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IL disability lawyerIn making your case for disability benefits, it is important to present Social Security with as much expert medical evidence as possible. Otherwise, an agency administrative law judge (ALJ) may attempt to “fill in the gaps” with their own, non-expert opinions. And while such conduct contradicts the law governing disability benefits, the burden is then on the applicant to show the error on appeal, which only makes the process go slower.

Magistrate to Social Security ALJ: “Not a Doctor. Shh.”

To give an example, a federal magistrate judge recently began an opinion reversing Social Security's decision to deny an application for disability benefits with a quote from the popular television program Brooklyn Nine-Nine: “Not a doctor. Shh.”

The magistrate was expressing his frustration at yet another instance of an ALJ impermissibly “playing doctor” when it comes to assessing an applicant's medical limitations in the workplace. In this particular case, the magistrate said the ALJ simply ignored the “only evidence in the record” because it contradicted the ALJ's opinions.

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IL disability attorneySocial Security disability decisions are supposed to be based on medical evidence, such as the findings of your treating physician. When there is a conflict in the medical evidence–i.e., different doctors reach different diagnoses–a Social Security administrative law judge (ALJ) is entitled to decide which evidence is more credible and consistent with the overall record. However, the ALJ cannot simply ignore uncontradicted medical evidence and substitute his or her own non-medical judgment.

Magistrate Rejects ALJ's Finding That Disabled Applicant Could Use Both of His Hands

When ALJs overstep their boundaries, a disability applicant may have recourse on appeal to a federal court if their claim for disability benefits was ultimately denied. Here is a recent example from here in Illinois. In this case, Andrew B. v. Berryhill, a former bus driver (the plaintiff) applied for disability benefits in 2014, citing a variety of impairments, including carpal tunnel syndrome, torn ligaments in his hands, and arthritis.

For purposes of the plaintiff's disability application, the critical time period was between November 2014 and January 2016. According to the expert opinion of the only doctor to examine the plaintiff during this period, the plaintiff “could only occasionally handle objects with both hands.” That is to say, the plaintiff could not “frequently” handle objects with his right hand due to his medical condition.

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IL disability lawyerA key component of a Social Security disability hearing is the testimony of a “vocational expert” or VE. The VE's function is to assess the type and quantity of jobs available to a “hypothetical” person with the same physical and mental impairment as the disability applicant. Unfortunately, many VEs are not forthcoming with how they arrive at their conclusions. That is to say, the VE does not provide either the applicant or the Social Security administrative law judge (ALJ) with the actual data relied upon.

Kagan: Court Rejects “Categorical” Rule Requiring Disclosure of “Private” Data

The U.S. Seventh Circuit Court of Appeals, which has intermediate appellate jurisdiction over disability cases in Illinois, has long held that Social Security cannot rely on the testimony of a VE who refuses to produce their methodology upon the applicant's request. But on April 1, 2019, the U.S. Supreme Court rejected such a “categorical” rule and said that going forward, appellate courts would have to decide on a “case-by-case basis” whether a refusal to produce data is unreasonable, with appellate court deferring to the judgment of Social Security ALJs.

The case before the Supreme Court, Biestek v. Berryhill, actually originated in Michigan. The petitioner worked as a carpenter and general construction laborer. He later applied for Social Security disability benefits, citing a number of physical and mental impairments. At a hearing before the Social Security ALJ, a VE testified that based on her data, the petitioner could still perform “sedentary jobs” such as a “bench assembler or sorter,” and that there were 240,000 such positions available nationally for the former and 120,000 for the latter.

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