Opinion
Index No. 3669/19
01-04-2024
In the Matter of the Application of REBECCA ALFARO, Petitioner, v. THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, Respondent. For a Judgment under Article 78 of the Civil Practice Law and Rules
Unpublished Opinion
At an IAS Term, Part 92 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 4th day of January 2024
PRESENT: HON. KATHERINE A. LEVINE, Justice.
Katherine A. Levine Judge:
The following e-filed papers read herein: Papers Numbered:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed (papers prior to conversion to nyscef) 54
Opposing Affidavits (Affirmations) __
Affidavits/ Affirmations in Reply __
Other Papers:__
Upon the foregoing papers, petitioner Rebecca Alfaro ("Alfaro" or "petitioner") moves 1) for a judgment pursuant to CPLR article 78, (a) reviewing and annulling the action of respondent New York City Employees' Retirement System (NYCERS) which denied petitioner disability retirement benefits pursuant to Retirement and Social Security Law [RSSL] § 605; (b) directing and ordering the respondents to retire petitioner with a disability retirement allowance retroactive to the date of her initial disability application; and (c) ordering respondents to pay for costs and reasonable attorneys' fees and 2) for an order directing NYCERS to serve and file upon the date hereof (a) all reports, recommendations, certificates and all other documents submitted to the NYCERS in connection with petitioner's disability application; (b) copies of the minutes of each meeting of NYCERS' Board of Trustees wherein the Board of Trustees considered, discussed, or acted upon retirement application of the petitioner; and (c) copies of any and all medical records, reports or notes relating to petitioner which are on file with NYCERS.
Petitioner commenced this Article 78 proceeding seeking judicial review of a final determination by NYCERS denying her a disability retirement. On or about February 6, 2017, petitioner filed an application for disability retirement under the provisions RSSL § 605 for injuries she sustained in a trip and fall accident on May 15, 2015. The accident was not related to her work as a "Fraud Investigator II" with the New York City Human Resources Administration. ("HRA"). Petitioner stated in her application that she suffered from musculoskeletal impairments; neurological problems; head concussion causing mental disorders and visual disorders; spine disorder; and nervous disorder, among other conditions. On June 15, 2017, after reviewing the medical records submitted by petitioner and conducted an interview and physical examination of petitioner, the Medical Board recommended that petitioner's disability retirement application be denied. In its report, the Medical Board set forth petitioner's medical treatment history and stated that it "did not find any objective evidence of disability, which would preclude her in performing the full duties [of Fraud Investigator II]" and that "the documentary and clinical evidence fail to substantiate that [petitioner] is disabled from performing the duties of Fraud Investigator II"
Petitioner appealed the June 15, 2017 denial to the NYCERS Board of Trustees (Board of Trustees) with new medical documentation. By letter dated December 26, 2017, NYCERS advised petitioner that the Board of Trustees had remanded petitioner's application to the Medical Board for further consideration based on the submission of the new medical records. On May 22, 2018, the Medical Board reviewed the reports of petitioner's treating physicians, interviewed petitioner and conducted an examination. The Medical Board deferred rendering a decision, stating, in part:
FINDINGS AND CONCLUSIONS
The Medical Board notes that this current physical evaluation notes inconsistencies in our findings today, as well as marked discrepancies between her limited capabilities in exam on exam today and her performance recorded by her physicians. The Medical Board notes bizarre complaints, which are not explainable by organic pathology.
The Medical Board also notes that workup on May 2, 2017, is not indicative of serologic positive rheumatoid arthritis as the applicant claims it is. The Medical Board notes that the applicant continues to be under the care of rheumatologist. It should be noted during the physical examination, there was actually no evidence of joint swelling or deformity and she had full range of motion in all joints.
The Medical Board notes the applicant was easily able, despite her claimed inability, to perform tandem walking. The applicant was easily able to assume different positions in the supine, seated, and move radially from the supine and seated position without any complaints of disturbances or evidence of ataxia or nystagmus.
The Medical Board examined all joints and noted no deformities, no swelling in any other extremities and there was full range of motion of hands, wrists, elbows, knees, ankles, and toes. There was no joint effusion, rubor, or swelling.
The Medical Board also notes a psychiatric consultation who states that the applicant is not psychiatric disabled. The Medical Board also notes that the applicant has not had any lengthy treatment for her rheumatoid arthritis if indeed this is her final diagnosis and therefore, has not reached maximum medical improvement. The Medical Board does not find disability related to her orthopedic complaints, psychological complaints, or medical complaints at this time. The Medical Board notes that her seizure claims [sic]. There was also no significant follow up given the alarming nature of her complaints.
The Medical Board elects to defer its recommendation pending neuropsychological screening.
NYCERS subsequently scheduled petitioner for a neuropsychological consultation with Lauren S. Caruso, PhD, which was conducted on July 11, 2018. On November 20, 2018, the Medical Board reviewed additional medical records submitted by petitioner, as well as its June 15, 2017 and May 22, 2018 reports and the reports of NYCERS' consulting psychiatrist and neuropsychologist.
In its report, the Medical Board transcribed, verbatim, the findings and conclusions of Dr. Caruso, including the following statement:
I am of the neuropsychological opinion that [petitioner] continues to suffer psychological symptomatology which is being further exacerbated by her pain and difficulties with sleep. However, there also appears to be somatization of symptoms as well as a significant tendency toward symptom exaggeration for secondary gain. Although stating being most disabled secondary to residual issues from her concussion, no cognitive limitations nor pattern of deficits supporting her
complaints are seen. Therefore, I am of the opinion that there is no current neuropsychological disability that would render [petitioner] incapable from carrying out her duties as a Fraud Investigator II. In following, by shifting focus to addressing [petitioner's] current psychological symptoms and perceptions in an intensive psychotherapeutic setting, there would be a reasonable expectation that [petitioner] would be able to return to full duty within one year's time.
In its report, the Medical Board concluded, in relevant part:
The Medical Board finds that documentary and clinical evidence fail to substantiate that [petitioner] is disabled from performing the duties of Fraud Investigator with the Human Resources Administration.
The Medical Board notes a pattern of exaggeration of symptoms both found on physical examination by the Medical Board as well as stated by NYCERS consulting psychiatrists and neuropsychologist.
The Medical Board does not find evidence of an orthopedic, medical, psychiatric or neurocognitive disability.
Therefore, the Medical Board recommends denial of Rebecca Alfaro's application for Disability Retirement under the provisions of Section 605.
Following the Medical Board's denial, petitioner requested that the Board of Trustees remand petitioner's case to the Medical Board based on new medical documentation from her psychologist and that the additional medical documentation be included in the above-referenced January 10, 2019 request for a remand. The documentation included a report from petitioner's treating neurologist, MRI of Brain/DTI/NeuroQuant, 2D-CSI Spectroscopy and Shein Orthopedics notes.
On April 11, 2019 a Medical Board physician determined that the records were insufficient to refer petitioner's application back to the Medical Board. By letter dated May 3, 2019, petitioner submitted to the Board of Trustees additional medical records and requested that the Board of Trustees again reconsider a remand to the Medical Board for further consideration. On May 9, 2019 a Medical Board physician determined that the additional records were insufficient to have Petitioner's application referred back to the Medical Board.
At its June 13, 2019 meeting, the Board of Trustees adopted the Medical Board's third recommendation, dated November 20, 2018, and denied petitioner's application for disability retirement benefits pursuant to RSSL § 605. The resolution states, in pertinent part:
WHEREAS, the following named members of the New York City Employees' Retirement System (NYCERS) and/or their agency applied for disability retirement, and
WHEREAS, the Medical Board of NYCERS has certified that each such member is not incapacitated for the performance of City Service, or in the case of those members whose application for disability retirement is based on accidental injury and the Medical Board certifies that either they are not incapacitated and/or their disability is not the result of an accidental injury; therefore be it
RESOLVED, that the Board of Trustees of NYCERS does hereby accept the reports and recommendation of the Medical Board that the disability retirement applications of the members indicated herein be denied.
By letter dated June 14, 2019, NYCERS informed petitioner of the Board of Trustees' June 13, 2019 resolution, and advised petitioner that it had "adopted the recommendation of the Medical Board denying [her] application for Disability Retirement filed on February 6, 2017." The instant Article 78 proceeding ensued.
LEGAL CONCLUSIONS
In her petition, petitioner argues that the Board of Trustees did not provide any explanation as to why the additional medical documentation she submitted on January 10, 2019 and dates thereafter was not sufficient to warrant a new examination by the Medical Board, and that even assuming petitioner's objective medical evidence didn't establish a finding of physical disability, her psychological condition alone was sufficient to support a finding of disability.
It is up to the Medical Board to determine whether a member applying for disability benefits is in fact disabled, and the Board of Trustees is bound by the Medical Board's finding. Mtr. of Borenstein v New York City E.R.S., 88 N.Y.2d 756, 760 (1996); Matter of Vargas v New York City E.R.S., 95 A.D.3d 1345 (2d Dept 2012). "The Medical Board's determination is conclusive if it is supported by some credible evidence and is not arbitrary or capricious" Mtr of Bradley v New York City E.R.S.,, 193 A.D.3d 847, 848 (2d Dept 2021). See, Mtr of Solomonoff v New York City E.R.S., 188 A.D.3d 700, 701 (2d Dept 2020). The requirement of '"[s]ome credible evidence' strikes a proper balance between deference to the Medical Board and accountability to NYCERS members" Mtr of Borenstein, supra, 88 N.Y.2d at 761. "The resolution of conflicting medical evidence is within the sole province of the Medical Board, and it [is] entitled to credit the analysis of its own doctors over that of the petitioner's doctor[s]" Mtr of Maxwell v New York City E.R.S, 210 A.D.3d 1095, 1096 (2d Dept 2022). See, Mtr of Bradley, supra, 193 A.D.3d at 849. "In reviewing a determination by the Board of Trustees, 'the courts cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board'" Mtr of Kearney v Nigro, 209 A.D.3d 1024, 1026-1027 (2d Dept 2022) quoting Mtr of Santoro v Board of Trustees of N.Y. City Fire Dept. Art. 1-B Pension Fund, 217 A.D.2d 660, 660 (2d Dept 1995).
In this matter, the Medical Board's decision was supported by "some credible evidence" and thus cannot be deemed to be arbitrary or capricious by the court. The conclusions of the Medical Board with regard to petitioner's physical capabilities is supported by the its examination and findings that petitioner exhibited "full muscle strength, a functional range of motion and negative pathological reflexes" (Medical Board Report, June 15, 2017, NYSCEF Doc No. 12 at 13). The Medical Board also noted that based on her psychiatric records submitted, petitioner was not stated to be disabled and "was always noted to have a normal and appropriate affect" (id.).
With regard to petitioner's claims regarding a psychiatric disability, the Medical Board reviewed the supplemental medical records submitted by petitioner and referred petitioner to Dr. James Lynch, a NYCERS consulting psychiatrist, to determine if petitioner suffered from a psychiatric condition and whether such condition prevented her from performing the duties of Fraud Investigator II. On April 9, 2018, Dr. Lynch reviewed petitioner's medical records and interviewed petitioner. Dr. Lynch observed petitioner to be "pleasant and cooperative" and stated in his report that:
"Despite her report of being summarily dismissed by the NYCERS Medical Board, and despite her claiming to be in mild pain, with severe depression, I did not find Mrs. Alfaro to be upset with me or to be in significant pain. The client used a cane for support. Her grooming and hygiene were appropriate. Despite [petitioner's] claim, I did not find she was in distress. She did not appear to be acutely depressed, anxious, psychotic, or to be suffering from traumatic abreaction. Rather, her main complaint, easily seen on examination was of irritability, especially over her perception of how she was mistreated and dismissed by the NYCERS Medical Board. Her range of affect was full and intact. Her insight and judgment were normal. Cognitive exam was grossly intact."
Dr. Lynch determined that although petitioner "does not believe she is functioning very well psychologically," he could not "find any evidence that she would be considered disabled from her reported psychological ailments."
Petitioner was further referred by the Medical Board for a neuropsychological evaluation. In her report, which was considered by the Medical Board in its ultimate findings, Dr. Caruso stated: "Although [petitioner] claims to have sustained a [traumatic brain injury], the description of her injuries as well as the lack of supporting objective data suggests that while she may have suffered a concussion, there was no resulting functional brain injury. The neuropsychological evaluation conducted on 3/2/2016 and 3/25/2016 at Rusk Institute also did not support injuries secondary to a [traumatic brain injury], but instead further demonstrated [petitioner's] psychological symptomatology as the basis of her perceived inability to function."
In her reply memorandum of law, petitioner notes Dr. Caruso's further statement that "[i]n following, by shifting focus to addressing [petitioner's] current psychological symptoms and perceptions in an intensive psychotherapeutic setting, there would be a reasonable expectation that [petitioner] would be able to return to full duty within one year's time." Petitioner suggests that this statement calls into question Dr. Caruso's finding that petitioner was not disabled as Dr. Caruso ostensibly implied that petitioner was unable to return to work at the time the evaluation was conducted. However, while the aforesaid statement by Dr. Caruso is seemingly at odds with her foregoing opinion that there was no current neuropsychological disability that would render petitioner incapable from carrying out her duties as a Fraud Investigator II, the court finds that such, by itself, does not render the Medical Board's ultimate determination irrational, arbitrary or capricious when considered along with the other credible medical and psychiatric evidence of non-disability and Dr. Caruso's overall analysis of petitioner.
The court has considered petitioner's other arguments and finds them unavailing to support an annulment of NYCERS' determination.
Accordingly, the instant petition is denied, and this proceeding is dismissed.
The foregoing constitutes the decision, order and judgment of the court.