POMS For Mental Impairment Claims

I receive many Social Security Disability referrals for claimants with mental impairments. It seems that unless a mental impairment is so severe that the claimant is hospitalized, the attorney is not interested in handling the claim. That should not be the case.

Like physical impairments, a claimant can establish entitlement to benefits by providing evidence that a "Listing" is satisfied. If the criteria of a listing are met, then the claimant is presumptively deemed disabled, and there is no need to consider if the claimant can perform past or any other work. A claimant's condition needs to be pretty severe to meet a listing.

A case that I got approved this week, for a woman in her thirties, at the initial application level, illustrates another way to get benefits approved. When a claimant's mental limitations do not meet or equal a listing, the Social Security Administration (the "SSA") must consider if the claimant has the ability to meet the mental demands of past relevant work. The SSA is supposed to do that by considering whether the claimant can meet the basic mental demands of unskilled work.

According to the SSA's internal operating rules called the "POMS", the mental demands of unskilled work include the ability to: (a) understand, carry out and remember simple instructions; (b) make judgments that are commensurate with the functions of unskilled work, i.e., simple work-related decisions; (c) respond appropriately to supervision, coworkers and work situations; and (d) deal with changes in a routine work setting. A substantial loss of ability to meet ANY of those basic mental demands justifies a finding that the claimant is disabled.

By providing a detailed questionnaire to the claimant's treating mental health provider, I was able to show that the claimant is disabled under the POMS. Since the POMS is supposed to apply at the initial application level, providing evidence to support the POMS is an effective way to get an application approved quickly.

Don’t Be Misled By A Biased Judge

Many of the Administrative Law Judges (“ALJs”) at the Queens Office of Disability and Adjudication Review have reputations for disapproving strong disability claims. Statistics show that a higher percentage of cases from Queens are overturned compared to other hearing offices. The ALJs often go to extraordinary lengths to justify their denials.

Last week a Queens ALJ stated that because a claimant had not been terminated from her job she was not disabled. I explained that the issue is not whether the claimant was employed in name, but rather whether she was capable of engaging in substantial gainful activity. The ALJ obviously knew he was wrong because for decades the courts have ruled that, “The first step in the sequential process is a decision whether the claimant is engaged in ‘substantial gainful activity.’” Furthermore, the ALJ knows that the regulations state that, “At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.” In other words, in order to avoid approving the claimant’s application, the ALJ was intentionally misapplying the most basic issue at any Social Security Disability hearing.

A claimant unfamiliar with Social Security law would not have thought to question the ALJ’s assertion that because the claimant was not terminated from her job she was not entitled to disability benefits. Neither claimants nor their representatives should blindly accept an ALJ’s opinion of the law. In a situation such as this, I immediately request a copy of the hearing tape and submit a post-hearing memorandum explaining the correct recitation of the law.