Building a Successful PTSD Case

Social Security disability examiners and administrative law judges may determine that a claimant with PTSD (or post traumatic stress disorder) is unable to perform job related activities, and thereby prevented from obtaining gainful employment.  PTSD can affect claimants in different ways, and each has different evaluative criteria.  First, claimants may have suffered physical, sexual or emotional abuse as a child or as an adult, and as such, suffer from PTSD.  Second, claimants may have served in the military and can no longer work due to flashbacks and emotional trauma.  Each of these scenarios can be won with a carefully crafted winning strategy.

The focal point of a PTSD claim is whether a claimant is able to perform a standard, entry-level job.  It is recognized that even the easiest, most uncomplicated jobs require a minimum of attention and concentration.  For instance, if a claimant suffers from intense flashbacks, emotional outbursts, or frequent crying, which are so severe that they interfere with a standard level of concentration, a claim for benefits based on PTSD will likely be approved.  If treating medical professionals and psychologists testify on the claimant’s behalf regarding these conditions, the chance of winning is even greater.

Although PTSD symptoms vary from individual to individual, some of the most common are the following:

• Frequent crying at any and all times; often there is no way to pacify the individual
• Violent or angry actions
• Decreased focus
• Difficulty relating to or communicating with co-workers, customers, or the general public
• Insomnia or inability to sleep, resulting in being unreliable, suffering fatigue, and sleeping during the day

There are two different ways that a disability examiner or administrative law judge will evaluate a PTSD claim.  The first is whether a claimant meets the requirements under the Social Security listing 12.06.  The second is whether a claimant’s PTSD symptoms have impacted his reliability and functioning in such a way that his functional capacity is too decreased to make him a useful, capable employee.

The First Winning Strategy:
Satisfying the Listing 12.06 Requirement

The Social Security Administration has developed descriptions of medical or mental health problems, known as “listings.”  Claimants meeting these descriptions suffer from problems so severe that the Administration automatically recognizes them as disabled.  Although these listings help to reward claimants quickly, it is difficult to prove the requirements necessary to meet a listing.  Many listing cases are approved at the initial application stage, however, some are not as apparent and must be argued in front of an administrative law judge.

Listing 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;

AND

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.

OR

C. Resulting in complete inability to function independently outside the area of one’s home.

Meeting the 12.06 Listing: The Necessary Evidence

An administrative law judge will expect evidence in order to evaluate whether a claimant’s condition meets the listing.  Specifically, the judge will look for documentation of an anxiety reaction to shore up a post traumatic stress disorder case.  This documentation should include a description of a typical reaction, including the frequency, duration, and other characteristics of the response.  It may also include detailed accounts of attacks, exacerbating factors, and the lasting, corresponding effects.

A physician or psychologist documenting this behavior should make certain to indicate whether the description reflects his own observations and opinions, and/or if other information was used to reference his conclusion. The judge may also take into account testimony or statements from other individuals who have observed the claimant’s behavior if a professional opinion is unavailable.

Attorney Ginsberg’s Experience in 12.06 Cases

Attorney Ginsberg attempts to employ a winning strategy, such as a 12.06 listing, in all of his cases.  His experience in this area has shown that most Administrative Law Judges are quite reluctant to approve a PTSD case based on the 12.06 listing.  This is partly because there is no tangible evidence, such as an x-ray or MRI, to indicate that PTSD exists.  Rather, PTSD is a mental health disorder that may not easily fall into the Social Security Administration descriptions.  Most of the Administration’s listings describe medical problems that are easily indicated through diagnostic testing.  Judges may be wary of approving benefits in a case where there is no quantitative measure of the condition.

Although some ALJs are reluctant to approve a PTSD listing case, others will find that a claimant has met the listing, especially if PTSD arises from military service.  Attorney Ginsberg has realized that most of these judges want to see a medical record, containing regular and on-going treatment of the condition, as well as detailed descriptions of the symptoms.  He has found that judges often find for military PTSD sufferers, rather than those whose conditions arise from physical or sexual abuse, because of the military medical records.  Military claimants usually have voluminous Veteran Administration records, as well as a Veteran’s disability.  VA disability determinations, as well as the detailed medical records, have a great impact in Social Security cases. Even these cases, however, may result in an unfavorable ruling.  Although negative judgments can occur, there is still the possibility of prevailing in a case using a “functional capacity” strategy.

The Second Winning Strategy:
Proving that PTSD has Diminished a Claimant’s Functional Capacity for Work to such an Extent that He/She cannot be a Useful, Capable Employee

The functional capacity strategy is a much more successful argument in Social Security disability cases.  This strategy is based on the premise that the claimant’s PTSD symptoms are so severe and debilitating that he cannot reliably function in a standard, entry-level job.  Many of these symptoms result in frequent work absences and/or excessive breaks throughout the day.  This negatively impacts a claimant because an employer is unlikely to want to keep an employee who misses numerous days of work or who takes excessive unscheduled breaks during the work week.

Proving Reduced Functional Capacity: The Necessary Evidence

In functional capacity cases, a judge will expect the presentation of a functional capacity form, which identifies a claimant’s symptoms and the limitations that arise from these symptoms.  Specifically, the form needs to reflect the claimant’s disability, which the Social Security Administration defines 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.”  Most attorneys, including Mr. Ginsberg, have their own versions of these RFC forms.  They help to guide a medical professional with his opinion regarding a claimant’s PTSD within the Administration’s specific language.

Additional evidence in a reduced capacity case includes medical records documenting extensive and consistent treatment.  Further, the records must indicate that the claimant has complied with all suggested treatment.  A claimant’s testimony may also be used as evidence, showing that he has difficulty with his attention span, concentration, and focus.  It is necessary to be forthright and honest when describing PTSD symptoms in front of a judge.  However, a claimant should never shy away from the details of the symptoms and corresponding reactions.

Supportive Medical Records Plus Clear and Specific Description of
Symptoms Equals Good Chance for a Favorable Decision

Whether presenting a “listing” argument, or a “functional capacity” argument or both, the Social Security Administration will look for a “longitudinal treatment record.”  This means that there should be on-going and consistent treatment with a psychologist, psychiatrist or mental health counselor.  Additionally, a claimant should be coached in presenting testimony regarding his symptoms and reactions to PTSD.  With each of these forms of evidence in place, the chances of a favorable disability decision are good.