June 28, 2021

The disability finding of the Social Security Administration is not dispositive of the Retirement System's Medical Board's disability determination

The determination to deny petitioner's application for accident disability retirement was not arbitrary and capricious, and was supported by some credible evidence (see Matter of Merlino v Teachers' Retirement Sys. of the City of N.Y., 177 AD3d 430, 430 [1st Dept 2019], citing Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 [1996]). The finding of respondent's Medical Board that petitioner was not disabled was supported by its physical examination and interview of petitioner (see Matter of Fusco v Teachers' Retirement Sys. of the City of N.Y., 136 AD3d 450, 451 [1st Dept 2016]). Upon examination, petitioner was able to move around unassisted, had normal strength and range of motion in his shoulders, elbows, wrists, and hips, and had little or no tenderness in his neck and back. 

In addition, the Medical Board noted that petitioner had not had standard of care epidural injections, trigger point injections, or any other procedures to improve his current complaints. Petitioner claims that the Medical Board ignored his medical history, but resolution of conflicting evidence was for the Medical Board to resolve (see Matter of Athanassiou v Kelly, 101 AD3d 517 [1st Dept 2012]; Matter of Bell v New York City Employees' Retirement Sys., 273 AD2d 119, 120 [1st Dept 2000], lv denied 96 NY2d 701 [2001]).

The disability finding of the Social Security Administration was not dispositive of the Medical Board's disability determination (see Fusco, 136 AD3d at 451, citing Matter of Barden v New York City Employees' Retirement Sys., 291 AD2d 215, 216 [1st Dept 2002]). Nor did the [*2]finding of the medical arbitrator, who examined petitioner after the Medical Board made its determination, warrant article 78 relief (see id.).

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_01256.htm

 


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