Mental Impairments & Social Security Disability Benefits

Anxiety, Depression, And Other Mental Disorders

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.

Exertional vs. Non-exertional Limitations

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 Mental (Psychiatric) Diagnosis

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

Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:

Directly experiencing the traumatic event(s).
Witnessing, in person, the event(s) as it occurred to others.
Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse). Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.

Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:

Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s). Note: In children older than 6 years, repetitive play may occur in which themes or aspects of the traumatic event(s) are expressed.
Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s). Note: In children, there may be frightening dreams without recognizable content.
Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.) Note: In children, trauma-specific reenactment may occur in play.
Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).

Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:

Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).

Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:

Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia, and not to other factors such as head injury, alcohol, or drugs).
Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).
Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
Markedly diminished interest or participation in significant activities.
Feelings of detachment or estrangement from others.
Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).

Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:

Irritable behavior and angry outbursts (with little or no provocation), typically expressed as verbal or physical aggression toward people or objects.
Reckless or self-destructive behavior.
Hypervigilance.
Exaggerated startle response.
Problems with concentration.
Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).

Duration of the disturbance (Criteria B, C, D and E) is more than 1 month.
The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.

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:

Depersonalization: Persistent or recurrent experiences of feeling detached from, and as if one were an outside observer of, one’s mental processes or body (e.g., feeling as though one were in a dream; feeling a sense of unreality of self or body or of time moving slowly).
Derealization: Persistent or recurrent experiences of unreality of surroundings (e.g., the world around the individual is experienced as unreal, dreamlike, distant, or distorted). Note: To use this subtype, the dissociative symptoms must not be attributable to the physiological effects of a substance (e.g., blackouts, behavior during alcohol intoxication) or another medical condition (e.g., complex partial seizures).

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.

The 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:

Anhedonia (inability to have pleasure or be happy) or pervasive loss of interest in almost all activities
Appetite disturbance with weight change
Decreased energy
Thoughts of suicide
Blunt, flat or inappropriate affect
Feelings of guilt or worthlessness
Impairment in impulse control
Poverty of content of speech
Generalized persistent anxiety
Somatization (a mental illness that causes one or more bodily symptom like pain, cramps, etc) unexplained by organic disturbance
Mood disturbance
Difficulty thinking or concentrating
Recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress
Psychomotor agitation or retardation
Pathological dependence, passivity or aggressivity
Persistent disturbances of mood or affect
Persistent nonorganic disturbance of vision, speech, hearing, use of a limb, movement and its control, or sensation
Change in personality
Apprehensive expectation
Paranoid thinking or inappropriate suspiciousness
Recurrent obsessions or compulsions which are a source of marked distress
Disorientation to time and place
Seclusiveness or autistic thinking
Substance dependence
Incoherence
Emotional withdrawal or isolation
Psychological or behavioral abnormalities associated with a dysfunction of the brain with a specific organic factor Judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities
Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes)
Persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity or situation
Intense and unstable interpersonal relationships and impulsive and damaging behavior
Perceptual or thinking disturbances
Hallucinations or delusions
Hyperactivity
Motor tension
Catatonic or other grossly disorganized behavior
Emotional lability
Flight of ideas
Manic syndrome
Deeply ingrained, maladaptive patterns of behavior
Inflated self-esteem
Unrealistic interpretation of physical signs or sensations associated with the preoccupation or belief that one has a serious disease or injury
Loosening of associations
Illogical thinking
Vigilance and scanning
Pathologically inappropriate suspiciousness or hostility
Pressures of speech
Easy distractibility
Autonomic hyperactivity
Memory impairment – short, intermediate, or long term
Sleep disturbance
Oddities of thought, perception, speech or behavior
Decreased need for sleep
Loss of intellectual ability of 15 IQ points or more
Recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week
A history of multiple physical symptoms (for which there are no organic findings) of several years duration beginning before age 30, that have caused the individual to take medicine frequently, see a physician often and alter life patterns significantly
Involvement in activities that have a high probability of painful consequences which are not recognized

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.

NON-EXERTIONAL LIMITATIONS

As we will outline in some detail, the Non-Exertional limitations are work-like tasks that you once could do fairly easily that you no longer can do. From here, tying it all together with the inability to work is the hardest part.
To recap, we have a Mental diagnosis, which is associated with certain signs and symptoms. The final question is how do these signs and symptoms affect your ability to perform work-like activities? As far as skilled work is concerned, forget about it. If this was the type of work you’ve done in the past (what The Agency calls “Past Relevant Work”), that was off the table from the start. The Agency is almost certainly going to conclude that you CANNOT return to your past relevant work. If they find that you CAN return to your past relevant work, your case is over. You will be denied.
We are talking about our favorite dead-end, high-turnover, unskilled jobs where this analysis makes the rubber hit the road. These are where your non-exertional limitations come in and are analyzed and evaluated. The following limitations are those that are considered non-exertional by The Agency. Once again, while this is comprehensive, it not an exhaustive list.

Remember work-like procedures
Understand and remember very short and simple instructions
Carry out very short and simple instructions
Maintain attention for two-hour segment
Maintain regular attendance and be punctual within customary, usually strict tolerances
Sustain an ordinary routine without special supervision
Work in coordination with or proximity to others without being unduly distracted
Make simple work-related decisions
Complete a normal workday and workweek without interruptions from psychologically based symptoms
Perform at a consistent pace without an unreasonable number and length of rest periods
Ask simple questions or request assistance
Accept instructions and respond appropriately to criticism from supervisors
Get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes
Respond appropriately to changes in a routine work setting
Deal with normal work stress

Be aware of normal hazards and take appropriate precautions
Understand and remember detailed instructions
Carry out detailed instructions
Set realistic goals or make plans independently of others
Deal with stress of semiskilled and skilled work

We believe the bottom four on this list above really don’t help us in any way with a mental disability claim. They address detailed instructions and we believe The Agency is already going agree that you can’t perform a job in which there are detailed instructions. They are going to gleefully list dead-end jobs in which the instructions are very simple.

ANALYSIS

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 :

Extreme, Marked, Moderate, and Mild.

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.

WHAT DO WE AND THE AGENCY MEAN BY MEDICAL EVIDENCE?

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:

Your diagnosis.
Your reported symptoms.
Your medical, psychiatric, and psychological history.

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. Generally, it makes the following observations:

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:

Psychological testing, imaging results, or other laboratory findings
The type, dosage, and beneficial effects of medications you take
The type, frequency, duration, and beneficial effects of therapy you receive
Side effects of medication or other treatment that limit your ability to function
Your clinical course, including changes in your medication, therapy, or other treatment, and the time required for therapeutic effectiveness
Observations and descriptions of how you function during examinations or therapy
Information about sensory, motor, or speech abnormalities, or about your cultural background (for example, language or customs) that may affect an evaluation of your Mental Disorder
The expected duration of your symptoms and signs and their effects on your functioning, both currently and in the future

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.

MENTAL DISORDERS AND THE SSA 5-STEP EVALUATION PROCESS

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?)

Neurocognitive disorders (SSA Mental Listing 12.02)

Some examples of Neurocognitive disorders are:

Dementia of the Alzheimer type;
Vascular dementia;
Dementia due to a medical condition such as a metabolic disease (for example, late-onset Tay-Sachs disease),
Human Immunodeficiency Virus (HIV) infection whose affects include cognitive impairment
Vascular Malformation,
Progressive Brain Tumor,
Neurological disease (for example, multiple sclerosis, Parkinsonian syndrome, Huntington disease), or traumatic brain injury;

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.