AAPL Practice Resource for the Forensic Evaluation of Psychiatric Disability

Disability is a legal term of art, defined by statute, case law, administrative regulation, or insurance policy contents, with more than one legal definition. The Americans with Disabilities Act, the Social Security disability program, and private insurance plans all define the word differently. (See Appendix I for a summary comparison of definitions and salient topics in specific disability evaluations). Evaluating psychiatrists face the challenge of understanding the relevant definition and translating it into a clinically meaningful concept.

Psychiatrists most typically translate disability into the clinical concept of “functional impairment” as it applies to vocational and occupational skills.

Disorders described in the Diagnostic and Statistical Manual of Mental Disorders (DSM) include the criterion that symptoms must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The DSM, Fifth Edition (DSM-5) (13) provides no definition of psychiatric impairment, nor does it include a recommended scale or rating system (14) for assessment of functional impairment related to psychiatric disorders. In DSM, Fourth Edition, Revised (15), clinicians were directed to use the Global Assessment of Functioning (GAF) scale to quantify the severity of an individual’s symptoms or functional impairment. DSM-5 no longer recommends any specific functional assessment scale, but it includes the World Health Organization Disability Assessment Schedule 2.0 (WHODAS 2.0) (14), for clinicians to consider as a possible rating scale in Section III, Emerging Measures and Models.

Familiarity with general definitions of impairment and disability can help guide clinical assessment, especially when a specific definition relative to a specific case is not provided. For example, the terms impairment and disability are often incorrectly used interchangeably. Although they describe related concepts, these terms have different meanings regardless of the source of the definition. In a specific case, the applicable definition of disability is context driven and specified by the legal arena from which the assessment has arisen. The definition of disability for Workers’ Compensation will differ from the definition arising from private disability contracts.

The World Health Organization defines disability as “an umbrella term for impairments, activity limitations and participation restrictions”; impairments as “problems in body function or structure such as a significant deviation or loss”; and functioning as “all body functions, activities and participation (16).” Under the Social Security Act (SSA), disability is defined as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” An impairment “results from anatomical, physiological or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques (17).”

Private disability insurers offer a variety of definitions depending on the terms and nature of the specific policy (e.g., group or individual or long-term versus short-term disability). Typically, these are framed as the inability to perform occupational duties because of injury or sickness. Examples include “any occupation” (e.g., unable to engage in any gainful occupation for which an individual is reasonably fitted by education, training, or experience), “your occupation” (e.g., unable to perform the important, or material and substantial, duties of the individual’s regular occupation), and other partial or modified definitions. Moreover, public and private insurers are less specific in their definition of “impairment.”

The definitions of impairment and disability found in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (18), are among the most useful in clarifying the difference between these two related concepts. The Guides define impairment as “a significant deviation, loss, or loss of use of any body structure or body function in an individual with a health condition, disorder or disease” (Ref. 18, p 5). The definition does not presume any causal relationship. This alteration of an individual’s health status is assessed by medical means. In contrast, disability is “activity limitations and/or participation restrictions in an individual with a health condition, disorder or disease” (Ref. 18, p 5). The latter is considered a nonmedical assessment, and both the AMA definitions and WHO definitions clearly indicate that impairments may or may not result in a disability.

Medical opinions are routinely offered on disability, including both its degree and its expected duration. This Practice Resource endorse the use of the AMA definitions unless an alternate definition is specifically requested or required. This Practice Resource will focus on the assessment of impairment relevant to disability, but not on the determination of disability, per se, unless specific types of evaluations include requests for opinions specifically on disability.

Medical opinions on disability are not necessarily inappropriate and may be requested, despite the fact that the final determination of disability rests with a fact-finder, such as a court, a governmental agency, or an insurance company panel. Disability evaluators opine, but do not decide. The determination of disability is ultimately an administrative or legal decision. Once an opinion is offered about disability, more than a purely medical opinion has been offered. In such cases, psychiatrists should be prepared to identify facts and reasoning supporting their view of how and why the capacity to meet an occupational demand has been altered.

Disability evaluators are also often asked to consider whether evaluees’ psychiatric signs and symptoms are severe enough to limit or restrict their ability to perform occupational functions generally (i.e., any substantial gainful activity) or specifically (i.e., the specific occupational tasks of a neurosurgeon for a “your occupation” private disability policy). Restrictions are most easily understood as what a claimant “should not do.” In contrast, limitations can be described as what a claimant “cannot do,” because of the severity of psychiatric symptoms. For example, an evaluee with bipolar disorder may be restricted from excessive irregular night hours because of the potential of triggering a manic episode. In contrast, the evaluee may be limited in the ability to sustain concentration beyond one hour because of racing thoughts and diminished attention.

The presence of a psychiatric illness or diagnosis does not necessarily indicate that an individual has significant functional impairment. A conclusion of significant functional impairment related to psychiatric illness requires evidence of the severity and impact of active psychiatric signs and symptoms. The presence of psychiatric impairment alone does not necessarily indicate impaired capacity to perform job specific tasks and functions. If impairment is present, the diagnosis does not indicate the duration of the impairment. Extending the example above, an individual with bipolar disorder may be restricted from working excessive irregular night hours, a limitation that could be disabling for an obstetrician in solo practice, but may not represent a significant problem for an office-based dermatologist. The duration of identified impairments found at the time of an examination may be predicated on the effectiveness of treatment, such as a changing medication regimen. The duration may or may not be foreseeable within reasonable medical certainty at the time of examination. The effect and duration of a psychiatric symptom on a specific aspect of job function are key questions for compensability from private, job-specific insurance policies.

The interrelationship between psychiatric illness, functional impairment, and illegal or unethical conduct can be particularly challenging in a disability evaluation. These cases typically involve physicians, attorneys, or other professionals whose licenses have been suspended or lost because of professional or financial misconduct. These claimants assert that their illegal or unethical behavior resulted from a psychiatric illness and file a claim for disability benefits based on the purported psychiatric diagnosis. The alleged misconduct could include, for example, disruptive behavior, sexual harassment, illicit substance use, or fraud.

Such claims raise the question of whether a legal barrier (e.g., loss of license or incarceration) is preventing the insured from performing usual professional tasks, a situation sometimes referred to as a “legal disability.” Whether the insured’s inability to practice is caused by a psychiatric condition or by an administrative or legal barrier to professional practice is the ultimate issue in these cases.

Several professional organizations have offered positions on the evaluation of disability claims in which, allegedly, both psychiatric illness and unethical or illegal behavior are present. An American Psychiatric Association (APA) resource document states, “Under certain circumstances, a physician’s problematic behavior leads to questions about fitness for duty. Boundary violations (such as sexual misconduct), unethical or illegal behavior, or maladaptive personality traits may precipitate an evaluation, but do not necessarily result from disability or impairment due to a psychiatric illness (19).”

Similarly, the Federation of State Medical Boards (FSMB), specifically in regard to physician sexual misconduct, has indicated:

. . . regardless of whether sexual misconduct is viewed as emanating from an underlying form of impairment, it is unarguably a violation of the public’s trust. It should be noted that although an addictive disorder, mental disorder, sexual disorder, phase of life crisis may be a contributory circumstance, boards are still charged with taking appropriate steps to see that the public is protected (20).

In general, if the medical condition for which coverage is sought came before the legal action against the evaluee, courts will find for the insured’s having access to disability insurance benefits. In contrast, considerable case law rejects recovery of disability benefits when the claimant’s legal barrier arose before the alleged medical disability. Courts have been more divided in cases involving professionals who have practiced for some time, despite the behavior that arguably has a medical cause, but that they now claim has resulted in loss of licensure (21, 22).

In cases involving illegal or unethical conduct that has resulted in loss of licensure or incarceration, evaluators should determine the timeline of both medical and legal events, the claimant’s clinical status, and the timeframe for seeking treatment and filing a disability claim. The analysis of such claims should include a detailed examination of the relationship between any mental illness and the individual’s problematic behavior. If, for example, an individual has a long history of bipolar disorder and commits sexual misconduct or embezzles funds only during a well-documented manic episode while off mood-stabilizing medication, a claim of psychiatric impairment may well be valid. In contrast, for an individual with a sustained pattern of sexual or financial misconduct not correlated with exacerbations of a psychiatric illness, the misbehavior is unlikely to be related to psychiatric impairment.

Although AAPL’s ethics guidelines advise, “A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of his patient for legal purposes,” there are some settings in which this suggestion may not be observed (31). The SSA’s request that the treating clinician provide an extensive disability evaluation is one of several exceptions. Another is an employer’s requirement that the employee’s treating clinician provide information regarding fitness for duty or for purposes of meeting ADA or FMLA requirements. Adopting both treatment and evaluation roles are common in Workers’ Compensation cases. However, in civil litigation, the goals of forensic disability assessment and clinical treatment often present irreconcilable role conflicts for a single professional (11). Clinicians are generally advised to refer the forensic function to an appropriate colleague (11, 27–29).

The endeavor to be honest and objective involves complex practical factors. The ethics of honesty and striving for objectivity in the forensic practice of psychiatry has been extensively discussed (32–37). Forensic assessments often expose the evaluator to various types of bias that can, in turn, influence opinions. In disability evaluations, the risk of bias flowing from the evaluator’s own employment or source of income is of particular concern.

Requests for evaluations of psychiatric disability are most often from third parties, such as insurance companies, government agencies, or attorneys. Some psychiatrists may have an informal noncontractual relationship with disability insurers or subcontracting companies that arrange independent disability evaluations for insurers or employers. Some psychiatrists have formal contractual arrangements with or are employed by organizations requesting disability assessments. Either circumstance may foreseeably create pressures on an examiner to generate opinions that will be favorable to the referral source paying for the examination. The evaluator must maintain objectivity and needs to maintain continuing awareness of these potential pressures.

Psychiatrists should not compromise their opinions due to financial bias. They are ethically bound to be honest and objective and not be reticent to voice an opinion that does not support the referral source’s desired outcome. Opinions expressed in the interest of pleasing the referral source, either to maintain employment or garner future referrals, are unethical.

The purpose of a disability evaluation is to gather a probative database that then serves as the foundation for answers to questions posed about the evaluee. The answers, which contain protected health information, are provided to a third party. The third party may then re-release the information to lawfully designated individuals. Although the evaluee is not deprived of all confidentiality protections, this is not the level of confidentiality a person typically expects in health care. Evaluees seeking disability benefits, workplace accommodations, or who have claimed disability as part of Workers’ Compensation claims or in litigation proceedings based on claims of mental disability are required to reveal the nature of their problems if they are to obtain monetary compensation, workplace accommodations, or both.

Communicating the limits of confidentiality in a disability evaluation is part of the process of obtaining informed consent, the elements of which are discussed in detail below (see Section III.C.1). Psychiatrists conducting disability evaluations have an ethical and legal duty within the limited physician-patient relationship to limit disclosures of information to information that is relevant to the specific disability evaluation (1, 25, 28, 29, 38). Information that is not relevant to the disability evaluation should not be included in the report provided by the evaluator.

At times, the evaluating psychiatrist and the evaluee will disagree on what information is relevant. The evaluating psychiatrist has the responsibility and discretion to determine what information is indeed relevant.

The Genetic Information Nondiscrimination Act of 2008 (GINA) (39) was passed to prevent employers from discriminating against a worker’s present capacity to work based on genetic information. Title II of GINA prohibits covered entities, including employers and insurance companies, from using genetic information in their decision-making processes. Family medical history is statutorily included in the definition of genetic information. The Equal Employment Opportunity Commission (EEOC), which enforces Title II of GINA, has required employers and insurers to provide advance notice to health care providers to exclude genetic information, including family history, from their responses to requests for medical information. This includes employer or insurer requested disability evaluations (28, 40, 41). GINA does not limit the evaluator’s access to family medical history as a source of data on which to base medical conclusions.

The EEOC has provided a model “safe harbor” statement for insurers, employers, and their attorneys to provide to physicians when requesting information or reports, including requests for IMEs and disability evaluations (42). Psychiatrists may need to avoid including family history of medical or psychiatric illness in disability reports that will be forwarded to insurance companies or employers.

Information obtained in the disability evaluation should be released only to authorized recipient(s). Absent a court order, all written materials reviewed by the evaluating psychiatrist, including medical and insurance records, may not be re-released by the psychiatrist. The parties who created the records and not the evaluator are responsible for the production and release of these original records. In the event of litigation occurring after an evaluation, psychiatrists may not publicly disclose information that they obtained in the course of their evaluation that did not become public knowledge through courtroom or deposition testimony or admission into evidence. Such disclosures are ethically inappropriate and can result in legal liability (28, 41,43).

Similar to treatment providers, forensic evaluators have ethical and legal duties to act if the evaluee threatens his or her own safety or the safety of others, actions that may breach confidentiality. Discussion of this potential should be included in the informed consent process at the beginning of an examination. The type of action required of the evaluator is determined by clinical risk assessment of the case-specific facts. Courts have found the duty to disclose may be fulfilled by direct disclosure to the evaluee with instructions to seek treatment, by reporting findings to the evaluee’s treating physician, or by communicating the existence of the problem to the evaluee’s attorney.

Employers may require administratively or legally problematic employees to undergo fitness-for-duty (FFD) or psychiatric evaluations. Some employers may refer an employee for an FFD or psychiatric evaluation after the employee’s “whistle blowing” or filing of a complaint of harassment or discrimination against the employer. The employee may allege the mandated assessment is retaliation for the complaint against the employer and an attempt to discredit or even terminate the employee through claims of mental instability. The employer may assert having legitimate concerns that the employee has a history of threats and instability.

The forensic evaluator’s role in this situation, as in other adversarial conflicts, is to develop a database sufficient to answer the questions that have been asked. The evaluator should avoid becoming a partisan or advocate in a dispute. The psychiatrist is serving as an expert only about the employee’s mental health and not as a decider in the employment dispute. If the evaluating psychiatrist concludes there is no evidence of a psychiatric disorder or occupational impairments related to a psychiatric disorder, the report should so indicate and not more.

Information from third parties can be useful in corroborating evaluees’ accounts of their history, symptoms, and functioning. The reliability and potential partisan nature of all sources of collateral information should be taken into account. Interviews of third parties from the workplace may be essential to the evaluator’s understanding of the workplace milieu. Evaluee supervisors should be identified. Evaluees may also identify individual witnesses to events in question to assure that the evaluator is getting a balanced rather than edited version of the workplace and the evaluee’s performance. The opportunity for the evaluee to identify collateral sources also reasonably fosters the evaluee’s trust in the examination process.

As in all forensic evaluations, evaluators are required to inform the evaluee of the nature and purpose of the examination and obtain consent to proceed with the evaluation. After verbally reviewing and making certain that the evaluee understands all the elements of informed consent, the psychiatrist should ask the evaluee to provide written acknowledgment that the core elements of informed consent have been explained and that the evaluee agrees to go forward with the evaluation.

Some elements of informed consent regarding confidentiality and release of information may be specified by state law. As an example, general elements of informed consent in disability evaluations may include informing the evaluee that:

If an evaluee does not agree to the conditions of the evaluation or refuses to provide written consent to proceed, the evaluation should not be undertaken. The evaluee has the right to refuse, which will be communicated to the retaining party. The evaluator has the right and responsibility to delineate the conditions under which an evaluation will be undertaken (e.g., covert electronic recording of the meeting is expressly prohibited.)

The elements used to evaluate and diagnose the presence or absence of a mental disorder follow the general principles described in APA practice guidelines. Disability evaluations typically focus more on occupational and functional history than do treatment evaluations. Evaluators explore categories of function in detail, seek clear examples of impairment, obtain reliable corroboration, understand the nature of the evaluee’s work, and consider alternative explanations for disability claims (63). Treating clinicians often make disability assessments of their own patients, relying on clinically observed signs and symptoms and their patient’s narrative. An uncorroborated self-report of impairment may not be reliable for a variety of reasons, including lack of insight, bias, and potential financial gain.

Evaluators should use the schema categorizing function and disability specified by the requesting party. If no schema of categories of function is specified, examining psychiatrists can use any one of several different classification systems for impairment. These include the AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition (18); World Health Organization, International Classification of Functioning, Disability and Health (ICF) (64); Social Security Administration guidelines (65); DSM-IV-TR Global Assessment of Functioning Scale (GAF) (15); and private disability insurance classification systems, among others. In the sixth edition of the AMA Guides, the categories of impairment for mental and behavioral disorders were revised to be more congruent with the ICF definitions (64) and conceptual framework (66).

The categories include:

Specific behavioral examples and clear descriptions of the evaluee’s functioning and impairment are essential to an objective assessment of impairment. These examples can then be assessed for internal consistency.

An evaluee can be asked to give a detailed account of actions on a typical day, a typical best and worst day, or the days immediately before the interview. Asking for an hour-by-hour description can prevent an evaluee from providing an over-generalized description of impairment. An evaluee’s narrative about hobbies, recreation, and social interactions may be a useful source of information about attention span, planning, persistence, and the capacity to experience pleasure.

The actual work duties, the organizational structure of the workplace and work area, and the type of specific demands provide the functional framework for assessment of impairment. A job description, performance reviews and other work assessments and memos provide the basis for the review of the employer’s perspective with the evaluee. Evaluees’ descriptions of their jobs may match or differ from employer’s written descriptions. Evaluees may report aspects of job requirements or functioning not specified in a written job description. Discrepancies require clarification and corroboration.

Claimed or demonstrated impairments require correlation with specific job skills or requirements. When possible, speaking with the evaluee’s supervisor and other workplace third parties may assist in this process.

Individuals with mild or moderate symptoms of mental disorder may nevertheless have significant impairment, depending on the job’s demands. An individual with a desk job that requires no heavy lifting may experience only mild impairment from chronic back pain with a restriction of lifting more than 20 pounds. A dockworker may be effectively disabled by such a limitation. Similarly, an inability to maintain persistence and pace due to severe depression could be less of an impairment for an individual with flexible work demands, but may represent a disabling impairment for an air traffic controller.

Psychiatrists may incorrectly assume that an evaluee’s functional impairment began with the illness for which the evaluee is undergoing evaluation. A longitudinal review of the individual’s functional history in academic, military, social, and occupational settings can clarify the relationship between an individual’s current degree of functional impairment and its relationship, if any, to psychiatric illness.

Referral sources may request the use of a numerical rating scale of an evaluee’s degree of impairment. Most rating scales are not specific to psychiatric disability. They generally include mental illness as a category of impairment in the structure of the overall scale. For example, the Social Security Administration’s “Blue Book,” a rating scale used in Social Security disability evaluations, is not specific to psychiatric disability but rather to the criterion the Social Security Administration uses to determine disability (65).

The Guides to the Evaluation of Permanent Impairment (18) provide a rating system based on the combined scores of three self-report rating scales. The Guides, originally adapted in part from the Social Security Administration regulations, are commonly used in Workers’ Compensation cases in the United States. Another general rating scale is The International Classification of Functioning, Disability and Health (ICF), developed by the World Health Organization (64), developed as an extension of the International Classification of Diseases, Tenth Revision (67).

Psychiatrists in the United States are most familiar with the Global Assessment of Functioning Scale (GAF) which has been widely used clinically and in disability evaluations (68–70). The GAF scale was a fundamental component in the multiaxial diagnostic assessment described by the Diagnostic and Statistical Manual of Mental Disorders in the editions published from 1980 until 2000.

However, DSM-5 (13) contains no endorsed rating scale for psychiatric dysfunction. Instead, it includes the World Health Organization Disability Assessment Schedule 2.0 (WHODAS 2.0) as a rating instrument for further study (14). The WHODAS 2.0 is a self-report rating system, and its use in disability evaluations may therefore be limited. The challenges presented by the WHODAS 2.0 may create reluctance on the part of third party referral sources to adopt its use. As of the date of this Practice Resource, there is no indication that U.S. disability programs are adopting or planning to adopt WHODAS 2.0 in place of the GAF Scale. Those systems that have used the GAF Scale are likely to continue to request its use in psychiatric disability evaluations for the foreseeable future.

The GAF relies on clinician judgment to identify an individual’s worst symptoms and function due to a psychiatric disorder and correlate those findings with descriptors on a 1–100 scale of increasing mental health. The GAF is not an average of strengths and weaknesses. It scales psychological, social, and occupational functioning and excludes the effects of physical illness or the environment. Studies of the GAF have found good inter-relater reliability for the GAF, which can be further improved with training (69).

Although no longer included in DSM-5, the GAF scale remains a widely used measure of adaptive psychological functioning. It may be difficult with some evaluees to disentangle the combined limitations imposed by mental and physical impairments.

Psychological and neuropsychological testing may be helpful to assess an evaluee’s psychological capacity, diagnosis and reliability. Neuropsychological testing provides quantifiable and reproducible evidence of impairment of attention, memory, language, verbal and nonverbal reasoning, abstraction, and executive function (71).

Personality profiles such as the Minnesota Multiphasic Personality Inventory (MMPI)-2 (72) and the Personality Assessment Inventory (PAI) (73) provide data regarding psychiatric diagnoses and the reliability of an examinee’s self-report.

Psychological and neuropsychological tests often contain embedded validity scales to assess the consistency, reliability, and effort of the evaluee. However, no single test can resolve a question of impairment.

Claimants may not understand the difference between “being too upset to work” and having a psychiatric disorder that causes work impairment. Symptom exaggeration or poor motivation may be factors in claims of impairment. Psychiatrists are asked to assess those elements that are substantial factors in a disability claim.

A detailed longitudinal history tracing the evolution of the claimed impairment in relation to the individual’s work history is an essential element in this assessment. Did the evaluee first become depressed and then unable to work? If so, was there a time when the evaluee could work despite depression? Did treatment fail to improve symptoms, and if so, why? Are there reasons that the evaluee would no longer want to pursue work irrespective of depression? Did the evaluee have plans to leave work because of personal preference before the depression became more severe?

Noncompliance with efforts at rehabilitation, medication, and other treatment, along with an early decision that the person would never work again, should raise suspicion about the role of choice versus impairment in the claim. Evaluators should consider whether the decision to file a disability claim, especially a long-term disability claim, was made before maximum treatment effect had taken place. Symptom exaggeration or the possibility of financial or psychological gain may be a motivator when an individual makes little or no effort to accept or comply with treatment or rehabilitation.

The assessment of alternative explanations also includes the contribution of workplace events and dynamics. Did the employee face negative personnel action because of work performance problems, a personality disturbance, lack of motivation, employment instability, or even misconduct? (74) Is an evaluee using a disability claim to avoid the consequences of poor workplace performance or misconduct?

Outside the work setting, individuals may face a variety of personal life crises that could be resolved by quitting work and claiming disability. The timing of a claimed disability or claimed symptoms disproportionate to the claimed impairment, along with evidence of exaggeration and malingering, may be clues to such problems.

Psychiatric disability evaluators are often asked to form an opinion about whether the evaluee is malingering. Research from the past 25 years suggests that the prevalence of malingering in disability evaluations may be as high as 20 to 30 percent (75–77). Malingering is the conscious feigning of illness, motivated by external incentives. The illness itself or the intensity of symptoms may be malingered. Incentives for malingering a psychiatric disability are often monetary. Sometimes the motivation is to be removed from a high-risk or otherwise undesired work setting. Malingering can be considered as partial or dimensional, rather than categorical (present or absent) (78).

Symptom exaggeration or magnification can also be unwitting and unpremeditated. Magnification of true symptoms or impairment is much more common than outright malingering. An adversarial environment can have an effect on the narrative of evaluees. Many evaluees may emphasize their self-reported impairment to counter what they perceive as their employer’s minimization.

The diagnosis of malingering is serious, and it should be based on convincing, objective evidence. Collateral corroborating information is essential. The inconsistency of symptoms across settings, claimed impairments in excess of examination findings, or discrepancies between an individual’s report of illness and the medical record may indicate a feigned psychiatric disorder. The use of standardized psychological testing with proven validity measures can often be helpful, as will other relevant collateral data (e.g., urine toxicology and pharmacy records to confirm medication compliance).

Evaluators may note a disparity between a claimed psychiatric disorder and observations of an examinee during an interview. An evaluee may claim severe depression and inability to concentrate, but nevertheless attend to and appear euthymic during what is for most a stressful interview. Evasive or hostile behavior during the interview may be motivated by malingering.

The Social Security Administration (SSA) administers two different programs that provide benefits based on disability: the Social Security Disability Insurance Program (SSDI) (Title II of the Social Security Act) and Supplemental Security Income (SSI) (Title XVI of the Act). SSDI is a public disability insurance program that provides financial support to disabled workers and their dependents. Eligibility for SSDI benefits requires that the worker’s earnings have been taxed by the Federal Insurance Compensation Act (FICA) for a statutorily defined minimum period of time. Eligibility is independent of other sources of income or assets.

In contrast to SSDI, SSI is a means-tested social safety net disability program, with eligibility tied to an individual’s assets but independent of an individual’s prior work history. SSI provides a minimum income level for those of low economic status and for the aged, blind, and disabled. Financial need is statutorily defined and determines a person’s eligibility for SSI benefits. Eligibility does not require prior employment. The SSI benefit is a flat-rate, subsistence payment lower than average SSDI payments.

Despite their differences, SSDI and SSI share a definition of disability: the individual is currently unable to be gainfully employed. An individual can be eligible for benefits under both programs. In addition, both SSDI and SSI link to other support and compensation systems. For example, after a two-year waiting period, recipients of SSDI benefits are eligible for Medicare (84); in most states and the District of Columbia, disabled SSI recipients are automatically eligible for Medicaid (85).

Psychiatrists with active clinical practices often have some familiarity with Social Security disability claims, which rely heavily on information provided by the treating clinicians. SSA’s disability determination process, definition of disability, and criteria for determining disability are set by statute and differ substantially from employment-provided and private disability programs. Unlike other public and private programs, SSI and SSDI do not provide benefits for “partial disability.” Under the rules governing eligibility for SSI or SSDI benefits, a person is either disabled or not (86).

Applications for SSDI benefits and preliminary screening are made at SSA district offices. After verification of legal eligibility, the claim is referred to a state Disability Determination Service (DDS). DDSs are federally funded state agencies that review evidence using SSA rules. State DDSs may review medical records, IMEs and vocational evaluations. They determine the presence, if any, of disability in both initial and reconsideration phases of the SSA’s adjudication.

The SSDI disability determination has a five-step “sequential evaluation” (86, 87) process that asks these questions:

If the impairment is severe:

If the impairment does not meet or equal a listing:

If the claimant is not able to do past relevant work:

Medical evidence is the cornerstone of a determination of Social Security disability. Individuals who file a disability claim are responsible for providing medical evidence showing that they have one or more impairments and the severity of those impairments. Case law has established that a claimant has the burden of proof of the first four steps of the five-step sequential process. Medical evidence generally comes from the claimant’s health care providers. The State DDS requests copies of medical records from the sources identified by the claimant.

The claimant’s health care providers are not asked to opine on the determination of disability. The medical evidence furnished by the claimant’s providers is reviewed by an adjudicative team, which makes the disability determination. Their initial determination is subject to review by another disability examiner at one of the SSA’s 10 regional offices or at SSA headquarters. Both of these reviews are strictly paper reviews. The claimant is not examined or interviewed at either of these steps in the process.

To ensure that individuals are treated fairly and that their claims receive the maximum possible consideration, a multilevel appeals process is built into the law for claimants found not to be disabled. If an initial appeal is denied at the DDS level, claimants may request a hearing before an Administrative Law Judge at the SSA. Further appeal options include a request for review of the denial decision by SSA’s Appeals Council and then review in the federal courts (88). Although most claims are adjudicated at lower levels of the agency, Social Security cases can also be litigated in federal courts.

In contrast to many other types of disability evaluations, for the SSA, treatment providers are the primary sources of information about the claimant’s level of function. Often decisions are made using only the information provided by the treating psychiatrist. The SSA may also ask psychiatrists to provide consultative examinations (CEs) as an independent clinical examiner. Psychiatrists may also be retained as experts by the SSA, by a state DDS, or by either side at an appeals hearing (86).

SSDI and SSI have identical requirements concerning the information sought from health care providers: they require documentation of the existence of an impairment and how it interferes with an individual’s functioning. Three basic concepts underlie the determination of psychiatric disability by the SSA:

SSA forms or referral letters provide a reporting format for a straightforward application of the relevant legal SSA criteria to the clinical data (89). Psychiatrists are discouraged from opining about the claimant’s ability to work because this determination is the sole purview of the state DDS (90).

The process of determining psychiatric disability relies on the medical evidence provided by the claimant’s treating clinician. Many disability claims are decided solely by a review of the medical evidence from treatment providers. They are considered most able to provide a detailed, longitudinal picture of the claimant’s impairments unobtainable from a single examination or a brief hospitalization (86).

The SSA asks treating physicians to complete a form documenting clinical observations and evaluation. The SSA may approve additional diagnostic testing to establish conclusively the extent and severity of an illness. The SSA regards a formal mental status examination as the psychological equivalent of a physical examination. Each provides objective medical evidence needed by disability adjudicators to establish the existence of a mental impairment and the severity of the impairment.

The SSA requires that a claimant be disabled for a period of no less than 12 months to be eligible for benefits. The agency attempts to determine whether the claimant is not expected to be able to function in any work setting, even though there may be some periods during the 12 months when the claimant may function well. Providers should therefore address whether any limitations have lasted or are expected to last continuously for at least 12 months (91). Providers should also document specific details of the claimant’s condition over time, including the length and frequency of exacerbations and remissions of the claimant’s mental disorder, accompanied by descriptions of clinical exacerbations and remissions (89).

If the SSA adjudicative team needs additional information beyond that provided by the treating clinician, a consultative examination (CE) may be obtained on a fee-for-service basis. These examinations require specialized expertise (92). All CE providers must have active licenses in the state in which they are performing their evaluations, and they must have the training and experience to perform the type of examination or test SSA requests. Each state agency manages its own CE program, including consultant training and compensation. SSA considers the claimant’s treatment provider the preferred source for a CE if that physician is qualified, equipped, and willing to perform the examination for the authorized fee. SSA’s rules also provide for using an independent examiner (other than the treating source) for a CE or diagnostic study if:

The consultant’s primary role is to make a judgment as to the severity of the impairment based on a review of the medical data, a personal examination of the claimant, and any relevant collateral information. The consultative examiner may also be asked to provide additional detailed medical findings about the claimant’s impairment or to provide technical or specialized evidence not available in the claimant’s current medical file.

Consultative examiners are asked to describe the claimant’s mental restrictions and provide an opinion about the claimant’s residual work capacity. CE reports include detailed information concerning functional limitations relative to activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. Opinions about the claimant’s residual capabilities despite his impairments should describe the individual’s ability to understand; to carry out and remember instructions; and to respond appropriately to supervision, coworkers, and work pressures in a work setting. Assessment of capability includes assessment of the individual’s capacity to manage benefits responsibly.

In addition to a direct examination of the evaluee and medical records provided by the DDS, consultants may also consider data from collateral sources including community providers, family members, and friends. Collateral interviews often provide important additional data.

The consultant may also suggest a physical examination of the claimant, blood and urine testing, imaging studies, and psychological testing.

Problems arise when reports fail to provide the supporting data necessary to establish a mental disorder or offer a diagnosis using terms not found in the DSM. Generalizations or overly broad conclusions reduce the credibility and utility of a report. Because functional restrictions may result from circumstances other than a mental disorder, reports should say whether restrictions in functioning arise from a mental disorder or other factors (90). Failure to causally connect functional restrictions with a diagnosed mental disorder is a fundamental oversight.

Workers’ Compensation was designed to provide benefits for medical treatment, lost income, and, if necessary, rehabilitation services for workers who have a work-related injury or illness, regardless of the party at fault for the injury. In contrast with tort law, where liability for a person’s injury arises only upon establishing that a second party caused that injury, Workers’ Compensation is a worker’s injury insurance program.

Although details of Workers’ Compensation systems vary by state, all Workers’ Compensation provides access to benefits based on work-related injury, independent of fault and the tort system. Injured employees are guaranteed a percentage of wages (usually nontaxable) during the periods of disability, as well as medical care expenses. The cost is borne by their employer or the employer’s insurance carrier, independent of the employee’s fault in causing the injury or illness. In exchange for providing this guarantee, employers are protected by the “Workers’ Compensation bar,” which aims to preclude injured employees from suing their employer for anything other than the limited, statutorily set damages. Unlike tort law, which may provide compensatory (e.g., lost wages, pain, suffering, medical expenses) and punitive awards to a plaintiff, under Workers’ Compensation, an injured employee receives compensation limited to a percentage of lost wages and to the associated medical costs due to disability.

To receive compensation, workers are required to demonstrate that they have an accidental injury or disability that arose out of and in the course of employment. An employee who proves this claim is guaranteed to receive benefits determined according to state statute and case law.

All U.S. states have Workers’ Compensation statutes. Each state has its own Workers’ Compensation laws, and the rules governing eligibility for benefits vary across jurisdictions. Evaluators for Workers’ Compensation programs should review applicable jurisdictional laws and definitions.

Most federal employees are similarly covered under the Federal Employee Compensation Act (FECA) (101). FECA will allow compensation if an injury or disease occurred in the performance of the claimant’s duties, and was causally related to factors of employment. FECA requires that the federal occupational exposure contributed to the diagnosed condition by direct cause, aggravation, acceleration, or precipitation. Federal disability questions are generally analogous to state Workers’ Compensation law.

Psychiatrists providing evaluations in Workers’ Compensation cases should understand that the “no fault” component of such claims means only that a finding of fault or liability is not required as a prerequisite to awarding benefits. All other legal aspects of a Workers’ Compensation claim may be and often are disputed and litigated. One of the most common disputes is whether there is a causal relation between the injury and employment.

Workers’ Compensation requires that the injury claimed be an accidental personal injury arising out of and in the course of employment. Whether an injury was causally related to employment is ultimately determined by a Workers’ Compensation board using definitions that may vary by jurisdiction. Causal relation to employment under Workers’ Compensation is a legal term of art with jurisdictional differences, but is not the same as proximate cause, which applies in other litigation. To prevail under Workers’ Compensation, the employee must establish a link between employment and the injury. Extent of injury (degree of damage) is also subject to dispute.

Eligibility for compensation requires medical documentation of the claimant’s injury or illness. Claims of mental injury are commonly evaluated by a mental health professional. Workers’ compensation tribunals, like other administrative and legal systems, historically have been skeptical of emotional injury or psychiatric claims because of the perception of such claims as primarily subjective in nature.

One common obstacle to the success of a Workers’ Compensation claim of mental or emotional injury is the question of whether the injury arose out of and in the course of employment. Most tribunals will presume a causal connection between the employment and an accidental physical injury that occurred while working. However, a claim that a mental illness is causally connected to employment may be disputed. Employers may point to nonwork factors as causing the mental disorder and argue that the worker’s employment was contemporaneous with but causally unrelated to the alleged emotional injury. Developmental factors, family psychiatric history, and work-place-independent stressors may all play a role in evaluating causation.

Another significant obstacle to a claim of psychological injury under Workers’ Compensation is if there is a jurisdictional requirement of objective evidence of injury. Some jurisdictions require a physical connection to the mental injury. For example, post-traumatic stress syndrome (PTSD) arising from an employment-related physical injury may be compensable, whereas PTSD arising independent of the physical injury may not (102).

Mental injury claims in Workers’ Compensation are typically divided into three categories, two of which demonstrate this connection (103, 104).

Workers’ Compensation adjudication of impairment and disability most often relies on the AMA Guides (18, 66). In the past, the Guides had not used the percentage rating system for psychiatric disorders applied to other organ and body systems. The current edition includes a percentage impairments rating system for certain psychiatric diagnoses in the categories of mood disorders, anxiety disorders, and psychotic disorders. The actual method of arriving at the Guides’ psychiatric impairment rating scale (PIRS) value is based on a median value of percentages, derived from three other rating scales, including the GAF Scale. The Guides also lists other disorders such as personality disorders and dissociative disorders that are not ratable by percentage of impairments (17).

Nevertheless, state Workers’ Compensation statutes vary in regard to their use of rating systems or percentages (108). Even when the use of the Guides is required, the edition statutorily identified may not be the most recent. Some states may rely on their own percentage rating system for mental disorders (109). A state may require a percentage rating for mental impairment but not specify how that should be determined beyond referencing the AMA Guides (110). In general, percentage ratings of mental impairments should be used with caution.

As noted above, the AMA Guides’, Sixth Edition, also revised the categories of impairment for mental and behavioral disorders to be more congruent with the World Health Organization’s International Classification of Functioning (ICF) definitions and conceptual framework (108). These include (Ref. 18, p 352):

States may differ in the level of impairment that is compensable. Four subcategories of disability are frequently used in Workers’ Compensation claims to project financial loss and compensation: temporary–partial, temporary–total, permanent–partial, and permanent–total.

Depending on the type of mental disorder, a temporary disability may be understandable, but a permanent one may not be expected. Similarly, a given mental disorder may cause an individual to be disabled from one type of work but not another, or may prevent the individual from working full-time but not part-time. One of the most common opinions provided by clinicians is that an individual can work only part-time. Such opinions may be valid, but only if formed from a complete understanding of the specific nature of the individual’s work duties.

Evaluators may be asked to comment about maximum medical improvement (MMI), which is not necessarily defined as complete resolution of symptoms or impairment, but is a plateau from which no further significant improvement is expected. Evaluators should consider duration and types of treatment received, response to prior treatment interventions, and prognosis if further treatment gains are expected with additional or different treatment interventions.

Psychiatrists can become involved in claims of persons who hold private disability insurance policies in several ways. In the course of treatment, a private insurance company (the carrier) or the patient claiming disability (the claimant) may ask a treating psychiatrist to submit clinical information to the carrier. The carrier uses this and other information to decide whether the claimant is eligible for benefits or whether current benefits will be continued.

Carriers handle most private disability insurance claims through internal review processes using their own staff or consultants to examine materials submitted by claimants and the claimants’ treating clinicians. If a carrier has further questions about disability status, it may request an “independent medical evaluation” (IME), that is, an evaluation by a nontreating clinician. IMEs, often performed by forensically trained clinicians, are a second route by which psychiatrists become involved in private insurance disability claims. Finally, if benefits end before claimants believe they can return to work, or when carriers deny claims outright, legal disputes may arise between the carriers and claimants. In such situations, claimants’ attorneys may request IMEs from forensic psychiatrists (or rebuttals or narratives from treating clinicians) to help resolve disputes.

When treating individuals who have private disability insurance claims or when conducting private disability IMEs, psychiatrists should be aware of important distinctions between private disability insurance and social insurance programs, such as SSDI and Workers’ Compensation. Private disability policies are enforceable private contracts between the carrier and the covered individual. Coverage can be purchased as part of employment benefits or independently by an individual. In the latter case, policy holders are often highly trained, self-employed professionals who seek to insure their capacity to work in their specific occupation. Historically, higher socio-economic status was associated with fewer claims and shorter duration of claims, although in recent years, especially among physicians, the trend has been toward an increasing number of claims (111).

Carriers seeking to determine initial or continued eligibility for benefits may seek only a review of records from an independent psychiatric evaluator. Carriers ask specific questions, to which they want independent reviewers to respond. Often, at least one question in such referrals is whether the records support the degree of disability claimed. Psychiatric opinions reached through record review alone are limited by the absence of direct examination of a claimant. Other testing or employment information may be absent. The reviewer should specify that the opinion offered is based solely on the records provided and reserve the right to amend opinions should additional information become available.

Section IIB of this Practice Resource provides a general discussion of the ethics-related concerns and potential role conflicts if the same clinician provides both treatment and forensic services. Patients often ask their treating clinicians to become involved in their private disability claims. Like Social Security or Workers’ Compensation claims, in which treatment providers often play primary or exclusive roles in providing information and evaluations, clinicians may simply have to provide clinical information to support their patients’ disability claims. However, patients’ requests in private disability insurance claims often include requests for opinions that require evaluation of data beyond that which has been collected for treatment purposes. Clinicians and patients alike often are unaware that providing such opinions without adequate collateral or employment information may cross the boundary typically separating the roles of clinician and forensic expert and may create clinical and ethics-related difficulties.

Physicians are required to provide information regarding diagnosis, treatment, and prognosis to support disability claims if requested by a patient who has provided written authorization for release of the information. Treating psychiatrists should inform patients of possible consequences of the release of all of their medical records. Psychiatrists may offer to write a clinical summary in lieu of release of all records. Insurers usually reimburse clinicians for the time taken to write a summary. A cogent, readable summary of a patient’s problems can assist a patient’s claim and the insurer while providing privacy for clinical information that is not germane to the insurer’s concerns. Nevertheless, some carriers may not accept a summary in lieu of records, and the patient claimant will then decide whether to agree to the insurer’s request. Note that it is the patient (not the treating clinician) who has the right to authorize releasing (or to decline releasing) the actual medical records.

Providing opinions based on information gathered in the course of clinical care differs from opinions based on an IME or other forensic evaluation of the claimant. Treating psychiatrists are not independent of their clinical duties to their patients and therefore cannot provide truly independent medical evaluations. Moreover, treating psychiatrists’ disability opinions may adversely affect the therapeutic relationship. Patients may want or expect advocacy, not assessment. The assessment of patient’s veracity and reliability that is required in a disability IME may disrupt the treatment alliance (112).

In contrast to the uniform statutory definitions of disability found in SSI and SSDI, the definitions of disability and the manner and duration in which benefits are paid in private insurance programs are defined by contractual terms of the policy and vary widely. Policies offered as a benefit of employment or membership in a group usually are cancelable by the carrier at the end of a defined period and have rates that are reassessed annually. Private policies purchased by an individual from a carrier typically have more specific language of the work capacity being insured. Typically, these policies have a set cost and cannot be canceled by the carrier regardless of the changing health of the insured (111). Unlike disability programs created by statute, carriers have their own individual corporate process for assessment of their insured’s claims of disability.

Carriers require objective, probative data about a claimant’s incapacity and limitations. Carriers may sometimes place time limits on the benefit or duration for which a psychiatric claim will receive compensation. In the absence of objective evidence to support a medical disability claim (e.g., chronic fatigue syndrome), carriers may sometimes suggest that the disability stems from an untreated psychiatric disorder (e.g., depression), which may limit the duration of benefits depending on the terms of the contract. Newer policies may limit the duration of benefits for “subjective” or “self-reported” syndromes, which can limit the duration of benefits, even without raising psychiatric questions (113).

As in other types of disability assessments, private disability claims may encompass the breadth of psychiatric disorders and their interface with comorbid medical disorders including chronic pain or chronic fatigue syndrome. Claimants and their treaters may inaccurately ascribe chronic job dissatisfaction to a psychiatric disorder that impairs function. Professionals whose policy is occupation specific may collect disability benefits for their former occupation, even if they are gainfully employed at a different professional task. A surgeon who is disabled due to a hand injury may be eligible for long-term benefits, even though that surgeon is gainfully employed providing nonsurgical health care in the clinic.

Knowing the conditions of the evaluee’s disability policy and the policy’s definition of disability can help evaluators understand and anticipate potential areas for distortion of their opinions (113–115).

In addition to performing a comprehensive psychiatric examination, evaluators are asked to determine function before claims of disability, workplace, and other environmental disincentives to returning to work, claimant veracity, and claimant motivation (113). Evaluators inquire about circumstances of any prior periods of disability. Has the claimant been the object of supervisory criticism or discipline? Have the claimant’s workplace conditions changed substantially? Can the claimant’s account of disability be corroborated by medical records or by third parties? What is the claimant’s level of function outside the workplace? Is it congruent with the claimed workplace impairments?

An evaluee’s pre- and postdisability income, disability benefits, and financial status may clarify the potential significance of financial factors in the evaluee’s motivation to return to work (111, 116).

The referral source or the carrier typically provides collateral information for the evaluating psychiatrist to review. This information may include medical records, the evaluee’s job description, and prior history of job performance and surveillance, if any. With appropriate releases from the claimant, evaluating psychiatrists can corroborate the claimant’s self-report of function through contacts with third parties such as treating clinicians, workplace supervisors, colleagues, family, and friends. If evaluees refuse to allow the necessary collateral contacts, evaluators should note both the refusal and evaluees’ stated reason for refusal in the report. The report’s conclusions may be limited by the lack of relevant collateral information. In the absence of sufficient data, evaluators may opine that no conclusion is possible within reasonable medical certainty.

Most requests for assessment include specific questions to be answered by the evaluator. Evaluators typically are asked to document an objective foundation for the opinions proffered. Evaluators are commonly asked questions about adequacy of treatment, prognosis, alternate treatments, and the evaluee’s adherence, motivation, and residual function (117–119). Currently, a multiaxial DSM diagnosis may be requested by carriers. It remains unknown whether this practice will continue or yield to the nonmultiaxial system of DSM-5. Evaluators should not offer an ultimate opinion about whether the claimant is “disabled” unless specifically asked.

The report should address evaluee’s remaining capacity for specific functional tasks of the evaluee’s duties. A comprehensive and objective report should make it easy for a reader to comprehend the causal connection between the symptoms and consequences of a diagnosed illness and its direct effect on the evaluee’s capacity to work (113, 120).

Evaluators may also be asked their opinions regarding limitations, restrictions, and accommodations; whether evaluees could return to work at their own occupation or some other occupation; and whether they can work under specific conditions. Opinions regarding limitations, restrictions, accommodations, and ability to return to work should be supported by objective evidence that causally connects the diagnosed disorder with the workplace recommendations.

An evaluee’s illegal behavior or maladaptive personality traits may prompt a request for an IME. Illegal conduct may or may not be a consequence of an illness. Maladaptive personality traits that rise to the level of a disorder may be a basis of impairment. As with other opinions, the evaluator documents the data that indicate the presence or absence of a causal connection between a diagnosed disorder and the evaluee’s work capacities.

Evaluators are asked about the evaluee’s motivation and possible malingering. An evaluee’s defensiveness or symptom exaggeration, if present, should be assessed and documented. Defensiveness may reflect an evaluee’s feelings about having to undergo evaluation of their disability claim, their manner of articulating level of distress and impairment, or their knowing exaggeration or misrepresentation of symptoms or functioning (121).

Often the written report is the only work product of the private disability IME (113, 120). Many times, the referral source will not provide feedback to the IME evaluator after the report is submitted. It is not unusual, however, for referral sources to ask for clarification, pose follow-up questions, or forward a newly received record and ask an evaluator whether the new information changes any of the evaluator’s opinions. Because the report is often the only input that the evaluator will provide, it is important for evaluators to be thorough and to link the observed symptoms to the functional impairments observed.

Sometimes, evaluating psychiatrists cannot obtain enough information to answer the questions posed by the referral source. This problem arises most often when psychiatrists are conducting reviews of records alone. In such cases, evaluating psychiatrists should not hesitate to inform the referral source that they do not have enough data to formulate an opinion within a reasonable degree of certainty.

The information that has been provided may indicate the existence of additional records that are needed. Evaluators should recommend that these records be obtained. The need for additional testing may become evident from a review of records or an interview of the claimant. The evaluator can recommend that the claimant undergo psychological, neuropsychological, or medical testing; urine screening or other laboratory tests; or other examinations.

In contrast to employment claims in which individuals seek compensation because they cannot work, individuals who raise Americans with Disabilities Act (ADA) claims seek to return to or remain in the work force, avoiding the need to apply for financial disability benefits. Employees who are totally disabled and unable to work are not eligible for accommodation under the ADA. As in the case of SSDI, in most ADA cases, documentation is completed by the treating mental health provider and does not require forensic psychiatric evaluation (122).

The ADA, enacted in 1990, was designed to protect the civil rights of disabled individuals, including their employment rights, and make it possible for them to continue working despite mental or physical disabilities. Title I of the ADA requires an employer to make “reasonable accommodations” for a “disabled” but qualified individual to enable that individual to perform “essential job functions,” unless the accommodation would impose an “undue hardship” on the employer (123).

The ADA defined disability as having a “physical or mental impairment” that “substantially limits” one or more “major life activities”; having a history of an impairment (124); or being regarded by others as having an impairment. In other words, in addition to those individuals with an actual disability, the ADA was designed to protect individuals with a history of disability and those whom others regard as having a disability. Beginning in 1999, the United States Supreme Court’s rulings and rulings in lower courts in ADA cases began to limit the class of persons entitled to protection under the ADA. These judicial decisions often focused on determining whether a plaintiff was “disabled” within the meaning of the statute. The Supreme Court and lower courts narrowly interpreted ADA’s definition of disability, so that employees prevailed in only 3 percent of cases brought under the ADA from 2002 to 2004 (125).

A bipartisan group of stakeholders, increasingly frustrated by courts’ restrictive interpretations of the ADA, developed and passed the Americans with Disabilities Amendments Act (ADAAA) of 2008. The ADAAA explicitly rejected the judicial narrowing of ADA coverage, emphasized that the definition of disability should be construed in favor of broad coverage, and explicitly mentioned major psychiatric disorders as disabilities. The ADAAA and associated EEOC regulations additionally included less restrictive interpretations of the terms substantially limits and major life activities, which also had been narrowed by Supreme Court and lower court decisions (126).

The ADA does not override health and safety requirements established under other Federal laws, such as those of the U.S. Occupational Safety and Health Administration (OSHA), even if a standard adversely affects the employment of an individual with a disability. However, an employer still has the obligation under the ADA to consider whether there is a reasonable accommodation that will prevent exclusion of qualified individuals with disabilities who can perform jobs without violating the standards of those laws. If an employer with 15 or more employees can comply with both the ADA and another Federal law, then the employer must do so (127).

The ADA and ADAAA do not supersede state or local laws that provide greater or equal protection for persons with disabilities, but do pre-empt laws that provide less protection (29, 126). An employer cannot rely on a state or local law that conflicts with ADA requirements as a defense to a charge of discrimination.

Common workplace situations may raise ADA-related questions and may therefore result in requests for psychiatric disability evaluations. Once employees identify themselves as having a psychiatric diagnosis and make requests for accommodations, employers are legally required to engage in an “interactive process,” in which employers and employees must clarify what the disabled individual needs and identify the appropriate reasonable accommodation as quickly as possible. Any unnecessary delay in addressing requests for accommodations may lead to employer liability.

However, employers may face challenges when attempting to meet their legal obligations to make reasonable accommodations for individuals with psychiatric disorders. Whereas providing ramps for wheelchair-bound employees is a relatively straightforward accommodation, providing a less stressful environment for an employee with a psychiatric disorder, for example, can be difficult to operationalize. Moreover, unlike many physical disabilities, identifying a mental disability itself may be challenging, and employees with mental illnesses may be hesitant to identify themselves as such for a variety of reasons, including fear of stigmatization. Employers may find it difficult to distinguish whether an individual’s behavior or performance difficulties are due to a psychiatric illness that may require accommodation or to poor work and interpersonal skills that require disciplinary action.

A common situation that may give rise to a request for a disability evaluation occurs when an employee presents an employer with information about a psychiatric disorder, but does not make a direct request for evaluation or accommodation. This can occur, for example, when an employee presents a doctor’s note citing depression as the reason for work absence. This information technically notifies an employer of the employee’s potential disability under ADA/ADAAA, even though the employee did not directly request accommodations.

The occurrence of a troubling event in the workplace also often prompts a request for a disability evaluation under the ADA/ADAAA. The event may be as simple as an employee with known depression missing a week of work or as complicated as displaying bizarre behavior that is frightening coworkers but is not overtly dangerous or threatening. Requests for evaluations may also occur before an employee’s return to the workplace after a psychiatric hospitalization.

An employer may also refer employees for psychiatric evaluation to clarify the employer’s obligations under the ADA/ADAAA. Psychiatric assessment, including a diagnostic evaluation, assessment of functional impairment and disability, and recommendations for accommodations may be used in an “interactive process” that can help both employers and employees decide what is in the best interest of both parties as they negotiate arrangements for reasonable accommodations. If employees and employers cannot resolve disputes over application of the ADA/ADAAA, a court will make the final determination. Most of ADA-related circumstances, such as requests for accommodations or whether an individual has a disability, do not proceed to litigation. In these cases, the psychiatrist’s opinion may be helpful and dispositive for both employers and employees.

A comprehensive ADA evaluation may allow an employee, who might otherwise have to withdraw from the workplace and claim disability status, to remain in the work force. The evaluation can also provide suggestions that help the employer by facilitating the continued employment of a valuable worker. An ADA evaluation may help avert a confrontation that could lead to a claim of discrimination and costly litigation.

The ADA/ADAAA has delineated a definition of disability that is distinctly different from all other disability determinations, and this makes ADA/ADAAA evaluations unique. As noted above, the ADA/ADAAA defines disability as either “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment (128).” The ADA definition is not confined to the employment sector. Persons who satisfy the ADA’s legal definition obtain protection under all sections of the ADA, including protection against discrimination in restaurants, stores, private schools, professional offices, among others.

The determination that an individual has a psychiatric disability under the ADA first requires that the individual have a diagnosable mental impairment. Courts usually recognize most psychiatric disorders as “impairments,” but not necessarily as “disabilities.” Whether impairment rises to the level of a disability is case specific. In addition, the ADA/ADAAA specifically excludes certain conditions and behaviors as grounds for disability. DSM “V codes,” which describe stressful events and relationship problems, do not qualify as disabilities under the ADA. Statutory language in the ADA legislation itself specifically excludes the following conditions from protection: compulsive gambling, kleptomania, pyromania, transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, and other sexual behavior disorders (129).

Substance use disorders caused by current use of illegal drugs are also excluded from ADA protection (130). However, individuals who have used illegal drugs, but are not current users, are covered under the ADA. Finally, the sexual orientations of bisexuality and homosexuality, neither of which is a DSM diagnosis, cannot be used as a qualifying diagnosis leading to disability under the ADA.

The second requirement for psychiatric disability under the ADA is that the identified mental illness or psychiatric symptoms must “substantially limit one or more of the major life activities.” The ADAAA widened the interpretation of the terms substantially limits and major life activities. The ADAAA included, and the EEOC adopted, a list of potential major life activities. This list includes, but is not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working (131).”

The psychiatric assessment of the limitations of these major life activities should include and describe the “condition, manner, or duration” of each affected activity (132). If a dispute arises over these assessments, a court may ultimately resolve the conflict. Nevertheless, when providing an evaluation, psychiatrists should focus on the clinical aspects of an evaluee’s limitations (126).

An individual with impairment that limits a major life activity is still covered by the ADA/ADAAA when that impairment is in remission. The determination of whether an impairment substantially limits a major life activity will be made without regard to the effectiveness of mitigating measures, such as medication. An employer cannot require an employee to use a mitigating measure, but failure to do so may render the employee unqualified for the position or may support the contention that the employee presents “a direct threat,” each of which might disqualify the employee from the ADA’s protection (126, 132).

Individuals who are disabled under the ADA are entitled to continue to work at their job positions only if they can perform the essential job functions, either with or without accommodation. “Essential functions” statutorily are those fundamental job duties of the employment position (133). A job function may be considered essential for any of several reasons, including, but not limited to, the following:

For example, an essential job function for a letter handler at the post office might be to sort letters and put them in the appropriate bin. A nonessential function might be to work an occasional overtime shift until 3 a.m.

Psychiatric evaluators therefore must determine whether the disabled individual can perform essential job functions (134). To gain an understanding of an evaluee’s essential job functions, evaluators should obtain a written or verbal job description from the employer as well as information from the evaluee. They should not assume that they understand what essential job functions are, because these may change from employer to employer, even for the same job position.

The psychiatric evaluator then determines whether the evaluee can carry out the essential functions of the job whether there is or is not a psychiatric illness, and with or without accommodation. Information regarding this assessment should be obtained from both the employer and the evaluee. Psychiatrists are not experts in the training needed for every type of employment and need not attempt to credential the evaluee.

For a letter handler, the evaluator would assess whether the post office employee could perform the essential job function of sorting mail if there were no psychiatric illness and independent of the nonessential job function (night shifts).

This assessment is critical in cases of employees who have misrepresented their training or have been promoted to a position that is beyond their abilities. Often such employees have poor work performance that predates their claim of psychiatric disability, though they may assert that their poor performance was caused by a psychiatric illness. Individuals unable to perform essential job functions, with or without accommodation, cannot retain that specific job, even when deemed disabled under the ADA.

ADA protections do not apply if the employee presents a direct threat in the workplace. The ADA defines direct threat to be “a significant risk to the health and safety of others that cannot be eliminated by reasonable accommodations (135).” The mere perception by another employee or supervisor that an individual is dangerous is often insufficient to satisfy statutory requirements. Recent violent behavior or a plan to commit violence are examples of objective evidence of direct threat under the ADA (29, 126).

Psychiatric ADA evaluations addressing a direct threat require assessment of risk factors for violence. Collateral information from individuals in the workplace is essential. The duration of the risk and the severity, imminence, and likelihood of potential harm are key concerns for assessment.

Some employment, by its fiduciary nature to public safety, may have a lower level of acceptable risk. Professions such as law enforcement, pilots, health care workers, and intelligence and Department of Defense workers tolerate less workplace risk and often have their own written policies to guide psychiatric evaluators (29, 126).

Mental health professionals performing ADA/ADAAA evaluations are often asked to identify possible accommodations that would permit a disabled evaluee to perform essential job functions. The ADA/ADAAA regulations define reasonable accommodations as “modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position;” or “that enable [an] employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities (133).”

Identifying potential accommodations requires knowledge of the essential functions of the job. It may also involve a more detailed understanding of workplace surroundings, structure, and scheduling. Many of the accommodations needed by disabled employees can be arranged through simple, inexpensive, commonsense interventions or changes (134, 136) that involve increased communication, schedule changes, or changes in surroundings or the physical environment. The EEOC has provided examples of reasonable accommodations for persons with mental disabilities, including time off from work; a modified work schedule; physical changes in the workplace; moving work locations; access to additional equipment; increased supervision and guidance; changes in workplace policies such as more frequent breaks; provision of a job coach; and, when not an undue hardship for the employer, reassignment to a different position (126).

When accommodations are more complicated, psychiatrists can make a recommendation to involve a job coach or rehabilitation specialist. These professionals identify the problems and provide possible solutions, generally after a visit to the workplace.

Under the ADA/ADAAA, although employers are required to provide reasonable accommodations, they are not required to provide accommodations that cause themselves undue hardship, that is, accommodations that are expensive, difficult, or disruptive (128, 133).

Differences of opinion between employee and employer on whether specific accommodations are reasonable, like other potentially disputed elements of ADA/ADAAA claims, may become the subject of litigation. Psychiatrists are asked to offer opinions about potential accommodations, but do not determine what would be considered reasonable or an undue hardship for an employer.

Employers are more likely to implement suggestions for relatively noncomplex, inexpensive accommodations, especially when the suggestions are based on clinical judgment regarding the symptoms and severity of the evaluee’s disorder and are informed by an understanding of the individual’s work situation.

Fitness-for-duty (FFD) examinations are initiated by an employer or workplace agency when an employee’s illness or workplace behavior has raised concerns about the employee’s workplace capacities or workplace risk to safety. Employers are responsible for prudent efforts to assure safety in the workplace. They are statutorily authorized by the ADA to require an FFD examination when they have a reasonable basis for concern. Continued employment may be conditional on the employee’s full cooperation.

Examples of circumstances that may trigger an FFD evaluation include the following scenarios: an industrial worker treated for a mental illness appears unduly sedated after a return from a medical leave; a worker hospitalized for psychosis, symptoms of which were observed in the workplace, wishes to return to work; a schoolteacher who appears hypomanic is referred because of angry and inappropriate outbursts in the classroom; and a security officer is referred after demonstrating excessive irritability while on duty or after the officer’s involvement in an off-duty disturbance that creates concern about mental stability.

Referrals for FFD evaluations frequently are urgent for both employer and employee. Both the evaluee and the referral source feel pressure to complete an FFD evaluation as quickly as possible. Potential evaluees may be suspended or on administrative leave and at risk of losing their jobs pending the outcome of an FFD evaluation. Employers also find these situations difficult, not least because an employee may not be allowed to work pending the examination. Such absences create a need to have other workers fulfill the employee’s responsibilities, and may cause other disruptions of normal workplace activity or productivity. Evaluators are well advised to inform the referral source that, urgency notwithstanding, assessment includes a comprehensive psychiatric assessment, access to collateral documents and individuals to establish a database of the events in question, and a thorough risk assessment. Evaluees may be angry at having to undergo an examination and fearful of the unwanted intrusion that any such an examination represents.

Psychiatrists may determine on the basis of the preliminary information provided by a referral source that emergency room mental health assessment or hospitalization or both may be required in lieu of an outpatient FFD evaluation. Urgent clinical interventions performed by a treatment provider may be needed before the FFD evaluation begins. FFD questions can be revisited and interviews rescheduled if still indicated after completion of an urgent clinical assessment for treatment purposes.

At the time of referral, psychiatrists should attempt to determine:

Statutorily mandated requirements about the confidentiality of protected health care information (PHI) apply to FFDs. Evaluators must safeguard PHI as they would for clinical assessments. Employers must have confidential storage for employee PHI. Evaluators disclose only PHI relevant to answering the employer’s workplace questions. It may not be necessary to provide detail about an evaluee’s family and social history, except to the extent that such information is directly related to the specific referral questions, as discussed above. The evaluating psychiatrist, the referral source, and the evaluee all should have notice and understanding of the limitations of confidentiality and the nature of the anticipated disclosures.

Psychiatrists should request a written document from the referral source indicating the questions that the psychiatric evaluation should address, thus helping to keep miscommunications between the referral source and the evaluating psychiatrist to a minimum. These questions often involve situations related to work limitations or restrictions, suggested modifications in work assignments, diagnosis, treatment, prognosis, and safety.

Psychiatric FFD evaluations may be misused by an employer (see Section II.B.4). Employees who have become problematic for reasons other than their mental health may be referred for FFD evaluations in an effort to undermine the credibility of, or to retaliate against, employees who have filed formal complaints.

An employee may also incorrectly conclude that the mandated examination is retaliation, when in fact it is wholly appropriate. The employee’s allegation may be motivated by witting or unwitting denial of responsibility for poor performance or disruptive conduct. Evaluators should therefore be alert for possible misuse of the FFD evaluation process (137, 138). The report should clearly indicate if an evaluation does not demonstrate a psychiatric disorder or symptom as the basis for problematic workplace behavior or for workplace conflict.

Fitness for duty evaluations of law enforcement officers typically are requested when officers have exhibited behavior that has called into question their ability to perform the essential duties of their jobs safely and effectively or their ability to handle firearms safely (137, 138, 152). Law enforcement officers may own any number of firearms privately. However, when an agency provides a firearm to an employee, as in a law enforcement position, it is obligated to monitor both workplace and public safety in regard to the employment-issued firearm. It is also obligated to ask the officer to surrender the employment-issued firearms if safety concerns arise, even if the officer still has access to personally owned firearms.

The psychiatric evaluator will be asked to perform a thorough evaluation, to provide an opinion about fitness for duty, and to assess whether the officer poses a risk to self, the department, or the safety and welfare of the general public (137, 138, 152). Evaluators must understand the demands of police work in general and the specific responsibilities of the officer undergoing evaluation (152, 153).

The requirements of return-to-work evaluations are similar to fitness-for-duty evaluations, but return-to-work evaluations are at the final stage of an employment-related process. This process often involves questions of both FFD, response to treatment, disability, and accommodation, if any.

Presumably, an employee undergoing a return-to-work evaluation desires to return to the workplace. Sometimes an employee may feign wellness in a premature effort to return to work. If the work-related impairments that led to withdrawal from the workplace are unchanged, a transition back to the workplace is unlikely to be successful. However, if the impairment is no longer present, the evaluator should recommend that the employee return to work without restriction.

Opinions regarding the ability to return to work should reflect an understanding of the problems that led to work withdrawal or modification and a detailed description of what has changed. If impairments have not resolved to the extent that full return to work is possible, evaluators should provide recommendations regarding treatment or accommodation that may facilitate this process.

Psychiatrists should review documentation of the original decision granting disability or leave, including evaluations justifying withdrawal from the workplace, subsequent treatment and rehabilitation, and the examinee’s functioning during the period of disability.