October 16, 2019

How to Use a Functional Capacity Theory of Disability to Win Your Traumatic Brain Injury Case

Social Security defines disability in terms of how your medical problems limit you from reliably performing even simple, entry-level work. You also need to show that your condition is not temporary and has lasted or is expected to last 12 consecutive months. You can greatly improve your chances at winning if you can point to specific work activity limitations in your medical record.

Your closed head injury may give rise to a number of symptoms, and your medications may give rise to a variety of distracting side effects. Some of these symptoms and medication side effects may be unpleasant but would not necessarily prevent you from working an entry-level job.

Other symptoms and side effects, however, may create huge problems if you were trying to work. If the judge believes your testimony and the testimony of others and if your medical record clearly identifies these work-limiting symptoms, you are very likely to win. This theory of disability – that you cannot reliably perform a simple job – because of symptoms and medication side effects is called the functional capacity argument for disability.

How Disabling are Your Symptoms?

Let’s look at common symptoms that you may be facing and consider how these symptoms might impact you in a work site.

  • Headaches – are your headaches mild and infrequent, or are they severe, chronic and distracting enough to prevent focus and concentration?
  • Dizziness – do you have trouble keeping your balance? Do you need support when climbing stairs or uneven surfaces? Is dizziness brought on by bright lights, loud noises or other common stimuli?
  • Cognitive impairment – do you have trouble with short term or long term memory? Do you find it difficult to process information, make decisions or think logically? Would you be able to perform repetitive tasks in a controlled environment with minimal supervision?
  • Emotional stability – do you have anger control issues? Do you have trouble interacting normally with people you know, strangers, authority figures? Do you have crying spells or periods of highs and lows?
  • Fatigue – do you have irregular sleep patterns, or need to nap frequently? Could you get through an 8 hour workday without needing to take unscheduled breaks? Do you have “good days” and “bad days” and if so, how frequent are the bad days and how bad are they?
  • Medication side effects – what medications have been prescribed and how serious are the side effects like fatigue, nausea, mood changes, etc. Has your doctor changed your dosage or changed medications to try to reach a balance between control of symptoms and side effects. Are these medication modification efforts continuing over an extended period of time?

What Kind of Evidence do You Need?

As you can see, simply having a diagnosis of closed head injury or traumatic brain injury or post concussive syndrome is not enough to insure that you will be found disabled by a disability judge. Instead, you need evidence in the form of medical records and opinion statements from one or more treating physicians to convince the judge that you would not be a reliable worker and that your condition is not temporary.

Our experience has been that if you are alleging disability based on a brain injury, you are going to need more than medical treatment records from your family doctor. Instead, judges will expect to see treatment notes from specialists like:

  • neurologists
  • neurosurgeons
  • psychologists
  • psychiatrist
  • neuro-psychologists
  • physical therapists
  • occupational therapists
  • speech therapists

This doesn’t mean that you need to treat with all of these types of specialists but your medical record should reflect an injury serious enough to warrant visits and treatment with medical providers who focus on brain injury recovery.

Ideally, the treatment notes from your doctors would contain some discussion about how you function day to day. If you are still treating, make sure to discuss with your doctor any problems you may be having with functions that translate to work capacity – such as focus, concentration, dizziness, emotional stability, etc.

Given that doctors focus primarily on your response to treatment as opposed to work capacity questions, we usually cannot rely solely on medical records when presenting our disability cases. Instead, we can greatly enhance our chances of winning by asking one or more of your treating doctors to complete a functional capacity evaluation form, or to complete a narrative report.

The forms we use in our office do not ask the doctor to reach a conclusion about whether or not you are disabled – that is a legal finding reserved for the judge.

Instead, we ask your doctors to answer targeted questions about your functioning and reliability, based on their testing and observations of you.

Putting it All Together

In 2017 and beyond, medical evidence and medical opinion statements are absolutely necessary components of a winning disability claim. Your testimony and testimony of others who have personally observed you can help but judges will look primarily at the medical evidence.

Claimants pursuing disability benefits based on closed head injuries have an advantage in that there will likely be no question that an injury occurred, and because most judges will assume that anyone who has suffered a serious head trauma will have some residual effects.

The question, therefore, will usually come down to the judge asking how bad was the injury and are the resulting symptoms and medication side effects serious enough to preclude entry-level work. If you and your lawyer can provide the evidence that the judge needs to conclude that your allegations of impairment are consistent with the evidence, then you will win.