Serving clients in Fayetteville and all of NW Arkansas
Suffering a traumatic brain injury (TBI) in a car accident or other traumatic event is a difficult even not only for the individual who suffers the injury, but also that individual’s family and friends. A Severe brain injury can cause a broad array of effects to nearly any bodily system or process. This is because the brain is the control center for the body and its organs. Damage to portions of the brain and its structures can result in moderate to severe problems in aspects of bodily or mental functioning including:
- Impairment of abstract thinking abilities – Sufferers of a brain injury can have difficulties understanding or processing abstract concepts. Use of common idiomatic phrases or figures of speech may be incomprehensible to the impacted individual.
- Increased aggression – Sufferers of TBIs frequently report increased aggression and increases in aggressive behaviors. The aggression may be triggered by certain events or to perceived threats or it may have no obvious source.
- Difficulty in maintaining orientation to time, place and social circumstances – Depending on the structures of the brain that suffered damage, the individual may have difficulty with acting appropriately in social situations or modifying their behavior to conform to changing circumstances and interactions.
- Reduced information processing abilities – Individual who suffer a TBI may have difficulties with processing information. Coping strategies including “chunking” of information may be effective at increasing the individual’s ability to function.
The above captures only a brief overview of some of the possible effects of a brain injury. Unfortunately, the effects of a brain injury can cause many other difficulties in daily functioning. In some cases the TBI can be so severe that the individual must stop working.
In many cases the loss of a primary or secondary breadwinner can put a family’s finances into crisis. Aside from the lost income, they may be facing thousands or hundreds of thousands of dollars in medical and rehabilitation expenses. Luckily the federal government has established a number of federal benefits programs for hard-working individuals who develop an impairment or a serious injury. One of these programs is Social Security Disability Insurance (SSDI or SSD). While SSD alone cannot cover all of your expenses, it can provide cash income for a family or individual navigating through difficult health issues.
For more than 20 years, Fayetteville AR personal injury lawyer Ken Kieklak has fought on behalf of hard-working Arkansans who have had to stop working due to a serious injury or impairment. To schedule a free SSD consultation call (479) 316-0438 or contact us online.
Meeting the SSDI non-medical program requirements
At the first step, you must be able to satisfy the program’s non-medical requirements. That is, the conditions of the program that are not related to your medical condition or conditions. Because the SSD program is an insurance program, a claimant must have sufficient work credits from past work to qualify. Work credits can be earned by earning a certain amount of income. In 2015, a worker can earn 1 work credit for every $1,220 of work performed up to a maximum of four work credits for the year.
To meet this non-medical program requirement the worker must be able to pass both the recent work test and the duration of work test. Depending on the applicant’s age, the recent work test applies differently. For a worker aged 31 or older to satisfy the test’s requirements the worker must have earned at least 20 credits in the 10 years immediately preceding his or her disability. For workers between the ages of 24 and 31, the worker must have worked at least half of the time before the onset of the disability like a traumatic brain injury. If the claimant has not yet reached age 24, he or she must have earned at least 6 credits over the previous 3 years.
Additionally, the worker must satisfy the requirements for the total number of work credits earned. As a worker’s age increases, the number of credits required also increases. While a 60year old worker would require 38 credits, or 9.5 years of work, a 44 year old worker would require 5.5 years of work or 22 work credits.
Meeting the medical program requirements with a TBI
Meeting the program’s medical requirement s can be difficult unless you can marshal a significant amount of verifiable medical evidence and reports of your limitations from close associates. However at Step 1 of the process you will need to show that your brain injury has persisted for a least 12 months, it will persist for at least 12 months or that it will result in death. If you can make this showing at Ste 1 of the process, you will need to show that the injury is “severe”, per the Social Security Administration’s (SSA) standards, at Step 2 of the sequential evaluation process. Often objective clinical results or testing can establish Steps 1 and 2.
Does your TBI meet or equal a listed condition?
At Step 3 of the process, the claims examiner will determine if your brain injury meets or equals a listed condition. If a condition meets or equals an SSA listing the claimant will qualify for SSD benefits without proceeding to Steps 4 and 5 of the evaluation process. If the claimant cannot meet or medically or functionally equal a listed condition he or she must satisfy the requirements of Steps 4 and 5 of the review process.
There is a specific listing in the SSA’s bluebook for a traumatic brain injury, cerebral trauma (11.18). However this listing simply directs the reader to review the criteria for four other listed conditions:
- Section 11.02 – Convulsive epilepsy
- Section 11.03 – Non-convulsive epilepsy
- Section 11.04 – Stroke or stroke-like complications
- Section 12.02 – Organic mental disorders
If the brain injury has resulted in losses of consciousness, convulsive or non-convulsive seizures, or decreased awareness the condition is likely appropriate for analysis under sections 11.02 and 11.03. For a favorable determination under 11.02, there must be convulsive seizures or nighttime manifestations of the condition that significantly interfere with day time activities. The episodes must occur more frequently than once a month despite at least 3 months of prescribed therapy and treatment. Under 11.03 the duration and treatment criteria are the same, but an altered awareness of loss of consciousness along with other behavior typical of a petit mal or psychomotor condition must be present.
If the brain injury does not cause seizures, it would not be appropriate to analyze it under sections 11.02 or 11.03, but if severe effects on the central nervous system are present 11.04 may provide a viable path to a benefits award. TBIs can also cause impairments to the central nervous system and motor function. Loss of coordination, ineffective speech, ineffective communication, and significant disorganization of motor function are all potential effects of a TBI that are analyzed under section 11.04. If your condition can meet or equal the requirements in the listing, your will qualify for benefits.
Finally, if the impacts of the brain injury are more confined to disturbances in behavior and social functioning, listing 12.02 may be more appropriate. Under Listing 12.02 an individual must be able to prove the presence of mood disturbances and loss of mental abilities along with documented evidence of one of the following:
- Disorientation to time and place
- Delusions, hallucinations or other disturbances in perception
- Short-term, intermediate or long-term memory impairment
- Emotional outbursts including fits of explosive anger or abject sadness.
- Mood disturbances
- Impaired impulse control
- Personality changes
- Loss of mental abilities objectively shown by a decrease in IQ of 15 points or more
Additionally the impacted individual must be able to show that these signs and symptoms of the condition has resulted in severe problems in daily functioning. This can be shown by proving two of the following: severe restriction in daily activities, significant issues maintaining social functioning, repeated decompensation, marked difficulty in maintaining persistence, pace or concentration. Even if the brain injury does not meet the criteria, it may functionally equal it if certain criteria can be met.
If your TBI doesn’t meet or equal a listing, you may qualify on the basis of residual functional capacity
Even if you do not qualify for benefits at Step 3 of the sequential process, you may still qualify on the basis of the limitations created by your severe injury and the lack of suitable work available in the national economy. At Step 4 of the process the claimant’s residual functional capacity (RFC), the things that they are able to do despite their injuries or impairments, is computed. The RFC is then compared to the claimant’s past work to determine if the individual would still be able to perform his or her past work. Work performed within the past 10 years is typically considered recent work. If you cannot perform past work you will move on to Step 5 of the process.
At Step 5 of the sequential process, your RFC will be compared to jobs generally available in the local and national economy to determine if there is alternate work available. The SSA considers the worker’s age, training and experience when making this determination. If the SSA concludes that there is not alternate work available that the applicant could perform despite his or her severe TBI, they will qualify for Social Security Disability benefits.
Rely on an experienced SSD attorney
Applying for an SSD benefits award is a complex process. Working with an experienced Fayetteville AR disability lawyer who understands the types of evidence the SSA is looking for can improve the likelihood of a favorable determination. To schedule a free and confidential initial consultation for your SSD benefits application, call the Law Practice of Ken Kieklak at (479) 316-0438 or contact us online.
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