When you are claiming disability benefits due to depression or anxiety disorder, you will need to prove to a Social Security decision-maker (either the adjudicator or, eventually, a judge) that your symptoms leave you without the capacity to work reliably at a full time job.
Often my clients suffering through episodes of depression or periods of anxiety will testify that they cannot work because of:
- poor capacity for attention and concentration
- poor memory
- distracting thoughts
- problem interacting appropriately with co-workers, supervisors or the general public
- inability to get through the workday in an emotionally stable manner
- poor capacity to maintain focus
- distractions caused by irrational fears
If these issues and others that are similar make it impossible for you to get through an 8 hour day, 5 days a week, ongoing, you have a good argument for winning disability benefits.
Are Your Medical Records Sufficient?
In many mental health cases, you will see handwritten notes from either a primary care physician, a psychologist or a psychiatrist. The good new about this is that many patients with depression have a consistent history of regular visits to a mental health professional, as well as a solid professional relationship with that professional.
A common problem with mental health treatment records, however, relates to the fact that claimants often change providers because of insurance changes, financial problems or because of an apparent lack of progress.
You should be aware that depression is a fairly common mental health condition and the work activity limitations arising from depression or anxiety can range greatly. Social Security decision makers will look for some very specific things in your medical record. There are basically three ways to win a depression or anxiety case:
- you can meet the “listing” for depression as set forth at 12.00 (Mental Disorders – Adult). The listing for depression is here, and the listing for anxiety is here. However, you and your mental health professional should look at the entirety of Listing 12 to see if any of the other sections apply.;
- you can prove that your “functional capacity” for work been so diminished by your mental health condition that you would not be able to reliably perform any kind of job – even an unskilled, low pressure type of job?;
- your mental health condition in combination with other medical problems (such as heart disease or diabetes) leave you unable to reliably perform any kind of job
Let’s review each way you can win a depression or anxiety case:
1. meeting the listing at 12.00. The medical listing at 12.00 identifies several categories of mental health conditions, including categories that range from depression and anxiety to such things as mental retardation, autism and substance addiction disorders. By far, the most common mental health condition seen by Social Security is depression (12.04) and anxiety (12.06). This article is primarily concerned with depression and anxiety but you should not assume that other mental health diagnoses do not apply to your case.
Remember three important points about the medical listings in mental health cases:
- mental health cases do not always fall into neat categories – often a primary diagnosis of depression may be accompanied by secondary diagnosis of some other condition such as obsessive compulsive disorder or schizophrenia;
- the diagnosis of a mental health condition is somewhat subjective in the hands of your therapist or psychologist
- sometimes your mental health professional may not reveal to you all of his observations about your condition out of concern that a diagnostic label may make you feel worse about yourself
Unlike other “listings,” the mental health listings for depression and anxiety require your treating professional to address your activity limitations. These listings contain an “A” part – which discusses the actual diagnosis and a “B” and “C” part which refers to the activity limitations brought about by your condition. Because there is no “x-ray” type of test for depression or anxiety, Social Security decision makers rely on the doctor’s conclusions about the “B” and “C” part of the listings.
Summary: in general, to prove you meet the depression or anxiety listing, your psychologist or psychiatrist will need to identify a specific diagnosis, to describe your treatment regimen and will need to identify specific mental work activity limitations (concentration, attention, acting in a socially acceptable manner) that you experience.
A significant percentage of claimants allege mental health impairments – thus, SSA adjudicators and judges may be somewhat desensitized to the implications of a mental health diagnosis. If you think you meet the listing for depression or anxiety, ask your doctor to prepare a narrative report referencing the listing or ask your attorney to prepare a checklist tracking the medical requirements of the listing as they relate to your condition.
2. Winning based on reduced capacity to function at a job. As noted above, the “listing” for depression or anxiety requires evidence of a firm diagnosis along with a detailed description of the functional limitations caused by your condition.
If your condition does not meet the listing, you may still have a good argument for disability.
You may find that your doctor is not willing to commit to stating that you meet the listing for depression or anxiety. This may be because there are other cases in his office that are worse than yours or because your doctor does not want to be responsible for concluding that you are “disabled.” In these situations, you may be able to obtain his support by asking him to give an opinion regarding specific functional limitations that arise from your cardiac condition.
A “functional capacity” opinion can be provided in a letter format or, preferably, in a checklist form. SSA has its own mental health functional impairment questionnaire. This form expands on the functional limitations categories set out in the various listings at 12.00, and most lawyers can obtain a copy of this form or they may have their own version..
As the main issue in a Social Security case has to do with job reliability, you should ask your doctor to comment about how your mental health condition would impact your ability to perform specific job tasks and about how it would affect your reliability (i.e. unscheduled breaks or missed days from work). Do not forget that some medication side effects can create activity limitations. Activity limitations in general are often referred to by SSA as “exertional limitations.” Depression and anxiety are referred to as “non-exertional” limitations because they affect your state of mind, and ability to concentrate or focus.
3. Depression or anxiety in addition to other medical problems – depression and anxiety may arise from numerous causes – your condition may be organic (caused by blood chemistry in the brain or some physical damage to the brain), it may be as a result of some physical or emotional trauma or it may arise as the result of some long term stress.
Often patients with chronic medical conditions such as heart disease, diabetes or auto-immune conditions (lupus, fibromyalgia) can develop symptoms of depression or anxiety.
As noted above, Social Security will focus primarily on the impact your depression has on your day to day activities – primarily such things as concentration, attention, and emotional stability. Thus, if you are alleging depression as a complication of another medical condition, make sure to describe your symptoms to your doctor.
- You are responsible for making sure that your doctor’s notes are complete and helpful to your case. Notes that document your illness and your treatment often will not be enough. You also need to encourage your doctor to cooperate with Social Security by responding to SSA’s request for copies of medical records.
- Remember that Social Security focuses on work activity limitations. Often, there is nothing in medical records about how your capacity to concentrate, behave in an emotionally stable manner at a worksite, remember simple instructions, etc. – unless you make it your business to tell your doctor about these problems.
- You should also recognize that SSA may give less weight to a mental health diagnosis from a primary care physician or your cardiologist than to a psychiatrist or psychologist. Thus, if your depression is impairing your ability to function in addition to a medical problem, you need to ask your medical doctor for a referral to a mental health professional.
A Social Security adjudicator would not give therapist’s notes a second look if they do not address work activity limitations. Even an experienced Social Security Judge will not presume to guess about specific work limitations from notes that only deal with medical issues. Some judges may, however, recognize the significance of a long treatment history, and might be more inclined to accept limitations set out in your testimony. Other judges, however, are less inclined to believe anything unless it is in your record.
Using Social Security’s Special Language
I approach depression and anxiety cases by studying your medical record, then creating a checklist form (called a “functional capacity” form) that tracks most of your symptoms. These forms (which are based on the official Social Security forms) also include the specific functional limitations set forth in the judge’s handbook used by your Social Security Judge. Experienced representatives should know which vocational factors carry the most weight with Judges in a particular hearing office.
For example, a limitation that describes interference with concentration such that you would not be able to understand and carry out complex job instructions is not particularly limiting, since many jobs exist that only require you to understand and carry out simple job instructions.
On the other hand a limitation that says you would be unable to perform jobs requiring interaction with the public or that you would have difficulty interacting with co-workers or supervisors is extremely significant since there are very few jobs that would permit you to work alone and unsupervised.
Special Problems in Depression and Anxiety Cases
Depression and anxiety present special problems in a Social Security case. As noted above, a significant percentage of Social Security claimants allege depression or anxiety and both adjudicators and judges are very hesitant to find that a claimant meets a “listing” unless language in the medical record specifically mirrors the language of the listing. This is especially true in 2018 as Social Security decision makers are under a great deal of pressure from Congress to reduce the number of approvals. Social Security judges are less likely to approve younger (under age 50) claimants unless the treatment records contain evidence of in-patient hospitalizations, suicide attempts and multiple unsuccessful work attempts. Younger claimants with “invisible” illnesses are seeing approval rates decline.
Depression and anxiety symptoms may change over time, especially as you try different medications. Therefore, it is extremely important that you provide your doctor with an accurate and complete list of symptoms and their side effects.
One of the biggest issues seen has to do with the onset of new symptoms. Remember, the first two levels of appeal (the initial application and the reconsideration) may take a year to work through the system. By the time you get to Court, you may have been waiting 18 months. As you know, depression and anxiety can produce different activity limitations at different times. If you wait until the hearing request to allege symptoms that were not identified in your initial application, the Judge may delay your case further by sending you to one or more consultative examinations (independent medical exams) with Social Security approved specialists. This is especially true if you developed significant depression after you filed your application.
You can help your case and your lawyer by keeping copies of all the forms and applications you completed for Social Security. If you have, in fact, developed new symptoms, your representative can update your file early enough so that any consultative exams can be scheduled well in advance of your hearing – thus reducing any more delay.
Getting Cooperation from your Doctor
Your doctor may truly feel that you cannot work, but if he is not familiar with Social Security practice and procedure, he may not think to complete the most important questions contained in a functional capacity form. Every case is different, however, there are certain activity limitations that seem especially important to Social Security judges. As you might expect, these “threshold” activities relate to job reliability and minimal physical activities.
Occasionally, you will find a doctor who “does not want to get involved.” Often this is the result of a bad experience with a legal case in the past – perhaps the doctor was forced to wait around the courthouse for hours, only to be brutally cross-examined by an aggressive lawyer. If your doctor expresses concern about getting involved in a Social Security case, you should explain to him that Social Security judges follow relaxed rules of evidence. Written reports or letters are almost always accepted. Live testimony by the doctor is extremely rare. Further, there is no cross-examination by a hostile lawyer – at the Administrative Law Judge level, there is no “government lawyer” on the other side.
In addition, if you are approved for Disability (Title II) benefits, you will become eligible for Medicare 24 months after your first date of Title II entitlement. Medicare, of course, can be a source of payment for your doctor, and may result in more cooperation.
Most caring physicians will agree to spend ten or fifteen minutes to complete a form that can dramatically better your life. If your doctor refuses to cooperate or if he wants to charge you more than $50 to complete a functional capacity form, you may want to think about finding a more cooperative doctor.
Preparing your Case File for a Hearing
Would you be surprised to know that most doctor’s notes are handwritten and difficult to read? In several instances, your representative will have to work with a doctor’s office to “translate” notes so that they could be understood.
None of this is to suggest that a doctor with sloppy handwriting or sketchy office notes is not a good, caring physician. To the contrary, your doctor’s main focus is his treatment of you. His notes are simply reminders for him to review prior to your visits. For Social Security purposes, however, your doctor’s office notes can make or break your case – thus your lawyer or claim’s representative’s role as one whereby he “translates” medical findings into work limitations.
How You Should Prepare for your Hearing
When your case has been denied at the initial and at the reconsideration levels, your next level of appeal is to request a hearing. Statistics show that claimants have a much better chance of success with a lawyer at the hearing. Legal representatives almost always accept Social Security cases under a contingency fee arrangement, meaning that there are no up front fees and your representative gets paid only if he wins your case.
At a minimum, you can expect your representative to perform the following:
- Review your file thoroughly – make sure that all records of medical treatment are present and up to date.
- Decide on a theory of disability – why are you unable to work. You should be able to boil this down to two or three sentences.
- Help you give the Judge specific information. Testimony that “I can’t concentrate much” or “I forget things” doesn’t say much. Testimony that “I experience crying spells three times a week for at least 45 minutes to an hour” and “My sister has to give me my pills because I cannot remember whether I have taken them” gives the Judge a specific vocational limitation.
Depression and anxiety are common medical conditions and Social Security adjudicators and judges see these cases frequently. You can make your case stand out by reporting to your doctor about symptoms and limitations that would make it difficult for you to work. Common “work activity” limitations for depression or anxiety patients include memory loss, social withdrawal, crying spells, panic attacks, tearful presentation, inability to handle even minimal stress, problems caring for basic household needs, withdrawal from personal relationships, and fatigue.
Do not exaggerate your symptoms but report them consistently and follow your doctor’s treatment recommendations. You want the Social Security decision maker to conclude that you experience significant work activity limitations despite your best efforts to follow your doctor’s treatment regimen.