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IL disability lawyerA hernia is not the type of impairment that, by itself, qualifies a person for Social Security disability benefits. Indeed, most hernias can be surgically repaired to relieve a person's symptoms. But when surgery is insufficient and the resulting pain and limitations prevent a person from working, then Social Security needs to consider the possibility that person is legally disabled.

Federal Court Rejects Social Security's Attempt to Ignore Treating Physician's Views of Disability Applicant's Condition

As is too often the case, however, Social Security may try and discount the expert opinions of doctors who actually treated an applicant's hernia in an attempt to find the applicant not disabled. The U.S. Seventh Circuit Court of Appeals here in Chicago recently addressed such a case, finding Social Security's decision to reject a disability application was not supported by the evidence.

The plaintiff in this case, Burgos v. Saul, was previously employed as a warehouse worker. Fourteen years ago, the plaintiff underwent the first in a series of surgeries intended to treat his multiple hernias as well as a kidney ailment. Despite these surgeries, the plaintiff's hernias led to increased abdominal pain. Eventually, the plaintiff found himself unable to work and applied for disability benefits in 2014.

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IL disability lawyerThe general rule in Social Security disability cases is that agency officials should give “controlling weight” to the medical conclusions of an applicant's treating physicians unless those opinions are not supported by the other evidence presented. If a Social Security administrative law judge (ALJ) decides to give a treating physician's views less-than-controlling weight, it is the ALJ's responsibility to explain their reasons. In fact, there is a required checklist of factors the ALJ is required to follow in such cases.

Magistrate Orders New Hearing After ALJ Fails to Follow “Checklist”

But this does not mean the ALJ actually follows the checklist. A recent decision from a federal magistrate judge here in Illinois, Kenneth P. v. Saul, offers a useful illustration. In this case, the plaintiff suffers from multiple sclerosis (MS) and applied for disability benefits five years ago. A Social Security ALJ denied the plaintiff's application after only giving “some weight” to the medical opinions offered by the plaintiff's treating neurologist.

As the magistrate explained, the neurologist concluded that the plaintiff's “fatigue and balance issues” related to his MS made him unable “to sustain a regular 40-hour work schedule.” The plaintiff also suffered from mental limitations that prevented him from “adequately” performing any type of desk job that required “memory and attention.”

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IL disability lawyerYou would think in assessing an application for disability benefits, Social Security would give greater weight to the opinions of a specialist who actually treated the applicant over rather than a less-qualified doctor who only performed a casual examination. But the reality is Social Security administrative law judges (ALJs) often prefer whatever testimony supports a finding the applicant is not disabled.

Magistrate Orders New Hearing After ALJ Credits Opinions of Family Doctor Over Orthopedic Surgeon

A recent decision from a federal magistrate judge here in Illinois, Cheryl G. v. Saul, helps to illustrate this problem. The plaintiff in this case previously worked as a legal secretary and school bus driver. But she has been unable to work in any capacity since 2010 as the result of a severe ankle injury that required multiple surgeries.

In fact, the plaintiff has had surgeries performed on her since 2010. One of the plaintiff's surgeons testified about her job prospects during a deposition in connection with the plaintiff's efforts to obtain workers' compensation benefits. In this deposition, the surgeon said the plaintiff "could have probably done some kind of sedentary duty if such an occupation existed in a bus driving facility." But she was unable to drive and would require "substantial breaks or half days to allow her to function." And due to the nature of the plaintiff's injuries, the surgeon said she could not sit for prolonged periods of time.

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