Wednesday, August 21, 2013

Off Task

I received an interesting fully favorable decision today for a 49 year old former fire fighter with pulmonary problems that originated from 9/11 related exposure. 

The claimant’s breathing problems resulted in sleeping problems, which caused the claimant to sleep during the day. Furthermore, the claimant’s medications exacerbated the claimant’s daytime somnolence. As a result, the Administrative Law Judge (“ALJ”) found that the claimant would be off task at least 20% of the work day. 

I researched the various Social Security rules and regulations, but did not find anything regarding being off task and disability. However, a review of the case law revealed dozens of cases where vocational experts unanimously testified that a person would be disabled from substantial gainful activity if off task 20% of the time. 

Many symptoms, such as pain, fatigue, or mental disorders causing a lack of focus and concentration, can effect a person’s ability to stay on task. Medical opinions regarding the percentage of time that impairments cause claimants to be off task should be incorporate into functional assessments. Not only can an opinion supporting a claimant’s inability to stay on task provide positive evidence to support a claim, but it can also provide ammunition to cross examine an unsupportive vocational expert.

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