Mental Impairment Claims - Should You Survey Listing 12.00 or Focus on One Particular Listing?
Before discussing strategies of what to focus upon within the mental disorders listing, a brief review of the structure of the mental disorder listing may be helpful. The mental disorder listing is divided into three sections. The first section [section A] describes nine general categories of mental impairments. These categories are: organic mental disorders; schizophrenic, paranoid and other psychotic disorders; affective disorders; mental retardation; anxiety related disorder; somatoform disorders; personality disorders; substance abuse disorder; and autistic disorder and other pervasive developmental disorders. If the claimant has a medically determinable impairment that does not satisfy the diagnostic description or criteria of mental heath listings then the concept of “equivalence” may be employed. [To understand better SSA’s concept of “equivalence” see 20 CFR § 404.1526 “your impairment is medically equivalent to a listed impairment. . . if it is at least equal in severity and duration to a listed impairment.” The second section [section B] and the third section [section C] describe the functional limitations that result from the mental impairment(s). SSA views these functional limitations as “incompatible with the ability to do any gainful activity.” SSA’s procedure to assess a mental disorder is set out in POMS Section DI: 24505.025 Evaluation of Mental Impairments. This evaluation is called the Psychiatric Review Technique. The form used by SSA to document the application of the Psychiatric Review Technique is the Psychiatric Review Technique Form (PRTF) – SSA-2506-BK.
The PRTF can be competed by a disability examiner, a medical consultant or a psychological consultant. However, the medical consultant or the psychological consultant are responsible for its content. Further, either the medical consultant or the psychological consultant must sign the PRTF. If the Psychiatric Review Technique results in a finding that the claimant meets or equals the mental disorder listing(s) then no other assessment needs to be made. If , however, the Psychiatric Review Technique results in a determination that the claimant’s impairment does not meet or equal the mental disorder listings then a Mental Residual Functional Capacity Assessment must be performed. [POMS Section 24510.001] This Assessment must be completed on From SSA-4734-F4-SUP-Exhibit. Similar to the PRTF, the disability examiner may assist in the completion of the form. However, the medical consultant or the psychological consultant must sing the form and be responsible for it s content. The Mental Residual Functional Capacity Assessment Form is divided into three sections. The first section contains summary conclusions and a number of “check off” boxes relating to the effect of the impairment upon the four areas of mental functions. [These four area are understanding and memory; sustained concentration and persistence; social interaction; and adaptation.] This first section is viewed as the medical consultant’s preliminary conclusions. The second section is used to indicated whether there are any deficiencies in the evidence. The third section is arguably the most important, it is the formal narrative of the mental RFC. Often, Section I of the Mental RFC will contain evidence that suggests a claimant is very restricted. At the same time, the Section III narrative section may contain statements which suggests that the claimant’s residual functional capacity is less restricted. When constructing an argument based upon the restrictions found in Section I, an ALJ may take the position that Section III is the “true” RFC and not the preliminary conclusions found in Section I. As a consequence, it may be necessary to advocate, convincingly, that the true RFC lies somewhere between the clearly marked and easy to understand check off boxes of Section I and the sometimes unclear narrative.
Of the more than 10 million working-age adult disability beneficiaries covered under Social Security in 2007, 41%1 had as their disabling condition an impairment listed within the mental impairment section of the listings [affective disorder 14.1%, other psychiatric disorder 15.3%, intellectual disability 11.6%.] Statistically, no other single listing category comes close to the mental impairment category regarding the number of disability claimants whose claims are based on some mental impairment.
There are no statistics from SSA that address whether a particular claimant’s mental impairment is based upon a single listed mental impairment or a combination of listed mental impairments. However, it is commonly accepted within the medical community that a high percentage of mental health patients have a single disorder that co-exists [comorbid] with another mental disorder. According to the Surgeon General, mood disorders are often comorbid with other mental and somatic disorders. The Surgeon General estimated that about one half of those who have a primary diagnosis of major depression also have an anxiety disorder. Other comorbidities include substance abuse and mood disorder and personality disorders and medical illnesses.2 A federal district court has recognized the mental health disease of schizoaffective disorder as a combination of schizophrenia and bipolar disorder, resulting in severe changes in mood and some of the psychotic symptoms of schizophrenia, such as hallucinations, delusions, and disorganized thinking.3
Without question, mental health comorbidies not only exist but are common place. So too are multiple diagnoses implicating more than one listing in a disability case. The SSA “Green Book” which instructs independent examiners on the topics needed to be included in their assessment of a claimant, call for a number of different subjects to be addressed. The instructions are:
A through and complete report from an examiner is designed to capture impairments addressed in all of the mental disorder listings. For example, within the report criteria there are sections for organic mental disorder, schizophrenic, delusional and other psychotic disorders and mental retardation. The point is that, in most cases, if there is evidence of multiple mental disorders, the consultative report will set out the mental comorbidities. The medical consultant or the psychological consultant will then determine whether the evidence of those identified mental comorbidities is sufficient to constitute a severe impairment and if so whether they meet or disorder listing of impairments. In some instances, there will not be an independent psychological examiner. In those instances, the medical consultant or the psychological consultant will have the treatment records of the claimant, the claimant’s statement and possibly a third party statement to review.
With all that said, should a practitioner focus on one particular mental disorder listing or “survey” the entire mental disorder listing? I think that would rephrase that question to ask whether a practitioner should focus on just one of the identified mental impairments or argue that all of the identified mental impairments are relevant. The answer is that all of the identified mental impairments are relevant. As a consequence, they all should be addressed in any argument for an award of disability. The reason they are all relevant is because of the prevalence of mental comorbidities and because the PRTF and Mental RFC were most likely based upon the existence of mental comorbidities. One thing that bears watching is the case where there is no independent consultative mental examine and there is evidence in the file that was not present when the medical consultant or the psychological consultant reviewed that case and that evidence implicates the existence of a mental disorder listing not previously identified. In this instance, the mental disorder listings will need to be surveyed in order to determine which listing the new evidence best matches.
1 Arif Mamun, Paul O’Leary, David C. Wittenburg and Jessie Gregory, Social Security Bulletin, Vol. 71, No. 3, 2011, Employment Among Social Security Disability Program Beneficiaries, 1996-2007, Table 1, Characteristics of Social Security Disability Beneficiaries 1996-2007.
2 Mental Health: A Report of the Surgeon General, Chapter 4, Adults and Mental Health, Mood Disorders, Complications and Comorbidities. http://www.surgeongeneral.gov/library/mentalhealth/chapter4/sec1.html [last accessed March 1, 2012]
3 Jenson v. Astrue, Slip Copy, 2011 WL 5294249 W.D., Ark, 2011, 3