The Social Security Administration has regulations that determine that a person is disabled if they meet a “listing”. A listing level of impairment means that it is conclusively determined that the person is disabled if certain conditions are met, such as a particular medical diagnosis, accompanied by defined resulting limitations. In its quest to quantify as many conditions as possible as a listed impairment, or medically equal to a listed impairment, the Social Security Administration attempts to use the nearest listing when considering conditions that are not expressly described in a listing.
For example, where a person is claiming Social Security Disability benefits (SSDI), or Supplemental Security Income (SSI) benefits due to a brain injury, consideration will be given to, and “borrow” from the neurological listings for epilepsy and stroke (cerebral vascular accident) and organic mental disorders. The effect of the injury on the ability to work, the limitations, is the important consideration. Getting a proper report from your physician can make the difference between winning a fully favorable decision or having an unfavorable decision from the administrative law judge (ALJ) in your case. This is one area where your attorney can really help you to present a case to the ALJ that would otherwise be lost.
Here is an example of how the ability to work is stated in Listing 12.00 as to common work tasks:
Concentration, persistence or pace refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings. Limitations in concentration, persistence, or pace are best observed in work settings, but may also be reflected by limitations in other settings. In addition, major limitations in this area can often be assessed through clinical examination or psychological testing. Wherever possible, however, a mental status examination or psychological test data should be supplemented by other available evidence.
On mental status examinations, concentration is assessed by tasks such as having you subtract serial sevens or serial threes from 100. In psychological tests of intelligence or memory, concentration is assessed through tasks requiring short-term memory or through tasks that must be completed within established time limits.
Deficiencies that are apparent only in performing complex procedures or tasks would not satisfy the intent of this paragraph B criterion. However, if you can complete many simple tasks, we may nevertheless find that you have a marked limitation in concentration, persistence, or pace if you cannot complete these tasks without extra supervision or assistance, or in accordance with quality and accuracy standards, or at a consistent pace without an unreasonable number and length of rest periods, or without undue interruptions or distractions.
An example of facts considered in determining whether a listing is met for a brain injury would include those found in Listing 12.02:
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;
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;
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.
As you can see, these tests get complicated rather quickly, and the amount of evidence required to prove a case can be very high. Also, even if the claimant does not exactly meet a listing, he or she may medically equal a listing, or have limitations that would preclude gainful employment either due solely to the brain injury or in conjunction with other limitations.
If you or a loved one has a brain injury it is important to retain the services of a claimant’s representative who is familiar with the requirements of the law, and who can help you to present the correct evidence to the ALJ for consideration of your disability.
For a free consultation call us, or fill out our interactive web site contact sheet, and we will help you to evaluate your case.