Kirsch, Gelband, & Stone, PC
- Jay H Bernstein, Attorney at Law
- 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.
Friday, March 25, 2011
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)