An Article by Portland Attorney Sara Staggs
Social Security benefits can seem almost impossible to obtain. In fact, many claims are only approved upon appeal from the initial denial. In addition, allegations of epilepsy are among the most difficult types of claims adjudicated by the Social Security Administration (SSA), and many errors can, and often do, occur with both the Social Security judges and the treating doctors.
A claimant can increase their odds of obtaining benefits with a better understanding of the system. The whole process of being awarded Social Security benefits is based on a five-step disability evaluation. The claimant’s answer to these five questions determines whether they will receive an ‘approved or ‘denied’ letter from the SSA:
- Is the claimant engaged in “substantial gainful activity”; and
- Does the claimant have a “severe” impairment; and
- Does this impairment meet or “equal” one of the impairments described in the Social Security “Listing of Impairments”; or
- Considering what the claimant can still do, even with their impairments, (their “residual functional capacity”), are they unable to do “past relevant work,” and
- Is the claimant able, even with the impairment, to do other work, considering the claimant’s age, education and work experience.
The words in quotations have specific definitions under Social Security regulations – and those definitions don’t always follow common sense.
1. How to Meet the “Listing Requirements”
To meet the requirements set forth for epilepsy in the Listing of Impairments, “major motor seizures” (tonic-clonic) must occur more than once a month or “minor motor seizures” (absence seizures, focal seizures, partial seizures) must occur more than once a week, despite at least three months of prescribed treatment. The claimant must have adequate documentation regarding their compliance with the prescribed treatment: generally a statement regarding compliance, and blood levels. If the prescribed medical treatment is being followed, but the claimant doesn’t met the exact listing requirement for some reason the SSA will consider the “residual functional capacity” – what the claimant can still do, even with epilepsy.
2. The Four Factors
To make an accurate disability determination regarding epilepsy, the SSA often looks at the records of the claimant’s treating physician, either the general practitioner or a specialist, such as a neurologist. The medical records are reviewed to determine the type of seizures, the frequency of the seizures, the duration of the seizures and the after-effects of the seizures. These are four of the main factors taken into consideration when a claimant says that his or her disability is due to seizures. Again, the listing requirements are only met if the claimant is in compliance with the prescribed treatment and has been for three months, making it vitally important that the claimant take their medication as they should.
3. Dear Diary….
Claimants should never assume that any physician has good records about their seizure disorder. Often, the records kept are not sufficient for the SSA. If you think you may qualify for Social Security disability, it is a good idea to start keeping a diary of what you experience before, during, and after your seizures, and keeping track of the frequency of your seizures. Family members should try to keep track of the duration and frequency of the seizures, and be able to describe what happens to the claimant during the seizure. Does he or she lose consciousness? Lose bowel or bladder control? What is the claimant’s postictal state – is he or she confused, lethargic or sleepy? Is the claimant’s memory impaired after a seizure? The testimony of family members can be very important during a hearing, so keep notes every time a seizure occurs.
4. See a Doctor
In addition, go see your treating doctor about uncontrolled seizures to establish an ongoing relationship with your doctor. The SSA requires that such a relationship exist to meet the listing criteria. (The assumption is that if a person has uncontrolled seizures, he or she would be seeing a doctor to work on getting the seizures under control.) This doctor does not have to be an epilepsy specialist. Give copies of the diary you have been keeping to this doctor so that they are part of the medical records.
5. You Can Do It!
Even if you are denied benefits initially and upon reconsideration, you can request a hearing before an administrative law judge (ALJ). There is a difference between the way disability is evaluated by the state agencies and by the ALJs, which can lead to a favorable decision upon appeal. Finding an attorney or someone else familiar with the Social Security system and process is very helpful. The process of claiming Social Security disability benefits can be daunting and slow, but try not to get too discouraged. Remember that the system does not work overnight – don’t’ get frustrated and don’t give up!