A typical consequence of traumatic brain injury (TBI) is disability, unemployment and impoverishment, sometimes even bankruptcy. Not everyone who suffers a TBI is in a position to file a successful claim for workers compensation or personal injury, and those who are so positioned must still wait years before receiving a substantial cash award. In the interim, TBI survivors often burden their families for loans and run up large credit card debt paying their living expenses. To avoid going down that road it makes sense for eligible survivors to apply for Social Security benefits at the earliest possible time. Social Security pays cash for living expenses and covers medical bills.

Social Security benefits are awarded and paid by the federal Social Security Administration (SSA). To qualify recipients must be a US citizen or a lawful permanent resident.There are two main types of benefits: SSDI and SSI. SSDI (Title 2) benefits are awarded to disabled workers who worked long enough prior to injury to have paid the necessary minimum of social security taxes into the social security trust fund. Such persons must have worked at least 5 years before date of onset of disability. The longer they worked in the past, the higher the benefits they will receive. As of 2002 the highest amount paid was $1,698 per month. SSDI includes the cash benefit plus Medicare. After you have been on SSDI for 2 years, Medicare is provided premium free.

SSI (Title 16) benefits are awarded to disabled workers with minimal or no work history who have highly limited income and assets. The benefit payments are also small, just $545 per month as of 2002. To qualify for SSI, the claimant must have no more than $2,000 in cash or tangible assets and earn less than the federal benefit rate, which was $512 per month for an individual in the year 2000. To reach that level of impoverishment, a person can transfer their excess cash and tangible assets to a Special Needs Trust that will hold title to them. SSI is awarded with Medicaid. Some people qualify only for SSDI, some only for SSI and some for both programs.

Obtaining SSDI is a time consuming process that can involve setbacks and frustrations. The initial application takes between 3-4 months to be reviewed, in part because the agency must collect and read employment and medical records. Sometimes the agency requires a medical or psychological examination. While SSI starts the month after eligibility is found on the basis of limited income and assets, the agency imposes a 5 month waiting period for payment of SSDI benefits. Applicants who do not prevail on the original application can either reapply or go through a series of appeals that can take 1, 2 or more years. It is better to appeal, because if an appeal is granted, then back benefits will be paid retroactive to the date of the original application was filed.

In order to obtain SSDI the claimant must prove, to the satisfaction of the SSA, the following: He is unable to engage in any substantial gainful activity (SGA) as the result of a severe impairment that is "medically determinable" through objective testing procedures. The SSA presumes you can engage in SGA if you are not blind and earn more than a specified amount, which was $780 per month as of 2002. The impairment may be physical or mental, and must have lasted or be expected to last at least 12 continuous months. SSA has a set of listed impairments that are presumed to be disabling if they meet a specified clinical level of severity. These include leukemia, HIV, schizophrenia, epilepsy, heart disease and major depression. Traumatic brain injury is not a listed impairment.

For non-listing levels of impairment, the claimant must show that he cannot return to any occupation he ever engaged in during the past 15 years at SGA level. If the claimant meets his burden of proof, SSA can only escape paying benefits if it can prove the claimant could work at SGA level on a full time basis in any occupation, even one the claimant never worked in or desired to work in. Generally the younger the claimant, and the more "subjective" the symptoms, the harder it will be to establish disability and the more likely it becomes that appeals will be necessary to secure benefits. Claimants who are 50 years old or older tend to get a more friendly and lenient reception at SSA, in part because of the difficulty of such workers being retrained for new employment in a rapidly changing economy.

Claimants with TBI under age 50 are more likely to receive benefits when they present with "objective" signs of brain injury such as skull fracture, coma, positive neuro-imaging and focal neurologic deficits such as lost reflexes or muscle weakness -- all associated with severe TBI. Claimants with "mild" TBI who present with wholly subjective complaints (e.g. headache, dizziness, imbalance, blurry vision, distractibility, forgetfulness, slowed thinking, insomnia, fatigue, anxiety and depression) will face greater obstacles getting SSDI; and a higher level of persistence and perserverance will be required of them. While this does not seem fair, it is a reality of the administrative process. In such cases neuropsychological testing and information supplied by family, friends, previous employers and the claimant's treating physicians, can make the difference. On rare occasions I have seen clients with "mild" TBI obtain SSDI on the first application. Other clients have prevailed after multiple appeals.

Claimants who qualify for SSDI get Medicare, while those who qualify for SSI get Medicaid. Some people seek out social security benefits primarily for the medical insurance coverage that goes with it. It is a truism that people who become disabled by TBI will lose not just their jobs, but also their private health coverage. This is because they do not have the funds to pay COBRA premiums, because COBRA lasts just 18 months and because new health insurers will often seek to exclude their pre-existing conditions associated with the TBI or charge them exhorbitant premiums to cover them. Thus clients of our office who are disabled by their TBI are encouraged to apply for Social Security.

Denial of benefits on the first application is common across the country with the rates of denial varying from state to state. The national average is 40% granted and 60% denied. If the claim is denied, the claimant should file for "reconsideration." This preserves the original date of application for payment of retroactive benefits. On average reconsiderations are granted 17% of the time and denied the other 83%. If the reconsideration results in denial of benefits, the claimant should request a hearing with an ALJ (administrative law judge) and retain an attorney to represent him at the hearing. On average the hearings occur about 2 years post-application. Nationwide they result in 61% of applications being granted, 12% being dismissed and 27% being denied. The next step is to file with the Appeals Council. The final step is to have your case reviewed by a federal judge in a United States District Court.

Social security has "field offices" all over the country. To apply for benefits, you can go to an office, call 1-800-772-1213 or apply on-line at www.ssa.gov.
For questions about Medicare you can go to www.medicare.gov Free advice concerning eligibility for social security benefits can be had from non-profit firms such as Protection & Advocacy, Inc. In Calfornia their toll free number is 1-800-776-5746.

There are attorneys who specialize in social security disability cases. They will typically tell you to apply first on your own, and then contact them if your application was denied. They can also give advice as to which social security office in your state you should apply to, based on their knowledge of how different social security offices and administrative law judges respond. To obtain the best possible social security attorney in your community you should do your own research (including looking up the attorney's discipline status on your state bar association website), ask for client references, ask about the attorney's certifications and find out what organizations he belongs to. As of 2002 social security attorneys may charge a contingent fee of up to 25% of back benefits paid with a cap of $5,300. Our office has contacts with social security attorneys in California and Oregon who understand TBI.

If benefits are awarded they are taxable only if you have significant income in addition to your benefits. Benefits are not guaranteed for a lifetime. SSA will periodically re-examine benefits recipients at intervals related to the severity of their condition. The period between re-exams can be less than a year for people who are expected to improve or as long as 10 years for people not expected to improve.