Mental Disorders in Social Security Disability Practice

Description

Expert Tactics and Practical Tools for Representatives

Representing clients with mental disorders before the Social Security Administration is challenging work. Mental illness often impairs a client’s ability to communicate, adversely affects how the client is perceived, hinders medical treatment, and disrupts the representative-client relationship. The representative must shepherd a vulnerable and aggrieved individual through a bureaucratic morass. Mental Disorders in Social Security Disability Practice guides you step-by-step along this demanding process. 

Attorneys Maryjean Ellis and Manuel Serpa and psychologist Dr. Glenn A. Elmer Griffin cover the topics that are vital to a successful claim:

• Identifying when a client may have a mental health impairment and confirming the impairment when the client does not have a detailed treatment history. §§2:20-2:26.
• Working effectively with boundary-pushing clients who are infatuated, dependent, angry, delusional, potentially violent, or suicidal. §§3:50-3:102.
• Managing cases of claimants with psychosis, dementia, bipolar disorder, depression, anxiety, intellectual disorders, personality disorders, and more. §§4:10-4:51.
• Obtaining medical and non-medical evidence that supports an argument for disability. §§5:30-5:62.
• Conquering obstacles like an uncooperative treating source, unsupportive documents, a non-compliant client, or a client with drug or alcohol problems. §§5:120-5:181.
• Indispensable and common psychological tests and psychological tests recommended for specific client scenarios. §§6:120-6:137.
• Practical tips on how to handle a suspected malingering client. §7:144.
• Medications used in treating specific mental disorders and their effects. §§9:30-9:115.
• The psychological listings criteria that present the most difficulty for representatives with case studies to help you recognize the signs and symptoms of each disorder. §§10:20-10:174.
• Overcoming barriers to eliciting compelling client testimony and calming common fears, such as embarrassment, anxiety and panic, pain-related depression, memory impairment, and more. Sample dialogues with clients illustrate approaches to these situations. §§13:10-13:24.
• Anticipating problems during the hearing such as the angry or threatening client, the seriously ill client who has a good day, the verbose client, the client with severe memory problems, and other situations. §§13:30-13:37.
• Sample hearing questions for the client on symptoms, treatment, limitations, living circumstances, and daily activities. §§14:40-14:121.
• Techniques for cross-examining an ME who is biased, non-responsive, relies on a flawed CE, ignores or mischaracterizes evidence, or has an improperly high threshold for a disabling condition. §§16:130-16:140.
• Techniques for challenging VE testimony on jobs the claimant can perform, existence of jobs in specific numbers, misuse of statistics, discrepancies with the DOT, and transferability of skills. §§17:90-17:97.
• And much more.

Tips and Insights

The Client-Representative Relationship

Delineating boundaries early in the process is imperative, especially when working with individuals with particular kinds of mental illness.  These people may be very sensitive to perceived slights from authority figures, making for a challenging situation.  Boundary-setting early in the relationship helps to avoid more confrontational situations later on, which may be upsetting for a sensitive client.  If an individual tries to cross the boundaries at some later point, the representative can gently reference and reiterate the initial discussion. §3:02

[Boundary crossings] may include things such as introducing one’s children to the client, hugging or other physical contact, gift giving or receiving, and giving or accepting financial advice.  We mention these to illustrate the type of seemingly innocuous occurrences that may be detrimental in working with individuals with psychological problems.  All of the above listed things are best avoided in most cases in the advocate-client relationship. . . .  A consistent demeanor of professionalism and appropriate distance is invaluable in navigating successful working alliances with individuals with mental health conditions.  §3:15

Gathering Evidence

While developing the case, bear in mind that nothing proffered upon a request for evidence can be taken for granted or assumed to be reliable. Medical records may be mistaken, diagnostics may be sloppy or rely on an inaccurate history, and testing may be flawed or incomplete. Clients may inadvertently hinder the development of the case by minimizing, misleading, forgetting, or being too ashamed to admit or acknowledge information. They may fail to mention sources of treatment or may give you information that is inconsistent with or contradicts what they have told their care providers or the SSA. You must seek out the most reliable data that supports disability and take on the role of investigator as you review the evidence for relevant medical sources, testing, or procedures that you were previously unaware of. §5:01

The best way to obtain a narrative report is to interview the provider and transcribe the questions and answers. An offer to pay the provider their hourly rate can be helpful in encouraging cooperation. Prepare questions in advance by reviewing the provider’s treating notes and testing results. Address the claimant’s limitations that can be reasonably supported by the existing record. Ask the provider’s consent to make a tape recording of the interview so that you can prepare a transcript to be submitted to SSA with a letter describing the process you used, in compliance with the “all evidence” rule.  §5:43

Don’t make a hard and fast rule to turn down a case with DAA if there is no evidence of other impairments: develop that other evidence. Have the potential claimant see a Primary Care Provider (PCP) and, if appropriate, ask the PCP to recommend specialists – including a psychiatrist. Have the potential client check in with you after six months of treatment for any other impairments. Ask the PCP and the specialists for Treating Source Statements and be sure to ask for an opinion regarding their patient’s credibility and the effect of the DAA. Many individuals with DAA have co-occurring ailments that are ignored. §8:50

The Hearing

Questioning the Claimant

Be careful about asking the client what their “main” impairment or “most disabling” condition is. You are setting the client up to risk diminishing their other impairments. This raises an implication that the client’s other conditions are not that bad. The ALJ may find that the others are not as severe by pointing to this testimony, allowing a finding that the ALJ’s unfavorable decision is reasonable. You can ask the client this question in the pre-hearing conference so that you are aware of what the client thinks their worst problem is but that is not how you should approach it at the hearing. As far as you are concerned, all MDIs contribute to disability. §14:07

When forming questions, avoid absolute terms like never, always, every time, ever, constantly, etc. This sets the client up to respond with an extreme answer that the ALJ can easily refute and use against the client by finding one instance otherwise. Do not set your client up! §14:07

You may have to cut off the client or attempt to direct the client back to the question when they go off on a tangent or when their thoughts are disorganized and answers are non-responsive. But first, allow the client to demonstrate these aspects of their illness to the ALJ. Give the client some leeway before gently redirecting them by repeating or rephrasing the question. §14:53

Do not allow an ALJ to illegitimately limit the questioning of your client. If the ALJ tries to cut off your questioning or says that they have “heard enough,” ask if they are thus stipulating that your client is disabled and that they will grant the case. If not, inform the ALJ that you have additional questions. You can volunteer to come back for a supplemental hearing if necessary. You can also point out that the client has waited a long time for this hearing and should not have to tolerate further delay of their opportunity to be heard. §14:07

Do not allow an ALJ to attribute your client’s unpleasant or inappropriate behavior to a character defect, such as laziness or arrogance, when it really is a symptom or consequence of a mental disorder, something that the client is unable to control, and most importantly, a behavior that makes it impossible for the client to hold a job. An unilluminated ALJ may seek to punish your client for what the ALJ wrongly assumes are moral failings and bad character rather than a manifestation of illness. It may be best to frame these issues for the ALJ in a written format before or just after the hearing. §4:04

The Medical Expert

Be careful when asking a medical expert or any expert an open question like, “Why?”  Especially avoid asking an ME why they disagree with the treating physician. You are setting yourself up for an answer that will be difficult to rebut.  You will not like the response.  A hostile ME will explain why they have expressed their opinion one way or the other or why they disagree with the treating physician.  You are basically providing the ME a platform to bolster their opinion and potentially degrade any favorable opinions.  Inexperienced practitioners may ask: “The treating physician says X and you say Y… why don’t you agree with them?” Then the ME demolishes the basis for the treating physician’s favorable opinion. §16:102

Sometimes you will find the ME advocating for your client, actively trying to find evidence that supports disability, or you may know from past experience that the ME will be sympathetic to the case.  If so, do everything you can to help the ME. Let the ME know what your game plan is and how they can assist you in pursuing it by giving a detailed opening statement describing your theory of the case with citations to the exhibit file that support that theory.  Including citations to the exhibit file in your opening statement will provide the ME an opportunity to review that evidence again and consider your argument.  This can have the reverse effect, however, when facing an adversarial ME by alerting them to your argument and providing them the time to assemble a rationale to reject it.  In that case, hold your cards closer to your chest. §16:110

The Vocational Expert

The VE should not question the claimant. A VE should inform the ALJ of the need for more information. You should object to any inappropriate questioning of your client by the VE. Questions from the VE usually arise when trying to determine the PRW, which can lead to irrelevant or argumentative questioning. Ask the VE what information they are attempting to solicit; and then, if you deem it legitimate, question the client yourself on the issue. §17:41

Object to the [ALJ’s] hypothetical if it is without a basis or if the ALJ states that it is based on his or her “interpretation” of the record as a whole. The hypothetical the ALJ ultimately relies on in the decision must include all impairments supported by the record, both severe and non-severe. Factors such as the side effects of medication as well as subjective evidence of pain should be considered. When the hypothetical question does not paint an accurate picture of a claimant’s impairments, the VE’s testimony prompted by the hypothetical is not substantial evidence for the ALJ’s conclusion that claimant could perform “other work.” §17:54

In cases where a mental impairment is established, ALJs all too commonly arrive at a generic RFC that is merely a restriction to “simple, unskilled work” and pose this sole mental limitation in a hypothetical to the VE. Such a vague description of a claimant’s restrictions neither quantifies the effect of an individual’s impairments nor, without further clarification, has a specific meaning that can be understood in vocational terms. The same thing can be said for its variations: “simple, one- to two-step, object-oriented work with little contact with others, slow-paced, low-stress, routine, repetitive.” Such limitations must be challenged. Be sure to ask the ALJ:

• How is the ALJ defining each of these terms?  
• What sources is the ALJ using for these definitions?
• Does any medical source need to be contacted to clarify the terms used?

17:74

In articulating a hypothetical, rather than simply referring to an exhibit or the claimant’s testimony generally, give specific limitations. Do not ask “would an individual with the limitations in exhibit 4F be able to work?” or “would an individual with the limitations testified to by the claimant today be able to work?” Questions phrased in this manner do not create a clear record, nor are they specific enough to prompt helpful testimony. Instead, state the actual limitation and its existence in the record (“at exhibit 4F”, for example). When the claimant’s testimony is the source of a specific limitation in your hypothetical, give the limitation exactly as the claimant testified to being so limited. §17:81

Forms and Checklists

• Client Screening Checklists:
  • #1. Observations of Client that Suggest a Mental Disorder, §2:30
  • #2. Potential Sources of Information about Client’s Mental Health, §2:31
  • #3. Questions That May Reveal a Mental Disorder, §2:32
• Sample Letter Responding to Client Complaints, §4:162
• Sample Letter Responding to Unacceptable Client Behavior, §4:165
• Sample Client Intake, §5:03
• Client Authorization for Release of Personal Information, §5:06
• HIPPA Release, §5:33
• Hitech Records Request, §5:34
• Sample Cover Letter Transmitting Medical Source Statement, §5:46
• Mental Health Medical Source Statement, §5:47
• Doctor’s Opinion re Symptoms and Limitations, §5:48
• Therapist’s Opinion re Mental Ability to Do Work-Related, §5:49
• VA Medical Release, §5:62
• Post-Evidence Review checklist §5:73
• Checklist: Common Obstacles to Look for When Reviewing Evidence, §5:120
• Subpoena Request, §5:142
• Drug-Seeking Behavior Sample Letter, §5:161
• Sample Letter Addressing Drug and Alcohol Use Disorder, §5:163
• Anxiety Journal, §5:192
• Mood Diary, §5:193
• Pain, Fatigue, Depression Journal, §5:194  
• Headache Diary, §5:195
• Work Attempts Sample Spread Sheet, §5:202
• Drug and Alcohol Abuse Case Evaluation Checklist §8:36
• Comprehensive Pre-Hearing Conference Checklist (Single Meeting), §13:02
• Prehearing Checklists (Four Shorter Meetings), §13:03
• Sample Sworn Statement of Client, §13:20
• Medical Interrogatory – Mental Impairment(s) – Adult  (Form HA L70 (03-2020)), §16:62  
• Medical Source Statement of Ability to Do Work-Related Activities (Mental), §16:63
• Sample Post-Hearing Memo, §16:161
• Checklist: Response to ALJ Hypotheticals, §17:80

Abbreviated Table of Contents

• Chapter 1 The Diagnostic and Statistical Manual of Mental Disorders (DSM) for Social Security Disability Representatives 
• Chapter 2 Screening Clients for Mental Disorders
• Chapter 3 Maintaining a Professional Relationship with Mentally Ill Clients 
• Chapter 4 Managing Negative Reactions to Mentally Ill Clients
• Chapter 5 Gathering and Evaluating Evidence of Disability
• Chapter 6 Identifying Appropriate Psychological Tests
• Chapter 7 Malingering 
• Chapter 8 Drug and Alcohol Abuse
• Chapter 9 Psychotropic Medications 
• Chapter 10 The Psychological Listings: A Criteria 
• Chapter 11 The Psychological Listings: B and C Criteria 
• Chapter 12 Medical Source Statements and the “Moderate” Problem
• Chapter 13 Preparing the Client for the Hearing
• Chapter 14 Direct Examination of the Client and Lay Witnesses
• Chapter 15 Representing Physical Pain 
• Chapter 16 Medical Expert Testimony
• Chapter 17 Vocational Expert Testimony

About the Authors

Maryjean Ellis has been representing Social Security Disability/SSI claimants since 2005, when she opened her own practice. She represents claimants at all administrative levels and before the Federal District Court of New Jersey. 

She earned her law degree from Seton Hall University Law School in 1996 and passed the New Jersey bar the same year. She is admitted to practice before the Federal District Court of New Jersey, and the United States Court of Appeals, Third Circuit.

In 2023, Ellis was appointed by the NJ Supreme Court to the Committee on Character. The Committee on Character assists the Board of Bar Examiners in guiding the Supreme Court regarding the admission of attorneys in New Jersey. Additionally, she serves her community as a Member of the Sussex County, NJ Mental Health Board which promotes access to and availability of efficient, adequate, integrated health care services for children and adults with mental illness and/or substance use disorders. 

She is a member of the Sussex County Bar Association, the New Jersey State Bar Association, the National Organization of Social Security Claimants Representatives (NOSSCR), and the National Association of Disability Representatives (NADR). 

Ellis has provided Social Security Disability/SSI law training for attorneys locally and nationally and for the public. She may be reached at the Law Office of Maryjean Ellis, LLC, 93 Main Street, Newton, NJ 07860. (973) 940-8635. [email protected].

Manuel D. Serpa is an attorney with over thirty years of experience in Administrative Law. His legal expertise encompasses Social Security Disability, Public Entity Law, Public Pension Fund Law, and Federal Appellate Practice. 

For over twenty years, Mr. Serpa led the federal appellate practice in the 9th Circuit for Binder and Binder, a national disability law firm. As a supervising attorney with Binder and Binder, he represented disability claimants in hundreds of administrative hearings. Recognized as an authority in administrative law and appellate advocacy, he has in-depth knowledge and experience with medical evidence, vocational evidence, and the cross-examination of experts. 

He has also been a partner at a public entity law firm, representing government entities and providing transactional, litigation, and general counsel services to diverse public agency and municipal clients. At present, Mr. Serpa is the General Counsel at the Orange County Employees Retirement System. He graduated from Pepperdine School of Law and is admitted to practice in California.

Glenn A. Elmer Griffin, Ph.D., is a licensed clinical psychologist and professor in the Department of Critical Theory and Social Justice at Occidental College in Los Angeles. He is Director of the clinical psychology lab and founding editor of Critical Theory and Social Justice Journal of Undergraduate Research. He is a three-time recipient of the Loftgordon Award for Distinguished Teaching and three-time recipient of the Opencare Patient’s Choice Award for Best Psychologists in Los Angeles. Dr. Griffin received a BA from Pacific Union College and a Ph.D. from Fuller Theological Seminary.