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IL disability lawyerMany Illinois residents who apply for Social Security disability benefits find it impossible to focus on the types of daily tasks required by a normal workplace. Social Security's own regulations refer to a person's “concentration, persistence, and pace” to describe such difficulties. In general, if an applicant would be off-task at least 15 percent of the time due to concentration, persistence, and pace issues, that would tend to support a disability claim.

Federal Court Orders Social Security to Conduct New Disability Hearing

But this assumes Social Security administrative law judges (ALJs) actually take concentration, persistence, and pace into account when evaluating a claim. This does not always happen, despite repeated warnings from federal courts that it is the law. Just recently, the U.S. Seventh Circuit Court of Appeals here in Chicago ordered Social Security to conduct a new disability hearing for a plaintiff precisely because the ALJ failed to properly account for these limitations.

The plaintiff in this case first applied for disability benefits more than eight years ago. In a 2013 examination conducted in connection with the plaintiff's application, a state agency psychiatrist determined the plaintiff suffered from major depressive disorder, generalized anxiety disorder, and panic disorder. Among other things, this disorder meant the plaintiff had “below average levels of mental control,” which affected his concentration, persistence, and pace.

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IL disability lawyerIntellectual disabilities often prevent a person from working full-time. But when assessing mental impairments for purposes of awarding Social Security disability benefits, agency officials are often reluctant to conclude that an applicant is incapable of work. In many cases, a Social Security administrative law judge (ALJ) will conclude, even in the face of substantial evidence, that a mentally impaired applicant is still capable of performing some degree of meaningful work.

Court: SSI Applicant Retained “Adaptive Functioning” to Work Despite Mental Impairment

Consider this recent decision by the U.S. Seventh Circuit Court of Appeals here in Chicago, Johnson v. Berryhill. The plaintiff, a man in his late 30s, was first diagnosed with learning problems during elementary school. In 1988, a psychologist assessed the plaintiffs IQ at 73, which was considered “very low.” Subsequent IQ tests produced similar results. Indeed, when the plaintiff first applied for Social Security benefits in 2006, a new IQ test produced a full-scale score of 65.

In practical terms, the plaintiff is illiterate. He cannot read, spell, or write. He is capable of driving a car, although his illiteracy prevents him from passing the necessary exams to obtain a driver's license. And he is capable of performing basic everyday tasks, such as dressing himself and playing sports.

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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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