Our Cleveland office has moved to 55 Public Square, Suite 1770, Cleveland, OH 44113.

 

News and Information Relevant to Your Legal Issues

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.

FOCUS: Activities of Daily Living Analysis

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.”).

When You Should Hire a Social Security Disability Attorney

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.

Covid-19 in Litigation and Social Security Disability Settings

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.

Legal Standards to Prove A Case

It may be worth reminding people about some of the different standards of law we face. Most civil cases, such as car accidents, employment cases, or contracts, operate under a “preponderance of the evidence” standard. This often is referenced as needing 51% of the evidence in your favor, or showing a greater than 50% chance that the claim is true. Criminal cases require proof beyond a reasonable doubt, which is a much higher standrd but has no exact definition. That standard, however, has never been defined by the United States Supreme Court. See Thomas v. Arn; 1 Sand et al., Modern Federal Jury Instructions (1991) 4-8, Section 4.01. The Ohio legislature has defined that standard in R.C. 2901.05(D) as follows: “ ‘Reasonable doubt’ is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. ‘Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.” State v. Van Gundy.

To complicate matters, some courts give deference to decision makers when reviewing an administrative determination. In Social Security cases, there is something which almost allows a rubber stamping of decisions called a “zone of choice” for the ALJ (See, Buxton v. Halter). Yet there are other rules which prohibit decisions with an inadequate basis in the record, or ignoring evidence, for example. In one of our Social Security cases, the Court reversed the ALJ’s decision but stated “The findings of [an ALJ] as to any fact, if supported by substantial evidence, shall be conclusive…. In other words, on review of the Commissioner’s decision that claimant is not totally disabled within the meaning of the Social Security Act, the only issue reviewable by this court is whether the decision is supported by substantial evidence. Substantial evidence is “ ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. This is so because there is a “zone of choice” within which the Commissioner can act, without the fear of court interference.” We reversed that case, proving that the ALJ exceeded his authority and ‘played doctor.’ “Given the format and the context of Dr. Troese’s report, the information and findings contained within it constitute “raw” medical/psychiatric data that the ALJ cannot interpret – let alone convert from areas of functioning into the six specific regulatory domains – without the opinion of a medical expert. The ALJ may be right or wrong, but remand is necessary for Dr. Troese’s findings to be interpreted within the framework of the relevant regulatory domains.” Eng. on behalf of A.E. v. Comm’r of Soc. Sec. Admin.

To complicate matters further, a long term disability case is reviewed by a court on a standard called “arbitrary and capricious.” Similar to the zone of choice, this means that Courts give deference to an underlying decision-maker, and a decision is upheld so long as there is “a deliberate principled reasoning process … supported by substantial evidence.” Courts rarely reverse LTD decisions under this very favorable standard, much to the benefit of large companies like Prudential, MetLife, Unum, and LINA. This quote comes from another one our cases where we reversed the insurance company, finding it “acted arbitrarily and capriciously in denying a participant’s claim for long-term disability (LTD) benefits, based on a selective review of her physician’s treatment notes, quoting language favorable to non-disability assessment while inadequately explaining its basis for rejecting physician’s observations favorable to the participant [and ignoring evidence].” Myers v. Mut. of Omaha Life Ins. Co., (N.D. Ohio 2016).

Cost-of-Living Adjustment (COLA) Information for 2022

Social Security and Supplemental Security Income (SSI) benefits for approximately 70 million Americans will increase 5.9 percent in 2022. The 5.9 percent cost-of-living adjustment (COLA) will begin with benefits payable to more than 64 million Social Security beneficiaries in January 2022. Increased payments to approximately 8 million SSI beneficiaries will begin on December 30, 2021. (Note: some people receive both Social Security and SSI benefits). The maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $147,000. The earnings limit for workers who are younger than “full” retirement age (see Full Retirement Age Chart) will increase to $19,560. (SSA deducts $1 from benefits for each $2 earned over $19,560.) The earnings limit for people reaching their “full” retirement age in 2022 will increase to $51,960. (SSA deducts $1 from benefits for each $3 earned over $51,960 until the month the worker turns “full” retirement age.) There is no limit on earnings for workers who are “full” retirement age or older for the entire year.

In December 2021, Social Security COLA notices will be available online to most beneficiaries in the Message Center of their “My Social Security” account. The purpose of the COLA is to ensure that the purchasing power of Social Security and Supplemental Security Income (SSI) benefits is not eroded by inflation. It is based on the percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) from the third quarter of the last year. If there is no increase, there can be no COLA. The CPI-W is determined by the Bureau of Labor Statistics in the Department of Labor. By law, it is the official measure used by the Social Security Administration to calculate COLAs.

Source: SSA.gov/cola/

School Employee, Teacher and Public Employee Disability Benefits: When Do You File and What Should You Know?

The process for filing disability under all three state systems is quite similar. To file, you would contact your retirement system and ask for a disability application packet to be sent to you (the OPERS application is available online at www.opers.org/disability). All applications require that your Attending Physician certify your disability on a specific report form and that your employer complete a report regarding your prior employment. You will also need to provide information regarding your disability and why you feel you are unable to continue working. If you have worked in more than one of the three systems, you must file in the system where you have the most credits. The time requirements for returning the parts of the application are very important and must be complied with or your application may be dismissed. Once the retirement system receives your application, it will be forwarded for review by their medical review organization. You will be asked to be examined by a physician of their choosing. That physician will make a recommendation as to whether your benefits should be approved or denied. Ultimately, the retirement board will vote to accept or deny your claim and you will be notified of this decision, in writing, by mail.

You have extremely short deadlines for filing appeals of these claims if they are denied. You do not want to delay in contacting representation if you are denied, and we recommend retaining counsel prior to filing your application to put you in the best position for submitting a complete and appropriate disability application. You are entitled to one appeal of a disability denial, which goes before the retirement board. If that appeal is denied your options are either to pursue the claim into Court or, if you have time within the one or two-year filing requirement, to file a new claim alleging new disabling impairments or worsening of a previously alleged impairment.

School Employees Retirement System of Ohio Disability Claims: There are two plans for disability benefits with the School Employees Retirement System of Ohio – the New Plan (for those who became members on or after July 29, 1992) and the Old Plan (for those who were members before July 29, 1992, unless you exercised a one-time option to switch to the new plan.) Under the Old Plan, you must file for disability prior to age 60. Under both plans you must have 5 years of service credit to file for disability and you must file your disability application no more than 2 years from the date that your contributing service ended. You must have a condition or conditions that prevents you from working in your own SERS-covered job. Moreover, you will not be eligible to file for disability for any condition that resulted from your commission of a felony or that occurred after your employment ended. You will also be ineligible to file for disability if you withdrew your funds from your retirement account or elected to receive a service retirement benefit. Once your complete application package is received by SERS, they will contact your employer to obtain information on your most recent job duties and payroll information. After sending you to see an SERS-appointed doctor, the SERS retirement board’s medical advisory committee or the chair of the committee will review the doctor’s report and your complete application package and make a recommendation to the Board either to approve or deny your claim. Under current standards, you are provided 15 days from the date on the notice of denial to file your notice of intent to appeal the Board’s decision. The Board then must receive your additional evidence in support of the appeal within a specified period of time. You may request a personal appearance before the board with legal counsel and/or your doctor – but this request must also be submitted within 15 days of the Board’s denial of your application.

State Teachers Retirement System of Ohio Disability Claims: There is also an old and a new plan for disability in the STRS system based on whether you were a member before July 29, 1992. For anyone hired after June 30, 2013, you must have at least 10 years of qualifying service credit with STRS. In Ohio, in order to be eligible to file for disability, your application must be received within one year of the last date you contributed to service in any of the three state retirement systems. If you were a member on or before June 30, 2013, you need only have 5 years of qualifying service credit and you are given two years to file a disability application. You must also file your application before you turn age 60 and not be receiving service retirement benefits. In order to be eligible for disability benefits – you must have a medical condition or conditions that prevents you from performing the duties of your occupation as a teacher. Once you receive the application package from STRS, the Report by Employer must be returned to STRS with a copy of your most recent official job description. The attending physician statement must be completed by a medical doctor (M.D.) or a doctor of osteopathic medicine (D.O.) – a report from a nurse practitioner or a psychologist will not be acceptable. That doctor must have examined you within the last two months. Your doctor must certify that your medical condition is and will continue to be disabling for at least 12 months from the date STRS receives the application. For applications received on or after June 7, 2019, the doctor must be a medical specialist – that is – not a primary care physician, but someone who has completed further education to specialize in the treatment of your disabling condition. If your application is denied, you have only 15 days from receipt of the denial notice to submit notice of your intent to appeal with notice that you intend to submit additional medical evidence contrary to the findings of the independent medical examiner(s), as well as notice if you are requesting an in-person appearance before the board, with or without legal counsel. You will then have a short period of time to submit your additional medical evidence after your notice of intent to appeal is filed. If your appeal is denied, your recourse is to file a claim in Court or, if you have additional time remaining, to file a new claim alleging a new disabling condition or worsening of a previously alleged impairment.

Ohio Public Employee Retirement System Disability Claims: Under this system, an applicant has two years from their last date of contribution to file an application for disability benefits. If you apply for disability benefits on or after January 7, 2013, then your application will initially be evaluated under an “own occupation” disability standard – meaning whether you are physically or mentally incapable of performing the duties of your last public employment position. Your condition must be permanent (that is defined as expected to last for a continuous period of at least one year following the date of filing.) You will continue to be evaluated under the own occupation standard for the first three years you receive disability benefits (if your claim is approved.) However, after three years, OPERS will review your claim under an “any occupation” standard and you will have to show that your medical condition(s) prevents you from the duties of any position that you are qualified to do, reasonably found in your region, and that replaces at least 75% of your inflation-adjusted final average salary (FAS). If you are filing under the Original Plan (a member before July 29, 1992) Group A or B, you must file for disability before age 60. If you are in the Original Plan Group C, you must file for disability before age 62. If you are in the revised plan, you can apply at any age. If your claim is denied, you have 30 days from the date of notice of denial to appeal the decision. You then must, within 45 days, submit a completed Report of Physician along with additional objective medical evidence in support of your appeal.

News Relevant to Your Legal Issues

Update: A semblance of normalcy is returning to litigation and legal issues throughout the country. Once dormant, litigation is slowly returning to a more normal status. As before, Social Security disability hearings continue to occur, mostly by telephone. The administration is conducting some hearings by video as well.

In most all legal forums, if individuals do not have video capabilities on their phone, I-pad or computer, then telephone or in-person accommodations are available.

Long term disability claims are being processed at pre-pandemic levels. Still, many insurance carrier employees are working remotely and communication delays may occur.

Employment litigation and personal injury claims are proceeding forward in a relatively normal manner, with some tendencies towards more distant scheduling of trials and deadlines. There is some backlog in addressing these cases by the Courts.

Questions: Contact us by phone (216-621-2034)

Are Social Security Benefits Taxable?

Per tax experts at AARP, Social Security disability benefits may be taxable, “depending on two things: the type of disability benefit you get and your overall income.” It depends, to some extent, on whether you receive SSI or SSD:

“Social Security operates two benefit programs for people with disabilities:Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). SSI is cash assistance for disabled, blind and older people with low incomes and limited financial assets. Social Security administers the program, but money from the U.S. Treasury, not your Social Security taxes, pays for it. SSI payments in 2021 max out for an individual at $794 a month from the federal government, not including supplements in [some] states, and $1,191 for a married couple. Those benefits are not subject to income tax. However, SSDI is potentially taxable using the same set of rules as Social Security retirement, family and survivor benefits. Whether you pay taxes on SSDI benefits depends on what the Internal Revenue Service calls your “provisional income.” Thats the sum of your adjusted gross income, tax-exempt interest income and half of your Social Security benefits for a given year. Here’s how it works:

  • If those three figures add up to less than $25,000 for an individual taxpayer or $32,000 for a married couple filing jointly, you won’t pay taxes on your SSDI.
  • If your provisional income is $25,000 to $34,000 for an individual or $32,000 to $44,000 for a couple filing jointly, up to 50 percent of your benefits are subject to taxation.
  • If it’s more than $34,000 for an individual or $44,000 for a couple, you are taxed on 50 percent to 85 percent of your benefits.

Say you’re a single filer receiving the average SSDI benefit of $1,277 a month in 2021. You have a part-time job that pays $15,000 a year and receive $5,000 from investments and dividends. Your provisional income is $27,662, half of your Social Security benefits plus $20,000 in other income. You are in the category of owing taxes on up to 50 percent of your benefits, although in this example it would be considerably less: Plugging these numbers into the IRS’ online tax tool, the Interactive Tax Assistant (ITA), indicates that $1,331 of your benefits would be subject to federal income tax, at the same tax rate as other income – in this case, you’re in the 12 percent bracket. Most disabled beneficiaries don’t owe taxes.

As a practical matter, many SSDI recipients don’t face this issue because their overall income is too low to reach the tax threshold. Disability benefits are intended to support people who largely are unable to work because of a severe medical condition, and Social Security strictly limits how much you can earn from work and remain eligible for SSDI. In 2021 the earnings cap is $1,310 a month for most beneficiaries.

According to the Social Security Administration, about a third of disabled beneficiaries pay taxes on their benefits. When they do, it’s typically because of other household income, such as a spouse’s earnings. To determine if your SSDI is taxable, enter your benefit, income and marital information into the IRS online tax tool or fill out Worksheet 1, “Figuring Your Taxable Benefits,” in IRS Publication 915, “Social Security and Equivalent Railroad Retirement Benefits.”

Keep in mind

  • As with other types of income, you can make quarterly estimated tax payments to the IRS or elect to have federal taxes withheld from your Social Security payments to avoid a larger bill at tax time.
  • Thirteen states – Colorado, Connecticut, Kansas, Minnesota, Missouri, Montana, Nebraska, New Mexico, North Dakota, Rhode Island, Utah, Vermont and West Virginia – tax some or all disability benefits. Rules differ by state. Contact your state tax agency to learn more.
  • Back pay – past-due disability benefits you can get in a lump sum from Social Security if you face a lengthy delay in getting approval for your claim – count toward provisional income for the year in which you receive them. That could bump your income over the threshold for taxation of benefits. If this happens, the IRS offers alternative calculation methods that may reduce the tax impact. You’ll find details in IRS Publication 915.

MMA note: Part time work and part time earnings in the above examples would eventually terminate disability benefits. Currently earning $940 a month puts an individual into a trial work period. A trial work period of nine (9) months, not consecutive, can cause cessation of disability benefits.

Source: AARP, July 7, 2021

Average Wait Times for Social Security Hearings

[Many of you have requested a reprint and update of the time involved before SSA hearings are scheduled.] A large problem with Social Security disability claims is the delay in getting SSA to decide cases. After the initial application and reconsideration, these delays have historically led to undermining some of the program’s purposes. Some delays had previously averaged 1.5 to 2 years or more.

Waiting for your SSA hearing causes hardship, financial insecurity, reduced access to healthcare, and emotional turmoil. MMA has always pushed to reduce this delay by urging the hiring of more ALJ’s and staff, and avoiding undue legal burdens in obtaining benefits. Current hearing wait times in some of the cities where we represent claimants are as follows:

  • Akron: 6 months
  • Cincinnati: 7 months
  • Cleveland: 8.5
  • Columbus: 9 months
  • Dayton: 8 months
  • Toledo: 7 months
  • Pittsburgh: 6 months
  • Chicago: 10 months
  • Charleston W.Va.: 10 months
  • Indianapolis: 9 months
  • Seattle: 14 months
  • Atlanta: 9 months
  • Tampa: 7.5 months
  • Lexington KY: 9 months

(Statistics as of June 2021)

The wait time from a reconsideration denial to a hearing is bad enough, but note that further delays often occur before the issuance of a decision. Most ALJ’s do act reasonably and timely, but some have taken more than a year to write a decision following a hearing. One of our mottoes is “justice delayed is justice denied” and as a result, MMA continues to push for expedited hearings and timelines, telephonic hearings (at this time), and greater SSA staffing.

The MMA Law Firm: Our Staff and Our Attorneys Are Our Biggest Assets

We at Margolius, Margolius and Associates are proud of our attorneys and staff. Our highly experienced attorneys are Rigel Ariza, Michelle DeBaltzo, Emily Gilbert, Markus Lyytinen, Michelle McFarland, Paul Newendorp, Jennifer Hanselman Regas, and, of course, Marcia and Andrew Margolius. Our staff and case workers are also highly valuable. They are Valarie, Valerie, Lisa, Angela, Sue, Denise, Tamika, MaryAnn, Sara, Nancy, Donna C. and Donna J. And our receptionist, Debbie, is the valuable conduit for all communications. We value them all. We have lead attorneys on your case but use a team approach. This team approach includes you, and we value your inut and insight. Please do get to know us, and feel free to call for updates or new information. We make sure our clients are prepared, we discuss procedures and we discuss new developments. It is all part of our job and our continuing duty to you, the client. Offices are located in both Cleveland and Columbus, Ohio; with service throughout the Ohio and mid-west region, Florida, Georgia, and elsewhere.

Disability Decision Data and Percentage Chance of Winning in SSA Disability Claims

This chart shows the chances of success at the five major disability levels: initial, reconsideration, ALJ hearing, Appeals Council, and Federal Court. This represents general chances of winning, and is not divided into regions or law firm representation.

Source: 1) Initial and Reconsideration Data: SSA State Agency Operations Report; 2) Administrative Law Judge and Appeals Council data: SSA Office of Hearings Operations (OHO) and Office of Analytics, Review, and Oversight (OARO); 3) Federal Court data: SSA Office

Litigation and Social Media

Many of our litigation clients get confronted with inquiries about social media in the litigation process. Our modern society encompasses use of Twitter, Facebook, Instagram and other media without much thought. A quick picture, a comment, an invitation or a joke are generally considered harmless but one misstep can be seized upon by a savvy defense lawyer, and ruin your claim.

For example, you post a picture of yourself at a bar on the night you were harassed, or you joke about suing your employer in a Facebook post. Even if this was a joke, or you are celebrating your husband’s birthday, or just enjoying your private life, it could give grounds to dispute your claim of emotional distress damages.

In Georgel v. Preece, a 2014 federal court case, the employer asked for extensive social media information, including full URL, user names, passwords, school, networks, birthdays, email addresses, and passwords, for three years for Facebook, Myspace, Instagram, Snapchat, Twitter, Topix, and LinkedIn, along with photographs, videos, applications, postings, wall postings with comments, messages, friends lists, comments, tweets, etc. The Plaintiff argued the requests were overly broad. The Court noted that litigation discovery is broad, as opposed to trial evidence, and “it must first be stated that there is no dispute that social media information may be a source of relevant information that is discoverable. Courts have found, particularly in cases involving claims of personal injuries, that social media information may reflect a plaintiff’s emotional or mental state, his or her physical condition, activity level, employment, this litigation, and the injuries and damages claimed. The Court told the Defendant to narrow its discovery requests, allowed some of the requests, and seemed to split the baby down the middle. In Howell v. Buckeye Ranch, Inc., a federal case in Ohio (2012), the Plaintiff was required to produce social media data that was deemed relevant and ordered not to delete such data. Similarly, in Locke v. Swift Transportation Co. of Arizona, a Kentucky federal case in 2019, the Plaintiff had to produce information relating to physical activities or mental status for a six month period following the incident causing the lawsuit. Defendants analogized Plaintiff Locke’s social media activities to a diary containing information concerning her claims and her alleged injuries and damages.

Bottom line: be very careful about what you post if you are contemplating litigation, or even when seeking employment. Some or all of the social media content is discoverable, and often is taken out of context.

Biden Fires Social Security Boss, a Trump Appointee, who Refused to Resign

President Joe Biden on July 9, 2021 fired the head of the Social Security Administration after the official, who was appointed by former President Donald Trump, refused to resign.

The White House said the Social Security commissioner, Andrew Saul, “undermined and politicized” the agency’s benefits, among other things that warranted his firing. Saul’s deputy, David Black, who was also appointed by Trump, resigned on Friday at the White House’s request.

“Since taking office, Commissioner Saul has undermined and politicized Social Security disability benefits, terminated the agency’s telework policy that was utilized by up to 25 percent of the agency’s workforce, not repaired SSA’s relationships with relevant Federal employee unions including in the context of COVID-19 workplace safety planning, reduced due process protections for benefits appeals hearings, and taken other actions that run contrary to the mission of the agency and the President’s policy agenda,” the White House said.

Saul remains defiant and vows to fight the discharge. Upon being informed of his ouster Friday, Saul insisted that his firing was unconstitutional and threatened to sue.

Source: CNBC; Los Angeles Times

A message to Our Valuable Clients

Our law firm has been relying on telephone and internet during the pandemic as a vital means of communication between client and attorney. We now have access to in-person meetings although many of you have voiced that telephone, zoom or skype communications are preferable. Our goal is to insure that we have clear, comfortable and convenient communications, and to give you choice. Let us know works best for you and your schedule. We are happy to accommodate in any way possible.

Please note our phone calls typically show our office number (216-621-2034). Sometimes, when working from home or over the weekend, our calls may appear from unknown or blocked numbers. We understand if you do not pick up one of these phone calls as there is so much spam-calling these days. However, we will leave a message, so please call us back, preferably during our working hours of 8am-6pm. After hours, a phone service is turned on. You may also email us at any time as well.

Long Term Disability Insurance Company Pushes for “Independent” Medical Exam

When individuals receive notice that their disability claim is suddenly being reviewed, and/or are being requested to attend an independent medical exam, confusion and fear sometimes occurs. While it is something you should not ignore, it does not mean that the claim will be denied or that your benefits will be disrupted. An independent medical examination can be an opportunity for you to provide important, relevant information to the LTD provider. This right to a medical exam emanates from a provision in the insurance policy with the insurance company.

Bear in mind that the idea that this is an “independent” examination is a misnomer. It is the LTD carrier that is deciding on the doctor to perform the exam, providing the questions to be answered by the doctor and paying the doctor. Often, a natural conservative bias results in conservative medical reports. With this in mind, here are some important steps that you can take to ensure a smooth process.

From a convenience viewpoint, initially confirm that the provider is within a reasonable distance to your location to attend the examination. “Reasonable” for purposes of an independent medical examination does not have a precise definition, but if it is more than 75 miles away from you, and traveling that far presents a challenge, you can ask to be provided with a consult closer to your home. The LTD carrier may fight about this, but with diligence, they usually can be convinced to find a closer consultative physician. Once there is an agreed upon provider, you need to confirm the date, time and location of the examination with the doctor performing the consultation. If you know you will not be available, do not delay, immediately contact the provider and the LTD carrier and request to reschedule the examination.

Clients frequently ask, “What should I know about this exam?” There are several things to be aware of. LTD carriers will often schedule surveillance of the claimant to occur the day before, the day of and the day after an IME as they are basically guaranteed to obtain footage of the claimant leaving their home. Therefore, you should treat this period of time as a prime opportunity to demonstrate your abilities and limitations. While you should always be operating within your restrictions, it is particularly important not to take any unnecessary risks or push outside of your limits during this window of time. Similarly, the day of the examination, and even before, you should presume that you are being observed from the moment you enter the parking lot of the building where the exam occurs, until the moment your vehicle leaves that same parking lot after the examination is over. This means that you may be observed in terms of how you exit your vehicle, whether you drove yourself, if you required a cane or walker to get from your car to the door of the building, etc. While in the waiting room, you can also assume that you are being observed. Consultative examination reports will often discuss whether a person was particularly social or loud while awaiting the exam, whether they were able to sit comfortably or were observed to be in pain, whether they had to leave frequently to use the restroom, etc. all before the actual examination ever starts. Once you are in the examination room, the assistant to the physician performing the exam and the actual physician will observe not only what you say and the clinical findings, but also your efforts, your demeanor and your physical abilities during the exam (i.e. did you have difficulty rising from a seated position, getting on and off the examination table, putting on and taking off your shoes, etc.).

All of this information is shared to show just how thorough the LTD carrier is in obtaining information to make a determination about your functional status. It is not simply a matter of what the doctor found when (s)he manipulated your knee or shoulder on exam. Additionally, prior to a consultative examination being scheduled, the LTD carrier often sends out an extensive questionnaire asking the individual to document their activities of daily living (i.e. what they do all day, what they can do, what they cannot do, what they require assistance with, etc.) Then, once the surveillance and IME are conducted, they will compare the information you provided on the questionnaire against the IME and surveillance information to determine whether what you said you could and could not do in your questionnaire is consistent with what was observed through surveillance and the IME.

There are a few specific recommendations that we typically make for how you can reduce risk, and help improve thee outcome in these situations. First, call us before – not after – the exam. Second, we recommend that you take copies of recent imaging (x-rays, CT scans, MRI’s, EMG’s, breathing tests, etc.) with you and give them to the IME provider. You dont need the actual x-rays etc, just the reports. The IME provider should have access to the medical record that the LTD carrier has, but it never hurts to insure they have the most important documents. Third, it may seem obvious, but do not be combative with the IME provider, and do not exaggerate pain. Nothing good will come from being disrespectful or hostile, and you can be assured that negative behavior occurs during an IME, it will be unfavorably documented in the IME report, and that report will become a part of the permanent LTD file. Similarly, many IME doctors are simply looking for an opportunity to show pain is exaggerated. Third, a great way to communicate how disabling your conditions are is to show how restricted your activities and lifestyle are. Let them know how difficult it is, for example, to fold clothes, or mop, or walk a block. Finally, and as always, stay off of social media. In the same way that being combative never helps, social media is almost always detrimental and a joke or a quip on Facebook can remove some of the legitimacy you have in your claim.

News in the Pandemic Era

Update May 2020 : Disability hearings continue to move forward albeit differently and at an unusual pace. Social Security hearings are being held by telephone and are usually limited to mornings. The Judges are managing these hearings well and have actually been relatively quick in getting out decisions.

Litigation is still moving forward despite a moratorium on trials. Pretrial proceedings are continuing by telephone, some depositions are proceeding by video and document production is unaffected.

Long term disability claims have been subjected to slow downs due to difficulties in obtaining medical records and possible staffing issues with LTD carriers.

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

Look to our web page for more frequent updates. As always, feel free to call us regarding any of your legal questions, needs or concerns, from disability to employment to auto accidents to long term disability.

Employment Law Issues in the Wake of the Covid Crisis

The big and difficult issue involves employees returning to a workplace but only with safe work conditions. Pressures exist on both sides of the equation, with employers seeking a return of employees and increased productivity, and employees needing jobs, under safe conditions. Unemployment claims, as an aside, are moving along at a snail’s pace. Headlines range from “Corporate America seeks legal protection for when coronavirus lockdowns lift” to “What to do if you’re worried about returning to work as coronavirus lockdowns are lifted” New legislation has already touched upon immunities and employer protections but employee rights are still evolving. Opt out provisions for small businesses exist but it would appear most businesses must allow paid leave for employees of two weeks for lockdowns or illnesses and unpaid leave beyond to take care of children. Stay tuned as case law develops.

Note that state and federal disability law protections still give employees rights to request reasonable accommodations in work situations, including return to work situations. This often involves good faith negotiation between employee and employer over safe conditions and whether any proposed reasonable accommodation causes the employer an undue hardship. This negotiation is called an interactive process. Employees may have pre-existing health conditions which could cause an unsafe return to work without precautions for specific efforts by the employer required. This area if of course developing with no case law on Covid applications but make sure you put requests in writing, make them reasonable, and be willing to negotiate, preferably through email.

MMA (Margolius, Margolius and Associates) counsels employees on how to effectively seek accommodations and return to work, or seek leave, in this difficult environment. See also: Article on Workplace Rights

Social Security Administration during the Covid Crisis

As stated in our last newsletter, Social Security is proceeding with its disability claims by telephone rather than in person. While hardly perfect, we have found this transition to be beneficial to our clientele. The alternative is more delay, on top of the 18 months it typically takes a claimant to get a hearing. We oppose all forms of delay although we note other attorneys prefer in person hearings at all costs. Some estimate these in person attorneys can’t occur for 6-12 more months.

SSA has moved towards some telework but slowly. The process has made the Social Security Administration more available to claimants, and is supported by many SSA employees who help us with our claims. But the SSA employees union has filed a complaint with OSHA accusing the agency of forcing employees to work in an unsafe workplace. The issue of telework has see-sawed back and forth and is still in the air. The Office of Operations or the Office of Hearings Operations, which Commissioner Saul wrote would determine whether to restore telework, is occurring on a regional, case-by-case basis. Not easy questions about return to work issues but, as they say, if it ain’t broken, don’t fix it; we support telework and minimizing exposure of SSA employees to hazards.

Ohio House and Senate Fast-tracking Legislation on Employment Discrimination Changes and Lawsuit Immunity for Essential Worker

Discrimination Law

House Bill 352 is being considered by the business-dominated Ohio legislature concerning employment discrimination changes. This affects only state law and procedures. Included within its provisions is the prerequisite that all claims be filed with the Ohio Civil Rights Commission, with a later opportunity to go to court with a right to sue letter. This mirrors federal EEOC claims. The bill eliminates individual liability, even for discriminating supervisors or owners (except for retaliation claims). It decreases the statute of limitations for discrimination claims from six years to two years, following conclusion of any investigation by the Ohio Civil Rights Commission, and it reforms the confusing procedures with age discrimination claims. See Proposed legislation

Immunity Legislation Under Covid 19

Senate Bill 308 gives immunity to all essential businesses, from grocery stores to meat packing plants. This would allow businesses to potentially flaunt safety rules and CDC guidelines and force employees to work under unsafe conditions. Workers compensation laws likely offer only weak protection for employees. Moreover the bill is retroactive to early December of 2019, for no apparent reason. The bill is portrayed as being pro business enabiling employers wide protection if they take precautions to insure a safe workplace. The bill recognizes new immunity protections for health care workers but currently has overly broad protections which do not recognize the need to limit immunity to Covid 19 conditions. The bill also has no effective end date and gives immunity to all businesses, regardless of Covid 19 causation.

Work is needed to craft a more balanced bill, designed to meet its overall purposes but still protect consumers.

Find and Contact Your State Senator

Find Your State Representative