We reported the results of our earlier surveys in two e-news articles entitled “Do Disability Rights Advocates Discriminate on the Basis of Mental Disability?”  The first survey was reported in Part 1 of the series in an e-news article in 2008. We reported the results of the second survey in Part 2 of the series in an e-news article in 2014.

In January 2017, at a conference of experienced Social Security disability representatives, I gave a presentation regarding post-entitlement and/or eligibility issues for those with severe mental and/or developmental disabilities.  The presentation addressed work reviews, which were covered in regulatory detail, including offsets from substantial gainful activity (SGA) levels that may be based on disability.  These offsets included special conditions, impairment-related work expenses (IRWEs), and employer subsidies.

After my presentation, another speaker’s topic was “new evidence.”  This attorney stated that if you obtain new evidence of a client’s disability after an administrative hearing, e.g., inflammation of the joints as in rheumatoid arthritis, there are ways to bring the new evidence before a federal court on appeal.  The attorney said that if the attorney obtains new evidence of physical disability and new evidence of depression, then the attorney should not inform the court or the Social Security Administration (SSA) of the new evidence of the depression. S/he gave no reason, except to imply that it would not be helpful. For the remainder of this article, I will assume it would have helped this case for the reasons discussed herein. Regrettably, in the year 2017, 44 years after Section 504 of the Rehabilitation Act of 1973, the precursor to the Americans with Disabilities Act (ADA), was passed by Congress, it appears discrimination is alive and well.

The SSA administrative law judge (ALJ) hearing is the only trial equivalent for a Social Security disability claimant under the Social Security Act.  When new evidence of disability comes to light after the ALJ hearing, presenting this evidence can be problematic because it was obtained after the trial. A common example with depression is when a claimant is hospitalized for major depression in a psychiatric ward for a couple of weeks, after the ALJ hearing but not after appeal limits, including up to a year after a federal court judgment. (FRCP Rule 60, Relief from a Judgment or Order.)

Of course, PWDF would bring this new evidence to the attention of any tribunal on appeal.  The last time we did this, the federal court remanded the case to a new ALJ hearing.  We represented the claimant at this second ALJ hearing and won the case. There are various reasons, none of which were explained by the above attorney, when it may be appropriate for the attorney not to mention the client’s depression.  The attorney may not want to reference the depression in an extraordinary motion to augment the record regarding new evidence.  I.e., the attorney would not present the evidence if it really is not new, but is the same evidence as before, just repeated in more detail.  In other words, the attorney would not present the new evidence of depression if it were redundant only in the sense that the depression did not become more severe.  This reasoning does not apply in cases like that of PWDF’s client described above, where the client was hospitalized for two weeks for the same disability.

As another example, as a general rule, an attorney also would not reference the psychiatric disability; e.g., depression, if it is a new and different disability.  With major orthopedic, cardiac or other body system impairments, functional overlay of psychiatric disabilities is not uncommon.  If an individual is no longer able to work, participate in the same daily activities, or participate in them as routinely as previously due to the onset of a physical disability, the person may need to see a psychotherapist or psychiatrist for treatment in order to continue living without suicidal ideation or attempts.  To believe that a court should not be informed of major depression, which usually includes thoughts and, at times, attempts of suicide, is a result of stigma and stereotype.

Perhaps more to the legal point, the Social Security Act has always required that the SSA consider all impairments, mental and/or physical, in combination.  If, for example, an individual was precluded from performing any routine activities, often called activities of daily living (ADLs), this component of the disability would have to be considered in combination with any physical component.  If someone’s physical disabilities precluded past relevant work and the person could only do other work, the judge then would have to factor in the non-exertional component of the disability in order to decide whether the person is “disabled” under the Social Security Act.  This occurs when the claimant’s mental impairments, which are not related to strength, reduce the available job base such that the jobs that the claimant can perform do not exist in significant numbers in the national and regional economy. (See 20 C.F.R., Part 404, Subpt P, App. 2, 200.00 Introduction (e)(2).)

It is the mission of PWDF to destigmatize psychiatric and/or developmental disabilities.  In the 16 years since PWDF’s inception, a lot has been accomplished through both our Advocacy Program and our Public Awareness and Education Program.  The latter has produced sixteen 3-hour public awareness seminars, two training videos, and countless workshops and other events. In our hands-on advocacy work, we represent Social Security claimants and other individuals in 8 San Francisco Bay Area counties.  We hope that other agencies and individuals will join us in the fight against bigotry; specifically, against discrimination based on psychiatric and/or developmental disabilities.  Psychological impairments are invisible to many people, but just as serious as physical impairments.