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Social Security Continues to Have Problems with “Concentration, Persistence, and Pace”

 Posted on February 28, 2019 in Social Security Disability Medical Conditions

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.”

The ALJ ultimately concluded the applicant was not disabled. But the Seventh Circuit held the ALJ erred in not correctly posing the hypothetical question. The appeals court said the ALJ should have asked the VE to take into account the applicant's “moderate limitations in concentration, persistence, and pace.” Instead, the ALJ asked the VE to talk about someone who could perform “unskilled work” that did not include “fast-paced production or tandem tasks.” This is insufficient, the Seventh Circuit said, because “there is no basis to suggest that eliminating jobs with strict production quotas or a fast pace may serve as a proxy for including a moderate limitation on concentration, persistence, and pace.”

Speak with a Cook County Disability Benefits Lawyer Today

When it comes to disability applications, the words used by Social Security officials matter. The phrasing of a single question often represents the difference between an applicant receiving disability benefits or having to seek judicial review. That is why it is crucial to work with an experienced Chicago Social Security disability attorney who understands the process. So if you need help dealing with Social Security, contact Pearson Disability Law, LLC, at 312-999-0999 today to schedule a free consultation.




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