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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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Illinois social security disability lawyer proving medical impairmentOne of the basic responsibilities of Social Security when assessing a claim for disability benefits is to consider the effects of an applicant's medical impairments on their ability to work. Even if Social Security ultimately determines the effects do not rise to the level of a legally qualifying disability, the agency must still perform a proper assessment. In other words, Social Security cannot simply ignore a documented medical impairment altogether.

SSA Failed to Consider Effects of Disability Applicant's Edema

Consider this recent decision by a federal judge here in Illinois. The Social Security Administration denied a plaintiff's application for disability benefits. Before an administrative law judge (ALJ), the plaintiff presented medical evidence documenting the following impairments: HIV, obesity, edema, and lymphedema. The latter two refer to excess swelling in the plaintiff's left leg.

In fact, the plaintiff presented an extensive treatment history related to her edema. Basically, the condition requires her to “elevate her left leg throughout the day,” according to court records. Yet during the plaintiff's Social Security hearing, the ALJ never bothered to consider the impact of edema on the plaintiff's ability to work. 

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Illinois social security disability lawyer debtsMany Illinois residents are understandably reluctant to hire an attorney to represent them when applying for Social Security disability benefits, because they simply cannot afford to pay a lawyer–especially when they are already unable to work and have limited financial resources. This is why a qualified disability lawyer works on a contingency basis. In other words, the lawyer only accepts payment if they obtain a disability award for the client.

Federal law also requires Social Security to pay applicants’ attorney’s fees in certain cases. Specifically, the Equal Access to Justice Act (EAJA) provides that when an applicant prevails in litigation against the Social Security Administration–and the government's position was not “substantially justified”–then a judge may order an award of attorney's fees to the successful applicant. However, an EAJA award is payable directly to the disability applicant rather than his or her attorney.

Seventh Circuit Upholds Using Attorney Fee Award to "Offset” Poor Disability Recipients' Debts

The distinction of whom the award is paid to is critical, because there are cases where the federal government can use money awarded for attorney’s fees to “offset” debts owed by the applicant for matters unrelated to their Social Security case. For example, if an applicant is behind on their student loans or child support payments, the U.S. Treasury can use a disability-related award of attorney’s fees to pay off those debts without the applicant’s consent.

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