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IL disability lawywerEven 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 This is an outdated catalog previously published by the U.S. Department of Labor that purported to define approximately 13,000 different types of work available throughout the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.

Federal Court Holds Social Security Improperly Classified Disability Applicant's Prior Work

This issue came up in a recent Seventh Circuit decision, Ray v. Berryhill, in which the Court ordered Social Security to conduct a new disability hearing for an applicant suffering from on a number of physical impairments. The plaintiff previously worked as a bus monitor. In that job, he needed to assist disabled children by lifting them into their seats, strapping down wheelchairs, and monitoring the children in general, according to court records.

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Illinois Social Security disability application attorney absenteeismNot 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

In one recent case, Social Security fell short of the mark when assessing absenteeism. In Hawist v. Berryhill, the plaintiff applied for disability benefits due to a number of impairments, including “osteoarthritis, back, knee, and shoulder pain, learning difficulty, depression, anxiety, and substance abuse,” according to court records. At a hearing, a Social Security administrative law judge (ALJ) posed several hypothetical questions to a vocational expert (VE). Such questions are commonly used to assess the types of jobs a person with the applicant's symptoms can hold when accounting for certain impairments.

The ALJ asked the VE to assume a person with the plaintiff's physical and medical impairments “would be reasonably likely to be off task for more than 20 percent of the workday due to pain, fatigue, and mental health symptoms.” This assumption was consistent with the medical evidence presented by the plaintiff's doctors. Based on the ALJ's hypothetical, the VE testified that a person would be unable to maintain any form of “competitive employment.” The VE added that a typical worker “should be on task 85 to 90 percent of the day.”

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Chicago disability claim denial lawyerSocial Security disability applicants who suffer from chronic pain often face a difficult choice. If they stop treatment that is no longer effective, Social Security may cite that as proof the pain is not that bad. But if the treatment continues, the agency may say that shows the applicant can effectively “manage” their pain. Either way, Social Security may decide that the applicant is not disabled.

Fortunately, the federal courts often see through this “heads I win, tails you lose” logic. The reality is that a disability applicant may need to stop treatment for a number of valid reasons. This does not, in and of itself, mean they are able to work full-time in spite of their chronic pain and other ailments.

Social Security Criticized for Inaccurate Description of Disability Applicant's Pain, Treatment Options

Here is a recent example from here in Illinois: the plaintiff in this case–a woman now in her mid-60s–lost her job in 2009 because she required “too much time off” to deal with her existing medical problems. Later that same year, she was diagnosed with lupus, which only further aggravated her existing back pain problems.

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