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What do you do when despite submitting every type of medical record, test, and report, NYCERS refuses to consider your application for Disability Retirement due to a purported lack of evidence? The answer is, submit non-medical evidence.
I submitted a 195 page application, comprised mostly of medical records, in support a maintenance worker’s disability retirement application. The evidence included:
1) Decision from the Social Security Administration (the “SSA”) concluding that the claimant could not do any type of work;
2) Decision of the Housing Authority concluding the claimant could not do his job as a Municipal Maintenance Worker;
3) A description of the claimant’s medications objectively showing that his pain is severe since his doctors prescribed extremely potent pain killers, anti-inflammatories and muscle relaxants, whose side effects alone would preclude his working as a maintenance Worker;
4) The use of assistive devices for the claimant’s knees, back, and walking;
5) MRIs for the claimant’s left knee, right knee, left shoulder, and lumbar spine revealing an inordinate amount of objective evidence of abnormal findings, including conditions such as nerve root compression that are capable of causing severe pain and functional limitations;
6) Operative reports for the claimant’s left knee and left shoulder because the conditions were so severe;
7) VNG testing that confirmed moderate to severe vestibular dysfunction;
8) EMG testing confirming bilateral CTS and lumbar radiculopathy consistent with the lumbar MRI findings;
9) Treatment notes from: the doctor specializing in physical medicine and rehabilitation and pain management; neurologist specializing in spinal surgery; orthopedist who performed the surgeries; the internist who coordinates the claimant’s overall care; the rheumatologist specializing in arthritis who performed the EMG testing; orthopedist who conducted an independent medical exam;
10) Functional assessments from each of the six doctors; and
11) Hospital records demonstrating the effects of the claimant’s seizure disorder, as well as x-rays that revealed severe arthritis in the shoulder and knees, as well as other degenerative changes in the thoracic and cervical spines.
Nonetheless, the Medical Board asserted that it could not consider the application due to insufficient evidence, and would not state what type of additional evidence might suffice.
Since there was no further information that I could obtain from the claimant’s doctors, I made arrangements for a functional capacity evaluation (“FCE”) and vocational evaluation (“VE”). The FCE was performed by a physical therapist who determined that the claimant did not meet the strength requirements demanded by a maintenance worker. In fact, the FCE concluded that because the claimant was limited to lifting 2 pounds, and was unable to do any carrying, he was unable work in any capacity. The VE was a comprehensive functional vocational capacity evaluation that ultimately concluded the claimant was unable to work in any occupation, even at the sedentary level.
The Medical Board decided that there was enough information to consider the claimant’s application once I submitted the FCE and VE. After its examination of the claimant, the Medical Board recommended approving the claimant’s application for disability retirement.Previous Next
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