Social Security Disability: Turned Down for Being “Too Smart”

Social Security Disability: Steven Part Eight

Are you on Social Security Disability now?

It took five and a half years.  Yes, sir.  That’s why she initially walked out.  It literally was right after my second denial, and I guess when she realized there wasn’t any money coming, it was time to go.

What was the justification for turning you down for Social Security Disability ?

I was too smart to be disabled. That’s what they told me.

At some point, you had a neuropsychological evaluation for determination for Social Security Disability ?

Just this summer I found one myself.

So how did the Social Security Administration figure out that you were “too smart” for Social Security Disability?

They would send me to these doctors that would spend five minutes talking to me and send me on my way.

Sounds like what they gave you would’ve been a neurological exam and probably within that a mini-mental status exam for determination for Social Security Disability.

They wouldn’t even do that, sir.  They would tell me to stand up in whatever room, ask me to walk from one side of the room to the other, ask me a couple questions and send me out.

Did you hire a lawyer at any point in your Social Security Disability procedure?

I’ve had, it took three to four lawyers, and it took, Mr. Wright to get me my last lawyer before I finally was to get approved.

Did you have a hearing before you were, in which you were turned down for Social Security Disability?

Uh, yes, sir.  I had a hearing both times that I was denied, and I got a hearing the last time that I finally got approved.

It is simply unconscionable that anyone who has survived a severe brain injury, even without related physical disability, should be denied social security disability, unless they have actually returned to work.  When you add a stroke, left sided weakness and substantial orthopedic injuries, it is outrageous. But the survivor of a severe brain injury, almost by definition lacks the capacity to get such social security disability on his or her own.  With competent representation, the social security administration’s criteria for social security disability are easily provable for anyone who has survived a coma.  Those criterion, spelled out on the SSA.gov website.  https://secure.ssa.gov/apps10/poms.nsf/lnx/0425020010!opendocument They are as follows: 

 2. Mental Abilities Needed For Any Job

a. Understanding, carrying out, and remembering simple instructions

1. a. The ability to remember locations and worklike procedures.
2. b. The ability to understand and remember very short and simple instructions.
3. c. The ability to carry out very short and simple instructions.
4. d. The ability to maintain concentration and attention for extended periods (the approximately 2-hour segments between arrival and first break, lunch, second break, and departure).
5. e. The ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances.
6. f. The ability to sustain an ordinary routine without special supervision.
7. g. The ability to work in coordination with or proximity to others without being (unduly) distracted by them.
8. h. The ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods.

b. Use of judgment

1. c. The ability to make simple work-related decisions.
2. d. The ability to be aware of normal hazards and take appropriate precautions.

c. Responding appropriately to supervision, coworkers, and usual work situations

• ¥ The ability to ask simple questions or request assistance.
• ¥ The ability to accept instructions and respond appropriately to criticism from supervisors.
• ¥ The ability to get along with coworkers or peers without (unduly) distracting them or exhibiting behavioral extremes.

d. Dealing with changes in a routine worksetting — the ability to respond appropriately to changes in (a routine) work setting.

3. Mental Abilities Critical For Performing Unskilled Work

The claimant/beneficiary must show the ability to:

1. a. remember work-like procedures (locations are not critical).
2. b. understand and remember very short and simple instructions.
3. c. carry out very short and simple instructions.
4. d. maintain attention for extended periods of 2-hour segments (concentration is not critical).
5. e. maintain regular attendance and be punctual within customary tolerances. (These tolerances are usually strict.) Maintaining a schedule is not critical.
6. f. sustain an ordinary routine without special supervision.
7. g. work in coordination with or proximity to others without being (unduly) distracted by them.
8. h. make simple work-related decisions.
9. i. complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. (These requirements are usually strict.)
10. j. ask simple questions or request assistance.
11. k. accept instructions and respond appropriately to criticism from supervisors.
12. l. get along with coworkers or peers without (unduly) distracting them or exhibiting behavioral extremes.
13. m. respond appropriately to changes in a (routine) work setting.
14. n. be aware of normal hazards and take appropriate precautions.

4. Mental Abilities Needed To Do Semiskilled and Skilled Work

1. a. The basic abilities listed in “DI 25020.010B.2.” (i.e., the “abilities needed to perform any job” ) are necessary.
2. b. Often, there is an increasing requirement for understanding and memory and for concentration and persistence , e.g.: the ability to:
   • ◦ understand and remember detailed instructions,
   • ◦ carry out detailed instructions, and
   • ◦ set realistic goals or make plans independently of others.
   • c. Other special abilities may be needed depending upon the type of work and specific functions it involves.

5. Degrees of Mental Limitations vs. Specific Jobs

Different jobs require different degrees of mental ability.

EXAMPLE 1: Most competitive jobs require the ability to meet basic standards of neatness and cleanliness. However, the standards that must be met vary greatly depending upon whether the job(s) being considered involve dealing with the public; or working in a factory, a coal mine, a stock yard, etc.

EXAMPLE 2: Most competitive jobs require the ability to travel to and from work and thus, would be precluded by extreme agoraphobia in which the person is incapable of leaving his/her home. However, a mild case of agoraphobia may not preclude the ability to travel to and from work or preclude work performed in the same (and thus, familiar) setting each day.

Anyone who has a social security disability application, should make sure his or her representative not only cites the above criterion to the Administrative law judge, but also details how the medical and psychological records demonstrate where the claimant can’t do those things required.

If memory is an issue, remembering work work-like procedures, understanding and remembering simple instructions and carrying out those instructions may be a problem.  If mood is an issue, getting along with co-workers will be problematic.

If headaches or other pain issues are a problem, attendance will be a problem.  If fatigue is an issue, and it almost always is, sustaining work over extended periods will be a  problem.

Significant frontal lobe injury will cause problems up and down the above list.  While it doesn’t say this, this list creates almost a presumption that someone who has survived a coma meets the definition of disability.  Any competent and thorough presentation of the case for Social Security Disability before the Administrative Law Judge, will result in an award.

Steven was turned down for Social Security Disability primarily for two reasons, his representation wasn’t competent and his brain injury had not been formally assessed, after his discharge from the initial hospitalization.

Next in Part Nine – The Poverty of Being Lost in a Crack of Our Disability System

By Attorney Gordon Johnson

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