Counsel's Corner

Depression and Social Security Disability

By Howard Stern, Staff Attorney

At People With Disabilities Foundation (PWDF), we see many clients who suffer from depression. Depression is a mood or affective disorder, characterized by a deep sense of despondency or despair. The symptoms of depression include loss of interest in one's usual activities, feelings of worthlessness or guilt, recurrent thoughts of death, changes in weight and appetite, sleep disorders, loss of energy, loss of concentration and fatigue. Depression almost always results in impaired interpersonal and social functioning. Many of the persons who contact us suffer from such intense depression that they are no longer able to work. The regulations adopted by the Social Security Administration (SSA) allow for the award of disability benefits in cases of severe depression.

One of my clients at PWDF exhibited many of these symptoms. My client was a woman of around forty years of age who suffered a very difficult childhood with a drug-addicted mother. My client never knew her father. At school, my client never fit in with her classmates. She is extremely intelligent and well-read. She completed two years of college and then dropped out of school, holding a succession of retail jobs. She received sporadic counseling for her depression and experienced two brief hospitalizations for emotional disorders. When she first came to the PWDF offices, her depression had become incapacitating. She could no longer work and spent most of her time at home watching television and playing interactive computer games. She gained almost 100 pounds, suffered intense insomnia, had problems with self-esteem and exhibited significant self-hate. She was intensely agoraphobic. The thought of leaving home filled her with extreme anxiety, tightness in her chest, and shortness of breath. She spent hours in preparation for leaving before she was actually able to set foot out of her apartment.

The SSA regulations require evidence that the claimant suffers from one or more mental and/or physical impairments that significantly limit the claimant's ability to work and which can be expected to last for at least 12 months or result in death. Satisfaction of this step requires medical evidence. A statement of claimant symptoms without supporting evidence from physicians, psychologists or other acceptable medical sources will not be sufficient and will inevitably lead to a denial of disability benefits. In the case of the client described above, she was lucky to have connected with a very sympathetic psychiatrist who showed interest in her case. Often, a sympathetic physician who can write medical reports that incorporate social security disability standards is the difference between an award and denial of benefits.

To be eligible for disability, a claimant must prove that he or she suffers from a mental or physical impairment that precludes the ability to engage in substantial gainful employment. The social security regulations, at 20 C.F.R. §1520, outline a five-step sequential evaluation process utilized by the SSA to determine disability. (For a detailed analysis of this five-step process, please see the Summer 2008 edition of the PWDF newsletter available online at our website www.pwdf.org.) The first step involves an inquiry as to whether the claimant is presently working. If the claimant is working, and earning more than $1,000 gross per month, this is considered substantial gainful activity and the claimant will not be eligible for disability benefit. [1]

The second step requires that the depression be "severe" and the third step requires an evaluation of the claimant's medical impairments and a determination of whether those impairments meet the "Listings," which is the highest level of severity contained in the social security regulations.  If a claimant's impairment(s) meets or equals those Listings, the claimant is disabled and is entitled to benefits as a matter of law. These Listing are contained in Appendix 1 at 20 C.F.R., Part 404, Subpart P.

The standards for depression and other types of affective disorders are contained in Section 12.04.

Evidence of depression includes:

1. Activities of daily living include such activities as shopping, cooking, cleaning, paying bills, taking mass transit, etc. The focus is on the claimant's ability to perform a wide range of tasks independently and without supervision. Social functioning includes the capacity to interact with other individuals, such as potential co-workers and potential supervisors, appropriately, independently, effectively and on a sustained basis.

2. The ability to maintain concentration, persistence or pace measures the claimant's capacity to keep attention and concentration for long enough time periods to allow for the timely completion of the type of tasks encountered in work settings.

The diagnosis of depression requires evidence from an accepted medical source. However, when it comes to demonstrating the severity of the claimant's depression and how it impacts the claimant's functional capacities, the claimant may make use of a wide variety of evidence ranging from medical sources as well as nurse practitioners, licensed social workers, social service personnel, teachers, counselors, past employers, spouses, parents and friends. In the case of the client described above, she had a friend she lived with who was very important in corroborating the client's symptoms and disabilities.

Even if a claimant's depression does not meet the Listings of Section 12.04, the claimant may still be found disabled under the fourth and fifth steps of the sequential analysis. The fourth step requires an assessment of whether the claimant can perform his or her past work. If the claimant lacks the ability to perform past work, the fifth step requires that the claimant be found disabled if his or her depression precludes the performance of other work that may exist in the national and local economy. In assessing the claimant's ability to work, the SSA must measure whether the claimant's depression allows for sustained work activity, without an accommodation, over a full time work week and over a prolonged time period. The SSA has recognized in Social Security Ruling 85-15 that the demands of the workplace require an ability to carry out and remember simple instructions and to respond appropriately to supervisors, co-workers and the stresses inherent in a work setting. If the claimant's depression demonstrates a lack of this capacity, he or she will most likely be found disabled.

From our experience at PWDF, at least at the administrative hearing level, few judges base their disability findings on the Listings. This is because the judges, as non-doctors, are loathe to employ the Section 12.04 criteria because they believe they lack the medical competence to make the severity findings required by those criteria. The judges are much more likely to utilize the fifth step of the sequential analysis to conclude that the client's depression precludes gainful employment. It is not unusual, in a case involving depression, for a psychiatrist to be present at the hearing in an advisory capacity to the judge. Usually the doctor will advise on the client's residual functional capacity (RFC) to perform word-related tasks and then a vocational expert, also may be present at the hearing, will render an opinion as to whether jobs exist in significant numbers which the client can perform. If there are a significant number of jobs (approximately 1200 or more) that the individual could perform, taking into consideration the client's age, education, past work and physical and/or mental impairments, the individual would likely not be found disabled.

In summary, a person who suffers from depression that is medically diagnosed and of sufficient severity, is eligible for social security disability benefits. This is true for a person whose only medical impairment is depression. It is also true for a person who suffers from multiple impairments, including depression. For a person who suffers from depression and is interested in securing social security disability, the most important thing that person can do is to obtain the assistance of a medical professional who in addition to administering treatment can document the existence and severity of the depression. The next most important thing that person can do is to obtain the services of an attorney, particularly if the SSA has initially denied eligibility and the claimant has requested a hearing before an administrative law judge.

1The SSA is required to factor in certain exemptions from gross earnings for necessary work-related medical expenses. If a claimant is working and earning close to $900 monthly, further inquiry may be required in order to determine whether the claimant meets this first criteria.

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant's disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney's fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF's educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.

Continuing Education Provider: State Bar of California MCLE, California Board of Behavioral Sciences Continuing Education, and Commission of Rehabilitation Counselor Certification.