Rohrback v. Colvin
Filing
14
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 11 Commissioner's Motion for Judgment on the Pleadings; granting 12 Plaintiff's Motion for Judgment on the Pleadings; and reversing and remanding solely for the calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/24/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DANIEL C. ROHRBACK,
Plaintiff,
-vs-
No. 1:13-CV-00628 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented
by
counsel,
Daniel
C.
Rohrback
(“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 disabled adult child (“DAC”) benefits. The Court
has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules
of
Civil
Procedure.
For
the
reasons
discussed
below,
plaintiff’s motion is granted, and the matter is reversed and
remanded solely for the calculation and payment of benefits.
II.
Procedural History
The record reveals that plaintiff (d/o/b November 27, 1991)
was determined disabled on April 13, 2006, and began receiving
supplemental security income benefits as a child. When plaintiff
attained the age of 18, his benefit status was reviewed and, on
November 3, 2009, he was determined no longer disabled as of
February 2010. Subsequently, in December 2009, plaintiff applied
for DAC benefits, alleging disability as of November 27, 2009.
After his application was denied, plaintiff requested a hearing,
which was held before administrative law judge Timothy M. McGuan
(“ALJ
McGuan”)
on
February
7,
2012.
ALJ
McGuan
issued
an
unfavorable decision on April 19, 2012. The Appeals Council denied
review of that decision and this timely action followed.
III. Summary of Evidence
The relevant facts of this case are quite straightforward.
Plaintiff was originally determined disabled as a child due to
speech and language delays. At the time of his hearing, plaintiff
was 20 years old and enrolled in special education classes as a
high school senior. He lived at home with his mother. As of an IEP
for the 2007-2008 school year, plaintiff was more than four years
behind his grade level in reading. That IEP noted that the special
education committee considered a general education setting with
supportive
services,
but
“rejected
[that
option]
because
[plaintiff’s] current academic skills, social/emotional needs,
physical
needs
and
management
needs
indicate[d]
that
a
more
intensive setting with support [was] needed.” T. 58.
Plaintiff’s ongoing special education accommodations included
needing access to a calculator in every class, time and a half on
all tests, separate testing rooms, tests to be read twice aloud,
and simplified testing directions. There is also evidence in the
2
record indicating that plaintiff may have suffered from lead
poisoning as a toddler. T. 104, 210. In addition to limitations in
his
mental
functioning,
plaintiff
suffered
from
sleep
apnea,
asthma, and status post septoplasty and turbinate reduction.
In a consulting intelligence examination performed in December
2009, state agency psychologist Dr. Thomas Ryan assessed plaintiff
with a standard verbal IQ score of 72, perceptual reasoning IQ of
69, working memory IQ of 71, processing speed IQ of 89, and full
scale IQ of 70. According to Dr. Ryan, these scores represented a
“valid and reliable estimate of [plaintiff’s] current functioning.”
T. 306.
IV.
ALJ McGuan’s Decision
At step one of the sequential evaluation, see 20 C.F.R. §
416.920, ALJ McGuan determined that plaintiff had not engaged in
substantial gainful activity since November 27, 2009, the alleged
onset date. At step two, ALJ McGuan found that plaintiff suffered
from
the
following
severe
impairments:
sleep
apnea,
asthma,
borderline intellectual functioning, and status post septoplasty
and turbinate reduction. At step three, ALJ McGuan found that
plaintiff did not have an impairment or combination of impairments
that met or medically equaled a listed impairment. In considering
Listing 12.05(C), ALJ McGuan stated, without elaborating, that this
listing was not met “because [plaintiff] [did] not have a valid
verbal, performance, or full scale IQ of 60 through 70 and a
3
physical or other mental impairment imposing an additional and
significant work-related limitation of function.” T. 21.
Before proceeding to step four, ALJ McGuan determined that
plaintiff retained the RFC to perform light work as defined in 20
C.F.R.
404.1567(b),
but
could
only
occasionally
understand,
remember, and carry out complex and detailed tasks; could do
simple, unskilled work; and must avoid concentrated exposure to
fumes, dusts, and odors. After finding that plaintiff had no past
relevant work, ALJ McGuan determined that, considering plaintiff’s
age, work experience, and RFC, jobs existed in significant numbers
in the national economy that plaintiff could perform. ALJ McGuan
thus found that plaintiff was not disabled.
V.
Discussion
A
district
court
may
set
aside
the Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Plaintiff’s primary argument is that ALJ McGuan’s decision
regarding Listing 12.05(C) is unsupported by substantial evidence.
Plaintiff contends that ALJ McGuan failed to provide any reasoning
4
for finding that plaintiff was not disabled under that listing, and
that substantial evidence in the record establishes that plaintiff
is presumptively disabled under that listing. Because the Court
finds that plaintiff suffered from mental retardation as defined by
Listing 12.05(C), the Court will not address plaintiff remaining
arguments.
Listing 12.05(C) was amended in August 2013 to change the
phrase “mental retardation” to “intellectual disability.”1 At the
time
of
ALJ
plaintiff
disabled)
McGuan’s
was
when
decision,
mentally
he
retarded
had
the
(and
listing
provided
therefore
“significantly
that
a
presumptively
subaverage
general
intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before
age 22,” and when he had (1) “[a] valid verbal, performance, or
full scale IQ of 60 through 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, § 12.05(C). Thus, “[t]o meet Listing 12.05(C), a
claimant
must
satisfy
the
diagnostic
description
in
the
introductory paragraph of 12.05, and both prongs of section (C).”
Kennerson v. Astrue, 2012 WL 3204055, *8 (W.D.N.Y. Aug. 3, 2012).
1
This amendment did not change the substantive requirements
of the listing.
5
Upon
a
review
administrative
of
ALJ
record,
the
McGuan’s
Court
decision
concludes
along
that
ALJ
with
the
McGuan’s
analysis of Listing 12.05(C) was the product of significant legal
error.
The Commissioner argues that plaintiff failed to satisfy the
introductory paragraph of Listing 12.05(C) because, according to
the Commissioner, plaintiff did not have deficits in adaptive
functioning. Initially, the Court agrees with plaintiff that this
argument by the Commissioner amounts to an impermissible post hoc
rationalization of ALJ McGuan’s decision, which did not even
mention the adaptive functioning requirement of the listing. See
Mills v. Colvin, 2015 WL 2451748, *7 (W.D.N.Y. May 21, 2015)
(“[T]he ‘post hoc rationalizations’ offered by the Commissioner as
to why the ALJ [came to his decision] ‘are not entitled to weight
by a reviewing court.’”) (quoting Hill v. Astrue, 2013 WL 5472036,
*7 (W.D.N.Y. Sept. 30, 2013)). Reading ALJ McGuan’s decision
generously, he apparently concluded that the introductory paragraph
was irrelevant, considering his erroneous legal conclusion that
plaintiff did not satisfy the remaining two prongs of the listing.
Regardless, the Commissioner’s argument fails on the merits.
“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,
6
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)). Plaintiff has been enrolled in
special education for his entire educational career, was still
working to
complete
high
school
at
age
20,
and
demonstrated
significant difficulties in reading, writing, and math. Therefore,
he has satisfied the requirement that he have deficits in adaptive
functioning.
Plaintiff also satisfies the first prong of Listing 12.05(C),
which requires a valid verbal, performance, or full scale IQ of 60
through 70. As found by the state agency consulting psychologist,
plaintiff’s full-scale IQ was 70, placing him squarely within the
listing’s requirement. Regarding the second prong, which requires
“a 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). As plaintiff points
out, ALJ McGuan’s findings that plaintiff suffered from several
severe impairments, which included asthma, sleep apnea, and status
7
post septoplasty and turbinate reduction, amounted to a per se
finding that plaintiff satisfied the second prong of Listing
12.05(C).
Consequently,
plaintiff’s
impairments
rendered
him
presumptively disabled under Listing 12.05(C), contrary to ALJ
McGuan’s finding.
The Court notes that the standard for directing a remand for
calculation
of
benefits
is
met
when
the
record
persuasively
demonstrates the claimant's disability, see Parker v. Harris, 626
F.2d 225, 235 (2d Cir. 1980), and where there is no reason to
conclude
that
the
additional
evidence
might
support
the
Commissioner's claim that the claimant is not disabled, see Butts
v. Barnhart, 388 F.3d 377, 385–86 (2d Cir. 2004). For the reasons
stated above, that standard is met in this case. Additionally, the
Second Circuit “has recognized delay as a factor militating against
a
remand
for
further
proceedings
where
the
record
contains
substantial evidence of disability.” McClain v. Barnhart, 299 F.
Supp. 2d 309, 310 (S.D.N.Y. 2004) (citations omitted). Reversal for
calculation of benefits is particularly appropriate in this case
because plaintiff's benefits claim has been pending for over six
years.
Considering
the
egregious
delay
plaintiff
has
already
experienced, and the convincing evidence of disability in this
case, the Court remands this case solely for the calculation and
payment of benefits.
VI.
Conclusion
8
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 11) is denied and plaintiff’s
motion (Doc. 12) is granted. 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.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
March 24, 2016
Rochester, New York.
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