THE ADA, THE DISABLED, AND THE UNEMPLOYED

THE ADA, THE DISABLED, AND THE UNEMPLOYED.

The Americans with Disabilities Act (ADA) was signed into law 22 years ago.  Great strides have been made – buses and buildings are now accessible, the disabled have employment protections- but more still needs to be done. In this time of economic struggle, the disabled continue to be hit  hard :

• More than one-half of Americans with any disability are unemployed and more than 70 percent with significant disabilities are unemployed;
• During the recent recession the non-disability work force shrank 2 percent, while the number of working disabled fell over 10 percent; and
• Only 5 percent of the nearly 2.5 million people employed by the Federal Government in 2010 were individuals with disabilities.

However, all news is not grim. In 2010, President Obama called on the Federal Government to hire an additional 100,000 workers with disabilities by 2015 (Executive Order 13548).  The Labor Department has issued a proposed ruling calling on federal contractors to make people with disabilities at least 7 percent of their work force. Additionally, private companies like Walgreens are setting goals of hiring individuals with disabilities and persuading other companies to do the same. (Walgreens has hired 1000 people with disabilities in the past four years.)

As Delaware Gov. Jack Markell, a Democrat who was elected chairman of the National Governors Association said last week,  “…It doesn’t matter whether you were born with additional challenges to face or — in the case of our wounded veterans for example – acquired them later in life. What matters is what you have to offer.”

On December 19, 2011, the Office of Disability Adjudication and Review (ODAR) instituted a new policy in which the identity of the Administrative Law Judge (ALJ) assigned to a claimant’s case will not be revealed until the day of the claimant’s actual hearing. It appears that the reason for this new policy is in response to representatives objecting to certain ALJ’s, specifically some of the ALJs at the National Hearing Offices, and some abuse by a particular national (1-800) law firm.

This policy is an attempt to deal with a very specific problem but now creates a new set of issues.  Generally speaking, if a hearing is postponed, the same ALJ retains jurisdiction of the case and the hearing will be rescheduled with the same judge. However, if a person objects to a video hearing, which is to be held by the National Hearing Office, then the file will be transferred to the claimant’s local ODAR office and a local ALJ will be assigned the case.  Most representatives, including our office, do not object to the ALJ or the video hearings by the National Hearing office because the goal is obtain a hearing as quickly as possible so claimants do not have to wait any longer than necessary for their hearings.  However, because of the very questionable actions of a few, ODAR has responded with this sweeping new policy.

This policy, may prevent some abuse, but has caused great difficulties for the representatives the claimants, and even the Judges.  A number of Judges (ALJs) require prehearing memos or briefs in a specific format. We welcome the opportunity to be able to clearly explain our client’s position and need for disability benefits. However, if you do not know which  ALJ is assigned to the case, then you cannot provide that ALJ with the correctly formatted memo or brief. In addition, each ALJ has a particular way in which they conduct their hearing: some require more thorough testimony and some have a specific focus on the key issues. When you know who the ALJ will be, you are better able to prepare for each and every ALJ, including time considerations. Some ALJ’s hearings take longer than other’s hearings and more time is needed for those individuals assigned to those particular hearings.

From the claimant’s perspective, it is assuring for us to be able to tell our clients what to expect during the course of the hearing. But with the new policy, the representative can only provide the claimant with generalities. The more comfortable a client is, the more likely it is that the testimony will be candid, on point, and the hearing process will be more efficient. This is an especially important consideration for those claimants who are already anxious and nervous about their hearing, or have conditions which don’t respond well to pressure.  A concern is that the new policy diffuses the twin goals of assuring fairness to the claimant, and the efficient administration of justice.    In the interim, the ones who abused the system seem to have been forgotten.

The Social Security Administration has just announced cost-of-living increases for 2012. There will be a 3.6 percent cost-of-living increase in Social Security benefits effective December 2011.  This occurs after no increases since 2009.

As a result of this increase,  other benefit rates, values and costs will increase for 2012:

1.    The maximum  Supplemental Security Income (SSI) monthly benefit amounts for 2012 will be $698 for an eligible individual, $1,048 for an eligible individual with an eligible spouse, and $350 for an essential person;

2.    The monthly exempt amounts a retiree can earn for taxable years ending in calendar year 2012 will be $1,220, for years prior to the year in which a person attains his or her Normal Retirement Age (NRA) and $3,240, for the year in which a person attains his or her NRA;

3.   The amount of taxable earnings a person must have to be credited with a quarter of coverage in 2012 will be $1,130;

4.   The monthly amount deemed to constitute substantial gainful activity for statutorily blind individuals in 2012 will be $1,690, and the corresponding amount for non-blind disabled persons will be $1,010. Earnings close to or above this amount precludes disability.

5.   The earnings threshold establishing a month as a part of a trial work period will be $720 for 2012.  Earnings close to or above this amount can cause the receipt of disability to be reviewed and potentially terminated;

6.    The dollar fee limit for services performed as a representative payee will be $38 per month ($75 per month in the case of a beneficiary who is disabled and has an alcoholism or drug addiction condition that leaves him or her incapable of managing benefits) in 2012; and

6.    The monthly medicare rate for most people will be $115.

This information can be found in the Federal Register Volume 76, Number 206 (Tuesday, October 25, 2011) [Notices] [Pages 66111-66117] via the Government Printing Office [www.gpo.gov].  Different factors can affect benefit amounts and earning limits, therefore each person’s individual circumstances must be accounted for.

• For more information: Hire a Pro When Filing a Disability Claim

The Supreme Court issued an opinion on May 16th entitled Cigna Corp. v. Amara which lends itself to a series of differing interpretations.  The Long Term Disability law, ERISA, often has rules which greatly favors insurance companies over individual rights, including very deferential standards of review for the denial of LTD benefits.  The Amara case involved errors and misstatements to Cigna employees about the extent of their pension plan rights. While the Supreme Court reversed the Court of Appeals in favor of Cigna, it felt that a different part of the law (29 USC 1132(a)(3) allowed employees to seek equitable relief if no other portion of the statute specifies relief for the particular violation or error.

While many people apply for Social Security Disability, there is both information and dis-information out there about how the process works and when benefits are awarded.   Whether people get information from the internet, or stories from friends and family, or even the government, some of the misconceptions only serve to frustrate, intimidate, and deter people deserving of help.

While it is true that navigating the bureaucratic maze that Social Security has constructed can be difficult at times, the benefits are there for those who qualify and it is imperative that you don’t give up. Having someone fighting for you, defending your rights, and making sure Social Security gives you a fair shake can mean the difference between success and failure while at the same time lifting the weight from your shoulders and relieving some of the stress in your life. Our firm knows how to get you through this trying process through the efforts of our experienced attorneys and skilled staff.

Here are some of the common ideas many people have when they are considering or applying for Social Security Disability benefits:

My age is the only reason preventing my approval for Social Security Disability:   False

While age does factor into analysis of a claim, it is not determinative as to whether or not you will be approved. If you are over 50, you have certain advantages in the application of the rules. Yet if you are below 50, as many of our clients can attest, your disability may entitle you to benefits.  This includes children and young adults as well.  In short, mental and physical conditions do not care how old you are, and the Social Security disability rules recognize this..

An attorney can’t help me until I am ready to go before a Judge:  False

Your claim for Social Security Disability benefits begins the moment you file your application.  There are two levels of decision-making before the evidence if presented at the hearing level.  At this time, it is imperative that Social Security obtains the specific medical records from your physicians detailing and documenting your conditions, limitations, and symptoms. All too often, Social Security doesn’t obtain all or any of these records, or the wrong type of records and arguments for disability are submitted. Without this information, those responsible for approving your application are unable to do so because they have no hard evidence about your problems.

People unable to do their previous jobs means an automatic approval:  True and False

Individuals 50 years of age and older may be approved for Social Security disability if they are unable to do their previous job.  Other factors include their level of education and work experience, and of course the nature and extent of the disability itself.  Part of our job as your attorney is to identify the rules and apply them, including whether or not this rule will apply to you. For those under 50 years old, we must prove that you can’t perform your previous job and that there is no job in the national economy that you can perform. However, Social Security does not take into account wages or what we call “over-qualification.”  This does not stop our firm from obtaining benefits for our clients but it does complicate the process. We often argue that Social Security must account for all of the factors in maintaining successful employment, some purely medically driven, but some factors more on the medical/vocational or practical side.

Social Security only considers my physical or mental condition but not both:  False

Social Security is required by law to consider all your limitations as a result of your mental and physical conditions. All too often the combination of these problems leaves a person unable to work, but Social Security has discounted or ignored many of your documented symptoms and limitations.   For example, an individual who has bi-polar conditions and degenerative disc disease is entitled to have restrictions from both of these disabilities applied in their analysis.   Our firm has helped pioneer some of the case law in this area.   It is essential to our presentation of evidence and argument that the Social Security Administration must factor in each and every aspect of your disabilities to determine your ability to hold a job.

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/wp 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.

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.

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:  https://www.supremecourt.ohio.gov/rod/docs/pdf/7/2006/2006-Ohio-6137.pdf)