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IL disability lawyerBy 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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IL disability lawyerSocial Security disability claims are supposed to be decided on the basis of medical evidence. But in far too many cases, Social Security administrative judges (ALJs) selectively ignore medical evidence that favors the applicant. While an ALJ is not required to discuss every piece of evidence in fine detail, it is not acceptable to disregard evidence simply because it might benefit the applicant's case.

Social Security ALJ Accuses Disability Applicant of “Cheating” Without Evidence

In an April 29 decision, Muriel EF v. Commissioner of Social Security, a federal magistrate judge from here in Illinois ordered Social Security to conduct a new disability hearing for an applicant based on ALJ's disturbing “pattern” of cherry picking evidence. The plaintiff in this case is a woman in her 50s with a long history of medical impairments, including sciatica, spinal damage, and obesity.

In fact, the plaintiff's condition required her to undergo multiple spinal surgeries. Yet in denying the plaintiff's application for disability benefits, the ALJ “ignored” and “glossed over” this surgical history, as the magistrate put it. Indeed, the plaintiff “had two lumbar surgeries, which the ALJ also did not mention at all” in her decision. Another set of surgeries warranted nothing more than a mention in a single sentence. Similarly, the ALJ did not mention or discuss the results of a medical exam the plaintiff received–on her doctor's advice–after applying for disability benefits.

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IL disability lawyerA key component of a Social Security disability hearing is the testimony of a “vocational expert” or VE. The VE's function is to assess the type and quantity of jobs available to a “hypothetical” person with the same physical and mental impairment as the disability applicant. Unfortunately, many VEs are not forthcoming with how they arrive at their conclusions. That is to say, the VE does not provide either the applicant or the Social Security administrative law judge (ALJ) with the actual data relied upon.

Kagan: Court Rejects “Categorical” Rule Requiring Disclosure of “Private” Data

The U.S. Seventh Circuit Court of Appeals, which has intermediate appellate jurisdiction over disability cases in Illinois, has long held that Social Security cannot rely on the testimony of a VE who refuses to produce their methodology upon the applicant's request. But on April 1, 2019, the U.S. Supreme Court rejected such a “categorical” rule and said that going forward, appellate courts would have to decide on a “case-by-case basis” whether a refusal to produce data is unreasonable, with appellate court deferring to the judgment of Social Security ALJs.

The case before the Supreme Court, Biestek v. Berryhill, actually originated in Michigan. The petitioner worked as a carpenter and general construction laborer. He later applied for Social Security disability benefits, citing a number of physical and mental impairments. At a hearing before the Social Security ALJ, a VE testified that based on her data, the petitioner could still perform “sedentary jobs” such as a “bench assembler or sorter,” and that there were 240,000 such positions available nationally for the former and 120,000 for the latter.

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