Hochstine v. Colvin
Filing
18
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 6 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Commissioner's decision is reversed and the matter is remanded for further administrative proceedings consistent with this Decision; denying 13 Defendant's Motion for Judgment on the Pleadings. The Clerk of the Court is requested to close this case. Signed by Hon. Michael A. Telesca on 6/14/16. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DANIEL A. HOCHSTINE,
No. 1:14-cv-00916(MAT)
DECISION AND ORDER
Plaintiff,
-vsCAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
INTRODUCTION
Daniel A. Hochstine (“Plaintiff”), represented by counsel,
brings this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“the Commissioner”)
denying his application for Disability Insurance Benefits (“DIB”)
and
Supplemental
Security
Income
(“SSI”).
This
Court
has
jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c). The parties have moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
PROCEDURAL STATUS
On March 25, 2010, Plaintiff protectively applied for DIB and
SSI, alleging disability as of July 13, 2009. See T.287-93, 323.1
1
Citations to “T.” refer to pages from the certified transcript of the
administrative record, submitted by the Commissioner in connection with her
answer to the complaint.
-1-
After his claims were denied, T.180-86, Plaintiff requested an
administrative hearing, which was held before administrative law
judge William E. Straub (“the ALJ”) on October 19, 2011. See
T.53-71. Plaintiff appeared with his attorney and testified. The
ALJ issued
an
unfavorable
decision
on
November
7,
2011,
and
Plaintiff requested review by the Appeals Council. See T.150-69,
236. On January 11, 2013, the Appeals Council remanded the case to
the ALJ for further consideration, and a second hearing was held
before ALJ Straub on May 7, 2013. See T.72-112, 170-73. On June 14,
2013, the ALJ issued a second unfavorable decision. See T.19-47. On
October 15, 2014, the Appeals Council denied Plaintiff’s request
for review, making the ALJ’s June 14, 2013 decision the final
decision
of
the
Commissioner.
T.1-6,
15.
This
timely
action
followed.
For the reasons discussed below, the Court reverses the
Commissioner’s
decision
and
remands
administrative proceedings, including
the
matter
for
further
development of the record.
SCOPE OF REVIEW
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
supported
by
substantial
record
evidence
and
whether
the
Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
-2-
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
DISCUSSION
I.
Failure to Develop the Record and Properly Consider Listing
12.05(C)
In order to be found disabled based on mental retardation
under Section 12.052 of the Listing of Impairments, a claimant
“must prove: (1) that he satisfies the definition provided for in
the introductory paragraph of Section 12.05; and (2) that he
satisfies the criteria listed in subsection A, B, C, or D.”
Antonetti v. Barnhart, 399 F. Supp.2d 199, 200 (W.D.N.Y. 2005)
(citing
20
C.F.R.
Pt.
404,
Subpt.
P,
App.
1,
12.00
Mental
Disorders, at 12.00A (“If your impairment satisfies the diagnostic
2
Plaintiff notes that on August 1, 2013, Listing 12.05 was amended to change
“Mental Retardation” to “Intellectual Disability,” but there were no substantive
changes to the Listing.
-3-
description in the introductory paragraph and any one of the four
sets of criteria, we will find that your impairment meets the
listing.”)). The introductory paragraph of Section 12.05 states
that “intellectual disability refers to significantly 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.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00. A
claimant who meets the introductory paragraph’s criteria then must
satisfy the parameters set forth in 12.05(C), by demonstrating (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, § 12.05C. An individual who is found to meet
these requirements is presumed to be disabled at step three of the
sequential
process
without
further
inquiry.
See
20
C.F.R.
§
404.1520(a)(4)(iii).
Plaintiff argues that he meets the first prong of Listing
12.05(C), the IQ requirement, pointing to the results of his
evaluation with consultative psychologist Dr. Renee Baskin, on
August 4, 2009, at the request of the State Agency. See T.426-29.
Dr. Baskin performed two standardized tests, the WRAT-3, a brief
screening test to measure achievement in reading recognition,
spelling,
and
arithmetic;
and
-4-
the
WAIS-IV,
a
standardized
intelligence
equivalent
test
to
to
the
measure
IQ.
seventh-grade
The
WRAT-3
level
in
yielded
results
reading/decoding,
arithmetic, and spelling. See T.426-29. On the WAIS-IV, Plaintiff
scored a full scale IQ of 70, with individual component subscores
of 68 for Processing Speed, 73 for Perceptual Reasoning, 74 for
Working Memory, and 81 for Verbal Comprehension. T.428. Dr. Baskin
concluded that these results “are considered to be a valid and
reliable estimate of [Plaintiff’s] current functioning.” T.427.
According to Dr. Baskin, Plaintiff’s weakest areas were in speed of
processing
administered
and
and
new
each
learning,
which
“were
time [Plaintiff]
may
the
not
first
have
tests
been
as
comfortable.” T.428. She commented, “[I]t is believed that his true
cognitive abilities lie in the borderline range represented by
three out of the four indexes,” and that his full scale IQ was
“negatively impacted by skewed low scores in Coding and Symbol
Search.” T.428. Dr. Baskin concluded that “[w]hile [Plaintiff] does
have some cognitive limitations, it does not appear that this
should preclude his ability to function in a workplace.” T.428.
Plaintiff contends that the ALJ ignored the regulations requiring
him to weigh Dr. Baskin’s opinion. See 20 C.F.R. § 404.1527(c)
(“How we weigh medical opinions. Regardless of its source, we will
evaluate every medical opinion we receive. . . .”). Furthermore,
the ALJ did not mention the IQ test scores obtained by Dr. Baskin,
much less give consideration to Listing 12.05(C).
-5-
As an initial matter, the Court notes that in cases with
similar facts, the Commissioner has conceded that the claimant has
met the first and second prongs of Listing 12.05(C). See, e.g.,
Barton v. Astrue, No. 3:08-CV-0810FJS/VEB, 2009 WL 5067526, at *6
(N.D.N.Y. Dec. 16, 2009) (noting that “the Commissioner concedes
that Plaintiff meets the second and third requirements [of Listing
12.05(C)]: ‘plaintiff has demonstrated an IQ of 70’ and has ‘a
severe physical impairment. . . .’”; proceeding to discuss the
ALJ’s analysis of the remaining criteria of the listing) (quotation
to record omitted). Here, the Court agrees that the ALJ’s failure
to consider Listing 12.05(C), and to weigh Dr. Baskin’s opinion are
errors
requiring
remand.
See,
e.g.,
Davis
v.
Astrue,
No.
7:06-CV-00657(LEK), 2010 WL 2925357, at *3 (N.D.N.Y. July 21, 2010)
(“The ALJ neglects to discuss his rationale for determining that
Plaintiff’s intellectual deficiencies do not meet a listing-level
impairment. The record is unclear as to whether the ALJ even
considered Listing 12.05(C) in assessing Plaintiff’s disability,
though portions of his decision suggest that the ALJ evaluated
Plaintiff in light of 12.05(D). . . . It is impossible to determine
whether the ALJ’s decision is supported by substantial evidence
because he did not document the listing criteria used[,] and
evidence
on
the
record
indicates
that
Plaintiff
may
meet
listing-level criteria.”) (internal and other citations omitted).
-6-
The Commissioner argues that even assuming arguendo that
Plaintiff satisfied the first and second prongs of 12.05(C), he
cannot satisfy the remaining criteria of Listing 12.05(C), i.e.,
the diagnostic description in the introduction to 12.00(A), which
requires certain deficits in adaptive functioning. See Sullivan v.
Zebley, 493 U.S. 521, 529–30 (1990) (stating that a Social Security
claimant must establish that show he meets all the criteria of a
listed
impairment);
see
also
20
C.F.R.
§§
404.1525(c)(3);
416.925(c)(3) (“[The Commissioner] will find that [a claimant’s]
impairment(s) meets the requirements of a listing when it satisfies
all of
the
criteria
in
criteria
the
of
that listing,
introduction,
including
and
meets
any
the
relevant
duration
requirement.”); Talavera v. Astrue, 697 F.3d 145, 153 (2d Cir.
2012) (“While a qualifying IQ score may be prima facie evidence
that an applicant suffers from ‘significantly subaverage general
intellectual
functioning,’
§
12.05,
there
is
no
necessary
connection between an applicant’s IQ scores and [his] relative
adaptive functioning.”) (citations omitted). The Court rejects the
Commissioner’s argument that the record evidence and Plaintiff’s
vocational history are inconsistent with a finding of deficits in
adaptive functioning. It is well settled that “[a] reviewing court
‘may not accept appellate counsel’s post hoc rationalizations for
agency action.’” Hamedallah ex rel. E.B. v. Astrue, 876 F. Supp. 2d
133,
144
(N.D.N.Y.
2012)
(noting
-7-
that
by
the
Commissioner’s
arguments “detailing the substantial evidence supporting the ALJ’s
decision are not a proper substitute for the ALJ engaging in the
same evaluation”) (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d
Cir. 1999) (refusing to accept Commissioner’s post hoc explanation
for weight given to treating physician); citation omitted).
In addition the above-discussed errors, Plaintiff faults the
ALJ for disregarding his obligation to develop the record by
obtaining
any
of
his
academic
records.
Because
a
disability
benefits hearing is non-adversarial in nature, an ALJ generally has
a duty to fully and fairly develop the administrative record,
whether or not the claimant is represented by an attorney. Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996).
Plaintiff argues that his
academic records were relevant to his disability claim since
Listing 12.05(C) requires that the deficits in adaptive functioning
have manifested before age 22. See, e.g., Price ex rel. A.N. v.
Astrue, 42 F. Supp.3d 423, 432 (E.D.N.Y. 2014) (noting that the
claimant’s “school record supports the inference that he has
suffered
from
adaptive
deficits
since
childhood”).
The
Court
agrees.
Because the Court has concluded that the ALJ erred at step
three by failing to properly assess whether Plaintiff meets or
medically equals Listing 12.05(C), failing to develop the record,
failing to discuss Plaintiff’s IQ scores, and failing to weigh Dr.
Baskin’s consultative opinion, the ALJ’s remaining analysis is
-8-
necessarily flawed. Barton, 2009 WL 5067526, at *8-9 (citing 20
C.F.R. § 4040.1520(a)(4) (describing the sequential evaluation
process)).
Therefore,
the
Court
need
not
reach
Plaintiff’s
remaining arguments. See id.
However, the Court makes one final observation concerning an
issue that may arise on remand in connection with the ALJ’s
evaluation of Dr. Baskin’s opinion and the results of the IQ test.
As Plaintiff notes, Dr. Baskin found his IQ scores to be in the
mentally retarded range and opined the scores to be a valid and
reliable estimate of his current cognitive functioning. However,
Dr. Baskin then opined that Plaintiff’s “true” cognitive abilities
lie
in
the
borderline
range.
In
Johnson
v.
Colvin,
No.
13-CV-1055-JTC, 2014 WL 6883606, at *5 (W.D.N.Y. Dec. 4, 2014), Dr.
Baskin rendered an opinion that was quite similar to the one
offered here. There, with regard to the claimant’s IQ scores, “Dr.
Baskin noted that [the claimant] ‘made a decent effort to do her
best,’ but it appeared that she ‘gave up prematurely, all of which
may have had a negative impact on final scores.’ Despite this, Dr.
Baskin further opined that ‘[t]he results of the evaluation are
considered
to
be
a
valid
and
reliable
estimate
of
current
functioning. However, it may be a slightly lower estimate due to
slow responding and some giving up.’ Dr. Baskin also stated that
[the claimant]’s ‘true cognitive abilities lie closer to the
borderline range . . . and that her cognitive limitations should
-9-
not ‘preclude her ability to work in a supervised workplace.’”
Johnson, 2014 WL 6883606, at *5 (citation to record omitted). The
district court found that even were it to “credit[ ] Dr. Baskin’s
opinion that plaintiff’s full scale IQ score of 65 is a ‘slightly
lower estimate of plaintiff’s current functioning’, there is no
evidence that plaintiff’s actual cognitive functioning is in the
borderline range and that her actual IQ is over 70. Accordingly,
any determination by the ALJ that plaintiff has a valid IQ score
above 70, had it actually been so determined, would not have been
based on substantial evidence.” Id. Thus, even assuming there is an
internal inconsistency in Dr. Baskin’s report, this would not be a
reason for the ALJ to disregard the IQ scores, since there is no
evidence that Plaintiff’s actual cognitive functioning is in the
borderline range or that his actual IQ is over 70. As courts have
noted,
“IQ
scores
are
more
properly
considered
‘laboratory
findings’ resulting from diagnostic techniques, and not medical
opinions.” Miller v. Astrue, No. 3:07-CV-1093 LEK/VEB, 2009 WL
2568571, at *6 (N.D.N.Y. Aug. 19, 2009) (citations omitted).
However, should the ALJ find that Dr. Baskin’s evaluation is selfcontradictory, then the ALJ is directed to contact Dr. Baskin for
clarification and to obtain additional testing and evaluation, if
necessary, from another practitioner.
CONCLUSION
For the reasons discussed above, the Commissioner’s motion for
-10-
judgment on the pleadings (Dkt #13) is denied. Plaintiff’s motion
for judgment on the pleadings (Dkt #6) is granted to the extent the
Commissioner’s decision is reversed, and the matter is remanded for
further administrative proceedings consistent with the instructions
in this Decision and Order. In particular,
the ALJ is directed to
develop the record sufficient so as to ensure a full and fair
consideration
12.05(C),
of
such
as
whether
by
Plaintiff
obtaining,
meets
e.g.,
or
equals
Plaintiff’s
Listing
academic
records; to discuss Plaintiff’s IQ scores; to weigh Dr. Baskin’s
consultative opinion; to contact Dr. Baskin for clarification if
necessary; to obtain additional cognitive testing and evaluation,
if necessary; and to determine whether Plaintiff meets or medically
equals Listing 12.05(C).
SO ORDERED.
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
June 14, 2016
Rochester, New York.
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