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IL disability lawyerOne of the steps in assessing an application for Social Security disability benefits is looking at what jobs, if any, a person could perform when taking into account all of their physical and mental limitations. This is normally accomplished by having the administrative law judge (ALJ) posing a “hypothetical question” to a vocational expert (VE) during a disability hearing. It is critical that the ALJ includes all of the applicant's impairments in posing this question; otherwise, the VE's answer may not accurately reflect the applicant's actual job potential.

Illinois Judge Orders Social Security to Reconsider Limits on Applicant's “Concentration, Persistence, and Pace”

Here is a recent example of an ALJ failing to ask the right question. In Kenneth L. v. Saul, the plaintiff applied for Supplemental Security Income (SSI) benefits from Social Security. SSI is a need-based program available to low-income individuals who meet the same disability criteria as for Social Security Disability Insurance benefits. So the legal issues in this case would be equally applicable to a plaintiff seeking disability benefits.

After a hearing, an ALJ denied the plaintiff's application after determining he retained the residual functional capacity (RFC) to perform “a full range of work at all exertional levels,” provided the work was limited to “simple, routine and repetitive tasks not requiring work at a production rate pace.” As is standard practice, the ALJ based this conclusion on a VE's response to a hypothetical question.

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IL disability lawyerWhen you apply for disability benefits, Social Security will consider the medical opinions of your treating physician as well as non-examining consultants. These consultants basically review your medical records and offer a separate opinion as to your physical or mental impairments. In some cases, a Social Security administrative law judge (ALJ) may decide the non-examining doctors provide a more complete or accurate view of your condition than your own physician.

Magistrate Orders New Hearing on Deceased Man's Disability Claim

But what if a non-examining doctor reviews the exact same information as your treating physician and simply offers a different opinion? For instance, could a consultant look at the tests performed by your doctor and tell the ALJ they mean something different then what your doctor concluded?

A recent decision from an Illinois federal magistrate judge, Mary T. ex. rel. Falauren T. v. Saul, presented just such a scenario. This case sadly involves a now-deceased applicant for disability benefits. The applicant's mother actually continued the case following her son's death.

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IL benefits attorneyEven if you have a physical or mental impairment that qualifies you for Social Security disability, the government will cease paying those benefits if you reach “medical improvement.” In other words, if a doctor determines your impairments no longer prevent you from working, Social Security will find you no longer qualify as legally disabled. In some cases, Social Security may even determine you have already reached medical improvement by the time it considers your disability benefits application.

Federal Court Finds Social Security Officials Improper “Playing Doctor” Once Again

But as with all such determinations, Social Security must rely on the actual medical evidence presented. Agency officials are not supposed to engage in conjecture or render their own non-expert medical findings. Yet we continue to see cases where Social Security administrative law judges improperly “play doctor,” particularly in situations where a disability applicant has a difficult-to-diagnose impairment.

Consider this recent case, Brown v. Saul. The plaintiff in this case suffers from hand tremors. In part due to this impairment, the plaintiff applied for disability benefits in 2014. Following a hearing in 2016, an ALJ determined the plaintiff was disabled–but only for the period between March 2014 and July 2015. After July 2015, the ALJ found the plaintiff achieved medical improvement because he “did not suffer from tremors after that point.”

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