Closed head injuries present unusual challenges for Social Security disability claimants. Like every Social Security disability claim, the main issue in your case has to do with your capacity to perform simple, unskilled work. To put this another way – would you be able to reliably perform a simple, unskilled, entry-level type of job given the symptoms, limitations, and medication side effects arising from a severe concussion or blow to the brain, fall or trauma to your brain.
In my experience, many closed head injuries arise from falls or work accidents. Often my client does not “look injured” although his or her ability to function may be seriously compromised. The limitations that arise may be physical, they may be psychological or both. Often vision or other senses are affected.
I have tried many disability cases that include or arise primarily from brain injury and here are some general observations about how judges see these cases:
- your file should contain evidence that documents a significant brain injury. Usually hospital records that document treatment for a head injury are extensive, including MRI reports, neuropsychological testing and therapy notes . Judges expect to see extensive medical records in head injury cases
- your testimony at the hearing will be especially important. This is especially true if you previously worked at a job that required significant interaction with the public or if your job involved decision making or reasoning. The judge will listen carefully to your testimony to evaluate whether your thought processes are logical and if you can focus on the question at hand. Further, I often ask witnesses such as a spouse, close friend or former co-worker to testify about changes that person has observed about your behavior
- judges are usually open to the idea that a bad head injury may result in vision issues, personality changes, fatigue and anger management problems
- seizures that don’t respond readily to medication are common following closed head injury cases
- on-going psychological evaluation and treatment is a reasonable course of action for a head injury patient
Arguments Used in Closed Head Injury Cases
I will often present both a “listing” argument as well as a functional capacity argument in closed head injury cases.
Listing Argument. There are a number of Social Security Listings that may apply in a closed head injury case, but I usually start with the listing at 11.18 – cerebral trauma. The 11.18 listing is short – it reads “Evaluate under the provisions of 11.02, 11.03, 11.04 or 12.02 as applicable.
Listing 11.02 describes convulsive epilepsy, including grand mal seizures
Listing 11.03 describes non-convulsive epilepsy, including petit mal seizures and significant interference with daily activities
Listing 11.04 – describes limitations that arise from a stroke, including problems with speech or communication, and problems using the legs or arms
Listing 12.02 – describes “organic” brain damage, including disorientation, memory loss, personality change, anger control issues, loss of cognitive function
Depending on the symptoms that my client exhibits, I will create a checklist that tracks the specific listing then ask my client’s treating physician, psychologist or psychiatrist to state that the relevant elements of the listing have been met.
Functional Capacity Argument. When I argue functional capacity, I am asking the judge to recognize that your ability or capacity to perform any type of work for 8 hours a day, 5 days a week has been so eroded by your symptoms that you would not be able to perform even a simple, unskilled job. Examples of limitations that interfere with work capacity include:
- fatigue – especially if your weariness requires you to take unscheduled breaks to lie down during the day
- cognitive decline – if your capacity to understand or perform simple job tasks has been affected
- personality change – especially anger control problems as an individual who physically or verbally assaults co-workers or customers would not be able to maintain employment
- seizure activity – even if your seizure level does not rise to listing level, seizure activity will eliminate jobs that involve driving, or work around heights and hazardous equipment.
- migraine headaches – severe headaches that rise to a level 8 on a 10 point scale would cause such an interference with attention and concentration that you could not work
- blurred vision – if you experience blurred or double vision, you will have a difficult time performing any type of work and you are also likely to experience headaches
When I am arguing functional capacity I will create a functional capacity checklist that tracks the relevant symptoms. The form I create is derived from the official Social Security residual functional capacity form, but my form includes additional questions that I know from my hearing experiences will result in favorable testimony from the vocational witnesses that judges frequently call at hearings.