Not 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.”

There is a common misunderstanding with respect to disability insurance. When considering your application for disability benefits, Social Security does not just evaluate whether or not you are medically able to perform your past work. It must decide whether you are capable of performing any type of sustained work. This distinction is often used as reasoning to deny benefits to an applicant.

Judge Orders Social Security to Reconsider Disabled Truck Driver's Claim

An applicant's failure to completely understand the law, however, does not in and of itself justify denying disability benefits. This point was hit home by a recent decision from a federal judge here in Illinois. In this case, King v. Berryhill, the plaintiff previously worked as a truck driver. He stopped working in 2008 due to chronic back pain, for which he did not seek treatment until six years later. In 2014, the plaintiff's treating physician diagnosed him with “severe lumbar degeneration” and several related conditions. 

At a 2016 hearing before a Social Security administrative law judge (ALJ), the plaintiff testified that he continued to suffer from chronic pain, and that therapy and ibuprofen provided only a modest amount of temporary relief. The ALJ nevertheless ruled that the plaintiff did not qualify as legally disabled.

Social Security disability applicants who suffer from chronic pain often face a difficult choice. If they stop treatment that is no longer effective, Social Security may cite that as proof the pain is not that bad. But if the treatment continues, the agency may say that shows the applicant can effectively “manage” their pain. Either way, Social Security may decide that the applicant is not disabled.

Fortunately, the federal courts often see through this “heads I win, tails you lose” logic. The reality is that a disability applicant may need to stop treatment for a number of valid reasons. This does not, in and of itself, mean they are able to work full-time in spite of their chronic pain and other ailments.

Social Security Criticized for Inaccurate Description of Disability Applicant's Pain, Treatment Options

Here is a recent example from here in Illinois: the plaintiff in this case–a woman now in her mid-60s–lost her job in 2009 because she required “too much time off” to deal with her existing medical problems. Later that same year, she was diagnosed with lupus, which only further aggravated her existing back pain problems.