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The Social Security Administration refers to diagnoses such as anxiety, depression, bipolar, etc., as “Mental Disorders.” Obviously, these are different than physical disabilities and they are analyzed, evaluated and adjudicated dramatically differently as well.
About 12 years ago or so, The Agency became alarmed at the rate of newly approved claims that alleged a Mental Disorder. At the time it was about 25% and creeping upward. They took swift action over the last 10 years making these types of disorders much more difficult to prove.
The last update to this category of disabilities was in January 2017. These changes were not by accident. This was absolutely by design. Don’t let anyone fool you into thinking they have a good grip or lock on these type of cases with brash claims, or sales puffing. Today, Mental Disorders are much more difficult to prove than they once were.
An exertional limitation refers to your inability to sit, stand, walk, lift, carry, etc. An exertional limitation means that your ability to do those things is limited by a physical impairment that you have.
This is not the case with Mental Disorders. If your case involves only a Mental Disorder, then by definition, you have no limitations in your ability to sit, stand, walk, etc.
If this is the situation you’re in, it will be much more difficult to prove your disability because The Agency can now analyze your mental limitations (non-exertional) as they relate to the ability to perform work at the Medium, Light, and Sedentary job settings. This means that there is a plethora of high-turnover, unskilled, dead-end, jobs at the three exertional levels that The Agency will gleefully fit you into.
Non-exertional limitations are the primary focus of the Mental Disorders evaluation. A non-exertional limitation means you are impaired in the areas of carrying out simple work instructions and steps, work-like procedures, etc. It also refers to your inability to appropriately interact with coworkers, supervisors etc.
We’re going to focus on the non-exertional limitations and how they are analyzed by Social Security.
Before we do that, we’re going to analyze how The Agency assesses Mental Disorders. It’s basically in three phases. The first phase is the actual diagnosis of a recognized Mental Disorder. The Agency calls this the Part A criteria. The Part A criteria includes the signs and symptoms that you exhibit based on that particular Mental diagnosis. For example, if you have lumbar or cervical diagnoses (physical impairment), one of the signs and symptoms is pain and a lack of range of motion (physical or exertional limitation).
In the Mental Disorder arena, it’s things like a loss of interest in different types of activities. Or something the mental health community calls vigilance and scanning. From here, they evaluate how something like a loss of interest in different types of activity impedes your ability to do work like tasks. The Agency calls these mental limitations the Part B Criteria. Finally, the third phase is to what degree, extent, and severity do the Part B criteria limit your ability to perform work like activities? This is where crazy subjective terms like Moderate and Marked come in. Let’s start!
The diagnosis of a Mental Disorder is generally done by a psychiatrist, therapist, or other mental health professional. While the Agency’s regulations state that you technically need not have a diagnosis, and a medically determinable impairment will suffice. Respectfully, we don’t see any appreciable difference in those two, let alone any difference. The diagnosis is based on the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th edition).
The DSM-5 lists all known Mental Disorders that exist, their associated signs and symptoms and how to confirm each diagnosis. The DSM-5 was updated in May 2013.
The DMS-5 is a universally accepted publication of all the Mental Disorders that are diagnosed in humans. For example, sometimes we have clients who tell us they’re suffering from Posttraumatic Stress Disorder (PTSD). The first step in proving this specific disability is the actual diagnosis itself. One treating source may diagnose you with PTSD, while another professional doesn’t agree with the diagnosis, but thinks you may be suffering from something else, like bipolar etc.
Below, are the criteria for PTSD under the DSM-5
Specify whether:
With dissociative symptoms: The individual’s symptoms meet the criteria for posttraumatic stress disorder, and in addition, in response to the stressor, the individual experiences persistent or recurrent symptoms of either of the following:
That’s a lot to digest. We know, but it’s important at the outset that a trained mental health professional appropriately diagnose that condition and site which of the symptoms you exhibit in order to support such a diagnosis. From there, those diagnoses are issued ICD-10 (International Classification of Diseases, 10th Edition) billing codes. We will often see these billing codes on medical records from your treating sources. The ICD-10 code for posttraumatic stress disorder is: F43.12
While these diagnoses codes are primarily for insurance billing and reimbursement etc., we believe it’s important that these are consistently logged throughout your medical records.
So now that the first step of the actual diagnosis is done, let’s review the second phase which is establishing signs and symptoms.
Different Mental Disorders carry with them different signs and symptoms. Below is a list of different signs and symptoms that are associated with both PTSD and many of the other Mental Disorders we see.
While this is a comprehensive list, it’s not an exhaustive one:
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Now you don’t have to exhibit all the signs and symptoms that we list above, but the ones you do exhibit have to be supported by the medical evidence in your SSDI claim file. What we mean is that your treating psychiatrist or therapist has to have some basis on which he or she indicates that you have these signs and symptoms.
Let’s take vigilance and scanning for example. This means that throughout the day, you appear to be anxious of your surroundings being near people, and are expecting something to happen to you. As a result, you’re constantly scanning your environment when there is really no need to do so. You’re constantly vigilant about either an attack, gesture, criticism, or some other kind of trauma when there is little to no reason for you to be attacked, harmed, threatened, etc.
These and other symptoms are confirmed by your treating sources listening to you during therapy sessions and how you’re dealing with people in your daily life. If there is no evidence of this, then this can’t be a symptom of your mental impairment. If there is evidence, then your treating source should be noting the basis upon which he or she is making this finding.
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So you have a definitive diagnosis by a licensed professional. That diagnosis is associated with the appropriate signs and symptoms that are common (and are required) for that diagnosis. And the mental health professional believes you have one or more of the non-exertional limitations that were listed above.
The next question is to what degree are you impaired by these non-exertional limitations. The Agency and their regulations recognize four levels of severity :
These new, updated definitions went into effect in January 2017, and as we stated earlier, The Agency’s sole purpose of amending these definitions was to make them more vague and more generalized so that they can deny more cases. There are actually five levels, but we excluded the “None” limitation because if you don’t have any limitation, you can’t allege an inability to function in that certain area. We’re going to analyze the four that are most relevant.
Extreme is the most serious level of severity. We rarely see it, and if we do, it better be well supported by the evidence. In realistic terms, absent a hospitalization or some other major intervention, it is difficult to prove that you have an extreme limitation in a particular area of function. Below is The Agency’s definition and the highlights are ours:
You have an “extreme” limitation in a domain (area) when your impairment(s) renders you unable to function in an area independently, appropriately, effectively, and on a sustained basis.
Simply put, based on our experience, The Agency will not find your limitation extreme unless there is, in fact, a total loss of ability to function in a particular area.
As you can see, this is a difficult limitation to prove and it must be supported by the evidence in your treatment notes etc. What do we mean by that? If you’re able to go to the grocery store to shop for your groceries once a week, then it would be impossible to allege and prove that you have extreme limitations in interacting with the public. The same thing goes for a marked limitation. If you allege an extreme or marked limitation in that area, the evidence better show that you don’t leave your house. This is just one example, there are many more.
Marked is the second most serious level of severity. Unlike the Extreme limitation, we allege Marked quite often, and very often our allegations of a marked limitation are criticized, shot down, and obliterated by The Agency’s evaluators.
Even more so than the extreme limitation, because extreme limitations are so rare, if you allege a marked limitation, it better be well supported by the evidence. Once again, below is The Agency’s definition and the highlights are ours:
You have a “marked” limitation in a domain (area) when your impairment(s) renders you unable to function in an area independently, appropriately, effectively, and on a sustained basis is seriously limited.
Moderate is the third most serious level of severity, and the one that we always see. The Agency loves Moderate limitations. Why? It is all the cover they need to deny the claim. We will prove it below.
You have a “moderate” limitation in a domain (area) when your impairment(s) renders you unable to function in an area independently, appropriately, effectively, and on a sustained basis is fair.
We don’t know what fair means. It is really not defined, which is by design.
Mild is the fourth most serious level of severity. Mild, by definition, will always require a finding of Not-Disabled.
You have a “mild” limitation in a domain (area) when your impairment(s) renders you unable to function in an area independently, appropriately, effectively, and on a sustained basis is slightly limited.
When evaluating your Mental Disability, The Agency will review medical evidence from your physician, psychologist, and other medical sources. This includes health care providers such as physician assistants, psychiatric nurse practitioners, licensed clinical social workers, and clinical mental health counselors.
In the past, we’ve had clients tell us that they suffer from depression and/or anxiety as a result of their physical disability. While this may be true, and it is quite common, as far as The Agency is concerned if your sole or primary treating source for your mental condition is your family physician, or primary care physician (PCP), then The Agency has historically, and routinely, discredited the severity of your mental impairment simply on the basis alone. If you only seek treatment from your medical doctor, and not from a specialized psychiatric healthcare provider, they won’t accept their medical opinion unless it’s Moderate or Mild.
In their minds, and there is some degree of accuracy to this, they believe that if your only source of treatment is your PCP, then your depression or anxiety can’t be all that severe.
The evidence used is generally:
The results of physical or mental status examinations, structured clinical interviews, psychiatric or psychological rating scales, measures of adaptive functioning, or other clinical findings.
We want to stop right here because the notion of your mental status exam is quite misleading. Just about every time you visit your mental health professional, they will perform a mental status exam.
In our 27+ years of working in the area of Social Security Disability, 99% of our clients’ mental status exams are normal. On occasion, when our clients are hospitalized, there are abnormal findings in their speech, thought content etc. But for the most part, your mental status exam will be determined to be “normal.”
We would also like to address the psychological rating scales The Agency lists above. The mental health community refers to these as Global Assessment Functioning (GAF). Your mental health provider will sometimes supply a GAF score. Depending on that score, which is displayed as a number generally between 40 (severe) and 65-70 (mild) is generally an indication of the level of severity. Once again, the majority of our clients have GAF scores that are within the mean. This means The Agency will use that GAF score to determine that your impairment is not as severe as you believe it is.
Medical providers should take into consideration the following pieces of information to arrive at a GAF score:
The Agency will also send SSA questionnaires to your spouse, family member etc. We really don’t know how helpful they are, because the Judges seem to discount most of the entries that support your claim and cherry pick nuggets of information that are provided on these forms in order to deny your claim.
As you can see, this analysis is quite comprehensive, and very technical. Let’s continue.
Like all Social Security Disability Claims, the first step of SSA’s evaluation process (officially known as “Sequential Evaluation”) is whether or not you’re working and earning over the statutory earnings amount ( what The Agency calls “substantial gainful activity.” This monthly earnings limit in 2020 is $1,260 for non-blind individuals and $2,110 for blind individuals) If the answer is no, we move on to the second step.
Do you have a severe mental impairment? As we described above, do you have a diagnosis of a Mental Disorder? If Yes, then we’re now at step 3.
Does that mental diagnosis meet a Social Security Listing?
The Agency revised the SSA mental listings in 2017 and they are quite different from their predecessors. Below are some of the more frequent mental impairments and diagnoses that we encounter and that The Agency will consider under step 3 (does the Mental impairment meet a Social Security Listing?)
Some examples of Neurocognitive disorders are:
As you can see, most of the medical conditions above are physical conditions, but their symptoms involve a significant cognitive decline to the point where the cognitive decline will be evaluated under the Mental Disorders.
Some examples of this listing include the following diagnoses:
Some examples of this listing include the following diagnoses:
Some examples of this listing include the following diagnoses:
This is a Mental Disorder which is characterized as having pain or some other kind of physical symptom that cannot be explained through medical diagnostic testing etc. Somatoform means you believe that you are actually afflicted with a certain disease when all the bloodwork, MRIs or any other kind of medical evidence confirms you don’t have any such disease. It is really a Mental Disorder with physical manifestations. The actual diagnoses are called:
Some examples of this listing include the following diagnoses:
Some examples of this listing include the following diagnoses:
Some examples of this listing include the following diagnoses:
Posttraumatic Stress disorder and other specified trauma and Stressor-related disorders (such as adjustment-like disorders with prolonged duration without prolonged duration of stressor).
The diagnoses above are what SSA calls the Part A Criteria. The Part A criteria is the actual diagnosis itself or what The Agency calls the medically determinable impairment. From here, they next evaluate what they call the Part B criteria. The Part B criteria was also updated in 2017. The Part B criteria is what affect (limitation) these medical diagnoses have on your ability to:
Understand, remember, or apply information
They ask your treating sources and review your medical evidence to determine in their minds…In what way are you impaired in your abilities to learn, recall, and use information to perform work activities? For example, how easily are you able to:
Once again, The Agency is reviewing the Medical Evidence to determine in their minds…How easily are you able to:
This is the final piece of the Part B criteria, equally as important of the other three. The Agency will analyze your ability to:
The good news is, you don’t need to have all of these Part B criteria to satisfy the Social Security Mental Listing. Of all the Part B criteria listed above, the question is which of those Part B criteria exist in your particular situation and how are they confirmed in the medical evidence, or the claim file as a whole?
In other words, what evidence is SSA going to use to determine the existence or absence of this Part B criteria? More importantly, what evidence is SSA going to use to determine the severity of these Part B limitations (i.e., are they extreme, moderate, marked, or mild)?
So in order to “meet” the Listing, you must exhibit either one “extreme” limitation, or two “marked” limitations in the Part B criteria.
Let’s analyze a client who has been diagnosed with Post Traumatic Stress Disorder (PTSD). The mental health professionals have made the diagnosis, they have indicated sufficient signs and symptoms above that support the diagnosis. And after treating the patient for some time, they are of the opinion that the diagnoses and their corresponding signs and symptoms absolutely, positively, prevent (Extreme) their patient from adapting or managing one’s self (Part B). It is this mental health professional’s opinion that the patient is unable to regulate his emotions, or control his behavior and maintain well-being in a work setting. (Part B~ Extreme).
In this example, the criterion to meet the SSA Listing (12.15) is satisfied. We have the diagnosis of PTSD, which is associated with dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring (signs and symptoms). Those signs and symptoms prevent the Claimant from adapting or managing themselves to an extreme degree in that the Claimant cannot control his behavior and maintain well-being in a work setting.
Let’s use another example. This next client is suffering from and was diagnosed with Major Depression (SSA Mental Listing 12.04). He/She reports diminished interest or pleasure in all, or almost all, activities most of the day. The treating source believes this is a markedly diminished interest, not just a slightly diminished interest. He/She has suffered significant weight loss when not dieting or weight gain (e.g., change of more than 5% of body weight in a month). He/She has insomnia or hypersomnia (excessive sleeping) nearly every day, and finally fatigue or loss of energy every day (signs and symptoms).
The mental health professional believes the signs and symptoms limit the ability to interact with others (Part B) and the ability to concentrate, persist, or maintain pace (Part B) is seriously limited (Marked Limitation) because in the professional’s mind he/she is unable, on a sustained basis, to initiate and perform tasks and work at an appropriate and consistent pace. The ability to complete tasks in a timely manner, handle conflicts with others and relate appropriately to supervisors, coworkers and the general public is also seriously limited (Part B Criteria ~ Markedly Limited in two categories).
So this is what it means to meet a Social Security Listing. Your diagnosis must be accompanied by one Extreme limitation or two Marked limitations in the Part B criteria. In 2017, The Agency added a Part C criteria.
The Part C criteria is for individuals who have long-standing, persistent issues with their mental health. The Agency has adjusted their position slightly on this in the 2017 amendments to the Mental Listings. The Mental Disorder will be considered “serious and persistent” when there is a medically documented history of the existence of the Mental Disorder in the listing category over a period of at least 2 years, and evidence shows that the disorder satisfies both C1 and C2.
The criterion in C1 is satisfied when the evidence shows that you rely, on an ongoing basis, upon medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting, to diminish the symptoms and signs of your Mental Disorder. The Agency considers that you receive ongoing medical treatment when the medical evidence establishes that you obtain medical treatment with a frequency consistent with accepted medical practice for the type of treatment or evaluation required for your medical condition. They will consider periods of inconsistent treatment or lack of compliance with treatment that may result from your Mental Disorder. If the evidence indicates that the inconsistent treatment or lack of compliance is a feature of your Mental Disorder, and it has led to an exacerbation of your signs and symptoms, The Agency will not use it as evidence to support a finding that you have not received ongoing medical treatment.
The criterion in C2 is satisfied when the evidence shows that, despite your diminished signs and symptoms, you have achieved only marginal adjustment. “Marginal adjustment” means that your adaptation to the requirements of daily life is fragile; that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life. The Agency will consider that you have achieved only marginal adjustment when the evidence shows that changes or increased demands have led to exacerbation of your signs and symptoms and to deterioration in your functioning; for example, you have become unable to function outside of your home or a more restrictive setting without substantial psychosocial supports. Such deterioration may have necessitated a significant change in medication or other treatment. Similarly, because of the nature of your Mental Disorder, evidence may document episodes of deterioration that have required you to be hospitalized or absent from work, making it difficult for you to sustain work activity over time.
Now if the agency’s evaluators are of the opinion that you don’t Meet or Equal the SSA Mental Listing, the next analysis in the Sequential Evaluation is whether or not you have the Mental Residual Functional Capacity (Mental RFC) to perform other work. As we stated earlier, if they are of the opinion that you have the Mental RFC for your Past Relevant Work, they will deny you at step four. They often find that you do not have the Mental RFC for your past relevant work, so it’s on to step 5.
Step 5 in the sequential evaluation process is whether you have the Mental RFC for other jobs that exist in significant numbers in the national economy. Again, that’s a lot of regulatory gibberish. What it boils down to is whether you can perform a job that has the following criteria:
Little to no interaction with co-workers
In order to prove this, you have to cite as many of the non-exertional work limitations (see above) as possible. More importantly, these non-exertional work limitations must be of a marked nature. In our experience, we’ve had several mental health professionals opine that several (12 or so) non-exertional limitations were moderately impaired, and that still does not stop the ALJ’s from finding these unskilled jobs, whose characteristics we cite above. Here are two examples:
Laundry Worker, Directory of Occupational Titles (DOT) 361.685 – 018 Unskilled, Medium
Hand Packer (DOT) 920.587 – 018 Unskilled, Light
Now while all of this appears to be pretty straightforward, getting The Agency’s evaluators to agree is the hard part. At the Initial and Reconsideration stages, both the DDS Examiner and the Medical Advisor will be the ones to make this determination. The DDS Examiner will evaluate the hospitalization records (if any), treatment notes, your function reports and those that they’ve sent to your family, etc.
It is they who will make the initial determination of whether your limitations are marked, moderate, etc. As we stated earlier, it is unlikely (and very rare) that they will find extreme limitations. In many cases, they will send you to an SSA psychiatric Consultative Examination (CE). This Consultative Examiner will give you a mental status exam, ask you some basic questions and render a report that most likely indicates moderate limitations. If that report indicates marked limitations, then it’s more likely your case will get approved at that level.
Once the DDS Examiner gets all the medical evidence back, he or she will make a recommendation of a finding of Disabled or Not Disabled. It’s very simple – if the Examiner believes the limitations are of a marked nature, then his or her recommendation is going to be to grant an award. If the Examiner believes the limitations are of a moderate nature, then he or she will indicate that to the Medical Advisor. Just like in physical impairments, unless the Examiner is new and not as well trained, the Medical Advisor usually adopts the recommendation of the DDS examiner.
This is why it is critical, that you communicate to your treating sources your daily activities accurately, and your limitations truthfully. Sometimes, when we review medical records, we believe the limitations are more of a moderate nature than a marked nature.
If the case progresses to the hearing level, it is now the Judge who will make the decision as to moderate, marked, etc. We often send our client’s mental health professionals specific detailed questionnaires asking the opinion of the doctor or other treatment provider about the severity of the client’s functional limitations to build additional, timely clinical evidence supporting our case.
We attempt as best we can to educate the evaluator as to how The Agency defines and determines these limitations of marked, moderate etc. Even though we may receive a favorable medical opinion that supports for disability, the Judges routinely reject them. They get nasty sometimes too. Below are excerpts from actual hearing decisions in which a questionnaire was completed supporting a mental disability of our clients.
In interacting with others, the Claimant has a moderate limitation. The Claimant indicated on her Function Reports that she does not engage in any social activities, does not like to go out due to stress, and prefers to avoid family and friends. (Exhibits X, Y). The June 2019 Consultative Exam (SSA exam) noted a long history of social anxiety which the Claimant stated has been made worse by her **** and rendered a diagnosis of social anxiety (Exhibit Z). Although subsequent evidence indicates no abnormalities with respect to the Claimant’s appearance or behavior, viewed in the light most favorable to the Claimant, the record supports (only) a moderate limitation in this area.
To us, this appears to be a lot of gibberish, and a complete negation of her symptoms. What good is it to send a Function Report when The Agency is going to ignore it?. Here is another beauty:
In understanding, remembering or applying information, the Claimant has a moderate limitation. In the Function Report, the Claimant alleged difficulty with memory, understanding, and following instructions (Ex. X) he reported that he needed reminders from his mother to bathe and to take medications (Ex. X) additionally, he indicated he was not able to manage finances and cannot count money (Ex X). At times, healthcare providers indicated that the Claimant’s recent and remote memory were poor (Ex. Y). Despite this, the Claimant’s memory was generally within normal limits during mental status examinations. (Exhibit Z). During a Consultative Examination, he was able to recall a recent news story and knew his age, birth date, and Social Security number by memory (Ex. Z) When considered as a whole, the evidence of record is consistent with a finding of (only)a moderate limitation in the Claimant’s ability to understand, remember, or apply information.
Just Imagine for a moment. You have worked your entire life and you just so happen to remembered your SSN and Date of Birth during a Hack-Job SSA exam. And that, ladies and gentlemen, renders you not disabled. How insulting. Do you see where we’re going with this? We can go on and on with examples.
In short, neither the DDS Examiners nor the ALJs like paying SSA Disability cases for younger individuals under 50, unless they are the most severe often requiring hospitalizations etc. If you’re over 50, your chances are a bit better these days. The key to success is a comprehensive plan that has to be initiated right from the start. Don’t chance it.