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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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IL disability lawyerMany 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.

The plaintiff in this case first applied for disability benefits more than eight years ago. In a 2013 examination conducted in connection with the plaintiff's application, a state agency psychiatrist determined the plaintiff suffered from major depressive disorder, generalized anxiety disorder, and panic disorder. Among other things, this disorder meant the plaintiff had “below average levels of mental control,” which affected his concentration, persistence, and pace.

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IL disability lawyerIntellectual 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.

In practical terms, the plaintiff is illiterate. He cannot read, spell, or write. He is capable of driving a car, although his illiteracy prevents him from passing the necessary exams to obtain a driver's license. And he is capable of performing basic everyday tasks, such as dressing himself and playing sports.

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