Case Strategy for Disability Claims Based on a Stroke

Mental and physical limitations arising from a stroke (also called a CVA, or cardiovascular accident) can support a claim for disability.  Often a stroke leaves a claimant with weakness or loss of function on one or both sides of the body, and strokes can also result in the loss of cognitive (thinking) ability, speech capacity, and vision, and strokes can cause personality change, depression and anxiety.

Physical problems arising from a stroke result in “exertional” impairments, while depression, mental  health issues and cognitive decline result in “non-exertional” impairments.

Most Social Security judges will accept testimony from you (the claimant) as well as relatives and friends about stroke related impairments but they will also want medical documentation to support your testimony.   In my experience, judges often call medical experts to testify at hearings involving stroke patients.  Medical experts are usually medical doctors but they can also be psychologists.  Many medical professionals think in an analytical fashion, meaning it is a good idea for you and your attorney to see to it that your medical file is up to date with:

• hospital records showing intake and treatment immediately following the stroke – this will allow the medical expert to evaluate the severity of the stroke
• records from any rehabilitation facilities that you may have visited
• follow-up records from your doctor, preferably from a neurologist
• if you can get a functional capacity form completed by your treating neurologist, and it is supportive your likelihood of success goes way up.

I also find that many of my stroke clients have a difficult time communicating – either because their speech has been compromised or because they do not have any clear memory of the events in the days or months following the stroke.  Therefore I recommend to my stroke clients that they bring one or two witnesses to their hearing – people who knew them before the stroke and who saw you in the days and months following your stroke.

Whenever possible I also try to prepare and file a pre-hearing brief on behalf of my stroke clients.   Because stroke symptoms can be so varied and because stroke patients often have trouble remembering and communicating, I find it helpful to spell out the elements of my case in writing, clearly and concisely, prior to the actual hearing.

Winning Arguments in Stroke Disability Cases

The following disability arguments may be applicable in a stroke disability case:

Argument 1.  Does your case meet a Listing?

The Listing for a stroke may be found at 11.04 and is entitled “Central Nervous System Vascular Accident” and it reads as follows:

11.04 Central nervous system vascular accident. With one of the following more than 3 months post-vascular accident:

A. Sensory or motor aphasia resulting in ineffective speech or communication; or

B. Significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station (see 11.00C).

The term “aphasia” is defined as is a loss of the ability to produce and/or comprehend language, due to injury to brain areas specialized for these functions, such as Broca’s area, which governs language production, or Wernicke’s area, which governs the interpretation of language.  It is not a result of deficits in sensory, intellectual, or psychiatric functioning,[1] nor due to muscle weakness or a cognitive disorder.

I understand the term “disorganization of motor function in two extremities” to  mean that you have loss of meaningful function in your arms, your legs or one arm and one let.

The listing also refers to physical (organic) damage to an area of the brain, not loss of function due to another cause.

Evidence needed to prove that you meet a listing may include MRI or CT scan test results and a medical records that interpret these diagnostic tests.  There are also neuropsycological tests that can identify organic, stroke related brain damage.

In my practice I will draft a checklist for your doctor to complete that tracks the language of the listing.

Argument 2.  If your stroke and associated symptoms do not meet a listing, can you show that your functional capacity for work has been so impaired by your stroke symptoms that you would not be able to perform even a simple, unskilled, sit down type of job?

Sometimes medical records are not available or my client does not have insurance to cover a CT or MRI of the brain.  In other cases, the limitations affect one extremity (i.e. one leg or one arm) only, and there is partial loss of speech or cognitive capacity.  In these cases, the listing may not apply but we can still win by arguing “functional capacity.”

In functional capacity cases, I will draft and send to a treating doctor or psychologist a checklist functional capacity form that identifies activity limitations common to stroke victims.  In these checklists I always include questions that relate to my client’s reliability problems.

Summary

In my experience most judges recognize that a medically documented stroke can cause significant mental and physical limitations.  If your stroke was many years ago and you subsequently worked, but now assert that your symptoms have returned and worsened, you could have proof issues, but if your stroke happened relatively recently and you have not recovered significant function, you have a good likelihood of winning.