Parent v. Colvin
DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings; denying 14 Commissioner's Motion for Judgment on the Pleadings. 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 6/8/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
APRIL MARIE PARENT, o/b/o B.A.K.,
No. 1:14-CV-00519 (MAT)
DECISION AND ORDER
-vsCAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, April Marie Parent (“plaintiff”) has
brought this action on behalf of her infant daughter (“B.A.K.”)
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 plaintiff’s application for
Supplemental Security Income (“SSI”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings. For the reasons discussed below, plaintiff’s motion is
granted and this matter is reversed and remanded solely for the
calculation and payment of benefits.
The record reveals that in June 2011, plaintiff filed an
February 24, 1997), alleging disability as of February 24, 1997.
Plaintiff’s application was denied, and she requested a hearing,
which was held before administrative law judge Donald McDougall
(“the ALJ”) on January 4, 2013. The ALJ issued an unfavorable
decision on February 12, 2013.
The Appeals Council denied review
of that decision. This timely action followed.
III. The ALJ’s Decision
At the first step of the three-step sequential evaluation
process for children, see 20 C.F.R. § 416.924 et seq., the ALJ
found that B.A.K. was an adolescent at the time of the application
and decision, who was not engaged in substantial gainful activity.
At the second step, the ALJ found that B.A.K. suffered from the
severe impairments of Turner’s syndrome,1 hypertension, obesity,
and borderline intellectual functioning.
At the third step, the ALJ found that B.A.K. did not suffer
from an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found that
B.A.K. did not meet the criteria of Childhood Listings 100.00
syndrome), or 112.02 (organic mental disorders), but did not
specifically consider whether B.A.K. met the criteria of Listing
112.05 (intellectual disorders). The ALJ went on to find that
B.A.K. had less than marked limitations in the domains of acquiring
and using information and health and physical well-being, and no
limitations in attending and completing tasks, interacting and
Turner’s syndrome is a genetic defect in which affected women have only
one X chromosome, causing developmental abnormalities and infertility
relating with others, moving about and manipulating objects, and
caring for herself. Accordingly, the ALJ found that B.A.K. was not
To qualify as disabled under the Act, a child under the age of
eighteen must have “a medically determinable physical or mental
limitations, and 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. § 1382c(a)(3)(C)(I). The
impairment or combination of impairments; and (3) the child's
impairment(s) met, medically equaled, or functionally equaled the
severity of a listed impairment. 20 C.F.R. § 416.924. At the third
step, “[f]or a child's impairment to functionally equal a listed
impairment, the impairment must ‘result in “marked” limitations in
two domains of functioning or an “extreme” limitation in one
domain.’” Encarnacion ex rel. George v. Astrue, 586 F.3d 72, 75
(2d Cir. 2009) (quoting 20 C.F.R. § 416 .926a(a)). A child's
limitations are evaluated in the context of the following six
domains of functioning:
acquiring and using information;
attending and completing tasks;
interacting and relating with others;
moving about and manipulating objects;
caring for oneself; and
health and physical well-being.
20 C.F.R. § 416.926a(b)(1).
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. Barnhard, 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 the ALJ erroneously
concluded that B.A.K. did not meet the requirements of Listing
112.05D. At the time the ALJ rendered his decision, that listing
provided that a child suffered from an intellectual disability
where she showed “significantly subaverage general intellectual
functioning with deficits in adaptive functioning,” and had “[a]
valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and
significant limitation of function.” 20 C.F.R. § Pt. 404, Subpt. P,
App. 1 § 112.05 (eff. Dec. 3, 2013 to Feb. 25, 2014). The ALJ’s
decision includes no specific discussion of Listing 12.05D. Based
on the facts of this case, and for the reasons laid out below, the
ALJ erroneously ignored Listing 12.05D in his discussion of whether
B.A.K. met a listing. Moreover, the record persuasively establishes
The record reveals that, at age 14, B.A.K. had a nonverbal IQ
score of 69, which was measured on April 4, 2011 by a StanfordBinet
Commissioner argues that this score should not be considered as a
“performance” score pursuant to the regulations.
The Commissioner’s argument is unpersuasive. The StanfordBinet results did not reference a “performance” score, but rather
performance IQ score “measures [an individual’s] ability to solve
nonverbal problems,” see Weast v. Comm’r of Soc. Sec., 2013 WL
4017030, *8 (E.D.N.Y. Aug. 6, 2013), and the terms “performance”
and “nonverbal” are often used interchangeably. See, e.g., Rowland
v. Astrue, 2011 WL 4738326, *4 (E.D. Cal. Oct. 5, 2011) (noting
1401700, *6 (W.D. Ky. Mar. 29, 2011), report and recommendation
Rothman, 2009 WL 426282, *11 (S.D. Fla. Feb. 19, 2009) (noting
Reynolds intelligence test scores including a “Verbal Index of 104
and a Non-Verbal (performance) Index of 77, with a full scale index
Operations Manual System (“POMS”) provides that under Listing
112.00, “[i]ntellectual abilities can generally be assigned to
(performance).” POMS § DI 24515.055B (“Evaluation of Specific
Issues Psychological/Psychometric Testing, Verbal and Nonverbal
Measures of Intelligence”) (emphasis added). Pursuant to Second
Circuit precedent, “POMS guidelines are entitled to ‘substantial
deference, and will not be disturbed as long as they are reasonable
and consistent with the statute.’” Lopes v. Dep’t of Soc. Servs.,
696 F.3d 180, 186 (2d Cir. 2012).
It is therefore clear to the Court that B.A.K.’s nonverbal
score equated to a “performance” score within the meaning of
Listing 12.05D. “When there are multiple IQ tests, the lowest IQ
score should be used unless there is some indication that the score
is invalid.” Kennerson v. Astrue, 2012 WL 3204055, *8 (W.D.N.Y.
Aug. 3, 2012). The Commissioner does not argue that the April 4,
2011 test was invalid, other than to contend, as discussed above,
that the nonverbal score could not be substituted for a performance
score. There is no indication from the record that the score was
invalid. Moreover, the record indicates that the score was current
pursuant to the applicable regulation, which provided that “IQ test
results obtained between ages 7 and 16,” as this one was, “should
be considered current . . . for 2 years when the IQ is 40 or
above.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (eff. Dec. 3, 2013 to
Feb. 25, 2014). Accordingly, the Court accepts plaintiff’s argument
that B.A.K. had a valid performance score of 69 during the relevant
Pursuant to Listing 112.05D, plaintiff must also establish
that B.A.K. had “significantly subaverage general intellectual
functioning with deficits in adaptive functioning,” and “a physical
or other mental impairment imposing an additional and significant
limitation of function.” As to the first requirement, “[c]ourts
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)). Here, B.A.K. attended special
program (“IEP”); thus, plaintiff has established that B.A.K. had
the required deficits in adaptive functioning.
Commissioner] will assess the degree of functional limitation the
additional impairment(s) imposes to determine if it causes more
impairment(s), as defined in § 416.924(c).” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, 112.00(A) (emphasis added). The ALJ’s findings
that B.A.K. suffered from several severe impairments, including
Turner’s syndrome, hypertension, and obesity, amounted to a per se
presumptively disabled under Listing 112.05D, contrary to the ALJ’s
The Court notes that the standard for directing a remand for
demonstrates the claimant’s disability, see Parker v. Harris, 626
F.2d 225, 235 (2d Cir. 1980), and where there is no reason to
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
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
approximately six years. Considering the delay plaintiff and B.A.K.
have already experienced, and the convincing evidence of disability
calculation and payment of benefits.
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 14) is denied and plaintiff’s
motion (Doc. 9) 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
June 8, 2017
Rochester, New York.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?