News

Recent Cases

  • ABSENTEEISM - 1794. District court decision where the ALJ erred in considering objective medical signs indetermining that the plaintiff, who suffered from fibromyalgia, was not credible. “Fibromyalgiapatients present no objectively alarming signs.” The ALJ’s statement regarding joint deformity, rangeof motion, muscle strength etc. are “irrelevant to determining whether a claimant’s subjectiveassertions regarding pain are credible.” What the ALJ persistently ignored ...was [the plaintiff’s]ability to maintain work on a daily basis. This was a particular problem, since the VE testified thatif an individual cannot work for a month without missing 5 days of work, then there are no jobs shecan perform. Marcia W. Margolius, Esq., Cleveland, OH.

    Haynes v. Commissioner of SSA, Case No. 1:09-cv-0647 (N.D.Ohio Feb. 24, 2010);2010 U.S. Dist. LEXIS 16298 – 24 pages 

     
  • DAILY ACTIVITIES/HOUSEHOLD CHORES - 1794. District court decision when the ALJ erred in considering objective medical signs indetermining that the plaintiff was not credible. “Fibromyalgia is not a disease that may be evaluatedby looking for abnormalities in the musculoskeletal system ... Rather, fibromyalgia patients presentno objectively alarming signs.” The ALJ also erred by focusing on the plaintiff’s ability to performhousehold chores. Symptoms of fibromyalgia vary in intensity. The ability “to perform some choreson some occasions does not necessarily undercut the credibility of [the plaintiff’s] assertions that herpain generally precludes substantial gainful employment ... What the ALJ persistently ignored ... was[the plaintiff’s] ability to maintain work on a daily basis.” Marcia W. Margolius, Esq., Cleveland,OH.

    Haynes v. Commissioner of SSA, Case No. 1:09-cv-0647 (N.D.Ohio Feb. 24, 2010);2010 U.S. Dist. LEXIS 16298 – 24 pages

     
  • FIBROMYALGIA - 1794. District court decision when the ALJ erred in considering objective medical signs indetermining that the plaintiff was not credible. “Fibromyalgia is not a disease that may be evaluatedby looking for abnormalities in the musculoskeletal system. . . Rather, fibromyalgia patients presentno objectively alarming signs.” The court relied on Rogers v. Commissioner of Social Sec., 486 F.3d234 (6th Cir. 2007). The ALJ’s statement regarding joint deformity, range of motion, musclestrength, etc., are “irrelevant to determining whether a claimant’s subjective assertions regarding painare credible.” The ALJ also erred by focusing on the plaintiff’s ability to perform household chores.

    Symptoms of fibromyalgia vary in intensity. The ability “to perform some chores on some occasionsdoes not necessarily undercut the credibility of [the plaintiff’s] assertions that her pain generallyprecludes substantial gainful employment. Rogers requires a particular analysis to determinecredibility in fibromyalgia cases. What the ALJ persistently ignored ... was [the plaintiff’s] abilityto maintain work on a daily basis.” This was a particular problem, since the VE testified that if anindividual cannot work for a month without missing 5 days of work, then there are no jobs she canperform. Marcia W. Margolius, Esq., Cleveland, OH.

    Haynes v. Commissioner of SSA, Case No. 1:09-cv-0647 (N.D.Ohio Feb. 24, 2010);2010 U.S. Dist. LEXIS 16298 – 24 pages

     
  • RESIDUAL FUNCTIONAL CAPACITY – BENDING/STOOPING - 1972. District court remand for a reconsideration of the plaintiff’s RFC. Substantial evidence doesnot support the ALJ’s finding that the plaintiff had the RFC to stoop occasionally. The ALJ gavelittle or no weight to the treating physician’s opinion that her ability to stoop was markedly limited.The VE testified that there were no sedentary jobs she could perform if there was a marked limitationin stooping, bending and reaching. [The court equated bending with stooping.] The ALJ said thetreating physician’s opinion on stooping was inconsistent with other evidence; however, no otheropinions were offered on stooping. Marcia W. Margolius, Esq., Cleveland, OH.

    Collett v. Commissioner of Social Security,Case No. 5:08 CV 2929 (N.D. Ohio Mar.31, 2010); 2010 U.S. Dist. LEXIS 31062 – 8 pages

     
  • RESIDUAL FUNCTIONAL CAPACITY – MENTAL - 1793. District Court remand because the court is unable to determine how the ALJ reached hisconclusion, or whether his findings were supported by substantial evidence and were consistent withthe regulations. The CE psychologist found that the plaintiff had “moderate” limitations in a numberof work-related activities, including the ability to perform simple, repetitive tasks. The state agencypsychologist found the only limitation was “moderate” for understanding, remembering and carryingout instructions. When the ALJ included the VE’s limitations in the hypothetical question to the VE,there were no jobs the individual could perform. When the ALJ used the state agency’s mental RFC,the individual could perform 75% of unskilled sedentary work. Yet in the decision the ALJ said thatthe VE’s and state agency psychologist’s RFCs were “reasonably consistent.” In fact, the differencebetween the two opinions was the difference between disability and non-disability. Marcia W.Margolius, Esq., Cleveland, OH.

    Conkey v. Commissioner of Social Security, Case No. 2:08-cv-1058 (S.D.Ohio Feb.24, 2010); 2010 U.S. Dist. LEXIS 16727 – 10 pages

     
  • WEIGHT OF MEDICAL EVIDENCE – POST HOC ARGUMENTS - 1809. District court remand for further proceedings where the ALJ did not provide specific reasonsfor rejecting the majority of the functional limitations in the treating physician’s opinions, as requiredby the regulations. The ALJ failed to provide “good reasons” for rejecting those opinions by citingother evidence inconsistent with the opinions. The court rejects the Commissioner’s post hocarguments in support of the ALJ’s findings. While the arguments may have been sufficient reasonto reject the treating physician’s opinions, the ALJ failed to state them. “In his brief, theCommissioner attempts to justify the ALJ’s rejection of [the treating doctor’s] opinion; however,such a recitation is purely conjecture upon the part of counsel and cannot serve as the basis forreview by a court. “The Sixth Circuit has expressly held that where the ALJ fails to give goodreasons for his rejections of a treating source’s opinion, remand is required even if substantialevidence in the record otherwise supports the ALJ’s decision. Margolius and Associates, Cleveland,Ohio.

    Ortiz v. Astrue, Case No. 1:09 CV 2166 (N.D.Ohio, July 30, 2010); 2010 U.S. Dist.LEXIS 77134 – 17 pages

     
  • WEIGHT OF MEDICAL EVIDENCE – STATE AGENCY OPINION - 1777. District Court remand because the ALJ failed to state that he had considered the opinions ofthe state agency physicians or to articulate the weight given to those opinions. The fact that the ALJis not bound by the state agency opinions does not mean that he can ignore them. Two state agencyphysicians and the treating physicians stated that the plaintiff could lift no more than five pounds.The state agency physicians also stated that she could only occasionally reach with her right arm.20C.F.R. § 416.927(f)(2) and SSR 96-6p require that the ALJ explain the weight to be given theopinions of state agency physicians unless the treating doctor’s opinion is given controlling weight.Because the treating doctor did not discuss the “reaching” issue, SSR 96-6p requires the ALJ toconsider the state agency opinion. This was not harmless error, because the ALJ failed to includea limitation on reaching the hypothetical question. Marcia Margolius, Esq., Cleveland, OH.

    Tarver v. Astrue, Case No. 1:08 CV 2831 (N.D.Ohio Dec. 9, 2009) – 11 pages.

     
  • WEIGHT OF MEDICAL EVIDENCE – TREATING PHYSICIAN’S OPINION - 1801. District Court remand where the ALJ relied on the opinion of the non-treating consultativepsychologist instead of the opinion of the treating physician. A cursory statement in the decision thatthe ALJ considered opinion evidence in accordance with the requirements of the regulations andSSRs is not sufficient. “Certainly no one reading this administrative decision would understand whythat opinion was not credited.” Margolius, Margolius and Associates, Cleveland, OH.

    Kazee v. Astrue, Case No. 2:09-cv-717 (S.D.Ohio, June 29, 2010); 2010 U.S. Dist.65018 – 17 pages

Current News Headlines

December 2012 Marcia Margolius spoke at Lupus Foundation meeting in Strongsville, Ohio about "Social Security Disability and the Impact of Lupus".

December 2012 Andrew Margolius spoke at MetroHealth Medical center about Social Security Disability to Staff Doctors and Residents.

October 2012 Paul Newendorp and Michelle DeBaltzo spoke at regional Social Security seminar in Cleveland, Ohio ON "Insuring You are Fully Prepared for Hearings" and "Cross Examination of Medical Experts."

July 2012 Andrew Margolius spoke at seminar in Akron, Ohio about closing arguments and trial strategy.

Past News Headlines


Marcia Margolius to Speak at Social Security Law Seminar in November

Marcia W. Margolius will be among the featured presenters at a seminar on Social Security Law on Monday, November 8, 2010, in Cincinnati.

The event will run from 8 a.m. to 4 p.m. at the Eastgate Holiday Inn. Continental breakfast and lunch are included in the tuition price for those who register by October 31.

Download Registration Form »


Good News for Americans Awaiting a Social Security Disability Hearing
As Agency Hires More Judges, Backlog Begins to Decline

October 6, 2009 – Congressman John Tanner (D-TN), Chairman of the Ways and Means Subcommittee on Social Security, today praised the Social Security Administration (SSA) for the success of its efforts to reduce the unprecedented backlog in disability appeals hearings. Over the course of fiscal year (FY) 2009, the number of pending disability hearings declined for the first time, from 760,813 at the beginning of the year to 722,822 at the end. The average waiting time also declined, from 514 days in FY 2008 to 491 days in FY 2009. More...


Marcia Margolius Speaks at Senate Committee

Many have requested copies of Marcia Margolius' key testimony before the United States Senate subcommitte investigating delay and inequities in the Social Security disability process. The following testimony was delivered to the Senate Committee on Governmental Affairs on March 29, 2004.

First, I would like to thank Senator Voinovich for initiating this forum to address delays in the processing time for Social Security hearings and more specifically, the backlog at the Cleveland Office of Hearings and Appeals. I would also like to commend the Commissioner for her participation. [Note: Representative Stephanie Tubbs Jones also conducted an important hearing concerning problems with the Social Security disability process. Marcia Margolius provided testimony on delay and procedural issues at the hearing at the request of Rep. Tubbs Jones.]

Under the current system, people with severe disabilities are forced to wait years for a final decision. This delay is harmful to the individual and his or her family in a time of great need. But the delay not only hurts the disabled individual, it also damages public confidence and the integrity of the system.

In September, 2003, Commissioner Barnhart announced a plan to reform the disability claims process. These initiatives are meant to bring an aging bureaucratic system into the 21st century. As disability advocates, I and my colleagues, support all efforts to reduce unnecessary delays for claimants and to make the process more efficient. However, any changes must ensure fairness and protect the rights of people with disabilities.

The Commissioner has identified several changes at the front end of the process that can have an immediate beneficial effect for new applicants and will improve the backlogs and delays later. Hopefully, implementation of the electronic folder will move forward with all possible speed. EDib should reduce delays from handing off the file and will allow immediate access by any component of Social Security working on the claim. On line, read-only access should also be arranged for counsel so that the constant changes in the development of these cases are available to all participants. The Quick Decision Process for claimants who are obviously disabled can not happen soon enough. The process benefits everybody and is consistent with the overall purposes of the Social Security Act.

Other proposed changes raise greater challenges to the fairness owed to our disabled citizens. The new position of Reviewing Officer is very promising as it provides the necessary "point person" to help expedite critical cases. However, a separate appeal from the RO, who is located at the Office of Hearings and Appeals, to the ALJ, also at the Office of Hearings and Appeals, will be confusing to the public and ends up looking like nothing more than a replacement of reconsideration, and perhaps a counter-productive hurdle to the process. One appeal from the initial stage should cover review by both the RO and the ALJ, and avoid potential additional time delays to the system.

The record should not be closed after the ALJ's decision. Closing the record is not beneficial to a process meant to be informal, non-adversarial and with the primary overarching purpose of seeking the truth. This is not meant to say that records should not be submitted as soon as possible; they should and attorneys should strive for this efficiency. But submission is not always in the attorneys control, or for that matter, in the unrepresented claimant's control. Claimant's may be mentally impaired and unable to effectively assist in case development. Moreover, a claimant's health is not static - hospitalizations occur, specialists get involved, and diagnoses are definitively reached. Means for submission of such important medical information can't be foreclosed in order to protect the claimant and the integrity of the determination process.

An underlying issue we must face is the balance between procedure and efficiency, and the potential prejudice arbitrary or administrative procedures may cause towards a just Social Security disability determination. There are merits to both efficiency and due process allowances, yet these goals sometimes conflict.

Continuation of the Appeals Council protects claimants. The current review process satisfies claimants' need to have oversight of the ALJ decision. A major basis for remand by the Appeals Council is not submission of new evidence, but legal error committed by the ALJ. The Commissioner should maintain this process for rectifying errors administratively, rather than forcing federal court review. This review stage is vital to a claimant's rights.

Cleveland's immediate problem is that there are disabled people with urgent needs that can not wait until October, 2005, when the Commissioner's plan is projected to be fully operational. People who are later adjudicated to be disabled under Social Security standards in this region are losing their homes, having utilities shut off and are losing health coverage because of delays in Social Security decisions.

Cleveland has the largest hearing backlog in a six state region. The decisions are generally fair, but the length of time to get a hearing and the processing time after the hearing is extreme.

The fundamental problem is one of staffing, there are just not enough judges or support staff to process the 11,000 plus cases waiting for hearing. When I first started in 1982 there were 18 judges. With a higher caseload, Cleveland has currently has 8 judges with the promise of 2 more. However, judges are only part of the solution. Support staff is based on the number of judges, not the number of cases, so, as long as there is a backlog of over 11,000 cases, the delays are endemic.

Decisions and Opinions

The close of 2006 brought four important litigation victories to Margolius, Margolius and Associates. Each case represents an important victory in employment and civil rights.

  • In Sicklesmith v. Chester Hoist, the Court of Appeals for the Seventh District Court of Appeals reviewed a trial verdict in this case. The employer brought multiple challenges to the jury verdict and was requesting reversal. The Court fully upheld the trial court's verdict and the underlying disability case law analysis. The firm's lead trial attorney, Andrew Margolius, represented Clarence Sicklesmith. In the case, the employer had refused to allow Mr. Sicklesmith, a long term, dedicated employee, to return to work following a leave of absence. The employer asserted Mr. Sicklesmith could not perform the essential functions of his job as required by law. Mr. Sicklesmith's employer disregarded or simply denied his reasonable accommodation requests. The jury had found the employer in violation of Ohio's employment discrimination -disability statute and awarded Mr. Sicklesmith $282,000 in damages. The Court of Appeals opinion, cited above in pdf format, fully affirmed the jury verdict and rejected the employer's requested issues for reversal, including asserted errors regarding punitive damages, burden of proof in disability cases, application of corporate attorney client privilege, and union grievance evidentiary issues. The Court specifically noted important cross examination questions by Mr. Margolius against the employer's representative to affirm the trial verdict.
  • In Williams v. Case Western Reserve University, the Court of Appeals for the Eighth Appellate District reversed a summary judgment in favor of the employer, finding that the Plaintiff/employee's employment rights warranted a trial. The professor in question moved to Cleveland after being offered a three year employment contract. He was discharged at the end of his 1st year and the University attempted to give him administrative duties. A grant Dr. Williams had intended to work on was not funded by the National Institute of Health and, moreover, circumstances demonstrated funding issues were at the heart of the premature discharge. The case provides grounds to assert that implied contract rights require just cause for termination prior to the expiration of the stated employment term. Attorney Andrew Margolius represented Dr. Williams in the action.
  • In OCRC and Harper v. AMHA, the firm established key fair housing precedent on the issue of hostile environment in rental housing. The Harper family claimed it had been racially harassed by neighbors, even after alerting the landlord. The landlord's inaction resulted in increasing hostility and overt threats of violence and racial epithets. The case was originally dismissed by the Ohio Civil Rights Commission but was reversed when attorney Andrew Margolius convinced the Commissioners of the fundamental housing rights at stake in the matter. The Common Pleas Court dismissed the action finding this was a neighborhood dispute and that Ohio did not recognize a landlord's duty to intervene under a hostile environment housing cause of action. The Ninth District Court of Appeals reversed the finding in a landmark fair housing decision and firmly established the hostile housing environment cause of action in Ohio. The precedent setting case follows other lead precedents in fair housing in Ohio established by the firm. Attorneys Andrew Margolius and Emily Gilbert represented Ms. Harper and Fair Housing Advocates Association.
  • In Newcomb v. Hostetler Catering, the Court of Appeals similarly reversed a summary judgment decision and concluded that the Plaintiff's rights to seek counsel regarding the loss of employment benefits warranted a jury trial. The Court expanded public policy protection preventing a discharge to knowledge of the employee seeking counsel as unjust grounds for discharge. The previous law stated that the employee must have already consulted with an attorney.