Winning Social Security Disability Benefits for Depression, Mania, or Bipolar Disorder by Meeting a Listing
To determine whether you are disabled at Step 3 of the Sequential Evaluation Process, the Social Security Administration will consider whether your depression or bipolar disorder is severe enough to meet or equal the listing for affective disorders. The Social Security Administration has developed rules called Listing of Impairments for most common impairments. The listing for a particular impairment describes a degree of severity that Social Security Administration presumes would prevent a person from performing substantial work. If your affective disorder is severe enough to meet or equal the listing, you will be considered disabled.
The listing applicable to bipolar disorder, depression, and mania is 12.04. It has 3 parts, A, B, and C. To meet the listing, you must have an affective disorder characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation. In addition, you must satisfy the requirements of parts A and B, or the requirements of part C. Bipolar disorder (manic-depressive illness) and major depressive disorder are the mood disorders most likely to be severe enough meet the listing.
Meeting Social Security Administration Listing 12.03A for Affective (Mood) Disorders
Part A requires medically documented persistence, either continuous or intermittent, of one of the following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of painful consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes);
Part A.1 Depression
Parts A.1(a–i) deal with the principal features of depression. You must have at least four to meet the listing.
- Part A.1.a refers to anhedonia, or the inability to experience pleasure to a normal degree. This can be linked to a pervasive loss of interests in activities if severe enough. Significant depression generally has some degree of anhedonia.
- Part A.1.b refers to appetite disturbance significant enough to produce a change in weight. Usually, loss of appetite and weight loss are observed in depression. But some people may have increased appetite with weight gain.
- Part A.1.c recognizes the prevalence of sleep disturbances in depression. Usually the person has insomnia, with difficulty falling asleep or awakenings during the night or awakening early in the morning before getting adequate rest. Some depressed people exhibit increased sleeping (hypersomnia).
- Part A.1.d refers to psychomotor abnormalities, which are physical expressions linked to the affective state of mind. There may be agitation as reflected by excessive motor activity (e.g., nervous movements, rapid speech). Or there may be psychomotor depression in which body movements are generally slowed, including speech (poverty of speech).
- Part A.1.e recognizes the decreased energy level and sense of fatigue with small tasks that depression may produce. It would be unusual for this feature to be missing in depression.
- Part A.1.f refers to the feelings of guilt and worthlessness common in depression. Events or actions are interpreted in an inappropriately negative light and used for confirmation of feelings of inadequacy, guilt, or worthlessness. Under the impact of this, self-esteem declines.
- Part A.1.g refers to the difficulty concentrating or thinking depression can produce. Memory impairment is a frequent complaint. Memory problems along with other elements of depression, such as loss of interests and difficulty concentrating, may look similar to dementia from organic brain disease. Since different mental disorders with different treatment and prognoses are involved, it is important that depression not be mistaken for true dementia. Of course, a claimant may have both organic brain disease with dementia and depression which would make diagnosis and treatment more difficult.
- Part A.1.h deals with suicidal thoughts, a particularly difficult matter for Social Security Administration to deal with in adjudicating claims. Thoughts about dying (“I wish I were dead”) or suicide are common in depression. It is extremely difficult, if not impossible, to know when such thoughts will produce an actual suicide attempt. This difficulty is complicated by the fact that suicide attempts may not be genuine, but desperate means of asking for help. When the overall picture of depression is severe enough and coupled with subtle or over
t threats of suicide, hospitalization and constant surveillance through the dangerous period is necessary. Some people make no threat of suicide. They simply commit the act and are lost. A claimant sometimes threatens to commit suicide if he or she does not get disability benefits, or fears benefits are going to be terminated. The Social Security Administration must determine the seriousness of such threats in light of the severity of any underlying mental disorder, especially depression. Although the Social Security Administration cannot be put in a position where benefits are extorted by virtue of suicidal threats alone, it has an obligation to make a reasonable and careful determination. Denial of disability benefits may be the final rejection event that pushes some claimants over the line into suicide with no prior warning, although there is no way to predict this action. Part A.1.h requires only the presence of suicidal thoughts. Suicidal thoughts need not have led to an actual suicide attempt to satisfy part A.1.h.
- Part A.1.i requires hallucination, delusions, or paranoid thinking features also associated with psychotic disorders like schizophrenia. See Can I Get Social Security Disability Benefits for Schizophrenia? It is sometimes difficult to tell whether the claimant has an affective disorder or a psychotic disorder falling under listing 12.03.
Part A.2 Mania
Part A.2 deals with the principal elements of mania. At least 3 of the following must be present.
- Part A.2.a refers to the hyperactive behavior characteristics of mania. The person may get involved in far more activities than anyone could possibly carry to completion. Coupled with distractibility, activities are disorganized. Poor judgment often leads to failure under conditions that a normal person would have recognized in advance would not lead to success. For example, the expansive mood may cause the manic to become involved in poorly planned business ventures or other projects too rapidly conceived. Even routine daily activities may be carried out in a flamboyant or bizarre, disorganized manner.
- Part A.2.b refers to the loud and overly rapid speech caused by the hyperarousal state. Called “pressure of speech,” it is difficult to interrupt.
- Part A.2.c refers to the “flight of ideas” that may accompany the accelerated, pressured speech, in that there are abnormally rapid shifts between topics.
- Part A.2.d refers to the inflated self esteem that may reach grandiose and delusional proportions. The person believes he or she possesses knowledge and power far beyond his or her actual ability.
- Part A.2.e refers to the decreased need for sleep accompanying mania. The person may sleep less, or perhaps not at all for days at a time.
- Part A.2.f refers to the easily distractible condition of a person with mania. The person over-responds to trivial stimuli that make it difficult to maintain steady attention on a task. Trivial stimuli such as little noises or movements capture the person’s attention.
- Part A.2.g recognizes that in mania poor judgment may lead the individual to become involved in activities with painful consequences. The individual with mania does not recognize beforehand the realistic risk of activities. For example, in a perceived flash of inspiration, the person may conceive of a business venture based on a novel invention. He or she then may collect money from others and spend it recklessly, committing multiple counts of fraud. The invention does not exist or does not work, and the “business” is only a disorganized and superficial concept that never really existed. The difference between this behavior and most criminal activity is that in mania, behavior is the result of an illness beyond rational control. The person does not see the harm the activity may produce.
- Part A.2.h requires hallucination, delusions, or paranoid thinking features also associated with psychotic disorders like schizophrenia. See Can I Get Social Security Disability Benefits for Schizophrenia? It is sometimes difficult to tell whether the claimant has an affective disorder or a psychotic disorder falling under listing 12.03.
Part A.3 Bi-Polar Disorder
Part A.3 is fulfilled if you have one of the bipolar disorders that cycle between mania and depression, including those in which either mania or depression is the predominant expression of the disorder. The full affective syndrome for either depression (part A.1) or mania (part A.2) will fulfill part A.3 and need be present only episodically, as such cycling is the nature of the disorder.
Meeting Social Security Administration Listing 12.03B for Depression, Mania, or Bi-Polar Disorder
To meet the affective disorders listing, you must satisfy the requirements of part A and, as a result of those impairments, have 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;
Information Needed To Assess Part B
Here is what the Social Security Administration says about the information needed to assess whether part B of the listing is met:
Assessment of Severity: We measure severity according to the functional limitations imposed by your medically determinable mental impairment(s). We assess functional limitations using the four criteria in paragraph B of the listings: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. Where we use “marked” as a standard for measuring the degree of limitation, it means more than moderate but less than extreme. A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis. See §§404.1520a and 416.920a.
1. Activities of daily living include adaptive activities such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office. In the context of your overall situation, we assess the quality of these activities by their independence, appropriateness, effectiveness, and sustainability. We will determine the extent to which you are capable of initiating and participating in activities independent of supervision or direction.
We do not define “marked” by a specific number of activities of daily living in which functioning is impaired, but by the nature and overall degree of interference with function. For example, if you do a wide range of activities of daily living, we may still find that you have a marked limitation in your daily activities if you have serious difficulty performing them without direct supervision, or in a suitable manner, or on a consistent, useful, routine basis, or without undue interruptions or distractions.
2. Social functioning refers to your capacity to interact independently, appropriately, effectively, and on a sustained basis with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbors, grocery clerks, landlords, or bus drivers. You may demonstrate impaired social
functioning by, for example, a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, or social isolation. You may exhibit strength in social functioning by such things as your ability to initiate social contacts with others, communicate clearly with others, or interact and actively participate in group activities. We also need to consider cooperative behaviors, consideration for others, awareness of others’ feelings, and social maturity. Social functioning in work situations may involve interactions with the public, responding appropriately to persons in authority (e.g., supervisors), or cooperative behaviors involving coworkers.
We do not define “marked” by a specific number of different behaviors in which social functioning is impaired, but by the nature and overall degree of interference with function. For example, if you are highly antagonistic, uncooperative, or hostile but are tolerated by local storekeepers, we may nevertheless find that you have a marked limitation in social functioning because that behavior is not acceptable in other social contexts.
3. Concentration, persistence and pace refer to the ability to sustain focused attention and concentration long enough to permit the timely and appropriate completion of tasks commonly found in work settings. Limitations in concentration, persistence, or pace are best observed in work settings, but may also be reflected by limitations in other settings. In addition, major limitations in this area can often be assessed through clinical examination or psychological testing. Wherever possible, however, a mental status examination or psychological test data should be supplemented by other available evidence.
On mental status examinations, concentration is assessed by tasks such as having you subtract serial sevens or serial threes from 100. In psychological tests of intelligence or memory, concentration is assessed through tasks requiring short-term memory or through tasks that must be completed within established time limits.
In work evaluations, concentration, persistence, or pace is assessed by testing your ability to sustain work using appropriate production standards, in either real or simulated work tasks (e.g., filing index cards, locating telephone numbers, or disassembling and reassembling objects). Strengths and weaknesses in areas of concentration and attention can be discussed in terms of your ability to work at a consistent pace for acceptable periods of time and until a task is completed, and your ability to repeat sequences of action to achieve a goal or an objective.
We must exercise great care in reaching conclusions about your ability or inability to complete tasks under the stresses of employment during a normal workday or workweek based on a time-limited mental status examination or psychological testing by a clinician, or based on your ability to complete tasks in other settings that are less demanding, highly structured, or more supportive. We must assess your ability to complete tasks by evaluating all the evidence, with an emphasis on how independently, appropriately, and effectively you are able to complete tasks on a sustained basis.
We do not define “marked” by a specific number of tasks that you are unable to complete, but by the nature and overall degree of interference with function. You may be able to sustain attention and persist at simple tasks but may still have difficulty with complicated tasks. Deficiencies that are apparent only in performing complex procedures or tasks would not satisfy the intent of this paragraph B criterion. However, if you can complete many simple tasks, we may nevertheless find that you have a marked limitation in concentration, persistence, or pace if you cannot complete these tasks without extra supervision or assistance, or in accordance with quality and accuracy standards, or at a consistent pace without an unreasonable number and length of rest periods, or without undue interruptions or distractions.
4. Episodes of decompensation are exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace. Episodes of decompensation may be demonstrated by an exacerbation in symptoms or signs that would ordinarily require increased treatment or a less stressful situation (or a combination of the two). Episodes of decompensation may be inferred from medical records showing significant alteration in medication; or documentation of the need for a more structured psychological support system (e.g., hospitalizations, placement in a halfway house, or a highly structured and directing household); or other relevant information in the record about the existence, severity, and duration of the episode.
The term repeated episodes of decompensation, each of extended duration in these listings means three episodes within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks. If you have experienced more frequent episodes of shorter duration or less frequent episodes of longer duration, we must use judgment to determine if the duration and functional effects of the episodes are of equal severity and may be used to substitute for the listed finding in a determination of equivalence.
It is not easy for the Social Security Administration adjudicator to obtain quality, detailed information for use in part B of the listing. Treating psychiatrists often will not provide actual treatment records and when they do, the records often lack the detail needed to make an accurate determination regarding daily activities, social functioning, or concentration, persistence or pace. Medical records are more likely to document part B.4, because treatment notes or hospitalization records will record a change in the claimant’s condition.
The best evidence of functional ability comes from the claimant’s family or other caregivers, because they actually observe the claimant’s limitations and abilities, unlike the treating doctor. The doctor often merely guesses based on the claimant’s clinical condition.
Most psychiatrists and psychologists have only a general knowledge of their patient’s functional activities. But the treating doctor’s answers to questions about functional limitations may not always help the claimant. For example the doctor may be asked whether a claimant is limited in ability to perform a particular activity like take public transportation. If the doctor answers “Not that I know of,” this answer indicates ignorance and should not be taken as evidence of ability. But if the doctor answers, “I know of no mental limitation that would restrict the claimant’s ability to take public transportation,” then that informs Social Security Administration that the doctor thinks the claimant has the ability, even though the doctor may have no direct information to that effect.
Often, the Social Security Administration adjudicator will try to use daily activity, social information, etc., from a mental status consultative examination. This information often lacks enough detail for good disability determination.
It is important for the adjudicator to try to obtain a detailed specific description of daily activities, social functioning, task completion (concentration, persistence, or pace) and the circumstances surrounding episodes of decompensation. This means documentation of as many specific examples as possible; generalizations such as “He cannot do anything” are worthless. The daily activity forms that claimants or their caregivers complete are rarely specific enough to be of much use. To get high-quality information, the adjudicator must often contact the claimant or caregivers. This is a grueling, time-consuming job that requires an hour or more of communication. Furthermore, disability examiners have no skills in psychiatric interviewing even when they do attempt to get detailed information regarding part B, so that is an additional source of error. Therefore, inadequate development of part B information by the Social Security Administration in mental disorder claims is a weak spot and one reason a claimant may be denied disability benefits.
Meeting Social Security Administration Listing 12.03C for Depression, Mania, or Bipolar Disorder
If you do not meet parts A and B of the listing, you will be disabled if you meet part C. Part C requires a medically documented history of a chronic affective disorder of at least 2 years’ duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated (lessened) by medication or psychosocial support, and one of the following:
- Repeated episodes of decompensation, each of extended duration; or
- A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
- Current history of 1 or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.
Proper evaluation under part C of the listing can require a lot of time and effort by the Social Security Administration adjudicator. For the same reasons as given in the discussion of part B, underdevelopment of evidence for part C is something that your Social Security disability attorney should always consider when your application for disability benefits for depression, bipolar disorder, or mania is denied. See Providing the Social Security Administration With Adequate Information.
Part C.1 Episodes of Decompensation
Part C.1 requires medical records—records from a medical care facility or from the treating physician that document repeated episodes of significant clinical worsening (decompensation). Worsening could be in any of the areas described under part B of the listing.
Part C.2 Deterioration in Minimally Stressful Conditions
Part C.2 requires deterioration under conditions that would be minimally stressful for a normal person. While medical records documenting the claimant’s decompensation with a minimal change in environment are desirable, family members, friends, and caregivers can be sources of evidence. In fact, statements in a claimant’s medical records about decompensation are probably based on information given to the treating physician by family members. However, the testimony of family and friends is more believable if decompensation was documented in the claimant’s medical records before he or she applied for disability benefits. Then any question about the testimony being self-serving is removed.
There are many possible ways in which change in environment can satisfy part C.2. For example, the claimant might exhibit:
- Increased withdrawal when guests other than family members come to dinner,
- Emotional outbursts when not permitted to watch a favorite TV show,
- Increased confusion when some routine of life is interrupted,
- Increased irritability when having to travel outside of the house such as a trip to the dentist, or
- Undue frustration and sadness when unable to accomplish some new task.
Part C.3 Need for Highly Supportive Living Arrangement
In part C.3, the “highly supportive living arrangement” could be the claimant living with family members, or living in some other kind of arrangement where there is close supervision. In these instances, the Social Security Administration needs to obtain evidence from the treating physician and other health providers (e.g., nurses), and family member statements that shows the claimant needs a highly-supervised lifestyle despite only moderate severity in the areas described in part A of the listing.
The easiest way to accomplish this task is to look at the evidence over time to document why such a highly supportive living arrangement became necessary. Typically, family members will describe behavioral events that made the claimant unmanageable outside of a closely supervised environment. For example, the claimant may have attempted to stay with family members only to continually wander off and get lost, or have uncontrollable emotional outbursts of anger, or otherwise be unable to cope. While a home environment is acceptable for purposes of part C.3, some families simply do not have the resources and time to adequately care for someone requiring close supervision. However, institutionalization is not in itself a sufficient basis for assuming inability to function outside of a special supportive environment.