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IL disability lawyerIn a recent post, we discussed a federal appeals court decision that chastised Social Security for its failure to properly consider the limits on a disability applicant's "concentration, persistence, and pace.” Such limitations are relevant when assessing an applicant's hypothetical ability to work in spite of their medical impairments. Yet Social Security administrative law judges (ALJs) routinely downplay limitations on concentration, persistence, and pace when questioning vocational experts (VEs) at disability hearings.

Court: ALJ Failed to Ask the Right Question of Vocational Expert

And in fact, the same federal appeals court that handed down the decision we previously discussed had to remind Social Security of this yet again. On February 26, the U.S. Court of Appeals for the Seventh Circuit here in Chicago ordered Social Security to conduct a new disability hearing after the ALJ failed to “properly address” the plaintiff's “limitations in concentration, persistence, or pace.”

The plaintiff in this particular case, DeCamp v. Berryhill, is a 55-year-old woman who applied for disability benefits, citing her brain tumor, neck and back pain, and bipolar disorder as impairments. At a 2015 hearing before an ALJ, the plaintiff testified that she suffered from frequent migraines–approximately four per week–and that she was limited in her daily activities due to chronic pain. As part of the hearing, the ALJ also posed a hypothetical question to a VE, which asked if an unskilled laborer who “may be off task or off pace up to 10 percent of the work day” outside of normal breaks could still find work in the national economy. The VE replied such work would be hypothetically available; however, if the applicant were “off pace or off task more than 15 percent of the day,” as opposed to 10 percent, then there would be “no competitive work available.”

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Chicago social security benefits lawyer vocational expertOne of the messiest aspects of the Social Security disability benefits process is dealing with the vocational experts (VEs) retained by the government to decide whether or not an applicant is still capable of working in spite of their physical or mental impairments. Despite the fact that they are referred to as “experts,” in many cases, these individuals are simply pulling numbers out of thin air. Ideally, a VE is supposed to provide reliable estimates of the types of work–and number of jobs available–that a hypothetical applicant could perform. However, in practice, a VE is often forced to rely on outdated methodology that provides little in the way of useful evidence.

Magistrate: Social Security Failed to Press VE on Source of Job Estimates

Unfortunately, the flawed methodology used by VEs does not stop Social Security from relying on such evidence. Consider a recent decision from a federal magistrate judge here in Illinois. In this case, the plaintiff applied for disability benefits eight years ago. At a 2016 hearing, a VE testified regarding the plaintiff's past work and hypothetical job prospects given his disability. The VE explained that the plaintiff previously worked as a “combination photographer and retail store manager.”

The administrative law judge (ALJ) conducting the hearing then posed a hypothetical question to the VE, which is standard practice in disability cases. The ALJ wanted the VE to estimate the jobs available to the plaintiff given his “age, education, and work experience,” and assuming he was currently limited to nothing more than “sedentary work.” The VE said the plaintiff could work as an “assembler,” a job function identified in the Dictionary of Occupational Titles (DOT), a 1992 document still used by Social Security to define the parameters of certain vocations. 

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Chicago Social Security Disability AttorneySocial Security Disability Insurance claims are frequently rejected on the first attempt, not because an applicant fails to present evidence that he or she has a disability and is medically unable to work, but because Social Security officials simply ignore that evidence. Federal courts frequently criticize Social Security for “cherry picking” evidence designed to support a predetermined outcome—i.e., a decision denying the applicant’s claim for disability benefits. But no matter how often Social Security is called out for this illegal behavior, it does not seem to deter them.

Judge Criticizes Social Security Official’s “Nonsensical” Reasons for Denying Disability Claim

Consider a recent disability case from here in Illinois. The applicant was a woman currently in her early 50s. She previously worked in a plastics factory. In 2010 she injured her back and was laid off a few months later. The applicant had also suffered from a series of mental health issues that predated her back injury.

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