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IL disability lawyerSocial Security often denies applications for disability benefits based on the testimony of “agency consulting physicians.” These are doctors who review an applicant's medical records without personally examining or treating the applicant. In some cases, a Social Security administrative law judge (ALJ) will give greater weight to the opinions of the agency consultants over the treating physicians. This is permitted under Social Security regulations, provided the consultant's opinions are consistent with the available medical evidence.

Appeals Court Questions Social Security's Conclusions Regarding Disability Applicant's Ability to “Reach Overhead”

Here is an example of a case where an ALJ improperly credited an agency consultant. In Gibbons v. Saul, the plaintiff applied for disability benefits approximately seven years ago. The plaintiff suffered from severe chronic pain in his neck, shoulders, and arms. Several doctors provided medical evidence with respect to the plaintiff's condition.

A critical issue was whether or not the plaintiff was capable of reaching overhead. According to Social Security regulations, a person is capable of performing “sedentary work,” and therefore does not qualify for disability benefits, if they can lift up to 10 pounds.

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IL disability lawyerIt is a well-established rule in Social Security disability cases that the agency's administrative law judges (ALJs) are not allowed to “play doctor.” That is to say, the ALJ is a layperson, not a doctor or a medical expert. Therefore, when assessing an applicant's disability claim, the ALJ must rely on testimony or evidence offered by such experts rather than trying to diagnosis the claimant themselves.

Court Cites ALJ's Failure to Call Medical Expert in Ordering New Disability Hearing

Unfortunately, this rule is not always so easy to implement in practice. As an Illinois federal magistrate judge observed in a recent disability case, Michelle M. v. Saul, it is often difficult to distinguish “playing doctor” from “merely noting or summarizing the evidence.” Indeed, the magistrate observed that “there do not appear to be many clear rules to determine when the doctor-playing line is crossed.”

This particular case illustrated the problem. The plaintiff here applied for disability benefits alleging a number of physical impairments, including chronic pain in her back, hands, and feet. But as the magistrate explained, the plaintiff's treating physicians have been able to make a “single consistent diagnosis” to explain the cause of her problems. Additionally, the plaintiff received significant treatment after her disability hearing before the ALJ, and as a result, there were “200 pages of treatment records” submitted after the hearing.

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IL disability lawyerA key part of the disability application benefits process is when Social Security asks a vocational expert to answer a “hypothetical” question designed to ascertain what potential jobs, if any, exist in the marketplace for a person with certain physical or mental limitations. Remember, it is not enough to prove you have a disability. Social Security also needs to figure out whether your disability–or a combination of disabilities–makes it impossible for you to find meaningful work. The hypothetical question is supposed to help determine the answer.

Seventh Circuit Orders New Hearing for Disability Applicant

But this assumes Social Security asks the right hypothetical question, to begin with. For example, the U.S. Seventh Circuit Court of Appeals here in Chicago recently ordered Social Security to conduct a new disability hearing for a plaintiff after determining an administrative law judge (ALJ) asked an “incomplete” hypothetical question. This error alone was sufficient, the court said, to justify reconsideration of the plaintiff's application for disability benefits.

The plaintiff applied for disability, citing a number of impairments, including depression, attention deficit disorder, fibromyalgia, and degenerative disc disease. Much of the plaintiff's impairments stemmed from a 2007 slip-and-fall accident. Following this accident, the Seventh Circuit noted, the plaintiff could “no longer live the active life she had before her fall.” Even seven years after the fall, the plaintiff could not sit or stand for more than 30 minutes at any one time. By that point, she had already filed an application for Social Security disability insurance benefits.

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