Proving the Existence of Pain in the Disability Process

Is your child eligible for SSI? SSI is an abbreviation for Supplemental Security Income. This benefit is available for children (like adults) who suffer from a severe medical impairment. The impairment, or medical condition, must significantly impact the child’s ability to grow, function, or learn.

The first step in evaluating if your child is eligible for SSI is to address financial eligibility. SSI is a needs-based program and financial eligibility guidelines depend upon the household income (if any), the type of household income it is, and how many individuals reside within the home. Once this parameter is met, and financial eligibility is established, the severity of the child’s medical condition must be determined.

Disabling medical conditions for children can include, but are not limited to, asthma, diabetes, attention deficit hyperactivity disorder, learning disabilities, oppositional defiant disorder, depression, and anxiety. Medical conditions must be shown to severely impact the child’s ability to function as compared to other children their same age. The Social Security Administration’s regulations allow for a finding of disability in children’s SSI claims if they meet or equal the requirements within the Listing of Impairments. The Listing of Impairments for children describes a wide variety of medical impairments and lists the requirements necessary to establish the condition’s severity. If the child’s medical or school records establish the criteria necessary, Social Security will determine the Listing is met and benefits will be awarded.

In the alternative, it can be shown that the child’s severe medical condition “functionally equals” the listing. A severe condition may not meet all the specific requirements of the Listing, but remains significantly limiting under different criteria. This criteria requires proof of a severe impairment that causes “marked” limitation in two “domains”, or an “extreme” limitation in one domain. These “domains” are categorized as Acquiring and Using Information; Attending To or Completing Tasks; Interacting and Relating With Others; Moving About and Manipulating Objects; Caring for Yourself; and Health and Physical Well-Being.

In order to find a “marked” limitation in a domain, the impairment must severely interfere with the child’s ability to engage in activities related to that domain. For an “extreme” limitation, the impairment must very seriously interfere with the child’s ability to engage in activities within that domain.

Having a child with a severe medical or psychological impairment can be overwhelming and stressful. Our office is here to assist you in determining eligibility, understanding the requirements, and navigating the process of children’s SSI benefits. Please reach out if you have any questions regarding your child and SSI benefits.

Typically, we think of disabled individuals as those who are unable to work due to medical conditions. This is also how the Social Security Administration’s regulations define disability at the basic, fundamental, level. CFR §404.1505. Social Security has a series of established guidelines that are commonly referred to as the “grid rules.” These rules allow select individuals to obtain disability benefits without having to prove that they are unable to engage in full-time work activity. These grid rules take into consideration a person’s age, work history, and educational background. Generally speaking, these guidelines favor individuals who are approaching retirement age, and whose work history consists of more strenuous labor. See, Appendix 2 to Subpart P of Part 404—Medical-Vocational Guidelines.

One grid rule applies to individuals who are past the age of 55 with a limited education and no work history in the last 15 years. These individuals may be found disabled by a straightforward finding that they have a severe medical impairment. CFR §404.1562.

By way of an example, consider John Doe. This gentleman is 58 years of age with a 10th grade education, and has not been able to work more than a negligible amount of odd jobs in the last fifteen years because of his knee arthritis and asthma. Under these conditions, if Social Security determines that at least one of these two conditions is severe, that is, significantly limits Mr. Doe’s capacity to work, he is to be found disabled. In other words, Mr. Doe does not need to prove that he cannot work any job, or even most jobs. Under these circumstances a finding that his knee arthritis and/or asthma significantly limits Mr. Doe’s working capacity is enough.

If you have any questions as to how these grid rules may apply to your case, please contact us.

A new proposed rule published in this month’s Federal Register could affect the monthly benefits of Supplemental Security Income (“SSI”) recipients. Currently, SSI recipients receive a reduced payment if they are regularly provided meals or housing by a third-party. For example, when an individual who receives SSI benefits lives with a family member who pays for their share of rent, food, or utilities, these accommodation are counted as income. This income in turn will likely reduce their SSI benefit, up to as much as one-third of the monthly payment.

The new proposed rule^[1] would alter this arrangement. While housing accommodations would still be considered income, regularly provided meals to SSI recipients could no longer be used to reduce their benefits. This proposed rule would be a welcomed adjustment to the regulations. At Margolius, Margolius & Associates, we believe that individuals receiving SSI benefits should not be penalized in case they receive food assistance from their friends, family, or community organizations. SSI recipients are already at great risk of food insecurity, and the current regulations negatively impact individuals who in good-faith accept help meeting their basic dietary needs. This proposed regulation would therefore be a welcome addition to assist the most vulnerable members of our society.

^[1]https://www.federalregister.gov/documents/2023/02/15/2023‑02731/omitting‑food‑from‑in‑kind‑support‑and‑maintenance‑calculations

A recent Forbes article^[1] highlighted the complicated choices facing individuals who receive disability benefit, but who wish to attempt to return to work. In an effort to encourage individuals to attempt to return to the work force, the Social Security Administration instituted the Ticket to Work Program (“TTW”) in 1999. The TTW allows for individuals to work for a limited time period without automatically losing their disability benefits. Therefore, in theory, disability recipients can attain a job and see whether their health has improved sufficiently to allow them to continue working – without instantly losing their benefits.

However, as highlighted by Forbes, this process is highly complicated and difficult to navigate. First, the TTW only offers a limited time-period during which an individual can work while receiving disability, referred to as a “Trial Work Period.” Once this time period has been used up, disability benefits will automatically terminate. Second, all work income during this period must be reported to Social Security, and said income will off-set your monthly disability rate. Moreover, an individual participating in the Ticket to Work Program must provide Social Security with several forms and reports, which can be cumbersome to fill out and submit.

In sum, individuals should be encouraged to return to work if their health improves. However, the process of testing to see whether you are actually able to sustain the rigors of work can be unnerving and complex. In order to ensure that you do not inadvertently lose your disability benefit, or get penalized for an overpayment due to a work attempt, it is important to immediately report any and all work income to Social Security. For most individuals, it is also advisable to consult with an attorney in order to be able to make an informed decision of whether attempting to return to work is the best option for you.

^[1]https://www.forbes.com/sites/dianewiniarski/2023/02/22/the‑facts‑about‑ticket‑to‑work‑and‑your‑ssdi‑benefits/?sh=1dc726ba3fda

Update: The Social Security Administration has been taking small steps towards normalization. At present, only telephone and video hearings are available and many employees are still working from home. The Administration has indicated that it is moving towards more in-person hearings, but no timetable has been provided.

The Courts in Ohio and elsewhere are on a similar track, although many have incorporated, and are now reliant on, video services such as Zoom and Microsoft Teams to allow for remote hearings. This has proven to be more efficient with less waiting and travel time for the litigants and counsel. Depositions and mediations are more frequently being scheduled as in-person although the litigants often agree upon alternative methods. Nonetheless, litigation has picked up, whether for employment claims, long-term disability, or auto accidents.

There continues to be concerns, from our firm and others, about SSA field offices remaining closed. “The Social Security Administration’s (SSA’s) 1200 field offices have been closed for the last 20 months, with devastating effects for disabled Americans. Pre-pandemic, more than 43 million Americans were served at SSA field offices; the people most in need of walk-in, on-demand services included people with low- or zero-incomes, housing instability, limited English proficiency, or significant physical or mental disabilities that were themselves barriers to access. With office closures, their inability to file applications and appeals and to correct bureaucratic errors has led to historically unprecedented declines in people receiving Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) disability benefits…” See, The Hill, “Half A Million Poor and Disabled Left Behind”

Questions: Contact us by phone (216-621-2034) or Email us here.

The effect of a disability on one’s normal activities is an element of damages in most litigation cases. It has vital importance in disability cases. At Social Security hearings, you will typically be asked about your typical at-home activities. This inquiry is a constant in Social Security law, and is needed by a Judge to determine the client’s baseline level of activity at home, to see how that translates to potential work activities. The inquiry often is intrusive, with questions directed to whether the claimant goes grocery shopping, does yardwork or household cleaning, travels or exercises. A portion of a judge’s decision is usually directed towards “activities of daily living” where the judge attempts to distinguish between what is stated to a physician or health care provider, and what the person is doing at home. However, as advocates, the attorneys at MMA distinguish the level of activity and the consequences of home activities to ensure that this information is accurately portrayed. Case law ensures that these activities of daily living are not taken out of context:

In Lorman v. Comm’r of Soc. Sec., the Court made note of the important distinction between the occasional home activity and comparing it to activities in a forty-hour workweek. The Court stated “there is a significant difference between doing minimal self-sustaining household chores and performing work 40 hours a week for 52 weeks per year. Plaintiff’s ability to perform some activities on a limited basis is not substantial evidence that her symptoms are not disabling. See, Rogers v. Comm’r of Soc. Sec., (the minimal daily functions of driving, cleaning an apartment, caring for pets, laundry, reading, exercising and watching the news are not comparable to typical work activities). See also 20 C.F.R. 404.1572(c) (“*Generally, we do not consider activities like taking care of yourself, household tasks, hobbies, therapy, school attendance, club activities, or social programs to be substantial gainful activity.”*). In Ogletree v. Colvin, (Greenberg, M.J.), the Court reaffirmed the Lorman holding that minimal activities of daily living such as spending time with grandchildren, attending GED classes and getting married equate to an ability to maintain full time employment…. the mere fact that Plaintiff acknowledged some rather minimal level of activities, performed with some difficulty, is not necessarily indicative of an ability to perform substantial gainful activity for 8 hours a day, nor can her testimony be reasonably construed as conflicting with Dr. Hoy’s assessment as to her ability to stand. See e.g., Kalmbach v. Comm’r of Soc. Sec., (finding the claimant’s ability to prepare her own meals, dress herself independently, drive short distances and go to the grocery store, pharmacy and church constituted “minimal activities [that] are hardly consistent with eight hours’ worth of typical work activities”).

Nonetheless, many judges seize upon inconsistencies when the claimant appears, directly or indirectly, to report unrestricted home activities and then reports more narrow activities to a medical provider. Often, as we argue, this does not account for disability symptoms waxing and waning for claimants, or the ability to perform an activity for an hour but not for longer time periods. While there are arguments on both sides of the equation, advocacy dictates that the medical record and activities must be taken as a whole. Cherry picking of the evidence, including when some activities occur, is largely prohibited, and often in controversy. See, Johnson v. Comm’r, (“This Court has not hesitated to remand cases where the ALJ engaged in a very selective review of the record and significantly mischaracterized the treatment notes.”).

The timing in determining when to hire an attorney is often a difficult decision for an individual. Some claimants wait too long and often face a multi-year delay or have a hearing where no additional evidence is allowed. It is not required to have an attorney or representative to apply for Social Security Disability benefits. Yet an attorney often allows for faster and more successful resolution of a claim. Moreover, too many individuals, their claims seem far easier than it actually is. The Social Security Administration conducts an analysis where they look at a person’s age, vocational background, skills, and diagnoses and treatment, and often concludes where the individual is deemed to have significant disabilities – but there are still jobs the individual can perform. Even if the vocational analysis results in a narrow class of jobs, the result can preclude disability approval. Some additional factors are at play:

• Many applicants are turned down because they do not understand the complicated application process. This can be due to the process itself, or because of a learning disability or difficulty in comprehension or reading. An attorney can help you understand what is required for the application and assist in completing any documents that may be difficult to understand. Disability attorneys can help guide you through the entire application and appeal process.
• Applicants are often denied because they fail to maintain contact with the Social Security office. Some must move to new locations, move in with family, or cut internet services. An attorney acts to assist in easing the level of communications with Social Security, help schedule some of SSA’s consultative exams and deal with SSA inquiries.
• A skilled Social Security Disability attorney can help you develop your medical evidence. The focus on sound and reliable medical evidence is often the key in successfully proving your eligibility for benefits. The people who review your claim may prefer you get an MRI, for example, rather than treat with your internist. Often, Social Security finds medical evidence “incomplete” or “insufficient” to grant a claim. An attorney can help gather the additional evidence necessary to support your disability claim, as well as a physician’s opinion of your impairment.
• A Social Security Disability attorney has the experience to notice if there are additional conditions/impairments that may not have been included in your application. Additional impairments, or a combination of impairments, often result in a higher chance your claim is granted.
• Attorneys assist in the appeal process if a claim is denied and represent clients at Administrative Law Judge hearings. This can include presentation of the evidence, preparation in answering questions posed by an Administrative Law Judge, and cross-examining of witnesses, such as medical or vocational experts called to testify during the hearing.

A Social Security Disability benefits claim has a unique set of criteria and regulations that guides the decision-making process. A Social Security Disability attorney has the experience necessary to navigate this very important and often lengthy process with your needs in mind. An attorney protects you from making certain errors that can harm your chances for a successful outcome. Individuals filing for disability benefits have the option to file online or over the phone. In order to apply online, use Social Security’s online website, www.ssa.gov. A simple consultation with our attorneys, free of charge for SSA disability claims, often ferrets out which is the best option for our clientele. You will typically need a Birth Certificate, proof of U.S. citizenship or lawful alien status, U.S. Military discharge papers (if discharge was before 1968), W-2 forms or self-employment tax returns for the last year, medical evidence you may have in your possession (records, doctor’s reports, or medical tests), prescription evidence preferably from your local pharmacy, medical testing results and reports, and proof of any temporary or permanent worker’s compensation-type benefits.

The ongoing COVID pandemic has affected everyone’s lives over the past 20 months or so. Even those who did not suffer from the disease often had friends or family who did, or had employment interrupted or affected. Prices seem to continue to spiral upward in this environment. The day-to-day disruptions to all of our lives continue to this day, and will do so in the future as well. For those employed, for those unemployed, for those who have new or ongoing litigation issues, and for those pursuing benefits for disability, the pandemic has brought added changes and challenges.

As to the disease itself, our attorneys here at Margolius, Margolius and Associates are currently representing a number of clients who have ongoing symptoms many months after recovering from an acute COVID infection. Some of these inpiduals have what is called “Long COVID,” suffering from ongoing symptoms such as weakness, fatigue, confusion, and shortness of breath, needing the use of oxygen in some cases. Some request accommodations when still working under the ADA, where an interactive process of give and take is contemplated. The inpidual can be overhwelmed by the approach often taken by HR managers, sometimes overtly negative.

For those seeking disability benefits, in order for a medical condition to be a “disability” for the purposes of the Social Security Act, the condition must limit the person’s ability to work for at least 12 consecutive months. Therefore only those who continue to suffer from “Long COVID” symptoms for longer than a year would be eligible for benefits based upon those symptoms. In many of these cases, our attorneys continue to monitor these inpiduals to see whether their ongoing symptoms will last; in other cases, it is clear that the symptoms will last- some clients have been informed by their physicians that they will require supplemental oxygen for life. We continue to adapt to this challenging new area, where existing law meets emerging medicine.

But, not only has the disease changed the lives of those suffering long-term, it also affects the presentation of litigation claims and Social Security claims. Delays are the number one enemy of litigants. The old axiom of “Justice Delayed is Justice Denied” has more impact than ever, with adjudicators often postponing maters interminably due to a surge in the virus. Some postponements are in fact legitmate and most adjudicators are simply doing their best.

Local Social Security offices continue to be closed to the public across the US, with the local office staff personnel working from home in most cases. This presents challenges for our staff in ensuring that the claims of our clients remain “on track.” The biggest change, however, is in how the Social Security judges conduct disability hearings. Since March of 2020, all disability hearings have been conducted via telephone conference; more recently, the option to conduct hearings by video conference is another possibility. While disability claimants can object to the phone or video hearing procedures, and obtain an in-person hearing, we have no idea when in-person hearings will once agin begin to be scheduled, so objecting to the phone (or video) hearing procedures means further delays for the disabled. In addition, technical difficulties with poor phone or video connections mean that our attorneys must adapt their presentations to ensure that the Judge gets the full picture of the client’s case, and that a clear record of the hearing testimony is made in spite of any technical issues. Things that might be immediately obvious if the Judge could see the disabled person (such as, for example, missing fingers or limbs) now become the responsibility of the attorney to explain verbally to the Judge, and to elicit through testimony by detailed questioning.

Most of all, though, our staff and our attorneys miss being able to meet our clients in person, whether in our office or at the hearing. At Margolius, Margolius and Assocs., we have always believed in the “personal touch” in representing the disabled, and we look forward to continuing to do so in the future. We welcome in person appointments, zoom appointments, or telephone appointments. The choice is yours but do know we are available for any questions you may have.