Baldwin v. Astrue

Filing 27

ORDER. ORDERED that this case is REVERSED and REMANDED to the Commissioner for an immediate award of SSI benefits to J.N by Chief Judge Wiley Y. Daniel on 06/14/12. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-01553-WYD
LETICIA BALDWIN for J.N. (a minor),
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.

ORDER

I.

INTRODUCTION AND BACKGROUND
THIS MATTER is before the Court on review of the Commissioner’s decision that

denied for a second time a child’s claim, through his mother, for supplemental security
income [“SSI”] child disability payments. Plaintiff’s Opening Brief was filed on
November 21, 2011. In lieu of filing a Response Brief, on February 1, 2012, the
Commissioner filed a Motion to Remand for Further Administrative Proceedings and an
accompanying brief. Plaintiff filed a Reply Brief and Objection to Motion to Remand on
February 17, 2012.
The first case before this Court, Civil Action No. 08-cv-02256-WYD, was filed by
J.N., a child, through his mother, Leticia Baldwin, seeking review of the Commissioner’s
decision that denied J.N.’s application for SSI child disability payments on October 16,
2008. At the time of the ALJ’s decision in that case, J.N. was eleven years old and the

case had been pending since he was nine.1 On March 26, 2010, I issued an Order
reversing and remanding that case to the Commissioner for further factfinding, after
noting numerous errors made by the Administrative Law Judge [“ALJ”] (Transcript
[“Tr.”]. 192-208.)
Following a second hearing in December 2010 (Tr. 251-67), the ALJ again found
that J.N. was not disabled in a decision dated March 28, 2011. (Id. 155-72.) The ALJ
found at step two that J.N., who was then fifteen years old, has severe impairments of
“attention deficit hyperactivity disorder (ADHD) and borderline intellectual functioning.”
(Id. 158.) At step three, the ALJ found that J.N. does not have an impairment or
combination of impairments that meets or equals (or functionally equals) one of the
listed impairments. (Id. 161.) In so finding, the ALJ stated that J.N. did not meet the
severity requirements of Listing 112.05 (Mental Retardation), and “does not have the
deficits in adaptive functioning as needed under 112.05.” Id.
This appeal followed, and the Court has jurisdiction over the Commissioner’s final
decision. See 20 C.F.R. § 416.1484(a).
The Commissioner’s Motion to Remand concedes that the ALJ’s decision at
issue is not supported by substantial evidence, and that judgment should be entered in
favor of Plaintiff. (Def.’s Memo. in Supp. of Mot. to Remand for Further Administrative
Proceedings at 1.) The only issue according to the Commissioner is the choice of
remedy – whether this case should be remanded for further proceedings or whether the

1

J.N. was born in February 1996. (Tr. 192.) His initial application for child SSI disability benefits
was filed in December 2005, and alleged that J.N. was disabled from birth. (Id. 194.) The ALJ’s decision
denying disability benefits to J.N. regarding that application was made on August 2, 2007. (Id. 195.)

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case should be reversed with an order for payment of benefits. For the reasons stated
below, this case is reversed with an order for the immediate payment of benefits.
Defendant’s motion to remand is denied.
II.

ANALYSIS
A.

Standard of Review

A Court’s review of the determination that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standard and whether
the decision is supported by substantial evidence. Hamilton v. Sec. of Health and
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). Substantial evidence is
evidence a reasonable mind would accept as adequate to support a conclusion. Brown
v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). “It requires more than a scintilla of
evidence but less than a preponderance of the evidence.” Gossett v. Bowen, 862 F.2d
802, 804 (10th Cir. 1988). “Evidence is not substantial if it is overwhelmed by other
evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d
1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed to apply the correct legal test,
there is a ground for reversal apart from substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
B.

Whether the ALJ Erred at Steps Two and Three in Finding that J.N. Did
Not Meet the Requirements of Listing 112.05
1.

Introduction

J.N., through his mother, claims that the results of Dr. Marten’s IQ tests
established that he met the presumptively disabling requirements of mental retardation

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for children as set forth in Listing 112.05C of the federal regulations. Further, it is
argued that the ALJ’s decision to reject the results of Dr. Marten’s IQ testing in favor of
the school testing is the crux of error in this case. Plaintiff points out that this is the
same error that was made in the first decision of the ALJ that was reversed.
As noted above, the Commissioner acknowledges that the ALJ’s finding that J.N.
does not meet Listing 112.05C and D is not supported by substantial evidence.
Nevertheless, he argues that further development of the record and additional fact
finding are necessary. Thus, he requests that the case be remanded to the agency.
Turning to my analysis, in order to meet the mental retardation listing, a claimant
must satisfy “the diagnostic description in the introductory paragraph and any one of the
six sets of criteria.” 20 C.F.R. pt. 404, subpt. P., app. 1, § 112.00(A). The diagnostic
description in Listing 112.05 states that mental retardation is “[c]haracterized by
significantly subaverage general intellectual functioning with deficits in adaptive
functioning”. If that description is satisfied, the claimant must also meet the criteria of
either part A, B, C, D, E, or F of that listing.
2.

Whether J.N. Meets the Diagnostic Description of Mental
Retardation

I first address the ALJ’s finding that Plaintiff does not meet the diagnostic
description in the introductory paragraph of Listing 112.05 because “he does not have
the requisite deficits in adaptive functioning. . . .” (Tr. 160.) As a result, the ALJ found
that J.N. has borderline intellectual functioning rather than mental retardation. (Id. 158160.)

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As noted by the Commissioner in his Motion to Remand, “[a]daptive functioning
refers to how effectively individuals cope with common life demands and how well they
meet the standards of personal independence expected of someone in their particular
age group, sociocultural background, and community setting.” Def.’s Mot. to Remand at
6 (citing Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders
42 (4th ed. text rev. 2000)) [“DSM-IV”]. To be diagnosed with mental retardation under
the DSM-IV, an individual must have “significant limitations in adaptive functioning in at
least two of the following skills areas: communication, self-care, home living,
social/interpersonal skills, use of community resource, self-direction, functional
academic skills, work, leisure, health, and safety.” Id.
The Commissioner asserts that the evidence as to whether J.N. has deficits in
adaptive functioning is “equivocal”, and that “[t]he judgment of [a medical consultant or a
psychological consultant] is necessary to affirm that adaptive behavior is consistent with
IQ test results.” (Def.’s Mot. to Remand at 6.) In support of this argument, the
Commissioner points to the fact that Dr. Marten, the psychological consultant retained
by the ALJ, diagnosed both mild mental retardation and possible borderline intellectual
functioning. This shows, according to Defendant, that Dr. Marten was unsure whether
J.N. had the requisite deficits in adaptive functioning as required for a mental retardation
finding. The Commissioner also argues that without knowledge of J.N.’s particular age
group, sociocultural background, and community setting, it is unclear whether the facts
cited by Plaintiff demonstrate significant deficits in adaptive

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functioning. (Id. at 7.) Accordingly, the Commissioner requests that the case be
remanded so that the ALJ can order a consultative examination.
I reject the Commissioner’s argument and find that a remand is not appropriate.
I first note my frustration with the fact that the Commissioner is just now arguing that the
judgment of a medical or a psychological consultant is necessary to affirm that J.N.’s
adaptive behavior is consistent with IQ test results, citing POMS DI 24515.056.D.2.
This was not argued or referenced by the Commissioner in response to J.N.’s first
appeal before me. Indeed, in the first case the Commissioner argued that the ALJ’s
decision which is substantially similar to the one at issue now was supported by
substantial evidence. This issue should have been raised in connection with the last
appeal, and the attempt to bring it at this late stage of the process does not sit well with
me, particularly given the fact that J.N. is a minor. This is addressed in more detail in
section II.B.4, infra.
In any event, I find that the evidence in the record supports Ms. Baldwin’s
argument that J.N. meets the capsule definition for mental retardation. I first address
the report of Dr. Marten, who diagnosed “Mild mental retardation, provisional” and “Rule
out borderline intellectual functioning.” (Tr. 139.) The DSM-IV states that “the specifier
provisional can be used when there is a strong presumption that the full criteria will
ultimately be met for a disorder, but not enough information is available to make a firm
diagnosis.” See DSM-IV (1994), “Use of the Manual,” at p. 3 (italics in original). The
inclusion of a “rule out” diagnosis of borderline intellectual functioning indicates that

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Dr. Marten was leaving open the possibility of that diagnosis, but based on the available
evidence he had a “strong presumption” in favor of mild mental retardation.
Once the ALJ received Dr. Marten’s report, he had a duty to develop the record
as to the correct diagnosis if the ALJ believed that the report was not sufficient for the
ALJ to decide what J.N.’s diagnosis was. See Maes v. Astrue, 522 F.3d 1093, 1097
(10th Cir. 2008) (“The ALJ generally must recontact the claimant's medical sources for
additional information when the record evidence is inadequate to determine whether the
claimant is disabled.”); Baca v. Dept. of Health & Human Servs., 5 F.3d 476, 479-80
(10th Cir. 1993) (“The ALJ has a duty to fully and fairly develop the record as to material
issues.”). Since the ALJ chose not to do so in connection with either of his two
decisions, the provisional presumptive diagnosis of mild mental retardation remains the
current (and only) medical diagnosis in the record.
Instead of developing the record on this issue, the ALJ decided that the “rule out
diagnosis” of borderline intellectual functioning was actually the correct diagnosis, and
found that “there is little support for a conclusion that [Plaintiff] carries a diagnosis of
mental retardation, as evidenced by the testing results reported by the school
psychologist or his adaptive functioning.” (Tr. 160). This finding constitutes legal error,
because the ALJ was not competent to disagree with Dr. Marten regarding J.N.’s
diagnosis without input from a psychologist or other medical expert. See, e.g., Kemp v.
Bowen, 816 F.2d 1469, 1476 (10th Cir. 1987) (“While the ALJ is authorized to make a
final decision concerning disability, he cannot interpose his own ‘medical expertise’ over
that of a physician”); Winfrey v. Chater, 92 F.3d 1017, 1022 (10th Cir. 1996) (“the ALJ
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clearly overstepped his bounds when he substituted his medical judgment for that of [an
evaluating psychologist]. . .”). Accordingly, I find that the ALJ erred at step two of the
decision in rejecting the provisional diagnosis of mild mental retardation.
I also agree with Ms. Baldwin that the evidence in the record regarding deficits
that Plaintiff has in adaptive functioning – available to the ALJ on both occasions that he
considered the issue – confirms, rather than rebuts, Dr. Marten’s presumption that J.N.
qualifies for a diagnosis of mild mental retardation. For example, as to self-care and
home living, there is evidence in the record that J.N. requires some assistance with
regard to dressing (Tr. 36), frequently puts his shoes and shirts on backwards (id. 32),
cannot brush his teeth or hang up his clothes without help (id. 84), and cannot comb,
brush or wash his hair without help. (Id.)
While the ALJ noted that Ms. Baldwin indicated “that J.N. could not take a bath or
shower, brush his teeth, comb or brush his hair, wash his hair, do what he was told
most of the time, or accept criticism or correction”, he appeared to reject this testimony
by stating that “she did not explain why she indicated this, or whether it was a result of
[J.N.] being a regular boy or due to his impairments.” (Tr. 160.) I agree with Plaintiff
that this reasoning is specious and improper. Ms. Baldwin did not need to specifically
indicate whether these deficits were due to J.N.’s impairments, because the Function
Report form only asks about abilities that are impacted by the child’s impairments.
The ALJ also noted that Ms. Baldwin reported to Dr. Marten that J.N. required
some assistance with dressing, but discounted this because “Dr. Marten did not follow
up with any questions on what she meant by this.” (Tr. 160, 164.) However, this was
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not a proper ground to reject this evidence. Dr. Marten’s lack of follow-up questioning is
irrelevant as there is nothing in the record to indicate that he found Ms. Baldwin’s
statement not to be credible. Further, there is no evidence to rebut Ms. Baldwin’s
testimony about this. (Id. 31.) The ALJ also erred by selectively applied the evidence
as to self-care and activities of daily living, pointing to J.N.’s ability to use a zipper,
button clothes, choose clothes, and tie shoelaces while discounting or ignoring the other
evidence. (Id. 160, 164.)
There is also evidence that Plaintiff has significant deficits in connection with
functional academic skills. The standardized assessments in the record — where J.N.
is compared to other students generally, or the expected achievement levels for
students in his grade — all rate his abilities as “below proficient,” or “unsatisfactory.”
(Tr. 242-50.) J.N.’s Individualized Education Plan [“IEP”] in the record also states that
J.N. is not proficient on his reading, writing, and math goals.” (Id. 123.) Indeed,
Ms. Baldwin testified at the most current hearing that the teacher told her that J.N., who
was then in eighth grade, was reading at a first grade level. (Id. 259.) J.N.’s IEP also
shows that J.N. needs a scribe for testing and written assignments, and needs extra
time to complete assignments. (Id.)
The ALJ ignored or discounted the above evidence regarding J.N.’s functional
academic skills, instead relying on the fact that “[J.N’s] grade reports indicate that he
has been rated as either proficient or at least partially proficient in his schoolwork.” (Tr.
160.) However, as indicated in my decision in the first case, these grades are all
reflective of modified grading and special assistance provided by his school, consistent
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with J.N.’s IEP. (Id. 123, 259.) The ALJ also relied on J.N.’s grades in the first
unfavorable decision, and that rationale was specifically rejected by me in my prior
Remand Order. (Id. 204.) The fact that the ALJ again chose to rely on these grades
without taking into account that they are modified, while ignoring the other evidence in
the record that shows significant problems in connection with functional academic skills,
is particularly troubling to me.
Finally, there is evidence that J.N. has significant deficits in other areas of
adaptive functioning. For example, as to the ability to follow rules, Ms. Baldwin testified
that J.N. is unable to follow rules at home, and there is evidence that he cannot do what
he is told or complete chores most of the time. (Tr. 84-85). Ms. Baldwin also testified
that J.N. is constantly getting into trouble at school for behavioral issues. (Id. 260-61.)
The ALJ discounted this evidence, citing only to J.N.’s ability to “follow safety rules such
as looking for cars before crossing the street.” (Id. 160.)
There is also evidence as to deficits in J.N.’s social/interpersonal skills. This
includes the fact that J.N. is unable to make new friends (id. 83), that it is hard for him to
get along with others (id. and 263), that he is a bully, and that is physically abusive to
kids, both at school and at home. (Id. 30-31, 83, 262-63.) The ALJ ignored or
discounted this evidence, instead relying on one statement in the 2005 IEP which stated
that Ms. Baldwin had reported that J.N. played well with kids in the neighborhood. (Id.
164.)
It is clear from the foregoing that, as in the first unfavorable decision, the ALJ
selectively applied evidence to support a denial of benefits. This error formed part of
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the basis for my previous Remand Order, as an ALJ “may not pick and choose among
the evidence in the record, ‘using portions of evidence favorable to his position while
ignoring other evidence.’” Carpenter v. Chater, 537 F.3d 1264, 1265 (10th Cir. 2008)
(quotation omitted). (See Tr. 207.) The ALJ also cited irrelevant evidence such as
J.N.’s ability to get to school on time – a behavior that is strictly regulated by his parents
– and his ability to perform physical tasks such as running, walking or throwing a ball,
even though J.N. is not claiming a physical disability. (Id. 160, 164.)
I also find that the ALJ’s decision regarding adaptive functioning is internally
inconsistent with his findings regarding the various domains of function used to assess
whether J.N.’s level of impairment is “functionally equivalent” to a listed impairment. (Tr.
165-172.) In determining whether a child’s impairments functionally equal a Listing, the
ALJ must assess the child’s functioning in terms of six domains: (1) acquiring and using
information; (2) attending and completing tasks; (3) interacting and relating with others;
(4) moving about and manipulating objects; (5) caring for yourself; and (6) health and
physical well-being. 20 C.F.R. § 416.926a(b)(1). To “functionally equal” a Listing, the
child’s impairment or combination of impairments must result in “marked” limitations in
two domains of functioning or an “extreme” limitation in one domain. Id., § 416.926a(a).
The ALJ specifically found that J.N. has a “marked” impairment with respect to
acquiring and using information. (Tr. 166.) I agree with Ms. Baldwin that this finding
would appear to mean that J.N. has significant deficits in aspects of adaptive functioning
that fall within the domain of acquiring and using information. This domain considers

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how well a child acquires or learns information, and how well the child uses the
information he has learned. See 20 C.F.R. § 416.926a(g); POMS 25225.050.A.
In explaining the domain of acquiring and using information, the Social Security
Administration explained that for school age children ages 6 to 12, the child should be
able “to read, write, and do math. . .”, “to use these skills in academic situations to
demonstrate what [the child has] learned. . . .” as well as “in daily living situations. . .”
and “to use increasingly complex language . . .to share information and ideas. . . .”
POMS 25225.050.B. An adolescent ages 12 to age 18 (the category J.N. now falls in)
should “continue to demonstrate what [he or she] ha[s] learned in academic
assignments”, “be able to use what [he or she] ha[s] learned in daily living situations
without assistance (e.g., going to the store, using the library, and using public
transportation)”, “be able to comprehend and express both simple and complex ideas,
using increasingly complex language . . .”, and “learn to apply these skills in practical
ways that will help [the child] enter the workplace after [he or she] finish[es] school (e.g.,
carrying out instructions, preparing a job application. . . .” Id. Examples of functional
capabilities that are encompassed within this domain include not demonstrating an
understanding of words that describe concepts such as space, size, or time, difficulty
remembering what was learned in school the day before, not using language
appropriate for age, not developing “readiness skills” the same as peers, not reading,
writing, or doing arithmetic at appropriate grade level, difficulty comprehending written
or oral directions, struggling with following simple directions, talking only in short, simple

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sentence, and difficulty explaining things. SSR 09-3p, 2009 WL 396025, at *6 (Feb. 17,
2009).
From the foregoing, it is apparent that the term “adaptive functioning”
encompasses many areas that are relevant to the domain of acquiring and using
information. Further, I agree with Ms. Baldwin that there is considerable overlap
between the functional abilities referenced by 20 C.F.R. § 416.926a(g) and SSR 09-3p
and the adaptive areas in which J.N. has well-documented deficits. Accordingly, it does
not appear possible to reconcile the ALJ’s finding that J.N. has no deficits in adaptive
functioning with the finding that J.N. has “marked” limitation with respect to acquiring
and using information.
Furthermore, the ALJ found that J.N. is functionally impaired in several other
domains of function; specifically, attending and completing tasks (Tr. 167), interacting in
relating with others (id. 168), and caring for yourself. (Id. 171.) Although the ALJ found
that J.N.’s impairment in those other domains was not severe enough to be considered
“marked,” the fact that he found functional impairment in these areas is relevant to the
issue of whether J.N. has deficiencies in adaptive functioning that encompasses tasks
in these domains. Again, it is not plausible that J.N. could be impaired in such a wide
range of functional domains, and yet have no deficits of adaptive functioning as found
by the ALJ.
In conclusion on this issue, I find that the ALJ’s decision that J.N. does not meet
the capsule definition of mental retardation in the introductory paragraph of Listing
112.05 is not supported by substantial evidence. Instead, I find that the evidence in the
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record supports Dr. Marten’s provisional diagnosis of mild mental retardation, i.e, that
J.N. has “significantly subaverage general intellectual functioning” with substantial
deficits in adaptive functioning. I also note that the ALJ’s decision to give Ms. Baldwin’s
testimony “little weight” as it was “not entirely credible” is not supported by substantial
evidence. The ALJ based this decision on the fact that “the evidence supports that
[J.N.] has few significant problems” in areas other than intellectual functioning (Tr. 165),
which I have found herein is not supported by the record.
3.

Whether J.N. Meets the Criteria in Part C of Listing 112.05

I also agree with Plaintiff that substantial evidence in the record shows that J.N.
meets the criteria of part C of Listing 112.05. The C criteria requires “a valid verbal,
performance, or full scale IQ of 59 or less.” 20 C.F.R. pt. 404, subpt. P., app. 1,
§ 112.05(C). Here, it is undisputed that Dr. Marten assessed Plaintiff’s performance IQ
at 59 from his testing in 2006. (Tr. 139.) Further, Dr. Marten opined that his findings
“appeared to be a valid representation of [J.N.’s] intellectual and cognitive functioning at
this time.” (Id. 138.) While J.N.’s school performed IQ testing with different results (Id.
129) which were relied on by the ALJ, Dr. Marten cogently explained that the school’s
testing is not inconsistent with his testing, particularly with regard to the performance IQ
score. (Id. 149-49.) This opinion of Dr. Marten is undisputed in the record, and cannot
be second guessed by the ALJ based on his own lay opinion as explained in my Order
of March 2010 in the first case.
Thus, to the extent the ALJ states that the performance IQ score of 59 achieved
in Dr. Marten’s testing “is not corroborated by . . . the WISC-IV [testing of the school],. . .
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which showed [Plaintiff] had a of 100" (Tr. 160), this is an improper lay opinion of the
ALJ. There is no evidence in the record, including Dr. Marten’s explanation of the
testing, that equates the performance IQ score with the scores from the Perceptual
Reasoning Index and Processing Speed Index in the WISC-IV relied on by the ALJ.
Dr. Marten stated that the findings of the WISC IV do not invalidate the WISC III
findings. (Id. 149.) Dr. Marten also stated that the different scores “serve to highlight
the relatively different functions performed by the two different test protocols, especially
involving the comparison between [J.N.’s] Performance IQ on the WISC III versus that
of his Perceptual Reasoning and Processing Speed Indices on the WISC IV.” (Id.)
The Commissioner argues, however, that IQ scores of 40 or above obtained
between the ages of seven and 16 are valid for only two years, citing 20 C.F.R. pt 404,
subpt. P, app. 1, § 112.00(D)(10). As a result, he asserts that the tests in the record are
no longer a valid representation of J.N’s intellectual functioning. I reject this argument.
The issue here is whether J.N. met the definition of mental retardation in 2005. Since
Dr. Marten’s IQ testing was performed in 2006, it was performed within two years of
J.N.’s application for disability and met this criteria. If I were to order new IQ testing, it
would add nothing to the issue of what J.N.’s IQ was in 2005 and whether he met the
criteria for Listing 112.05 in that year. The Commissioner’s argument speaks more to
whether a Continuing Disability Review [“CDR”] might be applicable at some point, 20
C.F.R. § 416.994a, rather than whether J.N. was entitled to disability benefits at the time
the claim was filed on his behalf. Obviously, the Commissioner has the discretion to

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conduct a CDR at the appropriate time, but a future assessment of whether J.N.’s
condition has improved should not delay the final decision on his initial entitlement.
4.

The Appropriate Remedy

The final question is whether the ALJ’s decision should be reversed outright with
an award of benefits or whether the case should be reversed and remanded to the
Commissioner for further fact finding. The Tenth Circuit has made clear that when an
ALJ decision is reversed on appeal, it is within the sound discretion of the Court whether
to remand for additional proceedings or for an immediate award of benefits. Ragland v.
Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993); 42 U.S.C. § 405(g). “Some of the
relevant factors [to] consider are the length of time the matter has been pending and
whether or not given the available evidence, remand for additional fact-finding would
serve [any] useful purpose or would merely delay the receipt of benefits.” Salazar v.
Barnhart, 468 F.3d 615, 626 (10th Cir. 2006) (internal quotes and citations omitted). A
remand for an immediate award of benefits “is appropriate when the record fully
supports a determination that Plaintiff is disabled as a matter of law and is entitled to the
benefits for which he applied.” Sorenson v. Bowen, 888 F.2d 706, 713 (10th Cir. 1989).
In the case at hand, I agree with Ms. Baldwin that this case should be reversed
for an immediate award of benefits rather than remanded for further factfinding. I find
that the record fully supports a determination that J.N. is disabled as a matter of law
pursuant to Listing 112.05C as discussed in Section II.B.2 and 3, supra, and is entitled
to the SSI benefits for which he applied.

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I also find that the additional development proposed by the Commissioner
(ordering a consultative examination and obtaining new IQ testing) would not “serve any
useful purpose, but would merely delay the receipt of benefits.” Salazar, 468 F.3d at
626. Dr. Marten already performed a consultative examination at the Commissioner’s
request in June 2006. (Tr 136-41.) He provided a detailed report regarding his findings
and conclusions at that time, and subsequently provided additional evaluation and
analysis of the underlying IQ scores in comparison to other scores obtained by J.N.’s
school. (Id. 148-50.) It would be inappropriate to delay the final decision regarding
J.N.’s claim merely to obtain a new evaluation that could be duplicative and/or provide
little to no guidance on the issue of JN’s IQ scores in 2005.
I further note that the ALJ’s previous decision was reversed and remanded by me
in March 2010 on the basis of many of the same errors that are present in decision at
issue. Thus, the Commissioner has had numerous opportunities to properly evaluate
this case but has not done so, despite my previous Order of Remand. I do not believe
that another remand would rectify the problems or accomplish anything, particularly
given the fact that the record fully supports finding that J.N. is disabled.
In a similar vein, the actions now proposed by the Commissioner could have
been undertaken in connection with the remand of the first case, had the Commissioner
deemed them appropriate at that time. The fact that the Commissioner only now
believes he should have developed this claim further – after two appeals and six years
after the claim was initially filed – should not inure to J.N.’s detriment. The Tenth Circuit
has repeatedly admonished that the Commissioner “is not entitled to adjudicate a case
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ad infinitum until he correctly applies the proper legal standard and gathers evidence to
support his conclusion.” Sisco v. U.S. Dept. of HHS, 10 F.3d 739, 746 (10th Cir. 1993).
Finally, I agree with Plaintiff that the Commissioner should not be permitted to
tangle a children’s claim in a procedural morass until the child becomes an adult and
can no longer benefit from the children’s SSI program. J.N.’s claim for children’s SSI
benefits was initially filed in December 2005, and has now been pending for more than
six years. The remedy proposed by the Commissioner in this case could entirely
subvert the purposes of the children’s SSI program, i.e., to assist indigent disabled
children and their parents while the child is being raised. “Congress included disabled
children under the somewhat more generous Supplemental Security Income program in
the ‘belief that disabled children who live in low-income households are certainly among
the most disadvantaged of all Americans and that they are deserving of special
assistance in order to help them become self-supporting members of our society.’”
Zebley by Zebley v. Bowen, 855 F.2d 67, 69 (3d Cir. 1988) aff’d sub nom. Sullivan v.
Zebley, 493 U.S. 521 (1990) (citation omitted). J.N. is already 16 years of age, and it is
imperative that he receive a final decision regarding his claim before he becomes an
adult and is no longer entitled to assistance under the children’s SSI program. 20
C.F.R. § 416.987.
III.

CONCLUSION
Based upon the foregoing, it is
ORDERED that this case is REVERSED and REMANDED to the Commissioner

for an immediate award of SSI benefits to J.N.
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Dated June 14, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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