In my Social Security disability law practice I am seeing an increasing number of case inquiries from men and women struggling with mental health issues like depression, anxiety, and PTSD. This surge in inquiries is in addition to our case inquiries from potential clients who are dealing with more organic mental illnesses like schizophrenia or the after effects of traumatic brain injury.
Like many others, I suspect that the Covid pandemic is a trigger for increasing numbers of depression and anxiety related claims. Onsite work is stressful both because of concerns about becoming infected and because fewer workers are being asked to do more.
Remote work has changed the social dynamic of employment. More people work alone with only occasional electronic interaction with co-workers or customers. Rambunctious school aged children may or may not be home, depending on whether a school system had to close for a week or month.
Every day I speak to several very stressed out potential clients to tell me that they simply do not have the mental energy or capacity to remain in the workforce. Some have quit while others have been fired for excessive absences or lack of productivity.
Can You Qualify for Disability Benefits?
Can these honest, hardworking men and women qualify for Social Security disability?
The answer, as you may suspect is “maybe.” I decided to write this blog post to offer my observations about the types of cases that are being approved and the fact patterns that are being denied.
How Does SSA Define the Term “Disability?”
First, let’s make sure that we understand what SSA means by the term “disability” Under Social Security’s rules, you are disabled if you have a medically determinable condition or conditions that prevent you from engaging in substantial gainful activity and have lasted or are expected to last twelve consecutive months or result in death.
To translate this government speak into English, SSA is asking if you have medical or mental health issues that would prevent you from reliably performing even a simple, entry-level “warm body” job.
In the case of mental health issues, the issue usually boils down to reliability and mental stability:
- Would your mental health condition cause you to miss two or more days of work per month?
- Would it cause you to take two or more unscheduled breaks from work during an average week?
- Would you experience crying spells, anger control issues or other disruptions that would create issues with co-workers or customers.
What is Substantial Gainful Activity?
The concept of substantial gainful activity (SGA) is complex and I could write an entire blog post on the subject but for our purposes SGA is presumed if you are earning $1,350 per month (gross) or more, or if you are performing an unpaid activity (child care, volunteering, attending school) that is roughly equivalent to a job that would pay you $1,350 per month or more.
This SGA question disqualifies a number of potential clients – for example if you are working 3 days a week earning $12 per hour, your gross earnings will likely put you above the SGA limit.
SSA Has Tightened the Standards for More Common Conditions
SSA also tends to make proving disability more difficult for those conditions that are the most common. Many in Congress (both parties) believe that SSA makes it too easy to win disability and they pressure Social Security administrators to tighten the standards for claims that could potentially drain an already threatened Social Security trust fund.
In 2021, SSA changed its rules about how SSA decision makers are to evaluate back pain cases and the effect was to greatly reduce the number of back pain cases that are approved early and to reduce the discretion of disability judges to award back pain cases at the hearing stage.
Over the past few years, SSA has made the same types of changes to mental health cases to reduce the number of approvals.
Mental health claims also have the disadvantage of not being objectively determinable. There are no blood tests or MRI tests to diagnose severe depression or PTSD. SSA relies on treatment records from mental health professionals who are not necessarily trained to assess their patient’s work readiness.
In sum, pursuing disability based on mental health impairments is always an uphill battle and the trend at SSA is to move the goal posts back to make it more difficult. Not impossible but difficult.
Which Cases are More Likely to be Approved?
So, what do I look for and what signals to me that an approval is not likely?
Cases that pique my interest are ones where there is evidence of:
- one or more recent (within past 2 or 3 years) inpatient hospitalization at a mental hospital. Multiple recent mental health hospitalizations make for better cases
and/or - one or more documented suicide attempts (this signals a significant level of impairment)
and/or - a record where there is ongoing treatment with a psychiatrist who has been trying multiple medications without success to stabilize the patient
and/or - organic mental health issues like schizophrenia or traumatic brain injury with off behavior consistent with the diagnosis
- I always ask potential clients if they believe that their treating psychiatrist or psychologist would help by completing a brief functional capacity form (that I prepare) or write a narrative report discussing the patient’s inability to be reliable and emotionally stable in a work environment.
Which Cases Are Less Likely to be Approved?
Cases less likely to be approved are ones where I see:
- psychotropic medication management by a family doctor (as opposed to a psychiatrist)
- minimal psychotropic medication and ongoing treatment with a social worker or psychologist
- mental health treatment solely at the VA (difficult to obtain treating source statements and VA doctors tend to minimize impact of condition)
- mental health treatment solely at a county mental health center (difficult obtain treating source statements and treatment can be sporadic)
- minimal mental health treatment (perhaps because of financial reasons)
- mental health treatment with a social worker or therapist but no psychiatrist oversight
I can also tell you that claimants under age 50 always have a more difficult time winning disability regardless of the nature of their impairment. Disability adjudicators and judges know that if they approve a claim for a 35 year old that person will be drawing on the disability trust fund for the next 30+ years so as a rule the younger the claimant, the more convincing the evidence needs to be.
Finally bear in mind that attorneys like me only get paid if we win – our fee is 25% of past due benefits with cap of $6,000 (and SSA has not raised this cap in over 13 years).
So even if I truly believe that a potential client suffers from a level of depression, anxiety, PTSD, bi-polar disorder or other similar conditions I can’t afford to accept cases into my office unless I see a realistic chance at winning. And not infrequently there is a disconnect between the mental health suffering I see and hear and the evidence that I would have to work with so I do, regretfully, decline to assume representation in a case where the odds of winning are not great. Of course my “checklist” is not written in stone and I have worked on and won many cases that fall outside the framework of “cases more likely to be approved.”
Obviously every disability lawyer has his or her own checklist to evaluate mental health cases so if you speak to one lawyer who is unable to take your case you should always seek a second opinion.
