Counsel’s Corner

An ALJ Should Not Play the Role of a Psychiatrist

By Steven Bruce, PWDF Legal Director

For the past 26 years, People With Disabilities Foundation (PWDF) has represented individuals with psychiatric and/or developmental disabilities that have been denied Social Security Disability Insurance (SSDI) and/or Supplemental Security Income (SSI) benefits. In this case, the individual must ask for reconsideration and if that is denied, they can request a hearing before an administrative law judge (ALJ).

Recently, PWDF represented an individual diagnosed with autism spectrum disorder (ASD), anxiety, depression, and attention deficit hyperactivity disorder (ADHD) who was appealing denial of SSI benefits at an ALJ hearing.

In these hearings, the ALJ hears evidence from the claimant about his/her disability, especially how it affects claimant’s ability to engage in past relevant work or sustained work, full-time, i.e., the ability to engage in substantial gainful activity (SGA), which is similar to competitive employment. The ALJ will have seen evidence of claimant’s impairment(s) using  relevant medical records and transcripts from schools or training programs from the claimant’s SSA exhibit file. The claimant, ideally through counsel, offers testimony from a medical expert with knowledge of the claimant’s impairment, e.g., as described in 20 CFR Pt. 404, Subpt. P, App. 1, Listing 12.10 – Autism Spectrum Disorder.[1]

The ALJ is obligated to follow SSA regulations to determine whether the claimant is disabled, as defined in the Social Security Act and its implementing regulations. It is critical that the judge weighs all evidence, listens to medical experts, and then makes an independent, impartial decision. (Note the word “impartial;” we will come back to it later.)

According to Listing “12.10 autism spectrum disorder,”[2] a claimant must meet or equal the ASD diagnosis under this listing in order to be determined as disabled.

In a pre-hearing brief PWDF filed with the ALJ, a psychiatrist noted substantial evidence supporting how the claimant met specific listings for each of the above-mentioned disorders. The ALJ did not allow a psychiatrist to testify during the hearing and, ultimately, ignored the severity of the claimant’s stated limitations.

A vocational expert (VE) was assigned by the ALJ to review the claimant’s vocational history and report her findings. As the hearing proceeded, we were only allowed to query the VE on a very limited basis and the ALJ refused to have a psychiatric medical expert testify to this claimant’s diagnosed ASD.

Then, when the judge was asking the VE hypothetical questions, he left out all functional limitations the claimant has relating to ASD, especially emotional lability with anger (huge swings in mood and emotions). This, according to his psychiatrist, greatly affects him in relationships at home, in programs, and, therefore, in work and work-like settings. This is one of several instances when the ALJ’s hypotheticals were unrelated to claimant’s work limitations.

The ALJ’s hypotheticals to the VE were totally out of proportion to the evidence of record, since they ignored the most relevant part of this application for SSI – uncontrolled emotional mood swings, anger and irritability on a constant basis brought on by ASD, causing very severe limitations to the claimant’s ability to engage in SGA.

A doctor is not permitted to talk about vocational or any other evidence except medical evidence. A VE, which ALJs usually have at hearings, is not permitted to talk about medical evidence. Each expert may only talk about his or her area of specialization.

The judge also twice claimed that symptoms he felt should be a part of the claimant’s experience were missing – namely pain, hallucinations or delusions. While those symptoms may be part of a diagnosis of schizophrenia or other psychoses, they are not symptoms associated with ASD, anxiety, depression, or ADHD.

During the hearing, we pointed out that the claimant required hourly breaks during a 6-hour workday at a work skills development program so he could bring his emotions under control and re-focus on completing work. Yet, the ALJ’s findings only point to “mild or moderate” limitations.

Then, the ALJ concluded that the claimant has no “serious and persistent” disorder. The opposite is true, according to his psychiatrist, who had been treating the claimant since 2012. Again, we were not permitted to have a psychiatric medical expert testify.

While ALJs are supposed to focus on the law, this one veered out of his lane and decided to play the role of a psychiatrist. In doing so, he abandoned any sense of impartiality and misrepresented material facts of the claimant’s functional limitations. The evidentiary record is close to 700 pages in length and the ALJ decision is legally insufficient.

On November 20, 2025, the ALJ ruled that the claimant “has not been under a disability, as defined by the Social Security Act, since August 17, 2022,” the date he first filed for SSI benefits, and “is not disabled.”

PWDF, on behalf of the claimant, filed an appeal of the ALJ’s decision in December 2025 and requested a review by the SSA’s Appeals Council (AC). In our brief, we stated that the ALJ’s decision “materially misrepresents the record” and we asked that this case be remanded for a calculation of benefits. Or, if the AC believes a remand of the case is in order, we asked it to set a new hearing under another judge.

On Aug. 3, 2026, PWDF received notice from the AC vacating the ALJ’s decision because the ALJ disallowed material and relevant evidence and remanding it for a new hearing.

We will apprise you of what happens next.

[1] 20 CFR 404, Subpt. P, Appx. 1 Pt. A, §12.10.

[2] Id.

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant’s disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney’s fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF’s educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.