Andrew Margolius and Marcia Margolius Recognized as Super Lawyers in 2020

Congratulations to Andrew Margolius and Marcia Margolius for their selection by Super Lawyers in 2020. Andrew Margolius has been recognized in the area of employment law, and Marcia Margolius has been recognized in the area of Social Security.

Super Lawyers identifies the top five percent of lawyers in each state “to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.” Super Lawyers uses a multiphase process in order to select attorneys, which includes nomination, independent research, peer evaluation, and final selection. More information about Super Lawyers is available in their regional newsletter.

This recognition highlights what our clients already know: Margolius, Margolius & Associates is dedicated to advocacy on behalf of employees and the injured. Read our testimonials to hear more from our clients themselves.

The Social Security Administration allows for quick hearings or an on-the-record decision without a hearing for what is vaguely described as a compassionate allowance. These cases are often difficult to identify and prove.

The regulation states:

Compassionate Allowances (CAL)The CAL process identifies diseases and other medical conditions that invariably qualify under the Listing of Impairments (20 CFR Appendix 1 to Subpart P of Part 404-Listing of Impairments). For more information about the CAL initiative, see POMS DI 11005.604.

Most CAL cases are identified at the initial level of adjudication, but a new condition that develops later can also qualify for CAL processing. Subsequent identification, including at the hearing level, may be based solely on a claimant’s allegation or on new medical evidence of a condition included on the CAL list of impairments. The CPMS case characteristic will be added on any CAL case upon receipt or when identified by hearing office staff. CAL designations are monitored by the OHO RO to ensure the case is expedited.

Another regulation, what is called a POM, states:

The CAL initiative is designed to quickly identify diseases and other medical conditions that invariably qualify under the Listing of Impairments based on minimal, but sufficient, objective medical information. If the condition does not meet these strict criteria, it is not designated as a CAL case. For a complete list of CAL conditions, see DI 23022.080 List of Compassionate Allowance (CAL) Conditions.

There are many, many listings under this regulation identifying severe diseases, from “Adult Onset Huntington Disease” to “Zellweger Syndrome” including many cancers, some of which are inoperable.

There is the possibility that a disease you have could qualify under a compassionate allowance. Contact Margolius, Margolius and Associates so we can review and evaluate if your case can potentially be expedited.

There is also a way to get a quicker hearing date if a claimant has a critical illness. This occurs when a claimant’s illness is terminal and referred to as a “TERI case” (short for Terminally ill). In this instances the inevitably the claimant will end up passing away. Due to their sensitive time frame TERI cases are given evaluation priority for as soon as possible. Critical illness case claims will still be subject to the regular evaluation process.

The regulation states:

I-2-1-40.

Critical Cases

• A. General The Office of Hearings Operations (OHO) determines a case is “critical” and requires special processing in the following situations:1. Terminal Illness (TERI)A case is designated critical when the claimant’s illness is alleged or identified as terminal (i.e., untreatable, irreversible, and expected to end in death). TERI cases are identified by:
  • The case characteristic TERI in the Case Processing and Management System (CPMS); and
  • A TERI Flag (form SSA-2200) in a paper case, or, in an electronic case, by the “TERI flag” in eView.
  • A TERI designation may be added at or before the hearing level, and TERI designations are monitored by the OHO regional office (RO) to ensure the case is expedited. For examples of TERI situations, or more information on the situations or conditions field offices (FO) and Disability Determination Services (DDS) use to designate a TERI case, see Program Operations Manual System (POMS) DI 11005.601C and DI 23020.045 B.

The regulation however does add an important disclaimer:

• NOTE: The presence of TERI criteria does not mandate a finding of disability. An adjudicator must evaluate the claim under the sequential evaluation process.

This means that being identified as a critical case does not automatically mean your case will be approved. Social Security must still thoroughly evaluate the evidence, but the hearing, to obtain this decision, may be obtained more quickly.

If you potentially have a critical illness case that can expedite the evaluation process of your Social Security claim, contact Margolius, Margolius, and Associates to explore your options.

The Social Security Administration (SSA) is well aware of how incredibly long it takes to schedule a hearing for someone asserting disability. Disability applicants often have to wait a year and a half for this hearing, even while their funds are disappearing, they are hurting, and bills are stacking up. There is no doubt in our mind that SSA needs more of a budget to employ more judges and staff to reduce the terribly long wait time for these hearings. Many applicants will win, showing that the SSA was in error for denying these people disability benefits and unnecessarily causing these hardships.

Social Security has a program to get a quicker hearing date called “Dire Need.” This dire need program is designed to expedite a hearing if a claimant cannot obtain food or food assistance, get medical care, or is homeless.

The regulation states:

Dire Need Case (DRND)A dire need situation exists when a claimant alleges any of the following circumstances:

• The claimant is without food and is unable to obtain it.
• The claimant lacks medicine or medical care and is unable to obtain it, or the claimant indicates that access to necessary medical care is restricted because of a lack of resources.
• The claimant lacks shelter (e.g., without utilities such that his or her home is uninhabitable, homelessness, expiration of a shelter stay, or imminent eviction or foreclosure with no means to remedy the situation or obtain shelter).
• Absent evidence to the contrary, accept a person’s allegation that he or she does not have enough income or resources to meet an immediate threat to his or her health or safety. OHO employees will err on the side of designating the case critical. If a dire need situation becomes non-critical, the critical designation can be removed or modified.

You may qualify for a dire need proceeding, especially if you are homeless or about to be evicted. Margolius, Margolius, and Associates recognizes the tragedy if your housing is in jeopardy when your social security claim is being wrongfully denied. Call us if you are in a dire need situation to explore your options.

Recent articles indicate that the Trump Administration is expanding Social Security’s ability and funding to look at a disability applicant’s Facebook or social media accounts. This, however, is nothing new as Social Security has always been able to investigate issues like this. However, there is now more of a focus on this “evidence.”

If, for example, a picture on Facebook shows you walking around a mall when you have stated you have problems ambulating, it will be evidence that you can ambulate. It might even negate another picture which shows, for example, you using a four pronged cane at a birthday party. It might also show that sometimes, you need a cane, and sometimes not. Thus, Facebook pictures can be used as evidence against you yet it also seems that pictures typically won’t be used by Social Security if they support your case. This might reflect an inherent bias some may have that people are exaggerating their disabilities. It is ironic that Social Security never admits most people are not exaggerating their symptoms, or that many people actually win after Social Security has asserted for months and even years that the claimant is not disabled. It is a tragic stereotype to presume people are exaggerating their symptoms, or acting with fraudulent intent. Little mention is made in the media of the very large number of people who have legitimate disabilities who are waiting for large amounts of time for their hearing, or some people even dying before their hearing date while Social Security is saying they don’t have a disability. Instead, many simply like to focus on the bad claims.

In short though, social media pictures are fair game for Social Security, so think twice about posting a picture. See a doctor, see an attorney and recognize the best evidence of a disability comes from a medical provider.

The wait for a hearing with the Office of Disability Adjudication and Review (ODAR) can be a long one. We hope for quick hearing dates but often must wait until the judge sets it up on his or her calendar and that can take months. Presently, in the Cleveland ODAR office, claimants can expect a hearing approximately sixteen months after a hearing is requested. Columbus, Cincinnati, Pittsburgh and Indianapolis wait times are similar. In certain cases, however, ODAR identifies claims as “critical” so that they are expedited. Critical cases are those where:

•    a claimant’s illness is alleged or identified as terminal (i.e., untreatable, irreversible, and expected to end in death); •    a claimant has received a 100 percent permanent and total (100% P&T) disability compensation rating from the Department of Veterans Affairs (VA);•    the claim involves any current or former member of a military service who sustained an illness, injury, or wound while on active duty status on or after October 1, 2001; •    a claimant’s condition(s ) is so severe that it would obviously meet Social Security’s definition of disability (referred to as “Compassionate Allowances”);•    a claimant alleges any of the following circumstances–he or she is without food and is unable to obtain it, lacks medicine or medical care and is unable to obtain it or lacks shelter (i.e., dire need);•    there is an indication that the claimant is suicidal, homicidal, or potentially violent.

The hearing office will assign critical cases for on-the-record (OTR) decision review. If an OTR decision is possible, the case will be assigned to a decision-writer for expedited writing of the favorable decision. If an OTR decision is not deemed appropriate, the hearing staff will take appropriate action to expedite pre-hearing development and schedule a hearing in the first available open hearing slots. After the hearing is held, the ALJ will issue a decision in an expedited manner.

If your initial application for Social Security disability benefits is denied, you will typically file an appeal (called a Request for Reconsideration).  If that appeal is denied, you must then attend a hearing before an Administrative Law Judge, who will then decide if you are disabled.

Currently, it takes anywhere from 12-19 months to obtain a hearing date from the Social Security Administration.  However, the hearing is arguably the best opportunity you will have to prove to Social Security that you are disabled. It is the one time in the disability process that you will have the opportunity to be in a room and speak with the person who will make the decision to approve or deny your claim.  Just as important, we as your attorney can fully advocate for you, point out the key evidence and show how it applies to regulations and disability law. Preparation is important; you will have waited a substantial amount of time to attend this hearing and you want to maximize this opportunity, putting yourself in the best position to win your claim.

The hearing is considered an “informal” process. This means it is not like what happens if you have a traffic ticket or a criminal offense or are involved in a civil case. There is no strict adherence to the rules of evidence, and there will be no opposing attorney in the room to object to what you have to say. Other than swearing an oath to tell the truth, your hearing is largely a conversation between you, the Administrative Law Judge (“ALJ”) assigned hear your claim, and any experts that the ALJ requests to attend the hearing. The hearing occurs in a small room that is not open to the public.  The people in the room at the time of your hearing will be you, your legal counsel, the ALJ, a person that will run computer equipment that records what is said at the hearing, and any experts the ALJ requests attend the hearing (either or both a medical expert and vocational expert).

When you attend a hearing, the ALJ will first make sure that a complete medical record has been provided and that all medical records relevant to your claim have been submitted.  If you are represented by counsel, the ALJ may ask your attorney to present an opening statement or theory of the case. Once this has been provided, you will be asked a series of questions.  Sometimes the ALJ will you ask questions and sometimes it will be your attorney that asks them. Regardless of who asks the questions, they will typically cover the following broad topics areas:  your educational history, your work history, what medical conditions you have and how they prevent you from working, and how you spend a typical day. If you are alleging a physical impairment, you will be asked how long you can sit, stand, and walk (in minutes) at a time and how much you can lift (in pounds). If you are alleging a psychological impairments, you will be asked to explain any difficulties that you have with interacting with people, with concentration, and with memory.  When the ALJ and your attorney are finished asking you these questions, they will then question the expert at your hearing, if one has been called by the ALJ.  A medical expert, if present, will be asked to provide information, in Social Security lingo, about your medical impairments and what, if any, limitations they cause.  The medical expert does not work for Social Security and is considered an “impartial” expert, although Social Security does pay for the expert. A vocational expert, if present, will be asked to provide information regarding work you have performed in the last fifteen years that last long enough to qualify as relevant to the proceeding. The vocational expert will testify to the physical and skill demands of your past relevant work.  In addition both the ALJ and your attorney will have the opportunity to ask the vocational expert hypothetical questions about whether an employee with restrictions such as those you have is able to perform work.

Once all testimony has been provided, the ALJ may also ask your attorney for a closing statement. After that, your hearing will end.  In the overwhelming majority of hearings, you will not receive an immediate decision. Instead, the ALJ will take the testimony you have provided at the hearing under advisement and review your medical records again.  Only then will the ALJ make the decision, typically via a thorough, densely worded written hearing decision that will be mail to both you and your attorney. Importantly, the Social Security Administration does not require the ALJ to issue a decision on a hearing in any particular amount of time.  Therefore, the most commonly asked question is, “How long will it be before I get the ALJ’s written decision?” There is no specific answer to this and some ALJ’s may only take a month or two, while some ALJ’s may take considerably longer (up to 8 months or more).

In May of 2015 a national publication of the National Organization of Social Security Claimants’ Representatives (NOSSCR) published the MM&A case involving a District Court’s reversal for violating the “Treating Physician Rule”:

The district court remanded the case because the ALJ failed to follow the treating physician rule by not providing “clearly sufficient reasons for only affording ‘some weight’ to the treating physicians’ opinions….” The ALJ did not provide good reasons “or in fact any reason for the weight he assigns” the opinions. In his decision, the ALJ only stated that he “gave consideration” and “some weight” to the opinions. The error was not harmless as neither treating doctor’s opinion was “patently deficient” nor was there discussion elsewhere in the ALJ’s decision where he made clear the basis for rejecting the opinions. The defendant argued that it was reasonable for the ALJ to not include the treating doctor’s limitation of poor ability to maintain concentration for two hour segments because the ALJ was more restrictive in other areas of functioning. “[T]his argument is not well-taken.” To find harmless error, all of the treating physician’s opinion must be adopted. “Limiting someone to jobs that do not require strict production quotas does not fully address the issue of poor concentration.” “Piecemeal adoption” of the treating doctor’s opinion does not constitute harmless error. “Harmless error is not available when an ALJ finds limitations less severe than those described by the treating physician.” Margolius, Margolius and Associates, Cleveland, OH, represented the plaintiff.

Blood disorders frequently require blood transfusions and or hospitalization and often cause crippling fatigue. The following blood disorders may be disabling: chronic anemia, sickle cell disease, chronic thrombocytopenia, hereditary telangiectasia, hemophilia and similar coagulation defects, polycythemia, myelofibrosis, chronic granulocytopenia, and aplastic anemias with bone marrow or stem cell transplantation. Simply being diagnosed with one of these conditions will be insufficient to prove that your condition disables you. The condition must also be severe enough to prevent you from working. In addition, you must meet certain additional criteria based on the condition diagnosed.

Chronic Anemia

In order to establish entitlement to disability benefits as a result of chronic anemia, with hematocrit levels at 30% or less. In addition, the condition must have necessitated a blood transfusion on an average of at least once every 2 months or caused substantial dysfunction to another body system. If you have hematocrit levels at or below 30% and have undergone a blood transfusion, you should contact us to discuss filing for disability.

Sickle Cell Disease

If you have been diagnosed with sickle cell disease (or one of its variants) and you have had at least three thrombotic crises during a five month period then you may meet the requirements to receive disability benefits. Similarly, if you have been diagnosed with sickle cell and have required hospitalization at least three times within a twelve month period, you may be entitled to benefits. If the sickle cell anemia has caused your hematocrit levels to persistently be less than 26%, you should contact us to discuss filing for disability. Finally, if the sickle cell disease has significantly impacted another body system, you may be entitled to disability benefits.

Chronic Thrombocytopenia

If you have been diagnosed with thrombocytopenia and your platelet counts are routinely below 40,000 / cubic millimeter and you have either had a spontaneous hemorrhage, requiring a blood transfusion, or suffered from an intracranial bleed within the last 12 months – then you should file for disability and contact our office.

Hereditary Telangiectasia

If you have been diagnosed with hereditary telangiectasia and have suffered a hemorrhage requiring blood transfusion at least three times within a five month period (and this occurred recently), then you may be eligible for disability benefits.

Hemophilia

If you suffer from a clotting disorder such as hemophilia, and you have experienced spontaneous hemorrhage requiring blood transfusions at least three times during a recent five month period, then you should contact our office to discuss filing for disability benefits.

Polycythemia vera

This condition, if accompanied by erythrocytosis, splenomegaly, and leukocytosis or thrombocytosis, may cause a disability that entitles you to disability benefits. You should contact our office to help determine if its effect on another body system is severe enough to warrant filing an application for disability benefits.

Myelofibrosis

This condition is also known as myeloproliferative syndrome. If you have been diagnosed with either of these conditions and you suffer from chronic anemia, or have intractable bone pain with evidence of osteosclerosis, or have suffered from recurrent bacterial infections that occurred at least three times within a recent five month period, then you may be entitled to disability benefits.

Chronic granulocytopenia

If you have been diagnosed with chronic granulocytopenia and have blood work showing that your absolute neutrophil counts are persistently below 1,000 cells/cubic millimeter and you have suffered from recurrent bacterial infections occurring at least three times within a recent five month period, then you should contact our office to discuss filing for disability benefits.

Aplastic anemias with bone marrow or stem cell transplantation

If you have been diagnosed with an aplastic anemia and have undergone either a bone marrow transplant or a stem cell transplant, you are entitled to disability benefits for at least 12 months after your transplant. If you have been diagnosed with aplastic anemia and require transplant of either bone marrow or stem cells, you should immediately contact our office to discuss filing a claim for disability benefits.

Blood disorders other than those specifically identified above may also be disabling and may prevent you from working. If this is the case, you may call our office to discuss how your diagnosed conditions affects your ability to work and we will help evaluate whether you should file for disability benefits.

One of our best weapons for obtaining social security benefits is the opinion of your doctor. Both the Courts and the Social Security Administration place great emphasis on the opinions of a claimant’s doctor concerning disabilities and symptoms. Your own doctor is generally given deference regarding his or her opinion, although a judge can disregard it if they specify good reasons. The case law in our jurisdiction and Social Security’s regulations are well settled: This Circuit has stated “in all cases there remains a presumption, albeit a rebuttable one, that the opinion of a treating physician is entitled to great deference, its noncontrolling status notwithstanding.” Rogers v. Comm’r of Social Sec., 486 F.3d 234, 242 (6th Cir., 2007). If an ALJ rejects the opinion of a treating physician, he must articulate clearly “good reasons” for doing so. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) ; 20 C.F.R. § 404.1527(d)(2). The opinion of a non­treating physician is entitled to, “if anything, less deference than the treating physician’s opinion.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir.2003).

It is sometimes difficult in our modern medical system to have a continuing relationship with the same doctor. But if you have a regular doctor, make sure they understand your limitations, and make sure you follow their recommendations. They are one of your best assets in proving disability.