The Role of Absenteeism in Disability Decisions

 Posted on December 17, 2018 in Social Security Disability

Not everyone who applies for Social Security disability benefits is incapable of performing some degree of work. However, one of the questions a Social Security official needs to consider is: How often will a person be absent from work or “off-task” due to their physical or mental impairments? After all, a person who needs to take 10 days a month off to deal with their disability is not exactly employable in any traditional sense of the word. For this reason, Social Security needs to not only make inquiries about the effects of a disability applicant's potential absenteeism, but the agency must also incorporate a proper assessment of such limitations in reaching a final decision.

Social Security Fails to Properly Address Limits on Disability Applicant's Ability to Remain On-Task

In one recent case, Social Security fell short of the mark when assessing absenteeism. In Hawist v. Berryhill, the plaintiff applied for disability benefits due to a number of impairments, including “osteoarthritis, back, knee, and shoulder pain, learning difficulty, depression, anxiety, and substance abuse,” according to court records. At a hearing, a Social Security administrative law judge (ALJ) posed several hypothetical questions to a vocational expert (VE). Such questions are commonly used to assess the types of jobs a person with the applicant's symptoms can hold when accounting for certain impairments.

The ALJ asked the VE to assume a person with the plaintiff's physical and medical impairments “would be reasonably likely to be off task for more than 20 percent of the workday due to pain, fatigue, and mental health symptoms.” This assumption was consistent with the medical evidence presented by the plaintiff's doctors. Based on the ALJ's hypothetical, the VE testified that a person would be unable to maintain any form of “competitive employment.” The VE added that a typical worker “should be on task 85 to 90 percent of the day.”

The ALJ ultimately denied the plaintiff's application for disability benefits. However, the ALJ failed to include any assessment of the potential effects of the plaintiff's absenteeism and off-task behavior. After Social Security rejected the plaintiff's internal appeal of the ALJ's decision, he took his case to federal court.

A federal magistrate judge said the plaintiff was entitled to a new hearing based on the ALJ's failure to properly explain his assessment of the VE's testimony regarding absenteeism and off-task behavior. The ALJ's failure was particularly notable, the magistrate noted, because the ALJ went to the effort of soliciting the testimony in the first place and considering the evidence in making his decision. Nevertheless, the magistrate said it was impossible to assess whether the “ALJ properly analyzed the evidence” without a more detailed explanation.

Contact a Cook County Social Security Disability Attorney Today

Social Security has a legal responsibility to consider all of the evidence in favor of a disability application. To make sure you are treated properly, it is essential to work with a knowledgeable, experienced Chicago Social Security disability benefits lawyer. Contact Pearson Disability Law, LLC, at 312-999-0999 to arrange a free consultation with a member of our legal team today.

Source:

https://scholar.google.com/scholar_case?case=4339849808956216247