New Proposed Rule That Could Affect SSI Recipients

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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).

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/

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.

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, iPad 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)