The People Rule/ Kirsch, Gelband & Stone, Newark N.J.: How to fight your insurance company/ New Jersey St...

The People Rule/ Kirsch, Gelband & Stone, Newark N.J.: How to fight your insurance company/ New Jersey St...: How to fight your insurance company/ New Jersey Storm Damage Fall 2011. Jay Bernstein, Volunteer pro bono attorny, NJ Bar Mass Disaster Rel...

How to fight your insurance company/ New Jersey Storm Damage

How to fight your insurance company/ New Jersey Storm Damage Fall 2011.
Jay Bernstein, Volunteer pro bono attorny, NJ Bar Mass Disaster Relief Program




     Hit with the trifecta  of the Halloween Storm, Hurricane Irene, and the Sept. Flooding, many in
New Jersey are reeling from the devastation, and damage caused by wind, rain, loss of power and flooding.

    Home owners insurance policies have proven inadequate.  Major insurance companies are fighting tooth
and nail valid claims from damage from electrical outages, sump pump failures, and major flooding.

     Before hiring a lawyer you can do simple appeals that may reverse your denied claim:
 
(a) Demand a full updated copy of your Home owners insurance policy.  See what applies to your situation (IE wind damage, electrical black out, etc...)

(b)  Appeal in writing the denial of benefits.
     - directions of who to write to and how much time you have to write will usually be on the back or attached to your denial letter.  It is too your benefit to appeal, as higher ups in the Insurance Company may be more willing to review the denial.  Keep appealing.

(c) Contact an Attorney to Help you fight within the statutory time period.

      Insurance is their to protect us.  The insurance companies continue to have windfall profits in NJ,
no matter the disaster, as they continue to hike rates, and withhold payouts.  Insurance is your right.
DO NOT GIVE IN TO THE DENIAL OF YOUR BENEFITS!!

PROPOSED SECOND BILL OF RIGHTS; PRES ROOSEVELT 1944; RIGHT TO A DECENT JOB, MEDICAL CARE, EDUCATION, FREEDOM FROM FEAR OF ACCIDENT, OLD AGE, UNEMPLOYMENT AND DISABILITY...!!

New England Journal of Medicine on Distracted Cell Phone Driving Accidents

http://www.nejm.org/doi/full/10.1056/NEJMp1106640

Workers' Compensation: Distracted Driving Accidents Echo Intoxication Cau...

Workers' Compensation: Distracted Driving Accidents Echo Intoxication Cau...: The New England Journal of Medicine reports that the activism against driving while intoxicated is beginning to be mirrored in distracted d...

Workers' Compensation: US Dept of Labor Moves Aggressively on Misclassifi...

Workers' Compensation: US Dept of Labor Moves Aggressively on Misclassifi...: The misclassification of workers by employers directly impacts the calculation of workers' compensation benefits. The US Department of Labo...

Workers' Compensation: US Dept of Labor Moves Aggressively on Misclassifi...

Workers' Compensation: US Dept of Labor Moves Aggressively on Misclassifi...: The misclassification of workers by employers directly impacts the calculation of workers' compensation benefits. The US Department of Labo...

OBESITY -- HOW IT EFFECT SOCIAL SECURITY DISABILITY

OBESITY:

     The  Administrative Law Judge (ALJ) must take into account obesity in formulating his or her decision.  In a case last year, my client was rejected at the initial and  reconsideration  stage, although her impairments were vastly compounded by visible, extreme obesity.   Once the ALJ saw my client slowly ambulate with a cane and help of family, into the court room, and try to fit in the chair, the severity of her weight condition became apparent.  The forced breathing and wheeze of her asthmatic condition,  interrupting  her speech with rescue inhaler,  and steroid inhaler; further underscored the impact of her obese condition on her pulmonary function, internal conditions, and orthopedic  disabilities.   Obesity must be taken into consideration  by the SSA and the Court.   Seeing is believing.   Having my client in the courtroom immediately changed the Social Security divisions view of the claimant, branding her immediately disabled, although the “listings”  and “grid” would not lead to a finding of disability.  The key was the effect of obesity on her “residual functional capacity,”  a point missed by the SSA at the initial and reconsideration stage.   On paper, obesity, as a disabling condition multiplier, was ignored.

Do not overlook obesity.   Consult any online BMI (body mass index chart) regarding your clients, weight, height, age, sex and body type.  Obesity plays a key role, more today than ever, in SSA disability determinations.   In a short, perfunctory hearing, the Judge immediately branded my client disabled, with full SSDI benefits awarded shortly thereafter.

     Recent case law underlines the seriousness the Federal Courts place on the adequate consideration of Obesity in ALJ determinations.   Many ALJ Judges fail to consider obesity.

In Ellie v. Astrue, Civil Action No. 09-1212 (E.D. Pa. April 30, 2010), the court held, “remand is required where a claimant alleges obesity, and the ALJ finds obesity is a severe impairment, and the ALJ  fails to evaluate obesity when determining RFC  [residual functional capacity].”   The ALJ Judge must consider the claimant’s ability to work given his/her physical and mental limitations.  This combination of the claimants physical and mental limits is called ‘residual functional capacity’ (RFC).  The effects of obesity, when combined with other pathologies and conditions, acts as a disability multiplier, and must be considered by the ALJ Judge in determining the residual functional capacity, i.e., what activities the claimant is capable of performing.   Obesity can greatly effect a claimant’s RFC.

     In Diaz v. Commissioner of Social Security, 577 F. 3rd 500 (3rd. Cir. 2009) the court held that even if the claimant fails to list obesity on the application, the ALJ must analyze the condition.   If the ALJ makes a finding of ‘obesity’,  the ALJ must determine the effects of obesity on the claimant’s other impairments and work ability.   The Ellie court, relying on Diaz, demanded the ALJ analyze obesity’s effect on claimant’s knee condition, arthritis,  pain, ability to walk, diabetes, mental condition and hypertension.    The discussion and analysis must be detailed.   The case was remanded.

     (The Third Circuit Court, based in Philadelphia, hears Social Security appeals from the local Federal District Court, in New Jersey or Pennsylvania.  Failure at the Third Circuit Appellate court leaves one last recourse; the United States Supreme Court.)     

 (JAY BERNSTEIN  ATTORNEY AT LAW  NJ 201 519-6785)

Failure of Newark Schools due to Cultural Dysfunction of the Family

ARE YOU DISABLED/ HOW TO WIN SOCIAL SECURITY DISABILITY.

HOW THE SOCIAL SECURITY ADMINISTRATION DECIDES IF YOU ARE DISABLED.
  --  Sort Through Medical and Vocational Issues (including use of the “Grid”)
        (Jay Bernstein).

 What do you do first?    If you worked enough years to pay into the Federal Social Security System, and are totally disabled from employment, you may be eligible for Social Security Disability weekly checks and free medical insurance (medicare).  If you have not worked enough years (sometimes less than 5 years), you still may get Federal Welfare, called SSI; Social Security Income, with free medical insurance, called "Medicaid."

            Are you a candidate for social security disability?   Simply, you must be unable to work (engage in substantial gainful activity)  due to a mental or physical impairment, for  at least 12 months, or  a condition expected to result in death.
Social Security goes through a step by step procedure to determine eligibility for Disability.
Can the you, the claimant,  work?  Is the claimant suffering a severe disability contained in the Social Security one hundred plus page list (“the listings”) of detailed diseases and medical conditions?  Can the Claimant return to any work he/she did in the last 15 years?  If not, can the claimant do any work available in the local state economy, even the simplest job?    
          Finally the Social Security Judge or agency will look to a special simple chart, that takes into account the claimants vocational training, age, education, language ability, and medically constrained work abilities.  This is called the "Grid" and is the KEY to winning many Social Security cases.  If you can fit  into a "grid" category, you win, and you are  found "disabled."  

Here is how the Government explains how it decides if you are disabled:
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“How we make the decision

We use a five-step process to decide if you are disabled.

1. Are you working?
2. If you are working and your earnings average more than a certain amount each month, we generally will not consider you disabled. The amount changes each year. For the current figure, see the annual Update (Publication No. 05-10003).
3. If you are not working, or your monthly earnings average the current amount or less, the state agency then looks at your medical condition.
4. Is your medical condition “severe”?
5. For the state agency to decide that you are disabled, your medical condition must significantly limit your ability to do basic work activities—such as walking, sitting and remembering—for at least one year. If your medical condition is not that severe, the state agency will not consider you disabled. If your condition is that severe, the state agency goes on to step three.
6. Is your medical condition on the List of Impairments?
7. The state agency has a List of Impairments that describes medical conditions that are considered so severe that they automatically mean that you are disabled as defined by law. If your condition (or combination of medical conditions) is not on this list, the state agency looks to see if your condition is as severe as a condition that is on the list. If the severity of your medical condition meets or equals that of a listed impairment, the state agency will decide that you are disabled. If it does not, the state agency goes on to step four.
8. Can you do the work you did before?
9. At this step, the state agency decides if your medical condition prevents you from being able to do the work you did before. If it does not, the state agency will decide that you are not disabled. If it does, the state agency goes on to step five.
10. Can you do any other type of work?
11. If you cannot do the work you did in the past, the state agency looks to see if you would be able to do other work. It evaluates your medical condition, your age, education, past work experience and any skills you may have that could be used to do other work. If you cannot do other work, the state agency will decide that you are disabled. If you can do other work, the state agency will decide that you are not disabled. (Source: SSA).

Special rules for blind people

There are a number of other special rules for people who are blind.(Source: CFR Section 404.1520; quoted in: Government Document, SSA Publication No. 05-10029, August 2010, ICN 456000).

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THE LISTINGS

     Once you determine the claimant is not working and cannot work, the Social Security rules contain a list, a  thick book, (“listing of impairments”)  containing a comprehensive list of diseases, pathologies, conditions which would automatically entitle your client to Disability.
It is extremely difficult to meet the exacting conditions of any of the disease processes contained in the listings.  In 20 years, I have had only one or two clients fit into the impossible pegs and wholes of the listed diseases. 


    Meeting the requirements of the “Listings” is daunting!  Of the two methods of proving disabling severe Asthma, it is far easier to meet the requirements of part 3.03 (B), which calls for counting up how many severe asthma attacks the claimant suffered requiring SIX VISITS TO A DOCTOR OR HOSPITAL, ONCE EVERY TWO MONTHS, IN A ONE YEAR PERIOD.  Even 3.03(B) Asthma; is difficult to prove, as I have only had one successful outcome on this issue, in Federal District Court (Social Security Federal Appeal).  There are literally hundreds of pages of medical rules in the “Listings” --  like the above asthma, copd requirements, that the claimant must fit to the “T”! 







THE GRID     (Medical Vocational Guidelines Chart)

    The “Grid” is a simple chart, that takes into account the claimants vocational training, age, education, language ability, and medically constrained work abilities.  This is called the "Grid" and is the KEY to winning many Social Security cases.  If you can fit your client into a "grid" category, you win, and the client is found "disabled."  The Grid is much easier to read, understand and apply than the “Listings” of disease and medical conditions.   Basically, when the claimant does not fit into an exact “Listing” of a disease, the SSA considers your ability to work given your physical and mental limitations.  This combination of the claimants physical and mental limits is called your “residual functional capacity.”   The SSA considers vocational factors, consisting of your age, education and work skills, plus your physical limitations, and determines if you are disabled.  (See, Appendix 2 to Subpart P of Part 404—Medical-Vocational Guidelines, CFR 20 title page.  Online at:  http://www.ssa.gov/OP_Home/cfr20/404/404-ap11.htm).

The grid is divided into three (3) distinct charts, one for sedentary work limitations, one for light work limitations, and one for medium work limitations.  The three work categories are defined as follows:

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Ҥ404.1567 Physical exertion requirements.

To determine the physical exertion requirements of work in the national economy, we classify jobs as sedentary, light, medium, heavy, and very heavy. These terms have the same meaning as they have in the Dictionary of Occupational Titles, published by the Department of Labor. In making disability determinations under this subpart, we use the following definitions:

(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

(c) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.

(d) Heavy work. Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.

(e) Very heavy work. Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light and sedentary work.”  CFR Section 201.00 (f)(g)(h).

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To read the grid chart, you simply find the box that conforms to your clients age, education, work ability, language ability, etc... and read across the chart to the final box, which reads, either “disabled” or “not disabled.”  Its that simple.   Advanced age is considered 55 and over.  Closely approaching advanced age is 50-54.  A younger individual is age 19 through 49;  although age 45 to 49 is treated as closely approaching advanced age.  For example, on the chart below,  a claimant age 56, limited to light duty (cannot lift more than 20 lbs.), with a high school diploma, and formerly trained in a skilled profession (ie, welder),  may be considered “Disabled” under the “Grid” (Medical Vocational Guidelines Chart).  You read the boxes from left to right, with the final box, on the right end, stating the likely outcome of a social security decision.

Rule

Age

Education

Previous work experience

Decision

202.(06) light work

Advanced age

High school graduate or more—does not provide for direct entry into skilled work [2]

Skilled or semiskilled—skills not transferable

Disabled

There are only three (3) charts.  If a claimant fits squarely into one of the categories, the Social Security Administration or Hearings ALJ (Judge), would most likely adhere to the “Grid” findings.   It is simple to use, and simple to understand.  More complicated scenario's, involving combinations of disease, pathology, severe pain, etc... will take your claimant out of the “Listings” and the “Grid.”   

The three (3) GRID CHARTS are reproduced below:

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CHART #1  SEDENTARY WORK LIMITATION.

201.00 Maximum sustained work capability limited to sedentary work as a result of severe medically determinable impairment(s).
Table No. 1—Residual Functional Capacity: Maximum Sustained Work Capability Limited to Sedentary Work as a Result of Severe Medically Determinable Impairment(s)

Rule	Age	Education	Previous work experience	Decision
201.01	Advanced age	Limited or less	Unskilled or none	Disabled
201.02	......do	......do	Skilled or semiskilled—skills not transferable[1]	Do.(ie Do means same as above)
201.03	......do	......do	Skilled or semiskilled—skills transferable[1]	Not disabled
201.04	......do	High school graduate or more—does not provide for direct entry into skilled work[2]	Unskilled or none	Disabled
201.05	......do	High school graduate or more—provides for direct entry into skilled work[2]	......do	Not disabled
201.06	......do	High school graduate or more—does not provide for direct entry into skilled work[2]	Skilled or semiskilled—skills not transferable[1]	Disabled
201.07	......do	......do	Skilled or semiskilled—skills transferable[1]	Not disabled
201.08	......do	High school graduate or more—provides for direct entry into skilled work[2]	Skilled or semiskilled—skills not transferable[1]	Do.
201.09	Closely approaching advanced age	Limited or less	Unskilled or none	Disabled
201.10	......do	......do	Skilled or semiskilled—skills not transferable	Do.
201.11	......do	......do	Skilled or semiskilled—skills transferable	Not disabled
201.12	......do	High school graduate or more—does not provide for direct entry into skilled work[3]	Unskilled or none	Disabled
201.13	......do	High school graduate or more—provides for direct entry into skilled work[3]	......do	Not disabled
201.14	......do	High school graduate or more—does not provide for direct entry into skilled work[3]	Skilled or semiskilled—skills not transferable	Disabled
201.15	......do	......do	Skilled or semiskilled—skills transferable	Not disabled
201.16	......do	High school graduate or more—provides for direct entry into skilled work[3]	Skilled or semiskilled—skills not transferable	Do.
201.17	Younger individual age 45-49	Illiterate or unable to communicate in English	Unskilled or none	Disabled
201.18	......do	Limited or less—at least literate and able to communicate in English	......do	Not disabled
201.19	......do	Limited or less	Skilled or semiskilled—skills not transferable	Do.
201.20	......do	......do	Skilled or semiskilled—skills transferable	Do.
201.21	......do	High school graduate or more	Skilled or semiskilled—skills not transferable	Do.
201.22	......do	......do	Skilled or semiskilled—skills transferable	Do.
201.23	Younger individual age 18-44	Illiterate or unable to communicate in English	Unskilled or none	Do.[4]
201.24	......do	Limited or less—at least literate and able to communicate in English	......do	Do.[4]
201.25	......do	Limited or less	Skilled or semiskilled—skills not transferable	Do.[4]
201.26	......do	......do	Skilled or semiskilled—skills transferable	Do.[4]
201.27	......do	High school graduate or more	Unskilled or none	Do.[4]
201.28	......do	......do	Skilled or semiskilled—skills not transferable	Do.[4]
201.29	......do	......do	Skilled or semiskilled—skills transferable	Do.[4]

[1]See 201.00(f).
[2]See 201.00(d).
[3]See 201.00(g).
[4]See 201.00(h).

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CHART #2  LIGHT WORK LIMITATION:

202.00 Maximum sustained work capability limited to light work as a result of severe medically determinable impairment(s).  Table No. 2—Residual Functional Capacity: Maximum Sustained Work Capability Limited to Light Work as a Result of Severe Medically Determinable Impairment(s)

Rule	Age	Education	Previous work experience	Decision
202.01	Advanced age	Limited or less	Unskilled or none	Disabled.
202.02	......do	......do	Skilled or semiskilled—skills not transferable	Do.
202.03	......do	......do	Skilled or semiskilled—skills transferable[1]	Not disabled.
202.04	......do	High school graduate or more—does not provide for direct entry into skilled work[2]	Unskilled or none	Disabled.
202.05	......do	High school graduate or more—provides for direct entry into skilled work[2]	......do	Not disabled.
202.06	......do	High school graduate or more—does not provide for direct entry into skilled work[2]	Skilled or semiskilled—skills not transferable	Disabled.
202.07	......do	......do	Skilled or semiskilled—skills transferable[2]	Not disabled.
202.08	......do	High school graduate or more—provides for direct entry into skilled work[2]	Skilled or semiskilled—skills not transferable	Do.
202.09	Closely approaching advanced age	Illiterate or unable to communicate in English	Unskilled or none	Disabled.
202.10	......do	Limited or less—at least literate and able to communicate in English	......do	Not disabled.
202.11	......do	Limited or less	Skilled or semiskilled—skills not transferable	Do.
202.12	......do	......do	Skilled or semiskilled—skills transferable	Do.
202.13	......do	High school graduate or more	Unskilled or none	Do.
202.14	......do	......do	Skilled or semiskilled—skills not transferable	Do.
202.15	......do	......do	Skilled or semiskilled—skills transferable	Do.
202.16	Younger individual	Illiterate or unable to communicate in English	Unskilled or none	Do.
202.17	......do	Limited or less—at least literate and able to communicate in English	......do	Do.
202.18	......do	Limited or less	Skilled or semiskilled—skills not transferable	Do.
202.19	......do	......do	Skilled or semiskilled—skills transferable	Do.
202.20	......do	High school graduate or more	Unskilled or none	Do.
202.21	......do	......do	Skilled or semiskilled—skills not transferable	Do.
202.22	......do	......do	Skilled or semiskilled—skills transferable	Do.

[1]See 202.00(f).
[2]See 202.00(c).

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CHART #3 MEDIUM WORK LIMITATION

203.00 Maximum sustained work capability limited to medium work as a result of severe medically determinable impairment(s).
Table No. 3—Residual Functional Capacity: Maximum Sustained Work Capability Limited to Medium Work as a Result of Severe Medically Determinable Impairment(s)

Rule	Age	Education	Previous work experience	Decision
203.01	Closely approaching retirement age	Marginal or none	Unskilled or none	Disabled.
203.02	......do	Limited or less	None	Do.
203.03	......do	Limited	Unskilled	Not disabled.
203.04	......do	Limited or less	Skilled or semiskilled—skills not transferable	Do.
203.05	......do	......do	Skilled or semiskilled—skills transferable	Do.
203.06	......do	High school graduate or more	Unskilled or none	Do.
203.07	......do	High school graduate or more—does not provide for direct entry into skilled work	Skilled or semiskilled—skills not transferable	Do.
203.08	......do	......do	Skilled or semiskilled—skills transferable	Do.
203.09	......do	High school graduate or more—provides for direct entry into skilled work	Skilled or semiskilled—skills not transferable	Do.
203.10	Advanced age	Limited or less	None	Disabled.
203.11	......do	......do	Unskilled	Not disabled.
203.12	......do	......do	Skilled or semiskilled—skills not transferable	Do.
203.13	......do	......do	Skilled or semiskilled—skills transferable	Do.
203.14	......do	High school graduate or more	Unskilled or none	Do.
203.15	......do	High school graduate or more—does not provide for direct entry into skilled work	Skilled or semiskilled—skills not transferable	Do.
203.16	......do	......do	Skilled or semiskilled—skills transferable	Do.
203.17	......do	High school graduate or more—provides for direct entry into skilled work	Skilled or semiskilled—skills not transferable	Do.
203.18	Closely approaching advanced age	Limited or less	Unskilled or none	Do.
203.19	......do	......do	Skilled or semiskilled—skills not transferable	Do.
203.20	......do	......do	Skilled or semiskilled—skills transferable	Do.
203.21	......do	High school graduate or more	Unskilled or none	Do.
203.22	......do	High school graduate or more—does not provide for direct entry into skilled work	Skilled or semiskilled—skills not transferable	Do.
203.23	......do	......do	Skilled or semiskilled—skills transferable	Do.
203.24	......do	High school graduate or more—provides for direct entry into skilled work	Skilled or semiskilled—skills not transferable	Do.
203.25	Younger individual	Limited or less	Unskilled or none	Do.
203.26	......do	......do	Skilled or semiskilled—skills not transferable	Do.
203.27	......do	......do	Skilled or semiskilled—skills transferable	Do.
203.28	......do	High school graduate or more	Unskilled or none	Do.
203.29	......do	High school graduate or more—does not provide for direct entry into skilled work	Skilled or semiskilled—skills not transferable	Do.
203.30	......do	......do	Skilled or semiskilled—skills transferable	Do.
203.31	......do	High school graduate or more—provides for direct entry into skilled work	Skilled or semiskilled—skills not transferable	Do.

[45 FR 55584, Aug. 20, 1980, as amended at 56 FR 57944, Nov. 14, 1991; 68 FR 51164, Aug. 26, 2003; 73 FR 64197, Oct. 29, 2008]    (CFR 20 -- Appendix 2 to Subpart P of Part 404—Medical-Vocational Guidelines).                                                    (http://www.ssa.gov/OP_Home/cfr20/404/404-ap11.htm).

 

     For more info contact a Social Security Attorney in your local area.

For New Jersey;  Kirsch Gelband & Stone, Suite 707, 17 Academy Street, Newark NJ 07102.

Tel 201 519-6785  Jay H. Bernstein.   Office appts: 973-623-0100.

email questions:  jaybernstein19@gmail.com

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