In determining whether a person is disabled, physical ability is only half of the equation: a person must also be able to perform the cognitive demands of the job. Yet, many disability insurers and plan administrators overlook this critical aspect. They assert that, because the claimant can perform “sedentary” work, he or she is not disabled, without addressing the claimant’s cognitive abilities. Often, they sidestep the issue by providing claimants and their doctors with overly simplistic questionnaires that contain few, if any questions, about cognitive ability. Our team of benefits lawyers has extensive experience representing professionals with cognitive impairments and fighting against insurance companies for your benefits.
What Are Some Common Disabling Impairments Associated with Cognitive Impairment?
What Are the Causes of Cognitive Disability?
Cognitive impairment can be the result of organic brain damage, such as a stroke, head injury, tumor, demyelination (e.g., multiple sclerosis), encephalitis, or dementia. It may also be caused by abnormal electrical activity in the brain (i.e., epilepsy).
Cognitive impairment may also be secondary to an underlying physical impairment. For example, migraine headaches, back pain, fibromyalgia, and other physical ailments can cause pain and fatigue that interfere with cognition. Covid-19 has also been shown to produce long-term cognitive impairment.
Finally, cognitive impairment may be a consequence of medical treatment, such as medication side effects or chemotherapy-induced “brain fog.” Drowsiness, fatigue, and confusion caused by medication side effects can be as disabling as the underlying illness the medication is intended to treat.
Here is how to avoid some of the more common traps that are typically associated with cognitive impairment insurance benefits claims.
Mental Impairment vs. Cognitive Impairment
Cognitive impairment should not be confused with mental impairment. “Mental impairment” refers to psychological disorders, such as anxiety and depression, which are purely mental in origin and have no underlying physiologic basis. Cognitive impairment, on the other hand, refers to discrete cognitive deficits in domains such as learning, memory, executive functioning, spatial reasoning, and processing speed.
The distinction is confusing because mental impairments can produce cognitive deficits. For example, a person suffering from depression or anxiety may suffer from impaired attention and concentration as a result. A skilled neuropsychologist can usually differentiate between cognitive impairment due to a psychological condition and organic cognitive impairment. The patient’s medical history is another important determining factor.
The distinction between mental and cognitive impairments is an important one, because many individual and group disability plans and policies limit benefits for disabilities caused by “mental illness” or “mental impairment” to two years, whereas disabilities caused by a physical condition have no such limitation. That limitation can prove problematic if a person suffers from cognitive impairment due to both physical and mental causes. In such cases, a neuropsychological evaluation by a skilled examiner becomes even more important.
How Do You Prove Cognitive Impairment?
Cognitive impairment is typically evaluated via a neuropsychological evaluation. As part of the evaluation, a neuropsychologist or clinical psychologist, or a graduate student working under their supervision, will conduct a battery of standardized tests designed to evaluate cognitive functions such as intelligence, memory, processing speed, executive functioning, attention and visuo-spatial reasoning. The results of the test are then compared against a normative peer group to determine if the patient falls in the expected range for his or her age and background.
The examiner may administer freestanding validity tests to determine if the patient is giving full effort on the testing. Many tests also contain embedded validity measures that will detect suboptimal effort or attempts to exaggerate symptoms. Thus, it is important that patients give full effort on all tests to avoid accusations of malingering.
Note that there are many reasons, besides malingering, why a patient may perform poorly on validity tests. Pain, fatigue, and medication side effects can all interfere with test performance. Ironically, those same symptoms may be the reason the neuropsychological testing was ordered. For this reason, it is best to undergo testing with a board-certified neuropsychologist who is able to detect when pain, fatigue, and other symptoms are impacting test performance and pace the testing accordingly.
The examiner may also administer psychological testing to determine if the patient suffers from a comorbid mental impairment that may be contributing to his or her symptoms. Finally, the examiner will usually conduct a clinical interview and medical records review as part of the evaluation.
Repeat neuropsychological tests may be administered to determine if the patient’s cognition has improved or declined, though it is recommended to wait at least two years between tests to avoid a “rehearsal factor” that comes with more frequent test administrations and may make the patient appear to be higher functioning than is the case.
How Neuropsychological Evaluation Can Backfire
As discussed above, a neuropsychological evaluation can be very useful for proving disability due to cognitive impairment. However, a neuropsychological evaluation is not always appropriate, and can even backfire. Here are some common traps to watch out for:
- High premorbid intelligence: If a claimant has high pre-morbid intelligence, then he or she may perform in the “average” range on neuropsychological testing despite having suffered a cognitive decline. In such instances, it is useful to submit evidence of pre-morbid intellectual functioning, including childhood IQ tests (if they exist) and academic accomplishments. An opinion by a vocational expert may also be helpful to show that the claimant’s former occupation required “above average” or “superior” intelligence.
- Poor effort during testing: Fatigue and medication side effects can reduce stamina, resulting in declining performance during the neuropsychological evaluation and potentially invalid results. If you think this will be a problem, discuss with the examiner in advance whether the testing can be divided up into two or more sessions.
- Failure of the examiner to administer freestanding validity tests: Failure by the examiner to perform free-standing validity testing can open the door to criticism by your disability plan administrator that the test results are invalid. That criticism is unfounded, because many substantive neuropsychological tests contain embedded validity measures, and standalone validity testing is not appropriate for all types of medical conditions. Nonetheless, it is best to make sure that your neuropsychologist is board-certified to ensure he or she adheres to industry best practices during testing.
- Rehearsal factor: As discussed above, neuropsychological evaluation is not recommended more than every two years due to the risk of a rehearsal factor. If you undergo an evaluation that is deemed invalid, and you wish to immediately undergo a second evaluation, you will need to locate an examiner who is able to perform an entirely different battery of tests.
- Inconclusive test results: Neuropsychological testing is best at identifying discrete cognitive impairments due to localized brain damage or organic brain disease. It is less effective at identifying cognitive deficits caused by pain, fatigue, medication side effects, and other general or poorly defined causes, which can interfere with test performance and thus render the results invalid. If the test results are deemed invalid, the disability plan administrator may unfairly accuse the claimant of malingering. Similarly, neuropsychological testing often turns up evidence of comorbid psychological impairment that the disability plan administrator may cite as evidence that benefits should be limited to no more than two years. Thus, it is best to proceed with caution and discuss beforehand with an experienced benefits attorney before proceeding with a neuropsychological evaluation.
What Else Can I Submit to Prove Cognitive Impairment?
In addition to neuropsychological testing, it is helpful (though not essential) to provide objective proof of the cause of your cognitive impairment. If, for example, you suffer from stroke or multiple sclerosis, you should provide your disability plan administrator with the interpreting radiologist’s report of your brain MRI to document the location and size of the lesions. Similarly, if you suffer from epilepsy, it can be helpful to undergo EEG monitoring to prove the presence of abnormal electrical activity.
Unfortunately, many of the conditions that can cause cognitive impairment – such as head injuries, migraine headaches, and medication side effects – are not detectable using imaging or electrodiagnostic studies. Moreover, neuropsychological testing may be inconclusive or deemed invalid if the patient’s pain and other symptoms interfere with test performance.
In the absence of other evidence, it may be necessary to rely on opinion evidence from your treating physician to substantiate the existence, validity, and extent of your cognitive impairment. You can also submit anecdotal evidence, such as witness statements from family, friends, and present or former supervisors and colleagues, attesting to your cognitive difficulties. Negative performance evaluations and migraine headache or symptom diaries can also be powerful (if non-medical) evidence of impairment.
Another important measure to take is to attach a copy of your job description to your disability application. Providing the disability plan administrator with a detailed job description outlining the mental demands of your job makes it that much harder for the plan to ignore those job duties in its disability determination. If your employer is unable to provide you with a detailed job description, then consider writing one on your own detailing the demands of your job and a typical workday.
Know Your Rights
You may qualify for disability benefits if you are experiencing a cognitive impairment condition that impacts your ability to work.
Our team has the experience and proven track record to guide you and protect your benefits.
Does This Apply to You?
Contact DeBofsky Law for an attorney consultation. We will work with you to figure out your problem, and how we can help.
Disability and ERISA Lawyers Experienced in Cognitive Impairment Conditions
The attorneys at DeBofsky Law understand how difficult it can be to deal with a severe cognitive illness, keep up with your treatment, and navigate the disability benefits process.
Our team of legal experts can assist during every phase of the benefits process, including:
- Benefit applications
- Claim appeals if your benefits are denied or terminated
- Challenging the limitation of your benefits if you have a co-morbid, disabling physical condition
- Challenging the denial or termination of your benefits in court
We’re Here to Help You Avoid the Insurance Claims Traps and Fight on Your Behalf
If you or your loved one have a severe cognitive illness, please give us a call. The experienced attorneys at DeBofsky Law are here to help. We go to great lengths to protect the benefits you are entitled to receive.
“You were the hardest working and most compassionate Attorney I have ever worked with.”
Sally G | Client
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