Schamber v. Astrue
Filing
29
-CLERK TO FOLLOW UP- DECISION AND ORDER granting [11 Plaintiff's Motion for Judgment on the Pleadings; denying 16 Commissioner's Motion for Judgment on the Pleadings; adopting Report and Recommendations re 20 Report and Recommendations. This matter is reversed and remanded solely for the calculation and payment of benefits. (The Clerk of the Court is directed to close this case.) Signed by Hon. Michael A. Telesca on 8/30/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JASON R. SCHAMBER,
Plaintiff,
-vs-
No. 1:12-CV-01061 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Jason R. Schamber (“plaintiff”) brings
this action pursuant to Title XVI of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying his application for
supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). The matter was
initially before the Court on the parties’ cross motions for
summary judgment.1 The parties’ motions were referred to Magistrate
Judge Leslie G. Foschio for consideration of the factual and legal
issues
presented,
and
to
prepare
and
file
a
Report
and
Recommendation (“R&R”) containing a recommended disposition of the
issues raised.
1
This case was originally assigned to Judge Richard Arcara, who referred
it to Magistrate Judge Foschio for a Report and Recommendation, which was
completed and filed on June 24, 2015. The case was referred to this Court by
order dated August 2, 2016.
II.
Procedural History
The record reveals that in December 2009, plaintiff (d/o/b
February 4, 1985) applied for SSI, alleging disability as of
December 2009. Plaintiff previously received benefits as a child
for the period between January 1, 1997 and June 2008. After his
application was denied, plaintiff requested a hearing, which was
held before administrative law judge Timothy M. McGuan on July 14,
2011. The ALJ issued an unfavorable decision on August 15, 2011.
The Appeals Council denied review of that decision and this timely
action followed.
III. The Report and Recommendation
By R&R dated June 24, 2015, Magistrate Judge Foschio found
that plaintiff’s intellectual impairment met Listing 12.05(C), and
that plaintiff was therefore presumptively disabled under the
regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C).
Accordingly, the R&R recommended that the case be remanded solely
for te calculation and payment of benefits. Doc. 20. Alternatively,
the R&R found that the ALJ’s RFC finding was unsupported by
substantial
evidence,
and
recommended
remand
for
further
consideration.
Listing 12.05(C) requires a claimant to have “significantly
subaverage
general
intellectual
functioning
with
deficits
in
adaptive functioning initially manifested during the developmental
period” and, as relevant here, “[a] valid verbal, performance, or
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full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related
limitation of function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.05(C). The R&R found that plaintiff met Listing 12.05C because
he met the threshold requirements of the Listing and had a valid
full-scale IQ of 632, and a learning disorder, which constituted an
additional and significant work-related impairment.
IV.
The Commissioner’s Objections
The Commissioner objected to the R&R, arguing that it erred in
finding that (1) plaintiff had deficits in adaptive functioning and
(2) plaintiff’s learning disability constituted an additional and
significant work-related limitation.3
A.
Deficits in Adaptive Functioning
The Commissioner argues that the R&R erred in finding that
plaintiff had deficits in adaptive functioning as required by
Listing 12.05(C). The R&R found that plaintiff did have such
deficits,
citing
a
consulting
psychiatric
evaluation
which
questioned plaintiff’s ability to perform tasks independently,
maintain attention and concentration for a regular schedule, learn
new tasks, make appropriate decisions, deal with stress, or “relate
2
This IQ was measured when plaintiff was 17 years old. The record also
contains a full-scale IQ score of 61, measured when plaintiff was 16 years old.
3
The Commissioner also objected to the R&R’s alternative finding that the
ALJ’s RFC determination was unsupported by substantial evidence. Because the
Court finds the issue of Listing 12.05(C) to be dispositive and warrants remand
for calculation and payment of benefits as recommended by the R&R, the Court will
not address the R&R’s alternative finding.
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effectively in any type of social or vocational situation.” R. 170.
The R&R also cited evidence indicating that plaintiff was fired
from a job with the Town of Tonawanda for continually running into
traffic during his collection work after being reminded not to do
so; plaintiff was late to his administrative hearing because he got
lost; and plaintiff had frequent difficulty following directions.
The Court additionally notes that plaintiff completed his high
school education in a special education program, performed below
grade level in math and reading, and was living with his parents at
the time of the hearing.
“Courts
have
found
circumstantial
evidence,
such
as
the
following, sufficient to infer deficits in adaptive functioning
prior to age 22: evidence a claimant attended special education
classes;
dropped
out
of
school
before
graduation;
or
had
difficulties in reading, writing, or math.” Edwards v. Astrue, 2010
WL 3701776, *3 (N.D.N.Y. Sept. 16, 2010) (citing, inter alia,
MacMillan v. Astrue, 2009 WL 4807311, *6 (N.D.N.Y. 2009)). There is
ample evidence in this record to conclude, as the R&R found, that
plaintiff had deficits in adaptive functioning. Therefore, the
Commissioner’s objection is overruled.
B.
Additional and Significant Work-Related Limitation
The Commissioner contends that the R&R erred in finding that
plaintiff’s learning disorder, which the ALJ found to be severe,
was an additional and significant work-related limitation within
the meaning of Listing 12.05(C). Regarding the requirement of “a
4
physical or other mental impairment imposing an additional and
significant work-related limitation of function,” the regulations
have been explicitly revised to clarify that “[f]or paragraph C [of
Listing 12.05], [the Commissioner] will assess the degree of
functional
limitation
the
additional
impairment(s)
imposes
to
determine if it significantly limits [the claimant’s] physical or
mental ability to do basic work activities, i.e., is a ‘severe’
impairment(s),
as
defined
in
§§
404.1520(c)
and
416.920(c).”
20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(A).
ALJ McGuan’s finding that plaintiff’s learning disorder was a
severe impairment, distinct from his “mild mental retardation,” see
T. 22, amounted to a per se finding that plaintiff satisfied the
second prong of Listing 12.05(C). See Hill v. Astrue, 2013 WL
5472036, *8 (W.D.N.Y. Sept. 30, 2013) (“[T]he correct standard for
determining whether an impairment, in addition to low IQ, imposes
a ‘significant’ work-related limitation under Listing 12.05C is the
step two severity test.”). Therefore, the Commissioner’s objection
is overruled.
V.
Conclusion
For the reasons discussed in this Decision and Order as well
as those set forth in the R&R, the Commissioner’s motion for
judgment on the pleadings (Doc. 16) is denied and plaintiff's
motion (Doc. 11) is granted. The Commissioner’s objections to the
R&R (doc. 24) are overruled. This matter is reversed and remanded
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solely for the calculation and payment of benefits. The Clerk of
the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
August 30, 2016
Rochester, New York.
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