Many Illinois residents are understandably reluctant to hire an attorney to represent them when applying for Social Security disability benefits, because they simply cannot afford to pay a lawyer–especially when they are already unable to work and have limited financial resources. This is why a qualified disability lawyer works on a contingency basis. In other words, the lawyer only accepts payment if they obtain a disability award for the client.

Federal law also requires Social Security to pay applicants’ attorney’s fees in certain cases. Specifically, the Equal Access to Justice Act (EAJA) provides that when an applicant prevails in litigation against the Social Security Administration–and the government's position was not “substantially justified”–then a judge may order an award of attorney's fees to the successful applicant. However, an EAJA award is payable directly to the disability applicant rather than his or her attorney.

Seventh Circuit Upholds Using Attorney Fee Award to "Offset” Poor Disability Recipients' Debts

The distinction of whom the award is paid to is critical, because there are cases where the federal government can use money awarded for attorney’s fees to “offset” debts owed by the applicant for matters unrelated to their Social Security case. For example, if an applicant is behind on their student loans or child support payments, the U.S. Treasury can use a disability-related award of attorney’s fees to pay off those debts without the applicant’s consent.

One sign that you may qualify for Social Security disability benefits is the need to use a cane in order to walk or stand for prolonged periods of time. While the use of a cane does not automatically mean you are legally disabled, it does provide strong evidence that you are unable to perform the type of activities typically associated with full-time work. At the same time, Social Security officials may attempt to minimize or discount the importance of your need to use a cane as a pretext for rejecting your disability application.

Social Security Ordered to Reconsider Stroke Victim's Case

Consider a recent disability case from here in Illinois. The plaintiff in this case was a man in his early 50s. Five years ago, he suffered a heart attack followed by a stroke. As a result, he continues to experience weakness on the left side of his body, which requires him to use a cane for walking.

The plaintiff subsequently applied for disability benefits. A Social Security administrative law judge (ALJ) rejected the plaintiff's claim, however, finding that despite his impairments, the plaintiff could still “work or stand for six hours in an eight-hour day and that he could do so without his cane.”

One 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.