September 9, 2016

“Off task” at work – does it matter at my Social Security disability hearing?

Social Security disability hearings can be confusing – the Administrative Law Judge (ALJ), your attorney, and the experts use a lot of jargon that may make it sound like they are speaking a completely new language.  The basic issue that all of these people are discussing is whether you can perform the duties of a full-time job.  However, Social Security’s rules require that the ALJ provide a detailed explanation of why he or she thinks you can or cannot work.  The ALJ must determine your “residual functional capacity” (RFC), which is a description of what kinds of work-like activities, if any, you are able to perform in spite of your impairments.  The judge must specifically address all the different physical and mental limitations you have.

The elements of your physical residual functional capacity – your ability to sit, stand, walk, lift, reach, stoop, etc. – are pretty self-explanatory.  The judge must assess how much of an eight-hour work day you are able to do each of these things.  However, as you probably know well, your medical conditions cause problems in many more areas than just your ability to do physical activities.  If you have pain, mental health diagnoses, or medication side effects, you likely have difficulty with mental tasks as well.  Your skills in concentrating, solving problems, and interacting with others are just as vital to your ability to keep a job as your physical capabilities are.

Unfortunately, though, it can be difficult to describe how mental limitations affect your ability to work.  Here are some ways you may notice that your mental limitations affect your daily life:

  • You have difficulty sitting through an entire TV show or reading a whole magazine article because your back pain bothers you so much.
  • You start lots of projects, but you never finish them because you have symptoms of attention deficit hyperactivity disorder (ADHD).
  • You have trouble getting out of bed in the morning because of your symptoms of depression.
  • Some days, you are able to do typical daily activities, but a migraine headache will keep you in bed for one or two days straight.
  • Since you had a stroke, you have a lot of trouble remembering how to do things that used to be easy for you.  You can perform easy tasks like making a sandwich or writing a note, but it takes a much longer time than it used to.
Off task at work
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There are many other examples of how the non-physical symptoms of your medical condition might affect your ability to complete your daily activities.  In your Social Security disability claim, the ALJ must decide how those problems translate into difficulties in a work setting.  That’s where “off-task” behavior comes in.  In a workplace, you must be able to complete the work you are assigned to do in a reasonable amount of time.  Sometimes, you must meet production quotas.  You are expected to come to work every day, show up on time, and take only the breaks built into your schedule by your employer.  The quality of your work must meet certain standards.  If you are not doing all of these things, then you are considered to be “off task.”

Every type of job allows for at least a small amount of “off task” behavior.  In many professional occupations, more “off task” behavior is tolerated because the employee has a little more freedom in determining the way he or she does the work.  In production jobs, on the other hand, an employee is expected to spend the majority of the day performing specific tasks in a particular manner.  He or she cannot be “off task” very much at all without being disciplined or dismissed.  Additionally, all jobs have attendance requirements regarding how often you can be absent and how much time you must spend in the workplace.

To help the ALJ decide how these “off task” behaviors affect a person’s ability to obtain and maintain full-time work, a Vocational Expert (VE) will likely testify at your disability hearing.  Among other limitations, the judge might ask how “off task” behavior affects a person’s ability to work.  Typically, the judge and the VE will talk about how much of a work day a person is likely to be “off task.”  For example, the ALJ may want to know what would happen if an employee failed to perform his or her work for five or six minutes out of every hour because the employee had to catch up after being distracted.  In that case, the judge would ask the VE if the available job pool would be affected if the employee were off task for 10% of the time.   In my experience as a Social Security Disability attorney, most Vocational Experts will testify that employers will not tolerate an individual being off task more than 10% – 20% of the workday, depending on the type of jobs at issue.

In summary, there are many ways to win a Social Security Disability Insurance (SSDI) and/or Supplemental Security Income (SSI) claim.  All cases are different and may require different arguments to achieve a favorable result.  Many of my clients tell me it is impossible for them to endure the requirements of full time employment.  In those cases, an argument that they are “off task” more than would be tolerated in a competitive work environment is the best way to describe the effects of their medical conditions on their ability to work.

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