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IL disability lawyerIt is a sad truth that many of our U.S. military veterans suffer from mental health problems, including post-traumatic stress disorder (PTSD), major depressive disorder, and generalized anxiety disorder. Unfortunately, Social Security officials often compound the suffering of our veterans by refusing to classify them as disabled, even in the face of overwhelming medical evidence. Indeed, there are many cases where the Department of Veterans Affairs (VA) considers a veteran disabled but Social Security does not.

Federal Court Identifies Multiple Problems with Social Security Ruling

A recent decision by the U.S. Seventh Circuit Court of Appeals here in Chicago illustrates the unnecessary hardships faced by our veterans when dealing with the Social Security disability process. The plaintiff in this case is a 49-year-old woman who served as a chief petty officer in the United States Navy. During her service, the plaintiff was subjected to sexual harassment from her supervising officer. This led the plaintiff to develop migraines and sleeping problems.

After receiving an honorable discharge from the Navy eight years ago, the VA diagnosed the plaintiff with PTSD, military sexual trauma, and major depressive disorder. The plaintiff eventually applied for and received VA disability benefits. Then in 2013, the plaintiff applied for Social Security disability benefits. But Social Security denied her application after an administrative law judge (ALJ) after concluding the plaintiff “was still able to perform certain work and thus was not disabled.”

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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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