“But my child looks OK if you just meet him/her once”

Recently I have had a few hearings in which the Claimants suffered traumatic brain injuries (TBI) as young adults (19-25 years old).  In all three instances my clients’ had very supportive parents that provided structured, controlled living situations.  They were all allowed to participate in simple activities such as going to church, doing their own laundry, and riding with friends/relatives to medical appointments or sporting events.  They were not, however, capable of handling more stressful situations such as using public transportation on their own, going on job interviews or working, or being left alone at home for periods of time longer than their parents’ standard work day.

In all instances, the parents had the same worry about the Social Security Disability Administrative Hearing.  Since their children are able to handle conversations with people for short periods of time about superficial topics is the Administrative Law Judge going to see the “whole picture” of what the day-to-day limitations for the Claimant are?

The best answer to this question is, “It depends.”  TBI cases are most commonly analyzed under Listing 12.02.  To satisfy the “A” criteria of the listing one of the following must be met:

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;

To demonstrate the loss of cognitive abilities a person needs to treat with a psychiatrist on a regular and consistent basis after the traumatic incident.  The most important part of the treatment is to obtain the actual diagnosis of TBI.  The second most important is to have a support system established that can find specific instances of the above (1-6) changes and communicate them to the psychologist at every appointment.  The loss of I.Q can only be determined if there was a valid baseline score established by prior I.Q. test, which in most instances is rare.

Once a pattern of the loss of cognitive abilities is established and verified by a psychiatrist, the “B” criteria of the listing can be established.  To satisfy the “B” criteria two of the following must be considered “marked:”

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;

If the TBI occurred more than 2 years prior to the application date, the following “C” criteria of the listing are usually considered:

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.

A representation of these issues laid out in the mental health treatment records is necessary to establish validity.  For example, if the Claimant cannot be left alone, argues with people for no apparent reason, and/or has problems with memory of important issues (names of parents/family, etc), the support system needs to track these behaviors and communicate them with the psychiatrist at every appointment.

Fortunately for my Clients and their families discussed at the beginning of this article, their treating mental health professionals kept diligent notes and discussed, in great detail, the difficulty that their patient’s had on a day-to-day basis.  The Medical record provided the ALJ with adequate information to get that “whole picture” of the client and not depend on a 15 minute conversation at the hearing.  They were all successful in obtaining benefits.

This article is not meant to be used as a complete analysis of how to argue a TBI before an Administrative Law Judge as TBI’s can have multiple symptoms which can effect more than one body system and can also be accompanied by other psychological diagnoses such as PTSD, anxiety, and depression.  Those diagnoses are analyzed with different listings (12.04 and 12.06) which a psychologist also can address.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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