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Recent Blog Posts
How the Definition of Your Former Job Can Impact Your Disability Claim
Even if you otherwise meet the legal definition of disabled, Social Security may still deny your claim for disability benefits if there is evidence that you can still perform your “past relevant work.” In some cases, Social Security makes this assessment by referencing the Dictionary of Occupational Titles. This is an outdated catalog previously published by the U.S. Department of Labor that purported to define approximately 13,000 different types of work available throughout the country.
Although the dictionary has not been updated since the 1990s, Social Security continues to rely on it in disability cases. Federal courts have tried to restrict the use of the dictionary. In fact, the U.S. Seventh Circuit Court of Appeals, which has jurisdiction over disability appeals from Illinois, has said that for “composite jobs”–i.e., a position that has “significant elements of two or more occupations”–Social Security may not rely on the dictionary at all.
“Concentration, Persistence, and Pace” and Disability Benefits
Many Illinois residents who apply for Social Security disability benefits find it impossible to focus on the types of daily tasks required by a normal workplace. Social Security's own regulations refer to a person's “concentration, persistence, and pace” to describe such difficulties. In general, if an applicant would be off-task at least 15 percent of the time due to concentration, persistence, and pace issues, that would tend to support a disability claim.
Federal Court Orders Social Security to Conduct New Disability Hearing
But this assumes Social Security administrative law judges (ALJs) actually take concentration, persistence, and pace into account when evaluating a claim. This does not always happen, despite repeated warnings from federal courts that it is the law. Just recently, the U.S. Seventh Circuit Court of Appeals here in Chicago ordered Social Security to conduct a new disability hearing for a plaintiff precisely because the ALJ failed to properly account for these limitations.
Does a Low IQ Qualify Someone for Social Security Benefits?
Intellectual disabilities often prevent a person from working full-time. But when assessing mental impairments for purposes of awarding Social Security disability benefits, agency officials are often reluctant to conclude that an applicant is incapable of work. In many cases, a Social Security administrative law judge (ALJ) will conclude, even in the face of substantial evidence, that a mentally impaired applicant is still capable of performing some degree of meaningful work.
Court: SSI Applicant Retained “Adaptive Functioning” to Work Despite Mental Impairment
Consider this recent decision by the U.S. Seventh Circuit Court of Appeals here in Chicago, Johnson v. Berryhill. The plaintiff, a man in his late 30s, was first diagnosed with learning problems during elementary school. In 1988, a psychologist assessed the plaintiffs IQ at 73, which was considered “very low.” Subsequent IQ tests produced similar results. Indeed, when the plaintiff first applied for Social Security benefits in 2006, a new IQ test produced a full-scale score of 65.
What Happens When Social Security Officials Ask the Wrong “Hypothetical” Questions?
A key part of the disability application benefits process is when Social Security asks a vocational expert to answer a “hypothetical” question designed to ascertain what potential jobs, if any, exist in the marketplace for a person with certain physical or mental limitations. Remember, it is not enough to prove you have a disability. Social Security also needs to figure out whether your disability–or a combination of disabilities–makes it impossible for you to find meaningful work. The hypothetical question is supposed to help determine the answer.
Seventh Circuit Orders New Hearing for Disability Applicant
But this assumes Social Security asks the right hypothetical question, to begin with. For example, the U.S. Seventh Circuit Court of Appeals here in Chicago recently ordered Social Security to conduct a new disability hearing for a plaintiff after determining an administrative law judge (ALJ) asked an “incomplete” hypothetical question. This error alone was sufficient, the court said, to justify reconsideration of the plaintiff's application for disability benefits.
Disabled Vets Often Face Uphill Battle Against Social Security
It is a sad truth that many of our U.S. military veterans suffer from mental health problems, including post-traumatic stress disorder (PTSD), major depressive disorder, and generalized anxiety disorder. Unfortunately, Social Security officials often compound the suffering of our veterans by refusing to classify them as disabled, even in the face of overwhelming medical evidence. Indeed, there are many cases where the Department of Veterans Affairs (VA) considers a veteran disabled but Social Security does not.
Federal Court Identifies Multiple Problems with Social Security Ruling
A recent decision by the U.S. Seventh Circuit Court of Appeals here in Chicago illustrates the unnecessary hardships faced by our veterans when dealing with the Social Security disability process. The plaintiff in this case is a 49-year-old woman who served as a chief petty officer in the United States Navy. During her service, the plaintiff was subjected to sexual harassment from her supervising officer. This led the plaintiff to develop migraines and sleeping problems.
Supreme Court Clarifies Compensation Rules for Disability Lawyers
Last year, we discussed a case that was pending before the U.S. Supreme Court involving Social Security regulations for compensating lawyers who successfully pursue disability claims on behalf of their clients. On January 8, 2019, the Court issued its decision, which provided important clarification of the law in this area.
Justices: Caps for Agency, Court Representation Are Separate
To briefly review what this case, Culbertson v. Berryhill, was about: A Social Security attorney from Florida represented a woman who was seeking disability benefits. After going through the lengthy administrative review process, Social Security denied the woman's application. The woman then decided to challenge that decision by suing the Social Security Administration in federal court.
Do Disability “Experts” Need to Disclose Their Actual Methodology?
One of the key things Social Security looks for when assessing an application for disability benefits is whether or not the applicant can “make an adjustment to other work.” Many people assume they are disabled simply because they cannot go back to their old job. But the legal threshold is whether or not someone with the applicant's impairments and skill level can find any meaningful work in the economy.
To make such assessments, Social Security typically relies on the testimony of vocational experts (VEs), who are asked to estimate the type and number of jobs available to a person who hypothetically matches the disability applicant's profile. Unfortunately, it is not always clear exactly how VEs make their estimates or reach their conclusions with respect to a given disability applicant. To further complicate matters, he VEs often depend upon outdated government classification manuals when examining the types of work available.
Can Social Security Officials Interpret an MRI Without a Doctor?
One of the cardinal rules of Social Security disability cases is that agency officials are not allowed to “play doctor.” In other words, when a Social Security administrative law judge (ALJ) holds a hearing to decide whether or not an applicant is legally disabled, the ALJ must rely on medical testimony presented by qualified experts. The ALJ is not supposed to rely solely on their own interpretation of medical evidence, since, after all, they are not doctors themselves.
Federal Court Orders New Disability Hearing After ALJ Ignores Medical Evidence
Here is a recent disability case in which Social Security forgot this basic rule. This is taken from a decision by the U.S. Seventh Circuit Court of Appeals, which has jurisdiction over Illinois, although this particular case originated in Indiana. The plaintiff was a 49-year-old woman who formerly worked as a hairstylist. She stopped working in 2009 due to a variety of ailments, notably degenerative disc disease, fibromyalgia, and depression.
Social Security Must Consider the Testimony of a Treating Physician
In Social Security disability cases, agency officials will look at two types of medical evidence: The information provided by an applicant’s own treating physicians, and testimony from outside reviewers and consultative examiners, who typically look at an applicant’s medical records but do not necessarily examine them in person. When one’s own doctor's medical opinions are supported by appropriate treatment records, Social Security is expected to afford such views substantial weight, even if they conflict with the opinions of the outside consultants.
Magistrate Orders New Hearing After Social Security Ignores Evidence from Applicant's Psychiatrist
In far too many disability cases, Social Security does not provide the proper weight to the opinions of an applicant’s own physician. A Social Security administrative law judge (ALJ) will often credit the views of the outside experts–who often believe the applicant is not disabled–and ignore the contrary opinions of the treating physician. While this is not necessarily against regulations, the ALJ cannot simply ignore evidence.
The Role of Absenteeism in Disability Decisions
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
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