How Unfounded “Hypotheticals” Can Hurt Your Disability Case

 Posted on August 04, 2017 in Denied Social Security Benefits

One of the critical steps in reviewing a claim for Social Security Disability Insurance benefits is assessing the type of jobs that an applicant might still be able to perform when taking into account his or her medical impairments. To conduct this analysis, a Social Security administrative law judge (ALJ) will pose a hypothetical residual functional capacity (RFC) scenario to a vocational expert. The expert will then offer an opinion on what jobs, if any, a person with the hypothetical RFC could do.

Chicago Court Questions Source of “10 Percent” Conjecture

Obviously, a lot hinges on how the ALJ poses the RFC to the expert. And it should go without saying that applicants are not “hypothetical” scenarios. They are living, breathing people with documented medical histories. Unfortunately, many ALJs disregard this in an attempt to short-circuit a disability claim by inventing scenarios designed to obtain a particular response from the expert.

The U.S. Seventh Circuit Court of Appeals, which has jurisdiction to review denials of disability claims from Illinois residents, recently chastised Social Security for engaging in such shenanigans. Specifically, the appeals court found an ALJ effectively made up a figure to elicit a response from a vocational expert that was then used as grounds to deny the applicant's claim. The Seventh Circuit ordered a new hearing due to this improper action.

The applicant in this case has suffered from back and neck impairments for many years due to two unrelated accidents. His physical condition is further “complicated by mental illness” and diabetes, according to the Seventh Circuit, including depression and frequent suicidal thoughts. The applicant formerly worked as a general laborer, but after his physical injuries he was only able find part-time employment at a retail store. Sadly, his mental impairments limited his ability to interact with customers and co-workers.

In reviewing the applicant's disability claim, the ALJ presiding over the case asked a vocational expert whether someone who would hypothetically be “off task up to 10 percent of the workday in addition to regularly scheduled breaks” could perform a “low-stress” job. The expert said such a person could work as a “hand packer, machine operator, or factory inspector.” However, the expert also said the same person would be “unemployable” in any field if he was off task “more than 10 percent of the workday.”

The ALJ applied this “hypothetical” RFC to the applicant and determined he was still capable of working and therefore not disabled. The Seventh Circuit said the ALJ “had no basis” for assuming the applicant would only be off-task “up to 10 percent of the workday.” Indeed, according to the applicant's own “unrebutted testimony,” he needed 3 to 5 unscheduled breaks of up to 20 minutes each during a five-hour shift at his part-time retail job. “At that rate,” the Seventh Circuit said the applicant “would be off task more than 10 percent of a typical workday,” and thus “unemployable” according to the vocational expert.

Get Help With Your Social Security Disability Insurance Claim

Social Security is supposed to make disability decisions based on facts, not blind conjecture. A qualified Chicago disability benefits lawyer can help make sure the agency sticks to the record when it comes to your case. Contact Pearson Disability Law, LLC, to speak with an attorney today.

Source:

https://scholar.google.com/scholar_case?case=2666246155369455765