your lawyer will make sure that your medical record is complete.
  • Once you request a hearing, the adjudicator’s job is over and no one from SSA will update your file for the 12 to 18 months it takes to reach your hearing date.  Your lawyer, however, will continuously update your file.
  • Brain injury cases often include hundreds or even thousands of pages of complicated medical reports along with brain MRI records, neuropsych reports, neurologist reports, work records and educational records.   Someone needs to organize  all of this evidence into a cohesive, whole that tells your story clearly.  Disability hearings last about 45 minutes before judges who may or may not have had time to read through your record.  A good lawyer will have the most important medical records highlighted and help the judge navigate his way through your file.  Further, your lawyer should be able to weave a compelling story that reveals you as an honest, hard-working person and explains why you can no longer work despite your work history and desire to remain employed.

I hope you find this web site informative and please do not hesitate to contact me using the form on this page if you have any questions.

  1. SSA’s definition may be found in the Code of Federal Regulations at Section 416.905 – click here.