We frequently encounter clients who do not suffer from a “typical” disability. Most people think of disabilities in terms of exertional limitations, such as problems sitting, standing, walking, lifting, carrying, pushing, and pulling – e.g., the physical or strength demands of a job. However, it is important to understand that “non-exertional limitations” can be equally debilitating, and cannot be ignored when filing a claim for Long Term Disability benefits. For example, insureds may suffer from significant issues with memory and concentration; an inability to frequently use the hands and fingers to type on a keyboard; and/or an inability to complete a normal workday or workweek due to debilitating fatigue. This article discusses typical non-exertional limitations and provides tips for proving disabilities stemming from non-exertional limitations.
What are Non-Exertional Limitations?
Quite simply, non-exertional limitations are any limitations that do not affect the ability to sit, stand, walk, lift, carry, push, and pull. They include, without limitation:
- Manipulative limitations such as difficulty using the hands and fingers for fine manipulations, gross manipulations, and manual dexterity. In general, these limitations may make it difficult to type on a keyboard; use a computer mouse; write; turn a door knob; grasp or hold objects without dropping them; button a shirt; tie shoelaces; etc. If the insured is a doctor, surgeon, or dentist, for example, manipulative limitations may make it impossible to safely examine patients; perform surgery; or extract a tooth.
- Sensory limitations such as difficulty speaking, seeing, hearing, and feeling. These limitations can cause difficulty reading a computer screen, book, or a piece of paper; giving a presentation; communicating with clients; listening to a seminar; or entertaining clients.
- Postural limitations such as reaching, stooping, kneeling, balancing, crawling, and climbing. These limitations can cause problems reaching to answer the telephone; bending down or stooping to pick up a file; or walking up and down stairs.
- Cognitive limitations such as difficulty focusing, paying attention, concentrating, remembering information, understanding instructions, processing information, making decisions, organizing thoughts, reading, and/or performing math. These limitations can cause problems being “present” in meetings; meeting strict deadlines; running a business; or multi-tasking.
- Mental limitations, which can cause nervousness, anxiety, sadness, difficulty being around people, and inability to deal with stress. Mental limitations can also cause fatigue and decreased energy. They can make it difficult to: interact with co-workers or the general public without becoming irritable; get out of bed in the morning; meet strict deadlines; concentrate or focus on conversations; understand instructions; and/or remember details.
- Environmental limitations such as an inability to be around dust, noise, smells, or temperature extremes. These limitations may be caused by an over sensitivity to ordinary irritants such as pollen, perfumes, colognes, cigarette smoke, mold, pet dander, photocopier or printer toner ink, and/or cleaning solvents. They could be so severe that they prevent the insured from leaving the house – a “controlled environment,” let alone working in an unpredictable office environment.
- Fatigue, which can make it difficult to show up for work on time and on a regular and consistent basis; cause problems focusing, concentrating, and paying attention for long periods of time; and cause problems with memory.
- Vestibular disorders can create problems with, among other things, balance, sensitivity to lights and sounds, dizziness, vertigo, lightheadedness, blurred vision, and nausea. Vestibular limitations may make it difficult to: sit; stand upright or to walk more than short distances; use computer screens or a mobile device; focus or concentrate for extended periods of time; and read for long periods of time.
- The need to be in close proximity to a bathroom as a result of a gastrointestinal disease, for example. The insured’s symptoms may cause the need to use the bathroom urgently and/or frequently. This can make it difficult to perform jobs that require the insured to give lengthy presentations, sit through long meetings, or travel extensively – e.g., situations where a bathroom is not readily accessible at a moments notice.
What Medical Conditions Cause Non-Exertional Limitations?
There are many different medical conditions that can cause non-exertional limitations. Some common examples include:
• Multiple Sclerosis (causing fatigue, cognitive limitations, and postural limitations (e.g., problems with balance));
• Parkinson’s Disease (causing manipulative limitations, fatigue, cognitive limitations, and postural limitations);
• Carpal Tunnel Syndrome (causing manipulative limitations);
• Sleep Apnea (causing severe fatigue and cognitive limitations);
• Lyme Disease (causing fatigue, cognitive limitations, sensory limitations);
• Chronic Fatigue Syndrome (causing severe fatigue; post-exertional malaise; cognitive limitations; postural limitations (e.g., problems with balance caused by orthostatic intolerance), and sensory limitations);
• Long COVID (causing severe fatigue, post-exertional malaise; cognitive deficits; headaches; vestibular dysfunction);
• Cervical Radiculopathy (causing manipulative limitations);
• Macular Degeneration (causing sensory limitations, e.g., problems seeing);
• Glaucoma (causing sensory limitations, e.g., problems seeing);
• Meniere’s Disease (causing sensory limitations, e.g., problems hearing and balance issues);
• Tinnitus (causing sensory limitations, e.g., problems hearing);
• ALS (causing fatigue, manipulative limitations; sensory limitations; postural limitations, and cognitive limitations);
• Cancer (causing fatigue and cognitive limitations often caused by chemotherapy and other treatment modalities);
• Multiple Chemical Sensitivity (causing severe environmental limitations);
• Ulcerative Colitis (causing the need to be in close proximity to a bathroom); and
• Depression (causing fatigue, cognitive limitations, and mental limitations).
How Can an Insured Prove Disabilities Due to Non-Exertional Limitations?
Evidence of insureds’ non-exertional limitations may not be readily available. Nonetheless, as with any disability, insureds must provide documentation of the inability to perform the job duties – whether it be for their own occupation or any occupation. And, to the extent it exists, an insurance company will require proof of the non-exertional limitations through objective evidence. Examples of evidence insureds can use to document non-exertional limitations include, without limitation:
• Medical Records: medical records or office visit notes can help document many of the non-exertional limitations listed above. For example, at a doctor’s appointment, an orthopedist can measure grip strength if the insured frequently drops objects; a neurologist can conduct a mental status examination if the insured suffers from cognitive deficits; or a psychiatrist can document the insured’s mood, anxiety level, and other psychological symptoms if they complain of depression. In addition to these physical examination findings, office visit notes will document subjective complaints, which can also be used to confirm the severity of the insured’s non-exertional limitations.
• Functional Capacity Evaluation: a functional capacity evaluation (FCE) consists of a series of physical tests used to determine the insured’s residual functional capacity (e.g., the ability to perform work-related activities). The FCE is typically performed by a physical therapist and typically 
conducted on two consecutive days for purposes of reliability and accuracy. In addition to documenting the insured’s abilities to sit, stand, walk, lift, carry, push, and pull, the FCE can document manipulative and postural limitations. The FCE includes tests to gauge gross motor skills, fine motor skills, dexterity, and grip strength. It also includes tests to document the frequency at which (e.g., the ability) the insured can crouch, squat, kneel, balance, and climb stairs.
conducted on two consecutive days for purposes of reliability and accuracy. In addition to documenting the insured’s abilities to sit, stand, walk, lift, carry, push, and pull, the FCE can document manipulative and postural limitations. The FCE includes tests to gauge gross motor skills, fine motor skills, dexterity, and grip strength. It also includes tests to document the frequency at which (e.g., the ability) the insured can crouch, squat, kneel, balance, and climb stairs.• 2-Day Cardiopulmonary Exercise Test: a cardiopulmonary exercise test or CPET can document fatigue, post-exertional malaise, orthostatic intolerance, etc. It requires the insured to breathe through a mouthpiece while walking on a treadmill or cycling on a bike. The CPET is conducted on two consecutive days at the same time each day. During both tests, the workload is gradually increased until the insured reaches maximum effort. The insured’s maximum volume of oxygen used to produce work, heart rate, blood pressure, and oxygen saturation are measured throughout each test.
While typically used to objectively confirm the presence of Post-Exertional Malaise in patients with Chronic Fatigue Syndrome, the CPET can also be used if an insured suffers from Long COVID, cardiac impairments, certain pulmonary diseases, Lyme disease, and orthostatic intolerance. The CPET can detect, among other things, exertional intolerance, ventilatory limitations, and heart rate recovery following exercise.
• Neuropsychological Evaluation: a neuropsychological evaluation is a series of detailed, objective tests designed to assess the insured’s level of cognitive and mental limitations. A full battery of neuropsychological testing can verify the insured’s IQ level and problems with memory, concentration, attention, processing speed, executive functioning, reading, and mathematics skills. Neuropsychological testing also includes psychological testing such as the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) or the Personality Assessment Inventory (PAI) to help measure the level and severity of the insured’s depression, anxiety, and/or other psychopathologies. For more information regarding Neuropsychological Evaluations, click here.
• Vestibular Testing: vestibular testing can be used to evaluate postural limitations. For example, electronystagmography (ENG), videonystagmography (VNG), or tilt-table testing, can document problems with balance, vertigo, syncope, or dizziness.
• Audiological Testing: audiological testing – or hearing tests – are used to measure the insured’s ability to hear different sounds, pitches, or frequencies (e.g. sensory limitations). These tests can help determine the lowest level of sound (e.g., speech) the insured can clearly identify, the frequency for optimal hearing, and the ability to discriminate or decipher sounds and words.
• Vision Testing: vision testing is not only used to measure the insured’s visual acuity (e.g., the sharpness of vision), but it can also objectively document double vision; loss of central vision; the ability to distinguish colors; peripheral vision; depth perception; and/or sensitivity to brightness.
• Sleep Study (Polysomnogram): sleep studies can be used to document the insured’s level of fatigue by detecting the quantity of their sleep (e.g., how long the insured sleeps); the quality or efficiency of the insured’s sleep; the frequency in which the insured stops breathing during sleep; and the number of awakenings or arousals during sleep. Presumably, the worse the insured’s sleep architecture and the more apneic episodes, the less restful the sleep, and the more tired the insured would feel the following day.
Contact a New York Disability Lawyer for Help with Your Disability Insurance Claim or Appeal
The disability attorneys at Hiller, PC are familiar with the objective testing and other evidence needed to prove a disability resulting from non-exertional limitations. We can help you devise a claim or appeal strategy designed to give you the best chance of obtaining your Long Term Disability benefits. Contact the NY disability insurance lawyers at Hiller, PC today at (212) 319-4000.
