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Category Archives for Depression and disability

Mental Health Disability Claims: Do You Have a Winning Case?

mental health disabilityI 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.” Continue reading →

Do You Really Need a Suicide Attempt or Inpatient Psych Hospitalization to Win Your Depression Disability Claim?

If you are pursuing Social Security disability benefits and your primary impairment is depression, you will need more and stronger evidence to win your case.

Over the past few years I have noticed a trend in my law practice whereby judges are less likely to award benefits in depression cases unless your medical record contains evidence of suicide attempts, in-patient psychiatric hospitalizations or other symptoms that could be life threatening.

Unlike medical conditions like back pain arising from a herniated disc, irritable bowel syndrome associated with a diseased colon, cancer that requires surgery, radiation and chemotherapy, or blood clots that require you to keep your legs elevated, severe depression cannot be imaged using an MRI, CT scan or ultrasound. Psychologists and psychiatrists test for depression based on conversations with patients and their long term relationships with their patients. Continue reading →

CNN Report on September 11 PTSD Scam Misses the Mark

disability scamsCNN is reporting that more than 100 New York City firefighters have been indicted in connection with disability fraud.  These firefighters filed claims for disability under the World Trade Center Disability Law, a source of benefits available only to New York City employees injured as a result of their service on September 11, 2001.

According to CNN, these disability claimants were coached (the CNN article is silent as to who did the coaching) about how to behave to win benefits that can amount to $50,000 per year for total disability.

Investigators discovered, however, that some of these permanently injured claimants were, in fact, working – in one case, teaching martial arts – despite their claimed disability.

Presumably these dishonest, retired firefighters will face civil fines or perhaps criminal prosecution for their actions. Continue reading →

Will Filing for Unemployment Hurt Your Social Security Disability Case?

unemployment and social security disabilityIn my Social Security disability practice I frequently see clients who have filed for unemployment at the same time they have filed for disability.  On the surface, this seems to be a contradiction – how can you be “ready, able and willing to work” while at the same time be  “unable to engage in substantial activity?”

Years ago, Social Security judges regularly asked claimants about unemployment applications at hearings, but I rarely hear these questions anymore.  I advise my clients that if a judge does ask if they have filed for unemployment, an appropriate answer would be to state that he/she would like to work and would be willing to try any type of job even though his/her medical or mental health condition is likely to create performance or attendance issues.

Further, I tell my clients that, in my opinion, one or more “unsuccessful job attempts” serves as compelling evidence that one is motivated to work but simply does not have the capacity to do so.  Interestingly it has been my experience that an unsuccessful work attempt of 3 months or less can help your case, whereas a work attempt over 3 months can create problems – take a look at my YouTube video about work attempts and trial work periods for more about this topic.

Recently, this issue of unemployment applications came up – this time in an unfavorable decision I received in a case I tried before a judge who is normally more likely than average to approve claims.  My client in this case had some significant mental health and physical medical issues but he came across as arrogant and lazy to the judge who clearly did not want to give him any benefit of the doubt. Continue reading →

Will Social Security Accept Records and Conclusions of a Homeopathic Provider?

I have been suffering from Hypertension, muliple pain syndromes (Fibromyalgia, Multi-Lateral Cervical Stenosis, Degenerative Disk Disease, Femoral and Ulnar neuropathies, Migraines, Sciatica, Bursitus, Osteoarthritis) and Clinical (including SAD) Depression.  I went through to a Depression Group and saw a Psychotherapist AND a 9-week Chronic Pain Management Course through my HMO last year.  I’ve been on LOADS of drugs, 5 Steroid Epidural injections/year and had so many bad drug reactions I went off a large number of them.  Over the past 3 months I have suffered 7 deaths of folks close to me and the Depression, which I thought might have lifted came roaring back.  I’m hypersensitive to all these drugs, which make me worse, so 3 mos. ago decided to try Osteopathy and Homeopathy.  It’s helped, but the Depression/Anxiety got so bad I decided to return to Prozac.  The Osteopath can’t treat me on that drug so I stopped and am trying a homeopathic treatment.  QUESTION:  I still take pharmacueticals for many things (pain, sleep, Hypertension, etc.), but am taking LOTS of homeopathic remedies now.  Will the SSD Administration honor my Doctor of Osteopathy’s report on my Depression and Pain syndromes?  I am resuming traditional Psychotherapy and Group concurrently.  I don’t want to give up this last hope to feel better, but need the finanancial assistance offered folks like me.  Thanks so much!

–Sue

Jonathan Ginsberg responds: Sue, thanks for your question.  It sounds like you have been through quite a bit.  I believe that Social Security will consider your homeopathic treatment as "non-standard."  As such, an administrative law judge may assign the homeopathic osteopath’s reports less value.

Social Security has extensive rules about how judges are supposed to evaulate evidence – how much weight should the judge give a particular medical report.  For example, the reports and conclusions of a treating physician are to be given more weight than the conclusions of a doctor that you saw one time.  This is why, by the way, that I encourage my clients with no insurance and limited financial resources to see a doctor regularly, even if "regularly" means once a year.  That on-going relationship can help move that doctor into the category of "regular treating physician."

Non-standard practitioners are given very little weight by Social Security.  Chiropratctors, for example, are considered non-standard medical providers.  That is not to say that your chiropractor’s records will not be read and considered part of your record.  However, a judge will not base his decision on the records and conclusions of a chiropractor.

You will face the same issues with a homeopathic practitioner.  If there are records in your file from an accepted source (like a medical doctor), those records will be accepted over the conclusions of your osteopath.  Furthermore, you may find that some judges are outright hostile towards homeopathy and they could find that you are being non-compliant with recommended treatment.

My purpose here is not to rail against homeopathy or chiropractic.  I just want you to understand that at this point Social Security does recognize the legitimacy of these types of treatment and that you could jeopardize your case if you base it on this type of non-traditional care.  So, if possible, maintain your contact with and treatment by more traditional health care providers.

What Kind of Medical Evidence is Needed in a Depression Disability Claim?

I see that a Social Security claim cannot be approved based only on self-reported symptoms – that there must be medical evidence such as tests.

What happens in the case of depression, where there are no tests? I have been in therapy for 10 years and taking antidepressant medication, but my
symptoms are pretty much all still self-reported.
–Deborah

Jonathan Ginsberg responds:  Deborah, thank you for your throughful question.  Firstly, please recognize that there are tests that can be used to evaluate depression.  Psychologists regularly use these tests to evaluate the symptoms, the severity and the legitimacy of a depression complaint.

Along these lines, you will need support from one or more treating physicians, psychologists or therapists to help you win a disability case.  Impairments in Social Security cases must be "medically determinable" and SSA expects to see on-going treatment and reports from a treating source that are consistent with your complaints.

In the case of a mental health complaint, SSA will usually send you out for a consultative psychological exam, but I would want more than one consultative exam if I was representing a claimant suffering with depression.

[tags] depression and social security, mental health disability [/tags]

Hearing report – mental health issues – favorable decision

I tried a case today that was kind of interesting – and the Judge will be issuing a fully favorable decision.  The claimant is a 37 year old woman who has been diagnosed with major depression with psychotic features.

My client had been sexually abused by a family member as a teenager and thereafter began experiencing audio and visual hallucinations (she sees shadows and hears voices).  She has attempted suicide 8 times over the past 10 years.  She has also been hospitalized at psychiatric hospitals five times, including one hospitalization last week.

The claimant’s past work was as a small parts assembler, an inventory control person and as a nurse’s aide. She testified that she would work for a while, but would always feel that her co-workers were “whispering” about her.  She said that a voice in her head would tell her to leave.

The vocational witness testified that if her testimony was deemed credible, that she would not be able to perform any job in the competitive job market because of these distractions and because of the impairment in her concentration.

The medical record in this case was about five inches thick and the judge understood from the outset that this claimant had some significant limitations.  The obvious question in my mind, therefore – why wasn’t the Social Security adjudicator able to approve this case a long time ago.  My client filed for benefits in October, 2002.  Her medical record has been consistent with regard to her mental health issues.  Why is it that she had to wait three and a half years to get a decision?

I also think that what made this case easy for the judge to decide were the numerous work limitations set out in the record.  During our pre-hearing meeting, I practiced with my client to make sure that she described her work issues in terms of minutes and hours and gave specific answers to questions about how often certain distractions occurred.

Diabetic husband has been struggling for years – has hearing in a few weeks

my husband has juvielle diabetes, depression, numbness in feet, and he can’t do the same work he used to do he has to see a judge in a couple of weeks. He put off getting a lawyer. He has alot of mood swings and can’t hold any job he’s only been able to hold a job for 8 months or fewer and up to a year in the last 15/20 years. He has stomach problems by digesting his food. What do you think about him winning his case? Does he even have a chance by your opinion? –Angie

Jonathan Ginsberg responds: Angie, thanks for your email and I’m sorry to hear about your husband’s issues. Based on what you write, I think that he has a good chance at getting approved for benefits. Here are a couple of thoughts….

First, you need to find out if he is “insured” for Title II disability. As a rule, he needs to have 20 covered quarters out of the last 40 quarters. As there are 4 quarters in a year, that means he needs to have worked for 5 out of the last 10 years. The way the system works if he has earned around $3,000 in a calendar year, he gets credit for 4 quarters. You can find out if he has enough quarters for Title II disability by filling out a form 7004. It is important to know if he is covered because if he is not, he would only be eligible for SSI. And SSI can be offset by your earnings, assets and other factors.

Assuming he is covered, he needs to apply. That’s easy and free – call 800-772-1213. The next step is to build a winning case. Although he can hire a lawyer at any step in the process, in most cases there is not much a lawyer can do until SSA denies his claim. Some folks even wait until the second denial (reconsideration) before hiring a lawyer. I have written a book about winning at the initial and recon levels – see www.disabilityforms.com. My book and course explain how to fill out the forms using the terms and approach most attractive to Social Security.

My book is designed to help people at the initial and recon stages – if you have to request a hearing, I’d say you are better off with a lawyer. My disability lawyer referral link is here. If you hire a lawyer at this late date, your lawyer may (or may not) want to ask for a continuance to make sure that the file is updated.
The way you win is to find a treating doctor who will support your argument that your husband would not be a reliable worker because of unscheduled absences caused by any physical or mental health limitations. The technical term for this is “residual functional capacity.” In other words, what capacity for work remains after you take into account the limitations caused by his medical problems?

One word of caution – I have found that Social Security tends to see things in black and white. Part time work that generates income can confuse the issue – SSA often concludes that if you can work Job XYZ part time then you could probably work a less demanding Job ABC full time.

And finally, I think that your husband may be better off focusing on one of his conditions as the primary reason he cannot work. I have found that SSA is more receptive to a clear theory of disability based on one major problem than disability based on numerous problems.

–Jonathan

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