Ambrosia v. Commissioner of Social Security
Filing
19
-CLERK TO FOLLOW UP---DECISION AND ORDER granting Plaintiff's 11 Motion for Judgment on the Pleadings and denying the Commissioner's 10 Motion for Judgment on the Pleadings. This case is remanded to the Commissioner pursuant to sentence 4 of 42 USC section 405(g) for further proceedings consistent with this decision. The Clerk is directed to enter judgment in favor of Plaintiff and close this case. Signed by Hon. John T. Curtin on 8/17/2015. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL JOHN AMBROSIA,
Plaintiff,
-vs-
13-CV-298-JTC
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
APPEARANCES:
LEWIS L. SCHWARTZ, ESQ., Buffalo, New York, for Plaintiff
WILLIAM J. HOCHUL, JR., United States Attorney (GAIL Y.
MITCHELL, Assistant United States Attorney, of Counsel), Buffalo,
New York, for Defendant.
This matter has been transferred to the undersigned for all further proceedings, by
order of United States District Judge William M. Skretny dated April 23, 2015 (Item 18).
Plaintiff Michael John Ambrosia initiated this action on March 22, 2013, pursuant to
the Social Security Act, 42 U.S.C. § 405(g) (“the Act”), for judicial review of the final
determination of the Commissioner of Social Security (“Commissioner”) denying plaintiff’s
application for Social Security Disability Insurance (“SSDI”) and Supplemental Security
Income (“SSI”) benefits under Title II and Title XVI of the Act, respectively. Both parties
have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure (see Items 10, 11). For the following reasons, plaintiff’s motion is granted,
and the Commissioner’s motion is denied.
BACKGROUND
Plaintiff was born on June 30, 1963 (Tr. 250).1 He filed applications for SSDI and
SSI benefits on April 23, 2010, alleging disability due to right shoulder pain, “manic
depression,” a poor memory, and an inability to read or write, with an onset date of January
20, 2010 (Tr. 250-55). The applications were denied administratively on July 13, 2010 (Tr.
56-62). Plaintiff requested a hearing, which was held by videoconference on March 21,
2012, before Administrative Law Judge (“ALJ”) Scott M. Staller (Tr. 25-49). Plaintiff
appeared and testified at the hearing, and was represented by counsel. Plaintiff’s girlfriend
Carrie Sosie and vocational expert (“VE”) Dianne Regan also appeared and testified.
On April 12, 2012, the ALJ issued a decision finding that plaintiff was not disabled
within the meaning of the Act (Tr. 5-17). Following the sequential evaluation process
outlined in the Social Security Administration regulations governing claims for benefits
under Titles II and XVI (see 20 C.F.R. §§ 404.1520, 416.920), the ALJ found that plaintiff’s
impairments (identified as right shoulder pain, borderline intellectual functioning,
personality disorder, and alcohol and cocaine dependence), while “severe” within the
meaning of the Act and considered alone or in combination, did not meet or medically
equal the criteria of any impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1
(the “Listings”) (Tr. 10-12). The ALJ discussed the evidence in the record regarding the
functional limitations caused by plaintiff’s impairments, including the objective medical
evidence and plaintiff’s testimony and written statements about his symptoms, and
determined that plaintiff had the residual functional capacity (“RFC”) to perform work at the
1
Parenthetical numeric references preceded by “Tr.” are to pages of the administrative transcript
filed by the Commissioner at the time of entry of notice of appearance in this action (Item 6).
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“medium”2 exertional level, with additional exertional and non-exertional limitations (Tr. 12).
Relying on the VE’s testimony indicating that an individual of plaintiff’s age, education, work
experience, and RFC would be able to perform the physical and mental demands of
plaintiff’s past relevant work as a laborer, and alternatively, would be capable of making
a successful adjustment to other work that exists in significant numbers in the national
economy, and using Rules 204.00 and 203.26 of the Medical-Vocational Guidelines, 20
C.F.R. Pt. 404, Subpt. P, App. 2 (the “Grids”), as a framework for decision-making, the ALJ
determined that plaintiff has not been disabled within the meaning of the Act at any time
since the alleged onset date (Tr. 15-17).
The ALJ’s decision became the final decision of the Commissioner on February 27,
2013, when the Appeals Council denied plaintiff's request for review (Tr. 1-4), and this
action followed.
In his motion for judgment on the pleadings, plaintiff contends that the
Commissioner’s determination should be reversed because the ALJ (1) failed to consider
at step three of the sequential evaluation process whether plaintiff’s mental impairments
met or equaled the criteria for establishing “intellectual disability” under Listing 12.05C; (2)
failed to consider plaintiff’s depression and anxiety as severe impairments; (3) failed to
properly weigh opinion evidence; and (4) failed to properly consider the hearing testimony
of lay witness Carrie Sosie. See Items 11, 17. The government contends that the
2
“Medium work” is defined in the regulations as follows:
Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If someone can do medium work, we
determine that he or she can also do sedentary and light work.
20 C.F.R. §§ 404.1567(c), 416.967(c).
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Commissioner’s determination should be affirmed because the ALJ’s decision was made
in accordance with the pertinent legal standards and is based on substantial evidence.
See Items 10, 15.
DISCUSSION
I.
Scope of Judicial Review
The Social Security Act provides that, upon district court review of the
Commissioner‘s decision, “[t]he findings of the Commissioner . . . as to any fact, if
supported by substantial evidence, shall be conclusive ….”
42 U.S.C. § 405(g).
Substantial evidence is defined as evidence which “a reasonable mind might accept as
adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938), quoted in Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tejada v.
Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999). The substantial evidence test applies not only
to findings on basic evidentiary facts, but also to inferences and conclusions drawn from
the facts. Giannasca v. Astrue, 2011 WL 4445141, at *3 (S.D.N.Y. Sept. 26, 2011) (citing
Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977)).
Under these standards, the scope of judicial review of the Commissioner’s decision
is limited, and the reviewing court may not try the case de novo or substitute its findings
for those of the Commissioner. Richardson, 402 U.S. at 401; see also Cage v. Comm'r of
Soc. Servs., 692 F.3d 118, 122 (2d Cir. 2012). The court’s inquiry is “whether the record,
read as a whole, yields such evidence as would allow a reasonable mind to accept the
conclusions reached” by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982), quoted in Hart v. Colvin, 2014 WL 916747, at *2 (W.D.N.Y. Mar. 10, 2014).
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However, “[b]efore the insulation of the substantial evidence test comes into play,
it must first be determined that the facts of a particular case have been evaluated in the
light of correct legal standards.” Klofta v. Mathews, 418 F. Supp. 1139, 1411 (E.D.Wis.
1976), quoted in Sharbaugh v. Apfel, 2000 WL 575632, at *2 (W.D.N.Y. Mar. 20, 2000);
Nunez v. Astrue, 2013 WL 3753421, at *6 (S.D.N.Y. July 17, 2013) (citing Tejada, 167 F.3d
at 773). “Failure to apply the correct legal standard constitutes reversible error, including,
in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue,
546 F.3d 260, 265 (2d Cir. 2008) (citations omitted).
Thus, the Commissioner’s
determination cannot be upheld when it is based on an erroneous view of the law, or
misapplication of the regulations, that disregards highly probative evidence. See Grey v.
Heckler, 721 F.2d 41, 44 (2d Cir. 1983); see also Johnson v. Bowen, 817 F.2d 983, 985
(2d Cir. 1987) (“Failure to apply the correct legal standards is grounds for reversal.”),
quoted in McKinzie v. Astrue, 2010 WL 276740, at *6 (W.D.N.Y. Jan. 20, 2010).
If the Commissioner's findings are free of legal error and supported by substantial
evidence, the court must uphold the decision. 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive, and where a claim has been denied ... the court shall review only the
question of conformity with [the] regulations….”); see Kohler, 546 F.3d at 265. “Where the
Commissioner's decision rests on adequate findings supported by evidence having rational
probative force, [the court] will not substitute [its] judgment for that of the Commissioner.”
Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). Even where there is substantial
evidence in the record weighing against the Commissioner's findings, the determination will
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not be disturbed so long as substantial evidence also supports it. See Marquez v. Colvin,
2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013) (citing DeChirico v. Callahan, 134 F.3d
1177, 1182 (2d Cir. 1998) (upholding the Commissioner's decision where there was
substantial evidence for both sides)).
In addition, it is the function of the Commissioner, not the reviewing court, “to
resolve evidentiary conflicts and to appraise the credibility of witnesses, including claimant.”
Carroll v. Sec'y of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983); cf.
Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. Sept. 5, 2013). “Genuine conflicts in the
medical evidence are for the Commissioner to resolve,” Veino, 312 F.3d at 588, and the
court “must show special deference” to credibility determinations made by the ALJ, “who
had the opportunity to observe the witnesses’ demeanor” while testifying. Yellow Freight
Sys. Inc. v. Reich, 38 F.3d 76, 81 (2d Cir. 1994).
II.
Standards for Determining Eligibility for Disability Benefits
To be eligible for SSDI or SSI benefits under the Social Security Act, plaintiff must
present proof sufficient to show that he suffers from a medically determinable physical or
mental impairment “which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months …,” 42 U.S.C.
§ 423(d)(1)(A), and is “of such severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy ….”
42 U.S.C.
§ 423(d)(2)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). As indicated above, the
regulations set forth a five-step process to be followed when a disability claim comes
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before an ALJ for evaluation of the claimant's eligibility for benefits.
See 20
C.F.R.§§ 404.1520, 416.920. First, the ALJ must determine whether the claimant is
presently engaged in substantial gainful activity. If the claimant is not, the ALJ must decide
if the claimant has a “severe” impairment, which is an impairment or combination of
impairments that has lasted (or may be expected to last) for a continuous period of at least
12 months which “significantly limits [the claimant's] physical or mental ability to do basic
work activities ….” 20 C.F.R. §§ 404.1520(c), 416.920(c); see also §§ 404.1509, 416.909
(duration requirement). If the claimant's impairment is severe and of qualifying duration,
the ALJ then determines whether it meets or equals the criteria of an impairment found in
the Listings. If the impairment meets or equals a listed impairment, the claimant will be
found to be disabled. If the claimant does not have a listed impairment, the fourth step
requires the ALJ to determine if, notwithstanding the impairment, the claimant has the
residual functional capacity to perform his or her past relevant work. If the claimant has
the RFC to perform his or her past relevant work, the claimant will be found to be not
disabled, and the sequential evaluation process comes to an end. Finally, if the claimant
is not capable of performing the past relevant work, the fifth step requires that the ALJ
determine whether the claimant is capable of performing any work which exists in the
national economy, considering the claimant's age, education, past work experience, and
RFC. See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Lynch v. Astrue, 2008 WL
3413899, at *2 (W.D.N.Y. Aug. 8, 2008).
The claimant bears the burden of proof with respect to the first four steps of the
analysis. If the claimant meets this burden, the burden shifts to the Commissioner to show
that there exists work in the national economy that the claimant can perform. Lynch, 2008
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WL 3413899, at *3 (citing Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)). “In the
ordinary case, the Commissioner meets h[er] burden at the fifth step by resorting to the
applicable medical vocational guidelines (the grids), … [which] take into account the
claimant's residual functional capacity in conjunction with the claimant's age, education,
and work experience.” Rosa, 168 F.3d at 78 (internal quotation marks, alterations and
citations omitted). If, however, a claimant has non-exertional limitations (which are not
accounted for in the grids) that “significantly limit the range of work permitted by his
exertional limitations then the grids obviously will not accurately determine disability
status ….” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (internal quotation marks and
citation omitted). In such cases, “the Commissioner must ‘introduce the testimony of a
vocational expert (or other similar evidence) that jobs exist in the national economy which
claimant can obtain and perform.’ ” Rosa, 168 F.3d at 78 (quoting Bapp, 802 F.2d at 603).
III.
The ALJ’s Disability Determination
In this case, ALJ Staller determined at step one of the sequential evaluation that
plaintiff had not engaged in substantial gainful activity since January 20, 2010, the alleged
onset date (Tr. 10). At step two, the ALJ determined that plaintiff’s physical and mental
impairments are “severe” as that term is defined in the regulations because they cause
“more than minimal functional limitation in his ability to perform basic work-related
activities” (id.).
At step three, the ALJ determined that plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of any listed
impairment, specifically considering the criteria of Listings 12.02 (Organic Mental
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Disorders), 12.08 (Personality Disorders), and 12.09 (Substance Addiction Disorders) (Tr.
10-11). 3 Based on plaintiff’s hearing testimony, and relying on the reports of consultative
examining medical sources Renee Baskin, Ph.D (see Tr. 329-38) and Kathleen Kelley,
M.D. (Tr. 340-43), the ALJ determined that plaintiff had mild restriction in activities of daily
living; moderate difficulties in social functioning; moderate difficulties with regard to
concentration, persistence or pace; and had experienced one or two episodes of
decompensation which had been of extended duration (Tr. 59-60). The ALJ also found no
evidence to establish the presence of “paragraph C” criteria (id.; see 20 C.F.R. Pt. 404,
Subpt. P, App. 1, §§ 12.02(C), 12.08(C).
The ALJ then found that plaintiff had the RFC for medium work, with physical
limitations of the right upper extremity regarding more than occasional reaching overhead
and lifting more than ten pounds, and several non-exertional limitations including the ability
to: understand, remember, and carry out simple instructions, and make judgments on
simple work-related decisions; tolerate only occasional decision making, only occasional
changes in the work setting, only brief, infrequent and superficial contact with the public,
and only occasional contact with co-workers and supervisors; maintain attention and
concentration for 2-hour segments over an 8-hour period; and complete a normal work
3
To satisfy this criteria, the claimant must show (among other things) that his or her impairment
resulted in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence or pace; or
4. Repeated episodes of decompensation, each of extended duration[.]
20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.02(B), 12.08(B) (Paragraph “B” criteria). Under Listing 12.09,
substance abuse disorders involving organic mental disorders and/or personality disorders are evaluated
under the criteria of Listings 12.02 and/or 12.08, respectively. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.09.
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week without excessive interruption from psychologically or physically based symptoms (Tr.
12). In making this finding, the ALJ considered the objective medical evidence in the
record, along with the opinions of the consultative examining sources and plaintiff’s hearing
testimony regarding the functional limitations caused by the symptoms of his physical and
mental impairments (Tr. 12-15). Based upon his consideration of this evidence, the ALJ
found that plaintiff's medically determinable impairments could reasonably be expected to
cause some of the symptoms alleged, but the extent of the limiting effects of both his
physical and mental symptoms were “not as severe as alleged” (Tr. 13, 14). With regard
to the opinion evidence, the ALJ noted that the record contained no medical opinions from
any treating source, and therefore the ALJ attributed “significant weight” to certain aspects
of the consultative examiners’ opinions–specifically, Dr. Kelley’s opinion that repetitive use
of the right arm at work would require plaintiff to receive “comfort breaks,” and Dr. Baskin’s
opinion that plaintiff can understand and follow simple directions and perform simple tasks
independently (Tr. 14-15).
At step four of the sequential evaluation, the ALJ found that plaintiff could return to
his past relevant work as a general laborer (Tr. 15). The ALJ relied on plaintiff’s testimony
regarding the physical and mental demands of this work, along with the VE’s testimony in
response to the ALJ’s hypothetical questions as to whether an individual with of plaintiff’s
age with similar education, work experience, RFC, and work-related limitations could
perform the exertional requirements of the laborer job, as well as other jobs existing in the
national economy, as classified in the U .S. Department of Labor's Dictionary of
Occupational Titles (“DOT”) (Tr. 15).
Based on this testimony, the ALJ made the
alternative finding at step five that plaintiff was capable of making a successful adjustment
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to other work, and that the Grids provided a framework for finding plaintiff “not disabled”
within the meaning of the Act at any time during the relevant period (Tr. 15-16).
IV.
Plaintiff’s Motion: Listing 12.05
Plaintiff contends that the Commissioner’s final determination should be reversed,
or the matter should be remanded to the Commissioner, because the ALJ failed to
consider whether plaintiff’s mental impairments met or equaled the criteria of Listing 12.05
(Intellectual disability).4 Listed impairments are “acknowledged by the [Commissioner] to
be of sufficient severity to preclude” substantial gainful activity. Dixon v. Shalala, 54 F.3d
1019, 1022 (2d Cir. 1995) (quoting Dixon v. Heckler, 785 F.2d 1102, 1103 (2d Cir. 1981)).
Accordingly, a claimant who meets or equals a Listing is “conclusively presumed to be
disabled and entitled to benefits.”
Id.; see also 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii) (“If you have an impairment(s) that meets or equals one of our listings in
appendix 1 of this subpart and meets the duration requirement, we will find that you are
disabled.”). As already indicated, the claimant bears the burden at step three to establish
that his or her impairments meet or equal the criteria of a Listing. See Johnson v. Colvin,
2014 WL 6883606, at *5 (W.D.N.Y. Dec. 4, 2014) (citing Naegele v. Barnhart, 433 F. Supp.
2d 319, 324 (W.D.N.Y. 2006) (“It must be remembered that plaintiff has the burden of proof
at step 3 that she meets the Listing requirements.”).
To satisfy the criteria of Listing 12.05, a claimant must (1) demonstrate “significantly
subaverage general intellectual functioning with deficits in adaptive functioning initially
4
Listing 12.05 was amended effective August 1, 2013, substituting the term “Intellectual disability”
for the term “Mental retardation.” No other substantive change was made to the Listing criteria.
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manifested during the developmental period; i.e., … before age 22[,]” and (2) meet the
requirements of subsection A, B, C, or D. 20 C.F.R. Part 404, Subpart P, Appendix 1,
§ 12.05. Plaintiff contends that the record contains sufficient evidence to make both
showings.
With regard to the first showing, reference is made to the report of a psychological
evaluation performed in February 1981 by School Psychologist Milton Anglin, when plaintiff
was 17 years old. Wechsler Adult Intelligence Scale (“WAIS”) testing at that time yielded
a verbal IQ of 69, performance IQ of 98, and full scale IQ of 80 (Tr. 359). Dr. Anglin noted
that plaintiff had previously been recommended for placement in an educable mentally
retarded (“EMR”) program, based on psychological evaluations in 1974 and 1977 indicating
“borderline” mental retardation, with verbal ability in the EMR range, and performance
ability in the “slow learner” range (id.). Upon evaluation, Dr. Anglin noted plaintiff’s
difficulties in perceptual motor abilities and academic achievement. He was described as
a “non-reader” (Tr. 361). Dr. Anglin’s overall impression was “learning disability with
accompanying emotional features as well as other emotional involvement” and “perceptual
motor problems,” indicating the need for placement in a learning disabled class setting (id.).
In the court’s view, and in the absence of any indication in Dr. Anglin’s narrative (or
elsewhere) to question the validity of the February1981 WAIS IQ scores, this evidence
provides a sufficient basis upon which a reasonable adjudicator could find that plaintiff had
significantly subaverage general intellectual functioning with deficits in adaptive functioning
which initially manifested before age 22.
With regard to the second showing, plaintiff contends that he meets the criteria of
subsection C, which requires (1) “valid verbal performance, or full scale IQ of 60 through
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70 …,” and (2) “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,
§ 12.05C. Regarding IQ scores, the regulations provide that for the purposes of Listing
12.05, only the lowest IQ subscore needs to be considered. See id., § 12.00(D)(6)(c) (“[i]n
cases where more than one IQ is customarily derived from the test administered, e.g.,
where verbal, performance, and full scale IQs are provided in the Wechsler series, we use
the lowest of these in conjunction with 12.05”). As indicated, plaintiff’s lowest subscore on
the February 1981 administration of the WAIS test was a Verbal IQ of 69.
Plaintiff also underwent intelligence testing during his consultative examination with
Dr. Baskin on June 25, 2010 (see Tr. 329-38). Dr. Baskin administered the Wide Range
Achievement Test (“WRAT”) III standardized achievement test, which yielded a score of
“below 45 in reading/decoding,” the grade equivalent of kindergarten (Tr. 336), and the
WAIS-IV standardized intelligence test, which yielded a Full Scale IQ of 61, Verbal
Comprehension score of 63, Perceptual Reasoning score of 69, Working Memory score
of 63, and Processing Speed score of 74 (Tr. 337). Dr. Baskin noted in her narrative that
these results placed plaintiff “in the mildly mentally retarded range of intellectual
functioning” (id.), but may reflect “a slightly lower estimate of the claimant’s true cognitive
abilities due to lack of effort” (Tr. 336).
The second prong of 12.05C requires a physical or other mental impairment
imposing a significant work-related limitation of function. In this regard, ALJ Staller found
that plaintiff suffered from additional severe impairments, including right shoulder pain and
a personality disorder (Tr. 10). As this court has recognized, “the proper test for evaluating
an additional impairment under Listing 12.05(C) is the same test used at step two of the
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sequential evaluation to determine whether an impairment is ‘severe.’ ” Velez v. Astrue,
2013 WL 321552, at *6 (W.D.N.Y. Jan. 28, 2013) (citing 20 C.F.R. §§ 404.1520(c),
416.920(c); Baneky v. Apfel, 997 F. Supp. 543, 546 (S.D.N.Y. 1998) (“This Court holds that
the correct standard for determining whether an “additional” impairment imposes a
“significant” work-related limitation under section 12.05(C) is the severity test ...”)). Thus,
the ALJ’s step two finding – that plaintiff has both physical and mental impairments that
significantly limit his ability to do basic work activities – qualifies to meet the second prong
of Listing 12.05C. See MacMillan v. Astrue, 2009 WL 8595781, at *6 (N.D.N.Y. Nov. 17,
2009); Velez, 2013 WL 321552, at *6 (“Because the ALJ found that Velez has a number
of physical limitations that are severe, the second prong of Listing 12.05C is met.”).
As noted, in making his step three determination of Listing severity, the ALJ
considered the criteria for sections 12.02, 12.08, and 12.09, but not section 12.05,
ultimately finding that plaintiff’s cognitive limitations were within the “borderline” range and
did not preclude his ability to function in a supervised work setting (Tr. 14). According to
the government, this finding is supported by substantial evidence, including plaintiff’s
testimony and work records indicating that he performed unskilled work at substantial
gainful activity (“SGA”) levels during the years 2000, 2001, 2002, 2006, 2007, 2008, and
2009 (Tr. 30-31, 269, 277). However, as indicated by the discussion above, the court’s
review of the record reveals evidence of plaintiff’s subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested prior to age 22, along
with qualifying valid IQ scores and physical or other mental impairment imposing a
significant work-related limitation of function, which a reasonable adjudicator could find
sufficient to meet the criteria of Listing 12.05C. Indeed, plaintiff’s 2010 standardized IQ
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test scores were much lower than his 1981 scores, and Dr. Baskin specifically noted that
plaintiff’s 2010 scores placed him in the mildly mentally retarded range of intellectual
functioning (Tr. 337). In light of these perceived inconsistencies, the ALJ should have
sought clarification from Dr. Baskin and/or otherwise supplemented the record in order to
provide a valid assessment of plaintiff’s cognitive function and its effect on his mental
ability to do basic work activities. See, e.g., Sindoni v. Colvin, 2015 WL 3901955, at *5
(N.D.N.Y. June 25, 2015) (ALJ has affirmative duty to develop the record by seeking
additional evidence or clarification when there is a conflict or ambiguity that must be
resolved); Rolon v. Commissioner of Social Sec., 994 F. Supp. 2d 496, 504 (S.D.N.Y.
2014) (Failure to seek clarification of perceived inconsistencies in medical source’s findings
about claimant's mental functional limitations was legal error).
Based on this assessment of the record, the court finds that the ALJ’s failure to
consider whether plaintiff’s mental impairments met or equaled the criteria for establishing
“intellectual disability” under Listing 12.05C constitutes legal error that disregards highly
probative evidence, requiring remand to the Commissioner for further consideration in
accordance with the matters discussed herein. On remand, the Commissioner shall
consider “[a]ny issues relating to [plaintiff’s] claim …,” 20 C.F.R. § 404.983, including but
not limited to the severity of plaintiff’s depression and anxiety, and the weight to be
accorded to opinion evidence and lay witness testimony.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for judgment on the pleadings (Item 11)
is granted, the Commissioner’s motion for judgment on the pleadings (Item 10) is denied,
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and the case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C.
§ 405(g) for further proceedings in accordance with the matters discussed above.
The Clerk of the Court is directed to enter judgment in favor of plaintiff, and to close
the case.
So ordered.
\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated: August 14, 2015
p:\pending\2013\13-298.ssdi.si.aug6.2015
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