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IL disability lawyerIn making your case for disability benefits, it is important to present Social Security with as much expert medical evidence as possible. Otherwise, an agency administrative law judge (ALJ) may attempt to “fill in the gaps” with their own, non-expert opinions. And while such conduct contradicts the law governing disability benefits, the burden is then on the applicant to show the error on appeal, which only makes the process go slower.

Magistrate to Social Security ALJ: “Not a Doctor. Shh.”

To give an example, a federal magistrate judge recently began an opinion reversing Social Security's decision to deny an application for disability benefits with a quote from the popular television program Brooklyn Nine-Nine: “Not a doctor. Shh.”

The magistrate was expressing his frustration at yet another instance of an ALJ impermissibly “playing doctor” when it comes to assessing an applicant's medical limitations in the workplace. In this particular case, the magistrate said the ALJ simply ignored the “only evidence in the record” because it contradicted the ALJ's opinions.

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IL disability lawyerSocial Security officials often deny applications for disability benefits  because they fail to properly consider all of the available medical evidence. This includes not just evidence regarding an applicant's physical condition, but also their mental state. That is to say, Social Security may incorrectly–and illegally–discount the expert opinions of a disability applicant's treating psychiatrist.

Mischler v. Berryhill

The U.S. Seventh Circuit Court of Appeals here in Chicago recently addressed such a case. The plaintiff here is a 47-year-old woman who suffers from a number of physical and mental impairments, including depression. More than five years ago, the plaintiff applied for disability benefits.

Before a Social Security administrative law judge (ALJ), the plaintiff presented evidence that she was first diagnosed with major depressive disorder in 2001. As is often the case with psychiatric disorders, the plaintiff's symptoms ebbed and flowed over time. In 2008, she required hospitalization for her depression. And starting in 2003, she began seeing a psychiatrist.

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IL disability lawyerIn a recent post, we discussed a federal appeals court decision that chastised Social Security for its failure to properly consider the limits on a disability applicant's "concentration, persistence, and pace.” Such limitations are relevant when assessing an applicant's hypothetical ability to work in spite of their medical impairments. Yet Social Security administrative law judges (ALJs) routinely downplay limitations on concentration, persistence, and pace when questioning vocational experts (VEs) at disability hearings.

Court: ALJ Failed to Ask the Right Question of Vocational Expert

And in fact, the same federal appeals court that handed down the decision we previously discussed had to remind Social Security of this yet again. On February 26, the U.S. Court of Appeals for the Seventh Circuit here in Chicago ordered Social Security to conduct a new disability hearing after the ALJ failed to “properly address” the plaintiff's “limitations in concentration, persistence, or pace.”

The plaintiff in this particular case, DeCamp v. Berryhill, is a 55-year-old woman who applied for disability benefits, citing her brain tumor, neck and back pain, and bipolar disorder as impairments. At a 2015 hearing before an ALJ, the plaintiff testified that she suffered from frequent migraines–approximately four per week–and that she was limited in her daily activities due to chronic pain. As part of the hearing, the ALJ also posed a hypothetical question to a VE, which asked if an unskilled laborer who “may be off task or off pace up to 10 percent of the work day” outside of normal breaks could still find work in the national economy. The VE replied such work would be hypothetically available; however, if the applicant were “off pace or off task more than 15 percent of the day,” as opposed to 10 percent, then there would be “no competitive work available.”

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