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Recent Blog Posts
What Happens When Doctors Cannot Agree on the Cause of My Disability?
In Social Security disability cases, agency officials are not allowed to “play doctor.” Instead, administrative law judges (ALJs) are expected to look at the medical evidence presented to them. And if two doctors offer different medical assessments of a disability applicant, it is the ALJ's job to resolve that conflict.
ALJ Unable to Resolve Cause of Disability Applicant's “Exploding Head Syndrome”
Here is a recent Illinois disability case, John L. v. Berryhill, where the ALJ did not do that. In this case, the plaintiff applied for Social Security disability benefits seven years ago. At a 2015 hearing, an ALJ considered medical evidence related to the plaintiff's sleep parasomnia, i.e., his sleep disorder.
A sleep specialist diagnosed the plaintiff with “possible exploding head syndrome.” This refers to a rare type of parasomnia “in which affected individuals awaken from sleep with the sensation of a loud bang,” according to a 2013 report from the National Institutes of Health. The plaintiff told the specialist that he “heard sounds when he was sleepy 4 to 5 times a day or when he shifted his attention.”
How Using a Cane Affects Your Ability to Receive Disability Benefits
A key step in the Social Security disability process is the determination of an applicant's “residual functional capacity” or RFC. The RFC is designed to account for an applicant's physical and mental limitations in assessing what type of work, if any, they are still able to perform. If Social Security fails to account for a particular limitation in performing an RFC, the agency needs to explain why.
Social Security Cannot Reject Disability Applicant's Testimony without Explanation
For example, if a disability applicant says he requires a cane to walk or get around, the RFC needs to account for this limitation. Alternatively, the Social Security administrative law judge (ALJ) overseeing the case must explain why the applicant's testimony is inconsistent with the other evidence in the record–i.e., that the applicant does not medically require a cane. What the ALJ cannot do is simply ignore the testimony regarding the need for a cane without explanation.
Mistakes to Avoid in your SSD Case
Claiming disability in front of an Administrative Law Judge to receive disability benefits is a situation that nobody wants to be in. While your situation may be dire, judges often do not see it that way. The 20 or 30 other cases that they will hear each month in addition to yours can make them hesitant to approve your claim. Many cases will be turned down, leaving these claimants at a loss for finances.
Jonathan Ginsberg is a seasoned attorney who is well versed in Social Security disability cases. He shares one of his experiences with a client and explains how he made his case stand out. Attorney Ginsberg explains the importance of attitude, motivation, and evidence.
What are some common mistakes to avoid when going through the Social Security disability process? Never assume anything while navigating through the process. Click on the link below to listen to Jonathan's interview with attorney Jonathan Ginsberg.
Is Social Security Required to Consider Limitations on My Ability to Perform Household Activities?
Social Security often tries to justify a denial of disability benefits based on an applicant's purported ability to still perform basic household tasks. For example, a Social Security administrative law judge (ALJ) may reason that since an applicant can still cook for themselves or clean their house despite having a crippling back injury, they must still be capable of working full-time.
Illinois judges have long cautioned Social Security against over-reliance on such “daily living” tasks to disprove disability claims. But there is also the problem of Social Security ignoring evidence regarding an applicant's inability to perform household activities to help prove their claims.
ALJ Failed to Consider Applicant's Difficulties with Daily Living
A recent decision from a federal judge here in Illinois offers a useful example of the latter problem. The plaintiff in this case first applied for disability benefits in 2014, alleging a number of mental impairments, including major depression and post-traumatic stress disorder. After a hearing, a Social Security ALJ rejected the plaintiff's application, holding she could still perform certain jobs despite her limitations.
Social Security Cannot Simply Ignore Medical Evidence
We often come across Social Security disability cases where an administrative law judge (ALJ) improperly tries to “play doctor.” In the most serious cases, the ALJ will simply ignore medical evidence outright if it poses a potential hurdle to finding the applicant is not legally disabled. Such actions violate both the letter and the spirit of disability law.
Magistrate: ALJ “Mischaracterized” Evidence Supporting Disability Claim
Fortunately, federal courts are ready and willing to call Social Security out on such behavior. This was the case in a recent decision, Karl B. v. Commissioner, where a magistrate judge said an ALJ “left some evidence out” of their decision because it “corroborated plaintiff's claims” in support of his disability application. The magistrate, therefore, ordered Social Security to conduct a new hearing.
Can I Qualify for Disability Benefits Even If My Doctors Don't Know Exactly What Is Wrong With Me?
As advanced as medical technology is, it is not perfect. There are many people who suffer physical or mental ailments with no clear cause. Even trained doctors may look at the same patient presenting the same symptoms and reach different conclusions. But how does Social Security deal with such lack of consensus when assessing disability benefit applications.
Magistrate Orders New Disability Hearing After ALJ Failed to Consult Any Medical Experts
As is often the case with Social Security, their first instinct is often to declare the applicant is not disabled. In some situations, a Social Security administrative law judge (ALJ) may simply make guesses about the applicant's actual medical condition. Such an approach is not only unscientific, but it also goes against how the law is supposed to work in this area.
Can I Collect Disability Benefits from both Social Security and State of Illinois?
Many Social Security disability applicants often get tripped up by the process. They may assume they qualify as “disabled” based on a prior doctor's diagnosis or state-agency decision. But Social Security has its own standards for assessing disability. And if you proceed without fully developing the record in support of your claim, you are likely to be denied benefits, even if your case has merit.
Appeals Court Upholds Social Security Decision Despite ALJ's Failure to Fully Develop the Record
A recent decision from the U.S. Seventh Circuit Court of Appeals, Elder v. Berryhill, helps illustrate the hurdles that disability applicants face. The plaintiff in this case applied for disability benefits in 2012, alleging he had been unable to work since 2010 due to a number of physical impairment.
The plaintiff presented his own case to an administrative law judge (ALJ) without the assistance of a qualified disability attorney. At the hearing, the plaintiff said the Illinois Department of Human Services “deemed him disabled and provided him with a home-care assistant.” The plaintiff further testified he suffered from “excessive pain” and required constant medication.
Supreme Court: Disability Applicant May Appeal Dismissal of Claim Caused by Allegedly Late Filing
There are typically four stages to the Social Security disability application process. First, the applicant receives an initial determination of their eligibility. If the initial determination finds the applicant is not disabled, they may ask for reconsideration of that decision. If Social Security still rejects the claim, the applicant may request a formal hearing before an administrative law judge (ALJ). If the ALJ rejects the application, the fourth and final step is to ask for a review from the Social Security Administration's Appeals Council.
If even after all four steps, Social Security still denies a disability claim, the applicant can then seek “judicial review,” i.e., file a lawsuit in federal court. The Social Security Act expressly guarantees the right to judicial review of “any final decision … after a hearing.”
When Is a Social Security Decision Final?
What Is the Role of a State Agency Reviewer in a Social Security Disability Case?
Although Social Security disability insurance is a federal program, it relies on state agencies to evaluate claimants. In Illinois, the office of Disability Determination Services within the Department of Human Services will assign medical experts to review an applicant's medical history. The state reviewers' opinions are then submitted to a Social Security administrative law judge (ALJ), who must consider the record as a whole before making a final decision as to whether the applicant meets the legal criteria to receive disability benefits.
Social Security Failed to Consider 400 Pages of Records in Illinois Man's Disability Case
The state agency reviewers can only do their job properly, however, when they actually have access to all of the relevant medical evidence. Unfortunately, that is not always the case. For example, an Illinois federal magistrate judge recently ordered Social Security to conduct a new hearing for a disability applicant after it came to light the state agency reviewers never considered 400 pages of medical records relevant to the case.
What Happens If I Waive My Right to Counsel at a Disability Hearing?
By law, you have the right to counsel when applying for Social Security disability benefits. This means you can–and should–work with a qualified disability benefits lawyer. And while you can waive your right to counsel and represent yourself before Social Security, this is generally not in your best interests.
Court Holds Social Security Gave Disability Applicant Adequate Warnings Regarding Waiver of Counsel
A recent decision from the U.S. Seventh Circuit Court of Appeals here in Chicago illustrates the problems with attempting to represent yourself in a disability case. The plaintiff in this lawsuit, Jozefyk v. Berryhill, initially sought disability benefits citing a number of physical and mental impairments, including depression, generalized anxiety disorder, and avoidant personality disorder.
Prior to a hearing on his disability claim before a Social Security administrative law judge (ALJ), the agency sent the plaintiff several notices explaining his right to counsel. Social Security does not provide representation itself, but it does refer applicants to services that assist in finding a qualified attorney.
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