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