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IL disability lawywerEven if you otherwise meet the legal definition of disabled, Social Security may still deny your claim for disability benefits if there is evidence that you can still perform your “past relevant work.” In some cases, Social Security makes this assessment by referencing the Dictionary of Occupational Titles. This is an outdated catalog previously published by the U.S. Department of Labor that purported to define approximately 13,000 different types of work available throughout the country.

Although the dictionary has not been updated since the 1990s, Social Security continues to rely on it in disability cases. Federal courts have tried to restrict the use of the dictionary. In fact, the U.S. Seventh Circuit Court of Appeals, which has jurisdiction over disability appeals from Illinois, has said that for “composite jobs”–i.e., a position that has “significant elements of two or more occupations”–Social Security may not rely on the dictionary at all.

Federal Court Holds Social Security Improperly Classified Disability Applicant's Prior Work

This issue came up in a recent Seventh Circuit decision, Ray v. Berryhill, in which the Court ordered Social Security to conduct a new disability hearing for an applicant suffering from on a number of physical impairments. The plaintiff previously worked as a bus monitor. In that job, he needed to assist disabled children by lifting them into their seats, strapping down wheelchairs, and monitoring the children in general, according to court records.

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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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