MENTAL IMPAIRMENTS THE JUDGE MUST CONSIDER
HOW DOES THE JUDGE RATE MENTAL CONDITIONS AT SOCIAL SECURITY HEARINGS?
Mental Impairments are crucial to whether you can be paid benefits. At Social Security hearings, the ALJ must weigh the medical evidence. By “weigh” the evidence, the judge must determine which evidence to give the most credence too. For example, most SSA files contain evidence from your doctor, but they also contain evidence from the SSA’s doctors about you.
In mental cases, there is usually mental health evidence from your psychologist and treating counselor. Additionally, there is medical evidence from the doctor that reviews your files for the SSA. The SSA doctors have never met you, but they review your records. Then, they offer a medical opinion about your mental health.
Additionally, the medical records usually contains a Psychological Exam done by a Consultative Examiner. If you have a mental health cases, then you will attend an exam by a psychologist. The psychologist interviews you. The doctor will ask you questions about your work history. Also, the doctor will ask you about your drug and alcohol use and your mental health symptoms.
You do not establish a treating relationship with the doctor during the exam. Instead, the psychologist offers a medical opinion with regard to your mental condition. Typically, the psychologist will rate how your symptoms are. For example, the SSA’s rating scale for mental conditions is “mild,” “moderate,” “marked,” and “extreme.”
In SSD hearings the ALJ will often ignore evidence from your treating psychologist, in favor of evidence from the SSA’s reviewing doctor. Or, the ALJ will give weight to the DDS doctor opinion, rather than accept the opinion of the treating mental health source. Sometimes, the ALJ will do this, despite the fact that the SSA doctor has never met you.
THE 7TH CIRCUIT HELD THE ALJ MUST INCLUDE ALL MENTAL IMPAIRMENTS IN VE HYPOTHETICAL
The ALJ determines your mental residual functional capacity (RFC) by reviewing your medical records. The judge will also listen to your testimony about your mental symptoms and how they impact you. The ALJ only uses the mental impairments in questions to the VE, that will impact your ability to work. Find out about the VE at your hearing.
Many times, after reviewing the record, the ALJ will only accept “marked” mental impairments. Therefore, if DDS notes only moderate impairments, then the judge does not include them in the VE questions. Likewise, it is possible for the judge to do the same with the mental impairments found by your doctor or counselor.
The beauty of the recent 7th circuit case is that the court found the ALJ must include all mental impairments as part of your mental residual functional capacity. In Crump v. Saul, the 7th Circuit court states that the judge must include all mental impairments. This includes moderate impairments, in the hypothetical to the VE. If the ALJ does not, then she cannot rely on the VE’s hypothetical to deny the claim.
Crump applied for disability benefits based on mental health symptoms from Bipolar Disorder and Polysubstance Abuse Disorder. She told the ALJ that she couldn’t work because her mental problems caused moderate impairments.
The ALJ did not include her moderate issues with concentration, persistence, or pace in the VE hypothetical. Instead, the ALJ found she could perform “simple and repetitive tasks” at work. With that description, the VE said there were jobs available and denied the case.
“SIMPLE AND REPETITIVE TASKS” NOT ADEQUATE DESCRIPTION
Crump argued that her “moderate” difficulties should be part of the VE questions. If they were, she argued, it would show she could not sustain employment. In other words, she argued that being unable to maintain concentration during the workday would impair her to the point she could not work.
The 7th Circuit agreed with Crump. That Court states that stating she could only do “simple and repetitive tasks” was not enough information for the VE. Likewise, such a finding did not include the “moderate” mental symptoms.
In short, saying the claimant could do “simple, repetitive tasks” at work would not account for Crump’s ongoing problems with concentration, persistence, or pace at work.
This is important because this case shows that even “moderate” symptoms must be part of the VE questions. It also shows that moderate symptoms can prevent work.
The 7th Circuit sent the case back to the ALJ. On remand, the ALJ had to include the moderate mental issues as part of the VE’s questions.
MODERATE MENTAL IMPAIRMENTS CAN PREVENT WORK
At the hearing, most ALJ’s use the phrase “simple and repetitive tasks” when they question the VE. This judge’s use this statement to justify the finding that you can do “unskilled work.” Normally, if the judge finds you can perform seated or light unskilled work, then you lose your claim.
Crump stands for the fact that even moderate mental impairments can keep your from work. Moderate mental symptoms erode the ability to sustain a 40 hour work week.
What is a mental impairment? For example, not being able to concentrate due to anxiety would be a good example of an impairment that would impact work. If you can’t concentrate, then your can’t not follow instructions from your boss.
Likewise, depression could cause you to be unable to finish tasks. Moderate mental impairments in concentration and pace impact your ability to do tasks during the work day. If you can’t persist at tasks during an 8 hour day, then you can’t work. The same is true if you must take extra breaks. Full time work cannot not be done if you are constantly taking breaks.
HOW TO GET MEDICAL EVIDENCE TO PROVE YOUR MENTAL IMPAIRMENTS
If you do not have health insurance, then there are still ways to get treatment for your mental impairments. If you are from Utah, then review Utah’s Free and Low Cost Health Services. There you will find mental health resources that are free or low cost. We have information for you about Utah mental conditions.
Likewise, if you are from Nevada, then you should review Nevada’s Free and Low Cost Mental Health Services. There you will find examples of clinics and treatment centers. They all provide mental health therapy. Sometimes they offer free therapy. Others offer it on a sliding scale. Don’t wait, call these resources today. Get yourself into treatment. Learn about Nevada mental health SSD benefits. Also, review free or low cost mental health care in Colorado.
Make sure the doctor you choose will support you through the benefit process. Also, ask your counselor to support you too. Some treating sources refuse to provide progress notes. Or, they refuse to write letters on your behalf. Don’t let this happen.
Ask you mental health providers to provide their notes to the SSA. Also, seek treatment from someone who will help you. You should also ask your treating counselor if they will support you in your benefit claim. If they won’t submit their records. Or, if they refuse to help, then find a new counselor.
MEDICAL EVIDENCE TO PROVE YOUR DISABILITY CLAIM
The hard part of winning benefits for mental impairments is the burden of proving you need SSD benefits is on you. You must prove your case at each step of the five step SSA review process. Therefore, you must show with medical evidence, that you have the symptoms in Part A. For example, you need progress notes from your doctor. Also, you need treating notes from your counselor. These records will show the severity of your mental impairments.
In addition, you must also show your symptoms are so severe that they also meet the rules under Part B and/or C. You can learn about how the Part B mental rules wins benefits. There are times where proving Part C is easier than proving Part B. Learn about the importance of medical evidence in proving your case for SSDI and SSI benefits.
HIRE US TO PROTECT YOUR RIGHTS
Our SSD attorneys believe the Judge should consider all of your mental issues at the hearing. Moderate mental symptoms are just as important as severe ones.
All mental symptoms can impact your ability to work. Moderate mental impairments can also impact your ability to get an along with other workers and your boss. They can also impair your ability to deal with the public. If you are dealing with a panic attack, then you can’t greet customers.
If you have a decision from an ALJ, then make sure the decision includes all of your mental symptoms. The ALJ must consider severe and moderate mental conditions.
Especially, make sure your mental issues are part of the ALJ’s questions to the VE. Moderate mental symptoms equate to mistakes on the job. They also equate to being off task at work. Additionally, moderate mental impairments may require you to take extra breaks at work.
WE CAN REPRESENT YOU AT YOUR HEARING
If you receive denial from the judge, then you have only 60 days from the date on the decision to appeal. Make sure you appeal quickly. Mental illness does impact your ability to work. Especially if you receive treatment and the symptoms don’t get better. Contact us if you have a mental condition and you need benefits.
We help clients in Salt Lake City, Utah. Also, we represent clients in Las Vegas, Nevada, San Francisco and San Diego, California. In fact, we can represent you in whatever state you live in. Hire us to be your Social Security benefits legal team.
We do not require you to pay any money up front to hire our legal team. Additionally, we offer a free review of your benefits. We will talk with you over the phone to see if we can help you with your case. Therefore, it costs nothing for you to contact our office.
It also costs nothing for us to begin work on your case. We can help you file your application for SSD & SSI benefits. Additionally, we can appeal any SSA decisions. Our legal team also has experience at the Appeals Council. We also appeal cases to Federal Court.
In the last 30 years, we have won over 20,000 SSDI cases. This proves we have the legal experience to help you. Our goal is to help you win your SSDI and SSI case. Also, our goal is to make the experience easier for you. You have enough to worry about when you are dealing with your SSD benefits. Especially if it is a mental condition. You don’t need more to worry about. Leave the legal work to us. Contact us today.
