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The First Step: Filing an Application for Disability Insurance Benefits or Supplemental Security Income.

Deciding to file for Social Security benefits is an important decision, but filing the actual application for Disability or SSI should not be confusing or intimidating. The Social Security Administration offers different options for claiming benefits in an attempt to make this process more comfortable.

An application can be filed in person at a local social security office,by callingSocial Security at 1-800-772-1213 or by going on-line at www.ssa.gov.  The disabled individual can file a claim on his or her own or with the help of a family member or friend.  Assistance can be provided by an intake worker at the Social Security office or  a private attorney can be retained to help deal with the paperwork and establish entitlement to disability.

Special care should be taken if the disability applicant decides to file a claim on line.  The only official website for filing benefits is www.ssa.gov.  Other sites are really only solicitations by attorneys or non-attorneygroups masquerading as Social Security.  These sites mislead the disabled person into supplying personal information and result in a call or letter suggesting that the attorney or non-attorney group should represent the applicant in their claim for benefits. I just saw a gentleman in my office today who mistakenly thought he had filed for benefits, but instead had only given his private information out to one of these fake sites.  This causes unfortunate delays for people who need financial and medical assistance as soon as possible.

Your Rights Under Federal and Ohio Employment Law

While there are a number of protections for employees, the framework of employment law is generally premised on the employment at will doctrine.  For employees who do not have a contract, which are most employees in Ohio, considerable leeway is given to an employer in a discharge or disciplinary action.   Often, even the unfair or ever error ridden discharge decision survives under this doctrine.  Exceptions to the employment at will doctrine occur with union employees and sometimes with executive employees who have contracts.

However, a series of statutes  gives some protection to employees.  Particularly the discrimination statutes (age, race, disability, sex) state that those protected classes cannot be treated less favorably.    The employment at will doctrine may operate as a backdrop but if one can prove that race or age or gender or disability was the motivating factor in the dismissal, a case is established. Other statutes also trump the common law employment at will doctrine such as the anti-retaliation workers’ compensation statute, FMLA, or the complex whistleblowing statutes.

The Ohio legislature in 2011 is considering changes to some of Ohio’s discrimination statutes but the changes, sponsored by the chamber of commerce, would favor employers.

Disability Processing Time 10/1/2010 – 9/30/2011

States: Wait Time Processing Time Approval Rate
Ohio 16 mo. 447 days 55.4%
West Virginia 11 mo. 333 days 68.6%
Pennsylvania 12 mo. 362 days 50.8%
Michigan 15 mo. 433 days 54.2%
Florida 13 mo. 387 days 55.3%
Arizona 13 mo. 400 days 54.0%
Nevada 16 mo. 414 days 61.4%
Individual cities: Wait Time Processing Time Approval Rate
Akron 10 mo. 299 days 60.6%
Cincinnati 15 mo. 430 days 52.6%
Charleston 13 mo. 358 days 71.2%
Cleveland 19 mo. 511 days 65.2%
Columbus 19 mo. 544 days 52.0%
Dayton 16 mo. 470 days 43.7%
Morgantown 14 mo. 395 days 52.4%
Pittsburgh 16 mo. 458 days 51.3%
Seven Fields (Pa.) 12 mo. 357 days 46.9%

Disability Discrimination and the Issues You Should Know

Many of our clients are confronted with work restrictions where they want to work and do their job, but there are physical or even mental health disabilities which impede their overall productivity.  From the employer’s view, they want to insure that the employee can still do the job and are often unjustly concerned about perceived increased costs and safety.  This scenario calls into play the reasonable accommodation provisions in disability law where a balanced approach is undertaken to allow the employee to work.  Under the accommodation provisions, the employee may be allowed to modify the job to some extent so long as they still do the essential functions of the job.  This accommodation however must be reasonable, with that standard usually controlled by costs to the employer (undue burden) and a determination whether the essential functions of the job are still occurring.

The reaches of this portion of the law are extensive. For example:

an employee in a manufacturing job with disc herniations may be entitled to use a hoist to get parts to their work table; or

  • an employee may be able to get extra time off for chemotherapy or doctor appointments for a disease; or
  • an employee may be able to get extra bathroom time if they have Chron’s disease.

The key is to make a calculated, thoughtful accommodation request that is not overreaching, and preferably to make this request in writing and use the term “accommodation.”

Many employers recognize these provisions and their overall goal, and welcome the idea of keeping employees productive.   Some employers resist, even with long term employees, as seen in the Sicklesmith case elsewhere in the website.    (See entire court opinion at:  http://www.supremecourt.ohio.gov/rod/docs/pdf/7/2006/2006-Ohio-6137.pdf )

Receiving Benefits – Avoid Overpayments

No one deserves peace-of-mind  more than a disabled individual who has already established entitlement to Social Security benefits.  Usually the only requirement for benefits to continue without interruption is for the individual to continue with medical care, follow medical advice and not engage in substantial work activity. However, circumstances can affect the level of a benefit payment and must be dealt with directly to avoid an overpayment of disability. Overpayments are aggressively pursued by Social Security so the best defense is a good offense.

Overpayments generally occur when there has been work activity or if the individual is receiving benefits from another disability/injury  program such as workers compensation, PERS, or SERS.  However, if the disabled person is receiving SSI benefits, an overpayment can occur with any addition of income or resources.

If a disability recipient is advised of an overpayment, the individual should take two immediate actions: (1) file an appeal asking that the presence and amount of the overpayment be reconsidered and (2) file for a waiver requesting that collection of the overpayment be excused. If Social Security requires repayment of the overpayment, a monthly payment plan can be arranged.

Questions?  We’ll Try To Provide The Answers.

If you have any questions about Social Security, long-term disability, employment law or litigation, feel free to email your question to info@margoliuslaw.com and we will try to answer your question or post the issue in future articles.  For more immediate help or representation, call 1-800-234-7792.

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