NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Page 1 of Exhibit A to the Statement of Appeal filed in this matter:

L'SHANA TOVA

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

The Statement of Appeal I filed in this matter:

"August 15, 2011


UNEMPLOYMENT INSURANCE APPEAL BOARD
PO BOX 15126
ALBANY, NY 12212-5126

Re: AB XXXXXX - ALJ XXX_XXXXX IN RE XXXXXXXX

Gentleman:

I am representing the claimant.

On behalf of the claimant, the claimant appeals, in part, pursuant to section 621, subdivision 1 of the law, the decision filed July 20, 2011 and submits this Statement of Appeal.

On behalf of the claimant, I also request that the Appeal Board pursuant to Labor Law § 534 and section 463.6 of the Appeal Board rules reopen and reconsider the decision and to reconsider the issues in the case raised by a re-review of the file in accordance with the Stipulation and Order in Municipal Labor Comm. v Sitkin (US Dist Ct, SD NY, Dec. 19, 1997, Carter, J., 79 Civ.5899) and in the interests of justice.

I also request that, if the Appeals Board deems this insufficient, I be given additional time to submit additional documentation.

I also request a hearing pursuant to section 463.3 of the Appeal Board rules.

The reasons for the appeal are:

The only issue before the ALJ was the claimant’s capability of employment. Exhibit 2 introduced at the hearing included a notice of ineligibility from the Social Security Administration dated April XX, 2011 (annexed hereto as Exhibit A) which denied claimant’s claim for disability payments on the grounds that claimant was capable of performing light work. This information was later confirmed in the doctor’s note of June XX, 2011 (used by the claimant to make a reapplication for employment to the claimant’s prior employer and referred to in the decision) which was also introduced as Exhibit 2. Since the claimant was found capable of employment by the Social Security Administration in April XX, 2011, based upon a doctor’s exam on April X, 2011, the evidence established that claimant was capable of employment at the time XXX applied for benefits on April XX, 2011. At the very least, April XX, 2011 should be the date that the claimant should be deemed eligible for work and not the date of the doctor’s note of June XX, 2011. See e.g. IN THE MATTER OF: Appeal Board No. 554891 (July 5, 2011)

Sincerely,




Jon M. Probstein

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

I advised the claimant that to expedite the appeal, I was not going to ask for a transcript. I felt that there was no issue of fact, just a question of law as to which date should apply for purposes of capability: the date of the SSI determination or the subsequent date of the doctor's letter. The claimant sent me a copy of the SSI determination (although introduced as evidence as Exhibit 2, the ALJ did not make a copy for me and the only copies were with the claimant and the Appeal Board).

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

The reverse side of the notice of receipt of appeal in this matter:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

The notice of receipt of appeal in this matter:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

After a Notice of Appeal is filed, Section 463.1 of the Appeal Board rules states what the next procedure is:

"(f) Notice of receipt of appeal. The board shall send notice of receipt of appeal to the commissioner, the claimant, the employer and their duly designated representatives. Each notice of receipt of appeal to the board shall include the following statement and the parties shall be granted the following rights:

(1) All communications should cite the above appeal number.

(2) The appeal board usually decides appeals without a new hearing. It relies on evidence taken at the administrative law judge hearing and the written arguments of the parties on appeal. The board will not consider any evidence not introduced at the administrative law judge hearing unless all parties consent or it is made part of the record at a further hearing. In its discretion the board may hold an additional hearing.

(3) Each of the parties may submit, in writing, requests to inspect the minutes of the hearing, or statements, documents or briefs to be considered in connection with this appeal. Two copies of such written requests, statements, documents or briefs must be mailed, within seven days from the date of this notice, addressed to the Unemployment Insurance Appeal Board, P.O. Box 15126, Albany, NY, 12212-5126. An attorney-at-law, or representative, must mail a copy of the statement, document or brief to each of the other parties, and their attorneys and representatives, and certify to the board that this has been done. Each party may submit such statement, document or brief only once. Subsequent statements, documents or briefs will be returned to the party.

(4) Upon written request, arrangements may be made to inspect the minutes of the administrative law judge hearing or to borrow the minutes for the purpose of making a copy thereof at the party's expense. The request to make such arrangements must be made within seven days from the date of the notice of receipt of appeal. In such event, the time to submit written statements, documents or briefs shall be 20 days from the date when that party is sent notice that the transcript is available for inspection or copying.

(5) If another party submits statements, documents or briefs on this appeal, you will receive copies and will have 12 days to reply in writing. The 12 days to reply is measured from the date when the copies were mailed to you. A party may submit a reply at only one time. Subsequent replies will be returned to the party.

(6) Any party may make a written request for an extension of the above time limits to submit a statement, document, brief or reply. The request must give the specific reasons why the time limit cannot be met. Extensions will only be granted if the request establishes good cause to excuse the delay. Unless an extension has been granted, any submission mailed after the times specified here shall be returned to the party.

(7) Parties may be represented by lawyers or other persons of their choice on appeal before the appeal board. For representing a claimant, a lawyer or agent registered by the appeal board may charge a fee. Before the claimant pays the representative any fee, the fee must be approved by the appeal board. No other person may charge a fee for representing a claimant. If you do not have enough money to hire a lawyer or registered agent, you may be able to get one free through your local Legal Aid Society or Legal Services Program.

(8) If you have any questions, contact the board at the above address."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

The Notice of Appeal was in compliance with the Appeal Board rules:

"Section 463.1. Notice of appeal.

(a) Generally. In any notice of appeal, the party appealing should state the reasons therefore.

(b) By claimant. A claimant may appeal, pursuant to section 621, subdivision 1 of the law, by filing a notice of appeal at the designated local office, or at any office of the administrative law judge section, or at the office of the appeal board, within 20 days after the mailing or personal delivery of the administrative law judge decision.

......................"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

A Notice of Appeal was sent and filed with the Appeal Board:

"August 5, 2011

UNEMPLOYMENT INSURANCE APPEAL BOARD
PO BOX 15126
ALBANY, NY 12212-5126

Re: ALJ XXXXXXXXXXX IN RE XXXXXXXXXX

Gentleman:

I am representing the claimant.

On behalf of the claimant, the claimant appeals, pursuant to section 621, subdivision 1 of the law, the attached decision by filing this notice of appeal at the designated local office, or at any office of the administrative law judge section, or at the office of the appeal board, within 20 days after the mailing or personal delivery of the administrative law judge decision.

On behalf of the claimant, I also request that the Appeal Board pursuant to Labor Law § 534 and section 463.6 of the Appeal Board rules reopen and reconsider the decision and to reconsider the issues in the case raised by a re-review of the file in accordance with the Stipulation and Order in Municipal Labor Comm. v Sitkin (US Dist Ct, SD NY, Dec. 19, 1997, Carter, J., 79 Civ.5899) and in the interests of justice.

I also request that, if the Appeals Board deems this insufficient, I be given additional time to submit additional documentation.

I also request a hearing pursuant to section 463.3 of the Appeal Board rules.

The reasons for the appeal are:

The only issue before the ALJ was the claimant’s capability of employment. Exhibit 2 introduced at the hearing included a notice of ineligibility from the Social Security Administration dated April 2011 which denied claimant’s claim for disability payments on the grounds that claimant was capable of performing light work. This information was later confirmed in the doctor’s note of June 2011 (used by the claimant to make a reapplication for employment to the claimant’s prior employer and referred to in the decision) which was also introduced as Exhibit 2. Since the claimant was found capable of employment by the Social Security Administration in April 2011, that should be the date that the claimant should be deemed eligible for work and not the date of the doctor’s note of June 2011. This would enable the claimant to receive approximately an additional three months of benefits.

Sincerely,




Jon M. Probstein"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Although satisfied with the decision that the claimant was held to be capable of employment, I was not satisfied that the ALJ held that the date of capability was the June date of the doctor's letter. I felt the date should have been the date of the denial of SSDI benefits in April which, although introduced at the hearing, was not addressed in the decision. Thus, three months of benefits was at issue. With the claimant's consent, a notice of appeal was filed.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Page 2 of the decision:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Page 1 of the decision:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

The hearing was then held.

Present was the claimant, myself representing the claimant, and a representative of the Department of Labor. The ALJ introduced one exhibit, the claimant's application for benefits, and I introduced as another exhibit the following:

1. The first doctor's letter that the claimant could not perform work and thus needed FHMA leave.

2. The second doctor's letter that the claimant still could not return to work.

3. The third doctor's letter that the claimant could perform light duties.

4. The notice of adverse determination from Social Security re the SSDI benefits.

The claimant testified that an application to the claimant's employer for re-employment subject to light duties.

My closing argument was that the claimant was capable of employment as early as the date of the notice of adverse determination from Social Security re the SSDI benefits and certainly by the later date of the third doctor's letter that the claimant could perform light duties.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Continuing with the keys facts of this case:

In month 4:

a. The claimant received a letter from the claimant's doctor that the claimant was able to perform light duties.

It was at this point I met the claimant. The hearing was scheduled in two days. I advised the claimant as follows:

1. At the hearing date, bring in all correspondence from the doctor, viz., the first letter that the claimant could not perform work and thus needed FHMA leave, the second letter that the claimant still could not return to work, and the third letter that the claimant could perform light duties.

2. At the hearing date, bring in the notice of adverse determination from Social Security re the SSDI benefits.

3. Immediately make an application to the claimant's employer for re-employment subject to light duties.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Continuing with the keys facts of this case:

In month 3:

a. The DOL began investigating the claimant's application for unemployment insurance benefits.

b. The claimant did not furnish the DOL with any information.

c. The DOL issued a Notice of Adverse Determination on the grounds of "Capability of Employment".

d. The claimant requested a hearing.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Continuing with the keys facts of this case:

In month 2:

a. The claimant was denied SSDI benefits on the grounds that the claimant was able to due limited work and was not completely disabled.

b. The claimant applied for unemployment insurance benefits.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Now here are the keys facts of this case:

In month 1:

a. The claimant's medical leave ended.

b. The claimant's doctor wrote a letter that the claimant was unable to return to work.

c. The claimant was terminated by employer.

d. The claimant applied for SSDI benefits.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

A meeting with the claimant and a review of file revealed:

1. The claimant worked.

2. The claimant received medical leave due to a physical condition.

3. Upon the termination of the medical leave, the claimant's doctor determined that the claimant was unable to return to work.

4. The claimant was terminated by the employer.

5. The claimant applied for SSDI and was denied.

6. The claimant then applied for unemployment insurance benefits.

7. During the DOL investigation, certain information was not received by the DOL.

8. The DOL issued an adverse determination based on "capability of employment".

9. The claimant requested a hearing.

10. The claimant recently received a letter from the claimant's doctor that the claimant could perform light duties.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Now that SSI disability has been discussed, I will now address the facts of this case:

As I was leaving an ALJ office after a hearing, I was asked to review a claimant's case. The claimant was at the ALJ office and the claimant's hearing was scheduled for later that week.

9/11

"What is hateful to thyself do not do to another. That is the whole Torah [Law], the rest is Commentary - Hillel"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

More on the "SSDI disability" test from the Social Security website - this is the FAQ on Step 5 as set forth in the August 25, 2011 blog:

"What do you consider when you decide if I can adjust to other work?

If we decide you cannot do the work you did before, we consider your remaining ability to do other work considering your age, education and work experience. We assess these factors with your capacity to work to determine if you can be expected to adjust to other work that exists in the national economy.

How do you consider education?

We consider how many years of school you have completed and whether you have completed any type of special job training, trade or vocational school when we assess your ability to adjust to other work. However, absence of formal education does not necessarily mean you are uneducated or limited in your ability to adjust to work. We will consider strong evidence that your educational achievement is higher or lower than the last grade you completed.

We generally consider illiteracy and inability to communicate in English as an educational factor that limits an individual’s ability to adjust to other work.

How do you consider age?

We consider your chronological age in combination with your residual functional capacity, education, and work experience. We will not consider your ability to adjust to other work on the basis of your age alone. In determining the extent to which age affects your ability to adjust to other work, we consider advancing age to be an increasingly limiting factor in your ability to make an adjustment to other work.

If you are a younger person (under age 50), we generally do not consider that your age will seriously affect your ability to adjust to other work. However, in some circumstances, we consider that persons aged 45-49 are more limited in their ability to adjust to other work than persons who have not attained age 45.

If you are closely approaching advanced age (age 50-54), we will consider that your age along with a severe impairment and limited work experience may seriously affect your ability to adjust to other work.

We consider that at advanced age (age 55 or older) age significantly affects your ability to adjust to other work. We have special rules for persons in this category who are closely approaching retirement age (age 60 and above).

How do you consider my work experience?

When we consider your ability to adjust to work you have not done before, we consider your vocational factors of residual functional capacity, age, educational and past work experience.

For example, you may not be able to do the lifting required by your past work as an automobile mechanic. However, you may have the ability to adjust to other less strenuous work based on your residual functional capacity, age, education and past work experience. We may find that you could use your skills to be a carburetor mechanic, which is a less strenuous occupation.

How do you evaluate recent education that provides me skills I can use?

If you recently and successfully completed education or training that allows you to enter into a specific skilled or semiskilled occupation that you are physically and mentally able to do, we will find you are not disabled. For example, if you recently completed a formal program in which you gained the skills to become a chef and you are physically and mentally able to do that kind of work, we will find that you are not disabled.

How do you evaluate the effect of my age, education and work experience on my remaining capacity to work?

In our regulations, we have tables of rules that we use as guides to evaluate how your age, education and work experience affect your remaining capacity for work.

For example, a person with the following vocational profile would be found disabled according to our tables of medical-vocational guidelines:

Capacity for work:

•Can lift no more than 20 pounds for up to 1/3 of an 8-hour workday, and
•Can lift up to 10 pounds for 2/3 of an 8-hour workday, and
•Can stand and/or walk for about 6 or more hours in an 8-hour workday and
•Has no other limitations

Age: 57

Education: High school education

Work Experience: No skills that can be transferred to work he is physically able to do.

However, if this individual had skills that could be used for work that is within his capacity and that exists in significant numbers in the national economy, we would find him not disabled."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

More on the "SSDI disability" test from the Social Security website - this deals with Step 5 as set forth in the August 25, 2011 blog:

"5. Can you do any other type of work?

If you cannot do the work you did in the past, we see if you are able to adjust to other work. We consider your medical conditions and your age, education, past work experience and any transferable skills you may have. If you cannot adjust to other work, your claim will be approved. If you can adjust to other work, your claim will be denied."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

More on the "SSDI disability" test from the Social Security website - this deals with Step 4 as set forth in the August 25, 2011 blog - these are the FAQS on Step 4:

"What work activities can I do if I have a medical condition?

If you have a medical condition(s) that affects your ability to work on a regular basis, but it is not as severe as any impairment described in the Listing of Impairments, we assess your “residual functional capacity” (RFC). This means we will look at all of the evidence we have and determine what you can still do, despite any limitations caused by your impairment(s) and related symptoms, such as pain and fatigue.

When we assess your remaining ability to do basic work-related activities, we look at how your medical condition(s) has affected your ability to:

•Exert yourself physically for various work-related activities (such as sitting, standing, walking, lifting, carrying, pushing, pulling).
•Do manipulative and postural activities (such as reaching, handling large objects, using your fingers, feeling, stooping, balancing, climbing stairs or ladders, kneeling, crouching, crawling).
•Tolerate certain environmental conditions (such as temperature extremes, wetness, humidity, noise, hazardous working conditions like moving machinery or heights, dust, fumes, odors, gases, poor ventilation, vibrations).
•See, hear, and speak.
•Maintain concentration and attention at work.
•Understand, remember and carry out instructions.
•Respond appropriately to supervisors, co-workers, and usual work situations.
•Cope with changes in the work setting.

How do you decide whether I can do my past work?

We look at the demands of your recent past work and compare them with our assessment of your remaining ability to do basic work activities. We only look at your past work that we consider relevant. This usually means work that:

•You did in the 15 years before we decide your case, and
•Involved significant and productive physical or mental activities done (or intended) for pay or profit, and
•You did long enough to learn how to do it.

If we decide the past work you did is relevant, we compare your capacity for work with:

•How you actually did the past relevant work, and
•How that work is generally done in the national economy.
In order to make these comparisons, we need a complete description of that work as you did it.

After we make the comparison(s):

•If we decide you can still do your past work as you actually did it, we find that you are not disabled, or
•If we decide you can do your past work as it is generally done in the national economy, we find that you are not disabled. (We use reliable sources of occupational information such as government publications to make this determination), or
•If we decide you are not physically and mentally able to do any of your past relevant work, either as you did it or as it is generally done in the national economy, we go to step 5, the final step of our disability process.

What information do you need about my past work?

We need the titles of all of your jobs in the past 15 years. We also need a description of the work you did. There are jobs with the same name but very different job duties. There are also jobs that have the same job duties but have different names. That is why a job title is not enough to describe your work.

We need information about the:

•Main responsibilities of your job(s)
•Main tasks you performed
•Dates you worked (month and year)
•Number of hours a day you worked per week
•Rate of pay you received
•Tools, machinery and equipment you used
•Knowledge, skills and abilities your work required
•Extent of supervision you had
•Amount of independent judgment you used
•Objects you had to lift and carry and how much they weighed
•How much you had to sit, stand, walk, climb, stoop, kneel, crouch, crawl, balance
•How you used your hands, arms and legs
•Speaking, hearing and vision requirements of your job(s)
•Environmental conditions of your workplace(s)

We also need to know about any requirements of your past job(s) that caused you to change how you did your work or that you could not meet because of your medical condition(s). For example:

•Worked fewer hours,
•Had help from coworkers,
•Took sick days,
•Had to leave your workstation frequently,
•Had to rest during the workday more often than your normal breaks.

We want to know:

•when your medical condition began to affect your work,
•if you became unable to do your work because of your condition,
•when you stopped working (if not working),
•why you stopped working.

What happens if you do not get the information you need?

It is your responsibility to see that we get the information we need to determine whether you are disabled. If you do not provide the information we need about your medical condition(s) and your work history, we will deny your claim for disability.

What happens if you find I am able to do my past work, but I cannot get a job doing that work? We will find that you are not disabled. In our disability process, we evaluate your ability to do the physical and mental activities you were required to do in your past work. We do not consider whether you could get a job doing this work.

For example, we do not consider:

•whether you would be hired,
•whether a job opening exists,
•whether you would be required to move,
•whether you want to do this work,
•whether you still have a certificate or license to do the past work."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

More on the "SSDI disability" test from the Social Security website - this deals with Step 4 as set forth in the August 25, 2011 blog:

"4. Can you do the work you did previously?

If your condition is severe but not at the same or equal level of severity as a medical condition on the list, then we must determine if it interferes with your ability to do the work you did previously. If it does not, your claim will be denied. If it does, we proceed to Step 5."

BACK FROM VACATION!

Not that I look that good.