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.

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.

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.

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

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.

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

Easy Way to Register to Vote and Absentee Ballot Voting Ohio makes it easy to register to vote and to also request to vote by mail (absentee ballot). Here are the easy steps to take.

If you want to register to vote, click here.

If you want to vote by mail (absentee ballot), click here.

You will have to print and mail in the form, but it is far easier – and safer – than standing in line. If you need help, or don’t have a printer, you can call your local board of elections and ask that an application be sent to you.

Phone numbers are:

• Cuyahoga County 216-443-VOTE (8683)
• Franklin County 614-525-3100
• (or for Franklin County click here to have the Board of Elections call you now).
• Hamilton County 513-632-7000
• Mahoning County 330-783-2474
  Summit County 330-643-5200
• Lucas County 419-213-4001

After you get the form, you must fill out the request and mail it back to the board of elections.

The importance of you voting has never been greater. Speak up.

For more information on voting, click here Vote 411

If you have applied for disability, you’ll probably hear a lot from your family and friends about Social Security’s two programs for disabled Americans – Social Security Disability Insurance benefits (“SSDI”) and Supplemental Security Income benefits (“SSI”). But much of what you hear may not be correct – about how easy it is or other myths concerning disability is misleading. Since the best way to dispel the myths is with facts, we’ll discuss some of the common myths:

Myth #1: There are huge numbers of people who are on disability benefits.

Fact: FALSE. As of 2019, there were 8.5 million Americans receiving SSDI benefits, out of a total US population of over 326 million. This represents about 2.6% of the US population, including territories. As of 2019, there were an additional 6.9 million Americans receiving SSI benefits, representing about 2.1% of the US population. Thus, only about 4.7% of the total US population receives either SSDI or SSI benefits.

Myth #2: It is easy to get on disability. Lots of people get benefits who don’t deserve it.

Fact: FALSE: It has been estimated that over 57 million Americans suffer from some form of disability. As noted above, between SSDI and SSI, only about 15.4% of the population receive disability benefits, so many people have some level of disability, but do not receive benefits. An international economic group (“OECD”) found the U.S. system (along with those of Canada, Japan, and South Korea) as having “the most stringent eligibility criteria for a full disability benefit, including the most rigid reference to all jobs available in the labor market.”

As for people receiving benefits who should not be, the Social Security Administration is very proactive in pursuing cases of fraud, and the Administration’s estimates the rate of fraud at well under 1% of the total claims.

Myth #3: Immigrants are draining Social Security benefits.

Facts: FALSE: In answering this, we must first distinguish between legal immigrants and undocumented immigrants. As for legal immigrants, those with a “green card” who are permitted to work in the US, can obtain a Social Security number, and are paying into Social Security out of their paychecks – just as US citizens do. They only become entitled to benefits when they have paid into the system for a sufficient period of time, as with US citizens. Actually, since legal immigrants tend to be younger than the US average, they tend to pay into Social Security for a longer period before drawing benefits, and thus are a financial benefit to the system, not a detriment.

As for undocumented immigrants, they have no path to citizenship and cannot obtain a Social Security number, and are not eligible for SSDI benefits. Often these workers will work under a false Social Security number, meaning that they pay into the system but can never receive benefits-they are therefore providing a financial windfall to Social Security.

As for SSI benefits, undocumented immigrants are ineligible for those benefits as well, excepting a small number of those who are granted asylum or refugee status in the US (per SSA figures, these claims average about 6,000 per year, a tiny fraction of the total refugees and asylees).

Social Security Process: My Doctor Told Me to File for Disability, Why Did Social Security Deny My Claim?? When applying for Social Security disability benefits, the strongest weapon in your toolbox is the support of the doctors that treat your medical conditions. Oftentimes, claimants believe that this, alone, is sufficient to establish they are entitled to disability benefits. This is not the case. [It’s a good start however.].

Historically the Social Security Administration previously gave priority (“deference”) and weight to the opinions of your treating physicians. However, in March 2017, the Social Security Administration jettisoned this deference, known as the Treating Physician Rule instead deciding that all medical opinions – even from Social Security’s physicians that never examine you – will be evaluated based upon persuasiveness, that is the general supportability and consistency, of these opinions with the medical record as a whole. We think this undermines the important relationship between you and your doctor.

As you may know, in this day and age, not giving special treatment to your own doctor’s opinion, may seem counter-intuitive. We find it causes delays, leads to confusion, and is disrespectful to the medical profession. Your personal ‘Dr. Fauci’ takes the time to write a letter on your behalf, and yet the opinions are minimized. Your doctor is in the best position to know your limitations and your work abilities. Their opinion / your doctor is the individual who knows your medical situation best. Their reports need not be given absolute authority, but it is far better than a consultant from the Social Security Administration who has known you for 15 minutes and must render an opinion on your complex health issues.

If you have an opinion, pro or con, let Andrew Saul, the Commissioner of Social Security know or share your opinion on SSA’s Facebook page. Mr. Saul has expressed a focus towards making sure Social Security recipients aren’t being scammed.

In an interview with AARP, Mr. Saul, an Ivy League Business Graduate who President Trump appointed for a six year term, seemed to focus not on best evidence but on toughening up disability standards. Entitled: Changing Eligibility Requirements for Disability Benefits, he says “[ w]e have to modernize our disability operation. Some of our regulations are 40 years, 50 years outdated. We had a workforce 50 years ago that was very different than it is today: many more manual tasks, much more hard labor, for example, many more mining jobs, much more manufacturing. Today, it’s much more office work. Also, don’t forget, health care has completely changed in the last 50 years. Fortunately, some diseases that effect a lot of people today, 50 years ago, if you were diagnosed with that disease, you were finished. Today, a lot of productive people have had serious strokes, heart attacks, cancer. Very, very life-threatening diseases. Today, we have medicine that has really cured the problems and allowed people to go on with very successful lives.

It’s important that the disability plan services those people that really are in need of it, and that are really in bad shape. But it’s also important that the plan reflects the current state of the workforce and health care. I think it’s our duty to be sure that, so that these plans survive, they are up to date and run properly.”

I believe that eligibility requirements should be fair and they should represent a person who’s really disabled and should be available for the benefits. That’s why the laws were passed in the beginning. Unfair claims should not proceed. We will make these things fair and they will represent health care today and represent the labor force today.”

A Focus on Our Wonderful Staff

It is hard to pick who to spotlight as we are surrounded by dedicated, hard working people. Pictured below are Mary Ann, Valerie, Sara and Donna J. (pre-covid 19 and masks). Each have been with the firm for many years now, and have contributed mightily to helping our clients fight their way through litigation and disability issues. Mary Ann (administrative appeals) is known for her smile and wit, Valarie (legal assistant) for her energy, compassion and distinctive laugh (giggle), and Sara (bookkeeping) for her big eyes, work ethic, and family values (her mother also works in the office, 50 feet away). Donna J., who is pretty but not in the mood for a photo that day (see pic below), is lead staff in our litigation and long term disability departments. She is super organized, and truly admirable in so many different ways. She has been with the office for 35 years.

We cherish each member of our team and will introduce you to more of them in future mailings.

Mary Ann

Valerie

Sara

Donna J. (sort of)

Donna J

The Firm

Margolius, Margolius and Associates is comprised of attorneys and staff all dedicated to advocacy on behalf of its clientele. We are very proud of our team and know that you feel like you know many of them already. We can’t be neglectful of the fine work performed by each of our attorneys, Rigel Ariza, Michelle DeBaltzo, Emily Gilbert, Markus Lyytinen, Michelle McFarland, Paul Newendorp, Jennifer Regas Hanselman, and, of course, Marcia and Andrew Margolius.

Attorneys are available for consultation to discuss your legal matters, your case status, or new legal questions.

Offices are located in both Cleveland and Columbus Ohio.

An important part of disability law – and your own health needs – is reliance upon the advice of your physician. Their medical opinions are vital, both personally and from a legal standpoint. Until recently, your doctor’s medical opinion on your limitations and abilities was given high priority, or a presumption of validity in legal jurisprudence. More recently however, the current administration and the Social Security Administration have reduced the value of your treating physician’s opinions. SSA now can substitute the opinion of a consulting doctor who may examine you once, or perform a simple paper review of your medical records.

The traditional case law is as follows, but will change: “If treating physician opinions are “well supported by medically acceptable clinical and laboratory diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case record,” then they must receive “controlling” weight. 20 C.F.R. § 404.1527(d)(2); Rogers v. Comm’r of Soc. Sec. , 486 F.3d 234, 241 (6th Cir. 2007). Good reasons must exist for not affording controlling weight to a treating physician’s opinion in the context of a disability determination. Wilson v. Comm’r of Soc. Sec. , 378 F.3d 541, 544 (6th Cir. 2004). If the treating physician opinion is not entitled to controlling weight, the ALJ must determine what weight the opinion should receive consistent with 20 CFR § 404.1527(d)(2); Gayheart v. Comm’r of Soc. Sec ., 710 F.3d 365, 375-377 (2013).” Now, special weight will no longer be accorded to your treating physician’s opinion. Case law is developing about how current treating physician’s opinions are interpreted.

MMA continues to fight the negative effect of this new rule. We feel our clients’ physicians are to be supported, and are in the best position to opine on the health of our clients/their patients.