Eligibility For Disability Benefits With Traumatic Brain Injury

Traumatic brain injury (TBI) is a complex injury with a broad spectrum of symptoms and disabilities. TBI typically occurs when there is injury to the brain following some type of trauma to the head.   The top causes o f TBI are car accidents, firearms and falls and these injuries usually cause internal bleeding or swelling in the brain.

TBI can be categorized as mild or severe.  A brain injury can be classified as mild if loss of consciousness and/or confusion and disorientation is shorter than 30 minutes.  Severe brain injury is associated with loss of consciousness for more than 30 minutes and memory loss after the injury or penetrating skull injury longer than 24 hours.

You may be eligible for disability benefits if you are not performing substantial gainful activity and meet or equal a social security listing.  Although there is no specific listing for traumatic brain injury, listing 11.18 for cerebral trauma directs cases to be assessed under listings 11.02, 11.03, 11.04 or 12.02 as applicable.

11.02 Epilepsy – convulsive epilepsy, (grand mal or psychomotor), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once a month, in spite of at least 3 months of prescribed treatment.With:

A. Daytime episodes (loss of consciousness and convulsive seizures) or

B. Nocturnal episodes manifesting residuals which interfere significantly with activity during the day.

11.03 Epilepsy – nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented by detailed description of a typical seizure pattern including all associated phenomena, occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment.With alteration of awareness or loss of consciousness and transient postictal manifestations of unconventional behavior or significant interference with activity during the day.

11.04 Central nervous system vascular accident. With one of the following more than months post-vascular accident:

A. Sensory or motor aphasia resulting in ineffective speech or communication; or

B. Significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station (see 11.00C).

12.02 Organic mental disorders: Psychological or behavioral abnormalities associated with a dysfunction of the brain. History and physical examination or laboratory tests demonstrate the presence of a specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities.

The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.

A. Demonstration of a loss of specific cognitive abilities or affective changes and the medically documented persistence of at least one of the following:

1. Disorientation to time and place; or

2. Memory impairment, either short-term (inability to learn new information), intermediate, or long-term (inability to remember information that was known sometime in the past); or

3. Perceptual or thinking disturbances (e.g., hallucinations, delusions); or

4. Change in personality; or

5. Disturbance in mood; or

6. Emotional lability (e.g., explosive temper outbursts, sudden crying, etc.) and impairment in impulse control; or

7. Loss of measured intellectual ability of at least 15 I.Q. points from premorbid levels or overall impairment index clearly within the severely impaired range on neuropsychological testing, e.g., Luria-Nebraska, Halstead-Reitan, etc;

AND

B. Resulting in at least two of the following:

1. Marked restriction 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;

OR

C. Medically documented history of a chronic organic mental disorder of at least 2 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:

1. Repeated episodes of decompensation, each of extended duration; or

2. 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

3. Current history of 1 or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.

If you do not meet or equal the above listings, you can still qualify for disability benefits if the impairment prevents the person from doing his or her past relevant work or other work that exists in significant numbers in the national economy.

SSA To Expedite Disability Process For Veterans

Social Security Administration (SSA) has announced that effective March 17, 2014, it will expedite disability claims for veterans receiving VA service-connected compensation benefits and who have a rating of 100% “Permanent and Total” disability from the Veterans Administration.  This process does not apply to non-service connected pension benefits.  The VA disability only expedites the process, it does not guarantee an allowance for Social Security Disability benefits.  The veteran must still meet eligibility criteria similar to other claimants.  The veteran’s VA Notification letter indicating that the veteran’s rating of 100% Permanent and Total disability will be the required proof.

New Federal Effort To Encourage Child Development and Behavioral Screening

As many as one in four children through age 5 is at risk for a developmental delay or disability.  A new federal effort to encourage healthy child development, universal developmental and behavioral screening for children was announced recently.  The program, titled “Birth to 5:  Watch Me Thrive”, also aims to provide support for the families and providers who care for them.  The program hopes that earlier screening and intervention will cut down on special education costs later on.

Birth to 5: Watch Me Thrive! will help families and providers:

  • Celebrate milestones. Every family looks forward to seeing a child’s first smile, first step, and first words. Regular screenings help raise awareness of a child’s development, making it easier to expect and celebrate developmental milestones.
  • Promote universal screening. Just like hearing and vision screenings assure that children can hear and see clearly, developmental and behavioral screenings track a child’s progress in areas such as language, social, or motor development.
  • Identify possible delays and concerns early. With regular screenings, families, teachers, and other professionals can assure that young children get the services and supports they need, as early as possible to help them thrive alongside their peers.
  • Enhance developmental supports. Combining the love and knowledge families have of their children with tools, guidance, and tips recommended by experts can make the most of the developmental support children receive.

Please see the U.S. Department of Health and Human Services website for further information.

Eligibility For Social Security Disability With Fibromyalgia

Fibromyalgia is a complex medical condition characterized by widespread pain. Fibromyalgia syndrome affects the joints, muscles and soft tissue. Symptoms include chronic muscle pain, fatigue, sleep problems, and painful tender points or trigger points, which can be relieved through medications, lifestyle changes and stress management.

A recent Social Security Ruling, SSR 12-2p, issued in 2012, addresses when fibromyalgia should be found as a medically determinable impairment.  This ruling provides guidance on how SSA develops evidence to establish that a person has a medically determinable impairment. A claimant for disabilty benefits will be found eligible if they satisfy either of two sets of criteria set forth in SSR 12-2p:

The 1990 ACR Criteria for the Classification of Fibromyalgia

A claimant may be found to have a medically determinable impairment of fibromyalgia if he or she has all three of the following:

  1. A history of widespread pain – pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back) – that has persisted (or that persisted) for at least 3 months.
  2. At least 11 positive tender points on physical examination (of 18 tender point sites).  A tender point is positive if the person experiences any pain when applying pressure.  The positive tender points must be found bilaterally (on the left and right sides of the body) and both above and below the waist.

The 18 tender point sites are located on each side of the body at the:

  • Occiput (base of the skull);
  • Low cervical spine;
  • Trapezius muscle (shoulder);
  • Supraspinatus muscle (near shoulder blade);
  • Second rib (top of rib cage);
  • Lateral epicondyle (outer aspect of the elbow);
  • Gluteal (top of the buttock);
  • Greater trochanter (below the hip); and
  • Inner aspects of the knee.

3.   Evidence that other disorders that could cause the symptoms or signs were excluded.

The 2010 ACR Preliminary Diagnostic Criteria

  1. A history of widespread pain;
  2. Repeated manifestations of six or more Fibromyalgia symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems (“fibro fog”), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome;
  3. Evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded.

Once it is established that a person has a medically determinable impairment, SSA will evaluate the case under the sequential evaluation process to determine whether the person is disabled.  SSA will consider the severity of the impairment, whether the impairment medically equals the requirements of a listed impairment, and whether the impairment prevents the person from doing his or her past relevant work or other work that exists in significant numbers in the national economy.  For more information on the 5-step sequential evaluation process for Social Security Disability, please click here for our post.

Disability For Chronic Migraines

A migraine is a severe headache that often causes debilitating pain.  Although the Social Security Administration (SSA) does not have a listing specific for migraine headaches, you can qualify for disability benefits if your headaches are severe and impact your level of functioning to the point you cannot work.   Migraines are often accompanied or preceded by:

  • Depression
  • Constipation
  • Food cravings
  • Hyperactivity
  • Irritability
  • Neck stiffness
  • Uncontrollable yawning

As migraines are subjective and cannot be detected by standard medical tests, you should document the migraines you have, noting the frequency, severity and intensity.  A good way to document your headaches is to keep a headache diary.  This diary will not only assist you with your application for disability benefits or potential hearing, but may also assist your physician in treating you. [Read more…]

Substantial Gainful Activity

What does substantial gainful activity mean (SGA)?  I get this question all the time, and it is difficult to answer without a lengthy explanation.  According to Social Security’s POMS (Program Operations Manual System) manual, SGA is defined as “the performance of significant physical or mental activities in work for pay or profit or in work of a type generally performed for pay or profit. Work may be substantial even if it is performed on a seasonal or part-time basis, or even if the individual does less, is paid less, or has less responsibility than in previous work.”

A person who is earning more than a certain monthly amount (net of impairment-related work expenses) is ordinarily considered to be engaging in SGA.  In 2013, the earnings amount threshold that SSA considers SGA is $1,040 ($1,740 for blind applicants).  This does not mean that if you earn less than the amount set by SSA, you automatically are working less than SGA level.  If you have the ability to work at SGA level, regardless of earnings, your claim may be denied.  For example, illegal activity can be considered to satisfy SGA.  In Dotson v. Shalala, 1 F.3d 571 (7th Cir. 1993), the claimant was supporting a $200-$300 per day heroin habit by stealing.  The Administrative Law Judge (ALJ) found that in order to steal he must “case” the area in which he has determined to steal the property. He must then plan on how he is going to steal the property and then actually steal it. During the month in which the hearing was held the claimant was stealing chainsaws. Lifting and carrying the chainsaws would also be significant physical activity. The planning and execution of the larceny entails significant mental activity. From these activities the claimant earns enough money to support his cocaine habit and provide him with other money in substantial amounts exceeding $200 to $300 a day. [Emphasis in original.]  Shalala, 1 F.3d at 574.  Similarly, volunteer work may be considered SGA if it is the type of work that others may receive earnings from.

On the other hand, high earnings doesn’t necessarily mean that the claimant was engaging in SGA.  For example, if he or she was working under special conditions that, but for the special conditions, the claimant would not have earned the amount they received.

Breakthrough In Down Syndrome Research at UMass Medical

I read a very interesting article recently on the UMass Medical School website regarding Down Syndrome research.  Scientists at UMass have found a way to block or neutralize the extra chromosome that causes developmental problems and intellectual disabilities in people with Down Syndrome.   The discovery “may one day help establish potential therapeutic targets for future therapies.”  To read the entire article, see the UMass website.  Please  refer to Nature to read the details of the study.

Disability Benefits For Children With Congenital Heart Defects

Congenital heart defects (CHD) are Americas #1 birth defect, affecting nearly 1 out of every 100 babies. CHD are the leading cause of all infant deaths in the United States.

Defects can range from a hole in the heart and obstructed blood flow to conditions such as HLHS where multiple parts of the left side of the heart do not develop completely.  Surgeries can range from catheterizations to major open heart bypass surgeries and transplants.  Symptoms may include bluish skin, shortness of breath and fatigue.

SSI disability benefits are available to children with Congenital Heart Defects.  There are several CHD listed on SSA’s compassionate allowance list.  Children may also meet several listings to qualify for benefits.  The listings are:

104.6 – Congenital Heart Disease

To qualify under listing 104.6, the child must have cyanotic heart disease with chronically low blood oxygen, demonstrated by one of the following:

[Read more…]

What Is a Medical-Vocational Allowance In Social Security Disability?

A medical vocational allowance is the term used by Social Security (SSA) when your condition does not meet the criteria in SSA’s listings but it is determined that you are still unable to work.

To be approved for Social Security disability benefits, SSA will evaluate your claim using the five step sequential evaluation process.  At steps 1 and 2, SSA addresses whether you are performing substantial gainful activity and if  you have a severe impairment.  At step 3, SSA evaluates your claim to determine if you meet a listing.  To meet a listing, you must meet specific criteria to be found disabled.  The criteria is different  for each listing as it applies  to different conditions and, unfortunately, most claimants do not meet a listing.

If you do not meet a listing, SSA will further evaluate your claim under steps 4 and 5  to determine the impact your disability has on your ability to work.  SSA will examine your illness, conditions and limitations to determine if you can do your past work, and if not, if there are any other jobs that you could still perform based upon your age, education and work history.  This is called your residual functional capacity.  If it is determined that there are no jobs that you could perform based on your residual functional capacity, then your claim will be approved under a medical vocational allowance.

Autism Legislation

Massachusetts Advocates for Children posted an interesting summary of the Massachusetts legislative priorities for Autism Commission related bills.  One is particularly interesting in that it would require the Board of Education to provide a mechanism for Special Education teachers to receive an Autism Endorsement.  The endorsement will address the specific competencies needed for teachers to address the complex and unique needs of students with autism.  If passed, starting in 2016, IEP Teams for students with autism would include a teacher with an Autism Endorsement to ensure that the school can fully address the complex communication, behavioral, sensory, social, and academics needs of youth in the least restrictive environment.

To see a summary of the Bill, click here for the Massachusetts Advocates for Children website.