Can This Case Be Won? Episode 2

“He’s had terrible seizures ever since he went on a drinking binge.”

“My husband has lost all hope of ever working again since he developed grand mal seizures.” said Shana, age 30.  A petite woman with streaked purple hair, Shana’s face showed the strain she was feeling.

“When we got married, we had great times together. Ted was a real go-getter; working in the motorcycle shop and thinking about adventures we could have.

Then two years ago, he went on a trip to Las Vegas with some buddies. I guess they drank all weekend and after three days of bingeing, Ted suffered a Grand Mal epileptic seizure.”

“When he came home, he was careful not to drink too much. But something had happened to him.  He has Grand Mal seizures a couple times a month now.”

“What am I supposed to do?” Ted asked wearily. At age 34, he was lean and healthy in appearance but his affect was flat. “My boss can’t put up with this.  It’s unpredictable.  I mean, it’s not just the seizure itself – although that’s humiliating enough. Afterwards, all I want to do is sleep.”

“I’ve seen a neurologist; they’ve tried two different medications. I applied for social security disability and I got turned down.”

“The thing of it is – it was just one bad choice to go all out with my buddies and drink myself under the table. I mean, I’ve done that from time to time but not recently. I did have a DUI about three years ago but then I hadn’t drunk much at all until that weekend.

“Neither of us ever finished high school but it didn’t seem important. I had my work and Shana looks after the kids. But now, we’ve lost our health insurance and I can’t work at the job I’ve had for the last twelve years.”

The lawyer’s view:
Ted’s case posed some challenges:

1. He’s young: Social Security isn’t predisposed to look favorably on young applicants for benefits.

2. His seizures were brought on by drinking.  Social Security regulations and cases provide that if a disability would not be present but for alcohol or drugs, an applicant will not receive benefits.

3. He had tried two medications – but is that enough?  Or would the judge conclude that the condition could be controlled by medication?

What happened?
At hearing:

1. His treating neurologist, through a letter we submitted, confirmed that the Grand Mal seizures, although initially brought on by a drinking binge, was a permanent condition. He noted that Ted was trying to gain control and that typically it would take time to find the right mix of medications to more fully control the seizures. Importantly, he also stated that Ted would miss at least two days of work per month until that time – the test under Social Security case law.

2. Shana provided lay witness testimony about the frequency and length of Ted’s seizures.

We won the case.