Kirsch, Gelband, & Stone, PC

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Newark, New Jersey, United States
THE PASSION TO SERVE; THE EXPERIENCE TO WIN! Certified by the New Jersey Supreme Court as a Workers Compensation Attorney, with 22 years experience; specializing in protecting YOUR basic human right to FREE and URGENT health care in the Workers Compensation Court. Our Firm is one of the Pre Eminent Personal Injury Law Firms in N.J., providing representation to the seriously injured, from product liability to auto accidents to medical malpractice. Call anytime for a free appointment 201 519-6785 (24 hours)KIRSCH, GELBAND & STONE 17 Academy Street, Newark N.J NOTE: THIS PROFILE MAY CONSTITUTE ATTORNEY ADVERTISING. PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. ANY CORRESPONDENCE WITH THIS PROFILE HOLDER DOES NOT CONSTITUTE A CLIENT/ATTORNEY RELATIONSHIP. NEITHER THE CONTENT ON THIS PROFILE NOR TRANSMISSIONS BETWEEN YOU AND THE PROFILE HOLDER THROUGH THIS PROFILE ARE INTENDED TO PROVIDE LEGAL OR OTHER ADVICE OR TO CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Sunday, February 20, 2011

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.

RuleAgeEducation   Previous work experienceDecision



202.(06) light workAdvanced ageHigh school graduate or more—does not provide for direct entry into skilled work [2]Skilled or semiskilled—skills not transferableDisabled


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)
RuleAgeEducationPrevious work experienceDecision
201.01Advanced ageLimited or lessUnskilled or noneDisabled
201.02......do......doSkilled or semiskilled—skills not transferable[1]Do.(ie Do means same as above)
201.03......do......doSkilled or semiskilled—skills transferable[1]Not disabled
201.04......doHigh school graduate or more—does not provide for direct entry into skilled work[2]Unskilled or noneDisabled
201.05......doHigh school graduate or more—provides for direct entry into skilled work[2]......doNot disabled
201.06......doHigh 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......doSkilled or semiskilled—skills transferable[1]Not disabled
201.08......doHigh school graduate or more—provides for direct entry into skilled work[2]Skilled or semiskilled—skills not transferable[1]Do.
201.09Closely approaching advanced ageLimited or lessUnskilled or noneDisabled
201.10......do......doSkilled or semiskilled—skills not transferableDo.
201.11......do......doSkilled or semiskilled—skills transferableNot disabled
201.12......doHigh school graduate or more—does not provide for direct entry into skilled work[3]Unskilled or noneDisabled
201.13......doHigh school graduate or more—provides for direct entry into skilled work[3]......doNot disabled
201.14......doHigh school graduate or more—does not provide for direct entry into skilled work[3]Skilled or semiskilled—skills not transferableDisabled
201.15......do......doSkilled or semiskilled—skills transferableNot disabled
201.16......doHigh school graduate or more—provides for direct entry into skilled work[3]Skilled or semiskilled—skills not transferableDo.
201.17Younger individual age 45-49Illiterate or unable to communicate in EnglishUnskilled or noneDisabled
201.18......doLimited or less—at least literate and able to communicate in English......doNot disabled
201.19......doLimited or lessSkilled or semiskilled—skills not transferableDo.
201.20......do......doSkilled or semiskilled—skills transferableDo.
201.21......doHigh school graduate or moreSkilled or semiskilled—skills not transferableDo.
201.22......do......doSkilled or semiskilled—skills transferableDo.
201.23Younger individual age 18-44Illiterate or unable to communicate in EnglishUnskilled or noneDo.[4]
201.24......doLimited or less—at least literate and able to communicate in English......doDo.[4]
201.25......doLimited or lessSkilled or semiskilled—skills not transferableDo.[4]
201.26......do......doSkilled or semiskilled—skills transferableDo.[4]
201.27......doHigh school graduate or moreUnskilled or noneDo.[4]
201.28......do......doSkilled or semiskilled—skills not transferableDo.[4]
201.29......do......doSkilled or semiskilled—skills transferableDo.[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)

RuleAgeEducationPrevious work experienceDecision
202.01Advanced ageLimited or lessUnskilled or noneDisabled.
202.02......do......doSkilled or semiskilled—skills not transferableDo.
202.03......do......doSkilled or semiskilled—skills transferable[1]Not disabled.
202.04......doHigh school graduate or more—does not provide for direct entry into skilled work[2]Unskilled or noneDisabled.
202.05......doHigh school graduate or more—provides for direct entry into skilled work[2]......doNot disabled.
202.06......doHigh school graduate or more—does not provide for direct entry into skilled work[2]Skilled or semiskilled—skills not transferableDisabled.
202.07......do......doSkilled or semiskilled—skills transferable[2]Not disabled.
202.08......doHigh school graduate or more—provides for direct entry into skilled work[2]Skilled or semiskilled—skills not transferableDo.
202.09Closely approaching advanced ageIlliterate or unable to communicate in EnglishUnskilled or noneDisabled.
202.10......doLimited or less—at least literate and able to communicate in English......doNot disabled.
202.11......doLimited or lessSkilled or semiskilled—skills not transferableDo.
202.12......do......doSkilled or semiskilled—skills transferableDo.
202.13......doHigh school graduate or moreUnskilled or noneDo.
202.14......do......doSkilled or semiskilled—skills not transferableDo.
202.15......do......doSkilled or semiskilled—skills transferableDo.
202.16Younger individualIlliterate or unable to communicate in EnglishUnskilled or noneDo.
202.17......doLimited or less—at least literate and able to communicate in English......doDo.
202.18......doLimited or lessSkilled or semiskilled—skills not transferableDo.
202.19......do......doSkilled or semiskilled—skills transferableDo.
202.20......doHigh school graduate or moreUnskilled or noneDo.
202.21......do......doSkilled or semiskilled—skills not transferableDo.
202.22......do......doSkilled or semiskilled—skills transferableDo.


[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)

RuleAgeEducationPrevious work experienceDecision
203.01Closely approaching retirement ageMarginal or noneUnskilled or noneDisabled.
203.02......doLimited or lessNoneDo.
203.03......doLimitedUnskilledNot disabled.
203.04......doLimited or lessSkilled or semiskilled—skills not transferableDo.
203.05......do......doSkilled or semiskilled—skills transferableDo.
203.06......doHigh school graduate or moreUnskilled or noneDo.
203.07......doHigh school graduate or more—does not provide for direct entry into skilled workSkilled or semiskilled—skills not transferableDo.
203.08......do......doSkilled or semiskilled—skills transferableDo.
203.09......doHigh school graduate or more—provides for direct entry into skilled workSkilled or semiskilled—skills not transferableDo.
203.10Advanced ageLimited or lessNoneDisabled.
203.11......do......doUnskilledNot disabled.
203.12......do......doSkilled or semiskilled—skills not transferableDo.
203.13......do......doSkilled or semiskilled—skills transferableDo.
203.14......doHigh school graduate or moreUnskilled or noneDo.
203.15......doHigh school graduate or more—does not provide for direct entry into skilled workSkilled or semiskilled—skills not transferableDo.
203.16......do......doSkilled or semiskilled—skills transferableDo.
203.17......doHigh school graduate or more—provides for direct entry into skilled workSkilled or semiskilled—skills not transferableDo.
203.18Closely approaching advanced ageLimited or lessUnskilled or noneDo.
203.19......do......doSkilled or semiskilled—skills not transferableDo.
203.20......do......doSkilled or semiskilled—skills transferableDo.
203.21......doHigh school graduate or moreUnskilled or noneDo.
203.22......doHigh school graduate or more—does not provide for direct entry into skilled workSkilled or semiskilled—skills not transferableDo.
203.23......do......doSkilled or semiskilled—skills transferableDo.
203.24......doHigh school graduate or more—provides for direct entry into skilled workSkilled or semiskilled—skills not transferableDo.
203.25Younger individualLimited or lessUnskilled or noneDo.
203.26......do......doSkilled or semiskilled—skills not transferableDo.
203.27......do......doSkilled or semiskilled—skills transferableDo.
203.28......doHigh school graduate or moreUnskilled or noneDo.
203.29......doHigh school graduate or more—does not provide for direct entry into skilled workSkilled or semiskilled—skills not transferableDo.
203.30......do......doSkilled or semiskilled—skills transferableDo.
203.31......doHigh school graduate or more—provides for direct entry into skilled workSkilled or semiskilled—skills not transferableDo.


[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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