I have written about this issue before but, given the stress of the coronavirus pandemic, I think this question deserves another look because just about every case evaluation I see contains allegations of some mental health concern.
I suspect we will be dealing with the repercussions of Covid-19 for years. In Atlanta, where I live, it seems that every night we see news stories of road rage shootings and other violent crimes.
Entire sectors of the economy have been devastated, causing upheavals in the job markets. How many restaurants have closed over the past year? How many men and women in the hospitality, tourism or travel industries are out of work? And for those who remained employed, many had to adjust to working from home while balancing child care and school-from-home obligations.
It is certainly no wonder that daily stress – whether financial, interpersonal or otherwise – has resulted in more cases of clinical depression and anxiety disorders. Hardworking men and women who might have been struggling with depression or social anxiety but was “getting by” now find the pressure of adapting to a post-pandemic world simply too much.
Here is some of what I see from potential clients in case evaluation requests:
“I cannot physically, mentally and at times emotionally work more than a few hours a week. I have noise intolerance with voices, music, and sounds, especially higher pitches. I have to wear noise cancelling ear phones and they don’t fully help. I cry at times from overstimulation which could be even from thinking, planning or riding in a vehicle. I cannot drive.”
“I have severe depression and anxiety and I can no longer focus on my work. And I had suicidal thoughts I am writing this right now it is 4:35 in the morning. I don’t sleep and I am taking antidepressants like mirtazapine 45 mg and am always sleepy and tired.”
“It’s almost impossible for me to work now and I feel like I’m mentally, emotionally disabled.”
“Due to pain, fatigue, attention issues, memory issues, and depressive episodes, I am no longer able to maintain even a part time job consistently. I had a long work history, but once I got older, had a child, and complications after having my son, then the anxiety and depression got worse.”
“Now I’m currently dealing with more mental health problems and physical problems. My depression and anxiety has and still currently stopped me from living for years. I just cannot go outside or to big events without having a meltdown and not being able to enjoy myself.”
So, what does Social Security do with disability applications that contain allegations like this? In preparing this article, I spoke to several of my colleagues in different parts of the country asked them about their experiences handling mental health disability cases. Not surprisingly, my experiences are very similar to those of my colleagues and I have tried to distill our common experiences into the conclusions expressed below. Here are some thoughts we have reached about the level of impairment Social Security judges expect to see in cases they will approve:
1. if you are still working, even part time, it will be an uphill battle to win disability. SSA defines disability in terms of how your medical and mental health conditions prevent you from working. Regardless of how ill you are, if you are able to work full time or close to full time you are not disabled as a matter of law.
Under Social Security rules earnings over $1,350 per month before taxes (this equates to a whopping $16,200 per year) your work is considered “substantial” and inconsistent with SSA’s definition of disability. This $1,350 figure represents evidence of “substantial gainful activity” or SGA and it changes every year – the table is at https://www.ssa.gov/oact/cola/sga.html.
If you are working part time but below the SGA limit your case can still be negatively impacted because many disability judges will assume that the reason year earnings are below SGA has more to do with available hours as opposed to your inability to perform. Further, ongoing part time work raises the question of whether you can perform an easier job where you could earn more than SGA.
I cannot explain how Social Security expects you to feed yourself, pay rent and utilities and maintain health insurance with no income during the year to 18 months you can expect to wait before your case comes before a disability judge.
2. If you are younger than 45 it will be more difficult to win benefits. Obviously mental health issues can strike anyone at any age. But Social Security judges are under pressure to protect the disability trust fund. A 30 year old who is approved will likely be a drain on the system for the next 30 to 35 years. By contrast a 55 year old will become eligible for early retirement in less than 10 years. Generally speaking the younger you are, the stronger the evidence must be in your case.
3. Because so many people are struggling with depression, anxiety and PTSD, the evidence in your case needs to show that your condition is extreme. This generally means that judges expect to see evidence of several inpatient psychiatric hospitalizations within the past two to three years, with more recent hospitalizations making your case stronger. Evidence of one or more suicide attempts within the past two to three years, or evidence of extreme treatment (like ECT) and evidence of unsuccessful medication trials over the past few years also signals to the judge that your condition is likely disabling.
4. You will need evidence of ongoing treatment with a psychologist and/or psychiatrist. Unless there is a compelling reason why you are unable to take prescription drugs, most judges expect to see prescription drug treatment with a psychiatrist (medical doctor). Further, many judges expect to see evidence of on-going “talk therapy” with a psychologist or clinically licensed therapist.
5. The medical records from your psychiatrist and/or psychologist need to document a lack of success in controlling your symptoms despite changes in dosage or medications.
You should report significant medication side effects to your psychiatrist – this will help the judge understand why your doctor has had such a difficult time finding a medication regimen that works for you.
6. Your medical record needs to show compliance with treatment and an absence of use of street drugs, alcohol or drug seeking behavior. If these problems do exist they need to be in the past and there needs to be evidence that you addressed them through a rehabilitation program.
Evidence of arrests or other legal trouble can be helpful to show issues with impulsivity, anger control, poor judgment or low threshold of tolerance for frustrations. This is especially true if the claimant’s anti-social behavior is new and inconsistent with prior behavior.
7. Mental health treatment at the VA may not help much. VA mental health treatment often consists of group therapy or telemedicine and VA doctors will rarely complete functional capacity forms. Further, the VA is known for overmedicating its patients generally. If you are only treating at the VA, I strongly recommend that you seek psychiatric and/or psychological treatment outside the VA to improve your chances at winning.
Further a VA disability rating – even a 100% disabled VA rating – will not be binding on SSA. You would think that two federal agencies that both made disability determinations would apply the same rules but that is not the case. The VA can find your partially disabled (i.e., a 70% impairment rating) but in the Social Security world, disability is an “either/or” proposition – either you are disabled or you are not.
8. Your treating psychologist and/or psychiatrist needs to be willing to complete a functional capacity form that identifies significant work limitations. These FCE forms are especially important in mental health cases because we cannot rely on objective tests like MRIs or CT scans to “prove” the existence of a severe mental health issue.
Even better, ask your psychiatrist or therapist if he/she would be willing to appear by phone at your hearing for five to ten minutes to offer testimony about the impact of your mental health symptoms on your work capacity. Many times, office notes from mental health providers are handwritten or they do not contain the detail that notes judges see from orthopedists or cardiologists. Five minutes of live testimony from your treating mental health provider can be extremely beneficial to your case.
9. Schizophrenia cases tend to be easier to prove, especially if the claimant is actively psychotic. If you experience visual or auditory hallucinations you should ask friends, family or co-workers to submit third party statements (on form SSA-795) describing their observations of psychotic behavior that corroborate the claimant’s testimony about hallucinations.
10. Cognitive and mental health issues arising from a closed head injury tend to be easier to prove, especially if the trauma is well documented and your behavior post-injury is markedly different from pre-injury. This is where non-medical evidence in the form of statements from former co-workers and family members can be valuable.
11. If you are alleging disability based on PTSD, the trauma needs to be personal to you and significant. Generally speaking an on-going trauma like sexual or physical abuse over years, or combat stress for six months or longer will be more compelling than a claim of PTSD from a hostile work environment or a one-time event many years ago. In my experience judges tend to be more sympathetic to the sudden loss of a child than to the loss of a parent or even the loss of a spouse, but most judges do recognize that some claimants experience extreme reaction to the unexpected loss of a close loved one.
12. Your testimony at your hearing needs to convince the judge that you are not “invested” in being disabled and that you are fighting the idea of being labeled as disabled. You cannot present yourself as someone who has given up – instead you want the judge to know that you fully intend to return to work as soon as you are able.
13. In cases where the claimant suffers from anxiety/panic attacks or manic/depressive episodes you can help your case by keeping a log documenting the frequency, duration and severity of your symptoms. Not only can your log be submitted as evidence but it can also help you on the day of your hearing when you are asked by your attorney or the judge to describe specifics.
Obviously you and your family know better than any attorney or any judge how and to what degree your mental health struggles are impacting your life. Disability judges can only rely on the medical evidence in your file and the “deserving case profiles” in their own minds.
But if you intend to pursue disability benefits for yourself or a loved one, it is important to know what is working now and hopefully this article offers helpful insight. I greatly appreciate the contributions of my colleagues – all of whom are gifted attorneys who work tirelessly on behalf of their clients. They include Stephanie Joy (eastern Pennsylvania), Stuart Barasch (Miami and Los Angeles) Jeffrey Herman (Arizona), Jonathan Pearson (Illinois), Lindsay Osterhout (western Pennsylvania), Karen Levian (Maryland) and Maren Bam (Washington state)
Please let me know what you think. Should Social Security change how they evaluate mental health disability claims? If you are a disability claimant has your experience been different? If you are a disability attorney, would you add or change anything?