There are two arguments for PTSD disability that I have used successfully in cases tried before Social Security judges. Argument one involves meeting the “listing” at 12.06, and argument two involves proving that my client’s “functional capacity” for work has been so eroded by his PTSD symptoms that he would not be a reliable worker.
Winning Argument 1: Meeting Listing 12.06
for Anxiety Related Disorders
Social Security “listings” are descriptions of medical or mental health problems that are so severe that if you meet the description, you are automatically disabled. As you might imagine it is difficult to meet a listing, and, as a matter of practice, many listing level cases are approved at the initial application stage. However, some listing level cases do slip through the cracks and I almost always make a listing argument in PTSD cases.
The listing at 12.06 reads as follows:
12.06 Anxiety-related disorders: In these disorders anxiety is either the predominant disturbance or it is experienced if the individual attempts to master symptoms; for example, confronting the dreaded object or situation in a phobic disorder or resisting the obsessions or compulsions in obsessive compulsive disorders.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in both A and C are satisfied.
A. Medically documented findings of at least one of the following:
1. Generalized persistent anxiety accompanied by three out of four of the following signs or symptoms:
a. Motor tension; or
b. Autonomic hyperactivity; or
c. Apprehensive expectation; or
d. Vigilance and scanning; or
2. A persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity, or situation; or
3. Recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week; or
4. Recurrent obsessions or compulsions which are a source of marked distress; or
5. Recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress;
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
C. Resulting in complete inability to function independently outside the area of one's home.
Evidence need to meet the listing at 12.06
Social Security says the following about the evidence needed to meet this listing: In cases involving post-traumatic stress disorders, documentation of the anxiety reaction is essential. At least one detailed description of your typical reaction is required. The description should include the nature, frequency, and duration of any panic attacks or other reactions, the precipitating and exacerbating factors, and the functional effects.
If the description is provided by a medical source, the reporting physician or psychologist should indicate the extent to which the description reflects his or her own observations and the source of any ancillary information. Statements of other persons who have observed you may be used for this description if professional observation is not available.
Ginsberg’s experience in 12.06 Cases
In my experience, about half of the Social Security judges that I appear before are very, very reluctant to approve a PTSD case on the listing. I think this is because PTSD is a mental health disorder that obviously cannot be verified by an x-ray or MRI. By contrast, most of the listings published by SSA describe medical problems that can be “measured” using diagnostic tests, and these judges feel uncomfortable about approving a case as a listing level impairment when there is no way to directly observe the medical problem. If you get one of these judges you can still win - but we will have to use a “functional capacity” argument.
Other judges are willing to find that a claimant’s PTSD does meet a listing. They will want to see a medical record that contains regular and on-going treatment and specific descriptions of the symptoms you experience.
In my experience, judges who will find listing level PTSD are more willing do do so for claimants whose PTSD arises from military service than for claimants that have suffered physical or sexual abuse. Military service PTSD claimants often have voluminous VA records and many of these claimants have 100% service connect VA disability. Since VA disability findings carry a great deal of weight in Social Security cases. This is not to say that PTSD childhood sexual abuse will not support a favorable decision based on the 12.06 listing but such a finding is less common.
Winning Argument 2: Proving that Your Functional Capacity for Work has been so Diminished by Your PTSD That You Would Not be a Reliable Worker
The most common argument I use to win Social Security disability cases is called the “functional capacity” argument. The premise of this argument is that the symptoms arising from your PTSD are so severe and intrusive that you would not be able to function reliably at even a simple, entry-level job.
As you well know there are many symptoms that can arise from PTSD. I have had the most success focusing on those symptoms that result in either excessive absences from work, or excessive breaks during the work day. Generally if you are likely to miss three or more days of work a month, or if you are likely to need four or more unscheduled breaks of 10 to 15 minutes in an average week, most employers will not keep you on the payroll.
Proving Reduced Functional Capacity
The proof I use in a functional capacity argument comes from a form called, logically enough, a “functional capacity form” that identifies your symptoms and also identifies the activity limitations that arise from those symptoms.
Remember, Social Security defines “disability” as the inability to engage in substantial gainful activity because of medically determinable condition that has lasted or is expected to last 12 consecutive months.
My forms help your doctor “translate” his or her opinion about your PTSD into Social Security’s special language.
In addition to a good form, we will also need medical records that document extensive and consistent treatment, and that you have been compliant with all suggested treatment.
When we get to your hearing, I will present evidence supporting our allegations of limited function by asking you questions about the problems and issues you have in maintaining attention, concentration and focus. Your testimony is evidence and assuming that you come across as credible and honest about the problems you face due to PTSD symptoms you can be approved.
Supporting Medical Records + Clear and Specific Description of Symptoms = Good Chance for
Whether we present a “listing” argument, or a “functional capacity” argument or both, we will need what Social Security calls a “longitudinal treatment record.” This means that there should be on-going and consistent treatment with a psychologist, psychiatrist or mental health counselor. In addition, we will need to practice your presentation of symptoms until you are able to clearly and descriptively describe what you are going through.
When you are my client I will meet with you a week or so prior to your hearing so that I can listen to how you speak and describe your symptoms. I also use this pre-hearing meeting to practice your testimony and prepare my direct examination to fit your way of talking.
Case Study #1 - 62 year old Vietnam vet with severe PTSD and depression - claimant began experiencing seizures during the hearing