Adams v. Commissioner of Social Security

Filing 16

ORDER granting 12 Plaintiff's Motion for Judgment on the Pleadings; denying 13 Commissioner's Motion for Judgment on the Pleadings. This case is remanded solely for the calculation and payment of benefits. The Clerk of Court is directed to close this case. Signed by Hon. Michael A. Telesca on 6/10/19. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
SUSAN H. ADAMS,
Plaintiff,

1:17-cv-01163-MAT
DECISION AND ORDER

-vNANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION

Susan H. Adams (“Plaintiff”), represented by counsel, brings
this action pursuant to Title XVI of the Social Security Act (“the
Act”),

seeking

review

of

the

final

decision

of

the

Acting

Commissioner of Social Security (“Defendant” or “the Commissioner”)
denying her application for supplemental security income (“SSI”).
The Court has jurisdiction over the matter pursuant to 42 U.S.C.
§ 1383(c). Presently before the Court are the parties’ competing
motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the reasons set forth below,
the Commissioner’s decision is reversed, and Plaintiff’s motion is
granted to the extent that the matter is remanded solely for
calculation

and

payment

of

benefits.

Accordingly,

Defendant’s

motion is denied.
PROCEDURAL BACKGROUND
On January 14, 2014, Plaintiff protectively filed for SSI,
alleging

disability

beginning

April

1,

2012.

Administrative

Transcript (“T.”) 61. The claim was initially denied on April 15,

2014, and Plaintiff timely requested a hearing. T. 73-80. A video
hearing was conducted on June 1, 2016, in Kansas City, Missouri by
administrative law judge (“ALJ”) George Bock. T. 33-60. Plaintiff
appeared

via

video

conference

with

her

attorney

in

Buffalo,

New York, and testified. An impartial vocational expert (“VE”) and
Plaintiff’s case manager, Jan Mansfield, also testified.
The ALJ issued an unfavorable decision on July 7, 2016. T. 1732. Plaintiff timely requested review of the ALJ’s decision by the
Appeals Council. T. 130-36. On September 13, 2017, the Appeals
Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner. T. 1-6. Plaintiff
then timely commenced this action.
THE ALJ’S DECISION
The

ALJ

applied

the

five-step

sequential

evaluation

promulgated by the Commissioner for adjudicating disability claims.
See

20

C.F.R.

evaluation,

§

the

416.920(a).

ALJ

found

At

that

step

one

Plaintiff

of
had

the
not

sequential
engaged

in

substantial gainful activity since the application date. T. 22.
At

step

two,

the

ALJ

determined

that

Plaintiff

had

the

“severe” impairment of intellectual deficiency. Id. The ALJ also
determined that Plaintiff’s medically determinable impairments of
high blood pressure, mild osteoporosis, and hyperthyroidism did not
cause significant work-related functional limitations and thus were
nonsevere. T. 23.

2

At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equals an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix

1.

The

ALJ

specifically

considered

Listing

12.05

(intellectual disorders) in making this determination. T. 23.
Before proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”) to perform a full
range

of

work

at

all

exertional

levels,

with

the

following

limitations: can perform repetitive, simple, unskilled work; and
her work cannot involve complex instructions, math requirements, or
production pace. T. 24.
At step four, the ALJ determined that Plaintiff had no past
relevant work. T. 26. At step five, the ALJ relied on the VE’s
testimony to find that, taking into account Plaintiff’s age,
education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that Plaintiff can
perform, including the representative occupations of order filler,
production helper, and laundry worker. T. 27. The ALJ accordingly
found that Plaintiff was not disabled as defined in the Act. Id.
SCOPE OF REVIEW
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.

3

42 U.S.C. § 405(g); see also

Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The
district court 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”). “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)
(quotation

omitted).

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
Plaintiff contends that remand for calculation and payment of
benefits is warranted because the ALJ: (1) failed to support the
RFC finding with substantial evidence; and (2) erred in finding
that Plaintiff’s impairments do not meet or equal Listing 12.05.
For the reasons discussed below, the Court finds the ALJ erred by
failing

to

properly

consider

Listing

12.05

in

making

his

determination. Moreover, because substantial evidence of record
4

supports the finding that Plaintiff’s impairments meet or equal
Listing 12.05(D), remand of this matter solely for calculation and
payment of benefits is warranted.
I.

The Relevant Opinions of Record
A.

Letter and Testimony of Plaintiff’s Case Manager Jan
Mansfield, M.A.

On May 25, 2016, Jan Mansfield, M.A., Plaintiff’s case manager
at Cornerstone Manor through the Buffalo City Mission, wrote a
letter to the ALJ detailing her experiences with Plaintiff and her
professional opinion regarding Plaintiff’s capabilities. T. 220-21.
Ms. Mansfield reported that Plaintiff qualified for Cornerstone’s
supportive housing program due to her learning disability. She
noted that Plaintiff’s high school records indicated that she was
in special education and scored an IQ of 72 in 1973 and 62 in 1975.
T. 220. Ms. Mansfield reported Plaintiff was married and had two
children, but both children were removed from her care on the
grounds

that

she

was

an

“unfit

parent.”

Plaintiff’s

husband

subsequently had a nervous breakdown and became abusive, and
Plaintiff left the marriage.
Ms. Mansfield reported that Plaintiff took pride in her chores
at Cornerstone, which included cleaning windows daily, sweeping and
mopping. Prior to living at Cornerstone, Plaintiff had a job at
Wendy’s but was let go due to issues with her personal hygiene. Id.
In

2014,

Plaintiff

had

a

job

at

5

Community

Services

for

the

Developmentally Disabled Mobile Work Crew. However, Plaintiff was
dismissed from that position due to poor attendance. Id.
Ms. Mansfield reported that Cornerstone staff had received
complaints that Plaintiff was not showering affected her physical
hygiene. Plaintiff admitted to Ms. Mansfield that she showered only
once during a two-month period, while living at the Buffalo City
Mission’s emergency shelter. Ms. Mansfield also reported that the
facility had recently received complaints of an odor coming from
Plaintiff’s room and the staff needed to develop a plan with her to
address the issue.
Ms. Mansfield reported that Plaintiff had nearly lost her
legal representation for her disability claim because she failed to
respond to their correspondence. Plaintiff told Ms. Mansfield that
she had forgotten to bring correspondence to Ms. Mansfield’s
office, despite Ms. Mansfield reminding her to do so. T. 221.
Ms. Mansfield further reported that for several years, Plaintiff’s
long-range housing goal was to move to an apartment complex where
a friend of hers lives. However, once she was placed at the top of
the

wait

list,

she

decided

she

did

not

want

to

move

from

Cornerstone because she had heard the apartment complex was in a
bad neighborhood. Id.
Ms. Mansfield opined that Plaintiff’s learning disability
required her to obtain assistance and support in order to function
in life and that qualifying for disability income would be a

6

tremendous help in supporting her. It was Ms. Mansfield opinion
that Plaintiff has been unable to provide for herself. Id.
At

the

hearing,

Ms.

Mansfield

testified

she

had

been

Plaintiff’s case manager for five years. T. 49. She testified that
Plaintiff

met

Plaintiff’s

with

her

weekly

responsibilities.

for
T.

coaching

51.

Ms.

and

to

Mansfield

go

over

further

testified that Plaintiff required a great deal of support because
she was forgetful and neglected to complete basic activities of
daily living, including keeping up with her personal hygiene,
keeping up with her mail, and maintaining contact with various
support services. T. 52-53. Ms. Mansfield testified that Plaintiff
would require assistance to manage money if she had an income, and
would require services of an outside case worker to help her manage
the tasks of everyday living if she were to live in her own
apartment. T. 54. Finally, Ms. Mansfield testified that she did not
believe Plaintiff would be capable of maintaining employment, as
demonstrated by her past employment issues. T. 55.
B.

Letter from Plaintiff’s Medical Service Coordinator,
Stacey Zinck

On May 20, 2016, Stacey Zinck, Plaintiff’s Medical Service
Coordinator through Community Services for the Developmentally
Disabled, wrote a letter stating she had worked with Plaintiff for
the past five years providing support, advocacy and linkage to
supportive services. T. 218. Ms. Zinck reported she met with
Plaintiff in-person on a monthly basis and assisted her with her
7

Supplemental

Nutrition

Assistance

Program

(SNAP)

and

Medicaid

Recertifications because she was unable to complete them on her
own. Ms. Zinck reported that Plaintiff was unable to complete
paperwork and often did not understand what was being asked of her
when reading questions. Furthermore, Ms. Zinck reported Plaintiff
needed reminders to make her necessary medical appointments and
follow through with them. Ms. Zinck reported that Plaintiff had
recently lost her job because she did not understand the call-in
policy. Plaintiff had called in, but did not leave a message, which
she thought satisfied the call-in requirement. Ms. Zinck opined
Plaintiff would be unable to maintain her current services on her
own. Id.
C.

On

Letter
from
Arnecia
Delk,
Plaintiff’s
Supported
Employment Manager at Community Services for the
Developmentally Disabled
May

27,

2016,

Plaintiff’s

former

supervisor

through

Community Services for the Developmentally Disabled, Arnecia Delk,
wrote a letter detailing her experiences with Plaintiff. T. 229.
Ms. Delk reported Plaintiff was hired as a cleaner for three days
per week in May 2013. Plaintiff did not get along well with her coworkers

which

often

caused

problems.

Ms.

Delk

reported

that

Plaintiff only came to work when she wanted to and would not callin

on

time,

or

call-in

at

all.

Ms.

Delk

reported

that

she

communicated with Ms. Mansfield and Ms. Zinck in attempts to assist
Plaintiff in maintaining her employment, but Plaintiff did not

8

follow through with the policy. Plaintiff was terminated from the
Mobile Work Crew after failing to report to work for nearly two
weeks in November 2015. Following her termination, Plaintiff was
assigned to a job coach to assist her in finding another job, but
she was non-compliant with meeting with the job coach and declined
to continue working with the supported employment services. Id.
In his decision, the ALJ gave the opinions of Ms. Mansfield,
Ms. Zinck, and Ms. Delk “little” weight. T. 26. He noted that the
record showed Plaintiff could do simple work and that the decision
of whether a claimant is “disabled” and unable to work is an issue
reserved for the Commissioner.
D.
On

Opinion of Psychologist Dr. Renee M. Baskin
July

intelligence

7,

2011,

adaptive

Dr.

Renee

evaluation

M.
of

Baskin

administered

Plaintiff

for

an

Community

Services for the Developmentally Disabled. T. 239-41. Dr. Baskin
reported Plaintiff’s hygiene was fair. She was cooperative but
somewhat subdued. Her style of responding was deliberate, orderly,
and self-correcting. She worked with reflection and deliberation.
T.

239.

Plaintiff’s

verbal

comprehension

score

was

66;

the

perceptual reasoning score was 71; the working memory score was 71;
the processing score was 71; and her full scale IQ score was 65.
Dr. Baskin noted that Plaintiff’s overall functioning was in the
mild range of mental retardation and she had a grade 6.9 reading
level. T. 240. Dr. Baskin noted Plaintiff’s adaptive level was low,

9

with a mild-moderate deficit. On a daily basis, Plaintiff was able
to dress, bathe, and groom herself, and could do some household
chores. Dr. Baskin noted that Plaintiff may need assistance with
managing money. T. 241.
Dr.

Baskin

opined

that

Plaintiff

appeared

capable

of

understanding simple directions and instructions and performing
simple tasks. She could maintain attention and concentration and
maintain a regular schedule. She had limitations in the ability to
learn

new

tasks,

perform

complex

tasks,

and

make

adequate

decisions. She generally appeared capable of relating with others
and dealing with stress. However, Dr. Baskin further opined that
the results of the examination reflected a cognitive and adaptive
problem that would interfere with the ability to function on a
daily basis. T. 241. Dr. Baskin diagnosed Plaintiff with mild
mental retardation and recommended that she continue with Community
Services for the Developmentally Disabled. Id.
The ALJ did not clearly include or give weight to Dr. Baskin’s
medical opinion in his decision. Instead, he only mentioned that
2011

adaptive

functioning

testing

indicted

Plaintiff

needed

assistance in the areas of budgeting and in finding and maintaining
a job, but that she was noted to be able to do household chores,
dress,

bathe,

and

groom

herself,

prepare

independently access the community. T. 25.

10

food,

clean,

and

E.
On

Opinion of Consultative Examiner Dr. Susan Santarpia
August

intelligence

16,

2012,

evaluations

Plaintiff
by

Dr.

underwent

Susan

psychiatric

Santarpia.

T.

and

282-89.

Plaintiff denied depression, anxiety, panic attacks, and thought
disorders. T. 282. Upon examination, Plaintiff was cooperative and
her manner of relating was adequate. Plaintiff appeared well
groomed with appropriate eye contact. Her expressive and receptive
language capabilities were adequate. She exhibited no evidence of
hallucinations,

delusions,

or

paranoia.

Plaintiff

exhibited

a

euthymic mood and clear sensorium. Her attention and concentration
were intact. Her recent and remote memory skills were also intact.
T. 283. Dr. Santarpia noted that Plaintiff’s cognitive functioning
fell in the low average to borderline range of ability.
Plaintiff reported she was able to dress, bathe, and groom
herself. She reported she could cook, clean, do laundry, shop, and
manage her own money. Plaintiff reported she enjoyed Bingo and she
spent her days watching TV, reading, socializing, and engaging in
hobbies and interests. T. 284.
For the intelligence evaluation, Dr. Santarpia reported that
Plaintiff had a casual manner of dress and fair hygiene. Plaintiff
exhibited normal posture and motor behavior. Dr. Santarpia reported
that

Plaintiff

deliberate,

recalled

orderly,

and

and

understood

self-correcting

instructions
responses.

with

Plaintiff

worked with reflection and deliberation, with good attention and

11

concentration.

Dr.

Santarpia

reported

that

Plaintiff

did

not

evidence significant emotional distress during the evaluation and
that the results of the evaluation were considered to be valid and
reliable estimates of current functioning. T. 287.
The test results yielded a verbal comprehension IQ of 68; a
perceptual reasoning IQ of 84; a working memory IQ of 77; a
processing speed IQ of 84; and a full scale IQ score of 74. T. 28788. The results noted that the score should be considered with
caution, given the discrepancy amongst the four constituent indexes
making up the full scale score. Plaintiff’s verbal comprehension
fell within the extremely low range of ability. Her perceptual
reasoning and processing speed fell within the low average range,
and her working memory fell within the borderline range. T. 288.
Dr. Santarpia opined that Plaintiff was able to follow and
understand simple directions and instructions, perform simple tasks
independently, maintain attention and concentration, maintain a
regular schedule, learn new tasks, make appropriate decisions,
relate adequately with others and appropriately deal with stress
within normal limits. Dr. Santarpia further opined that Plaintiff
had mild impairment with performing complex tasks independently and
her difficulties were caused by slight cognitive inefficiencies.
Dr. Santarpia diagnosed Plaintiff with a learning disorder and
borderline intellectual functioning. T. 284, 288-89.

12

In

his

decision,

the

ALJ

gave

“great”

weight

to

Dr. Santarpia’s opinion, noting it was consistent with the overall
record, objective testing of record, Plaintiff’s demeanor at the
hearing and her reported activities of daily living. T. 26.
II.

Plaintiff’s Mental
Listing 12.05(D)

Impairments

Meet

the

Requirements

of

Plaintiff argues that remand is warranted because the ALJ
erred by finding Plaintiff’s impairments do not meet or equal
Listing 12.05(D). The Court agrees.
At the time of Plaintiff’s application for benefits, Listing
12.05

defined

subaverage

“intellectual

general

disability”

intellectual

functioning

as

“significantly

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.

Part

404,

Subpart

P,

Appendix 1, § 12.05 (effective December 3, 2013 to February 25,
2014).
To
following

qualify

for

criteria

disability
must

be

met,

under

Listing

in

addition

12.05(D),
to

having

the
an

“intellectual disability”:
D.

A valid verbal, performance, or full scale IQ of 60
through 70, resulting in at least two of the following:
1.

Marked restriction of activities of daily living;
or

13

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.
Id.
In the decision, the ALJ determined that Plaintiff did not
meet

the

criteria

of

12.05(D)

because

she

showed

only

mild

restrictions in activities of daily living, mild difficulties in
maintaining

social

functioning,

moderate

difficulties

in

maintaining concentration, persistence or pace, and no episodes of
decompensation. T. 24. Furthermore, the ALJ noted that Plaintiff’s
full scale IQ scores have ranged from 62 to 77 and stated that an
individual’s “highest score is usually more indicative of [their]
abilities, as IQ scores usually do not decrease without some
intervening trauma.” Id. However, the ALJ gave no citation or
reference for this reasoning. The ALJ also cited Plaintiff’s
testimony that she was able to use public transportation, do some
cooking and cleaning, shop and can manage a checking account,
despite reports that she would require help in that area. Id. For
the

reasons

set

forth

below,

the

Court

finds

that

the

ALJ

mischaracterized the record and further finds that the record
demonstrates Plaintiff meets the criteria of 12.05(D).

14

As

a

threshold

matter,

the

Court

recognizes

that

Ms. Mansfield, Ms. Zinck, and Ms. Delk are not “acceptable medical
sources” and are instead considered “other sources” in the context
of assessing evidence. See 20 C.F.R. § 416.913(d)(3). Nonetheless,
20 C.F.R. § 416.927(b) requires an ALJ to consider all relevant
evidence in the case record when making a disability determination,
including evidence from “other sources” and “non-medical sources.”
Although information from “other sources” and “non-medical sources”
cannot

establish

the

existence

of

a

medically

determinable

impairment, it may, as in this case, be based on special knowledge
of the individual and provide insight into the severity of the
impairment(s) and how it affects the individual’s ability to
function. Social Security Ruling (“SSR”) 06-03P, 2006 WL 2329939,
at *2 (S.S.A. Aug. 9, 2006); see also 20 C.F.R. § 416.913(d).
SSR 06-03P provides additional guidance on the process of
evaluating evidence from “other sources” including “non-medical
sources” like Ms. Mansfield, Ms. Zinck, and Ms. Delk. Specifically,
SSR 06-03P recognizes that “these sources have close contact with
the individuals and have personal knowledge and expertise to make
judgments about their impairment(s), activities, and level of
functioning over a period of time.” Id. at *3. Accordingly, SSR 0603P recommends that the adjudicator evaluate evidence from “other
sources”

using

the

same

factors

as

those

used

“acceptable medical sources.” These factors include:

15

to

evaluate

1.

“How long the source has known and how frequently
the source has seen the individual”;

2.

“How

consistent

the

opinion

is

with

other

evidence”;
3.

“The

degree

to

which

the

source

explains

the

opinion”;
4.

“Whether the source has a specialty or area of
expertise

related

to

the

individual’s

impairment(s)”; and
5.

“Any other factors that tend to support or refute
the opinion.”

Id. at *4-5. However, not every factor will apply in every case.
Instead, “[t]he evaluation of an opinion from a ‘non-medical
source’ who has seen the individual in his or her professional
capacity depends on the particular facts of each case.” Id. at *5.
Notably, SSR 06-03P states that “[a]n opinion from a ‘non-medical
source’ who has seen the claimant in his or her professional
capacity may, under certain circumstances, properly be determined
to outweigh the opinion from a medical source, including a treating
source.” Id. at *6. Such treatment of the “other source’s” opinion
could be appropriate where the source has seen the claimant more
often and has greater knowledge of the claimant’s functioning over
time than the “acceptable medical source.” Id.

16

Here,

the

ALJ

gave

“great”

weight

to

the

opinion

of

consultative examiner Dr. Santarpia, who saw Plaintiff on one
occasion and based her opinion on Plaintiff’s self-reports and an
intelligence test administered that day. T. 26. Conversely, the ALJ
gave “little” weight to the opinions of Ms. Mansfield, Ms. Zinck,
and Ms. Delk, each of whom has worked with Plaintiff frequently
over a long period of time and has specialized knowledge of
Plaintiff’s

functioning.

Id.

While

it

was

within

the

ALJ’s

discretion to weigh these opinions of record as he did, he was not
permitted to ignore or mischaracterize relevant evidence provided
in

the

opinions.

(W.D.N.Y.

2016)

Wilson
(ALJ

v.

Colvin,

significantly

213

F.

erred

Supp.3d
by

478,

ignoring

485
and

mischaracterizing evidence that would have precluded plaintiff from
competitive gainful employment.). Furthermore, if the ALJ had
properly considered the evidence provided by the “other sources”
pursuant to SSR 06-03P, rather than ignoring and mischaracterizing
it, a finding that Plaintiff meets Listing 12.05(D) would have
necessarily followed.
To meet Listing 12.05, a claimant must first demonstrate
“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. Part 404, Subpart
P, Appendix 1, § 12.05 (effective December 3, 2013 to February 25,

17

2014). Plaintiff has met this threshold. As the ALJ acknowledged in
the decision, Plaintiff had a full scale IQ score of 62 while in
high

school.

See

T.

24,

220.

In

2011,

Dr.

Baskin

diagnosed

Plaintiff with mild mental retardation and noted that her adaptive
level was low, with a mild-moderate deficit. T. 241.
To meet the first prong of 12.05(D), Plaintiff needed a valid
verbal, performance, or full scale IQ of 60 through 70. Plaintiff
has had several IQ tests conducted that have produced scores within
the qualifying range of 60 to 70. See T. 220 (high school records
from 1975 indicate a full scale IQ of 62); T. 240 (July 2011
testing showed verbal comprehension score of 66 and full scale IQ
of 65); T. 287 (August 2012 testing showed verbal comprehension
score of 68). However, the ALJ dismissed these qualifying scores
because Plaintiff had at times scored above the 60 to 70 range and
he reasoned, without providing any support, that higher scores were
“usually more indicative of [an individual’s] abilities.” T. 24.
While it is permissible for an ALJ to “reject an IQ score as
invalid when it is inconsistent with the record,” Juckett ex rel.
K.J. v. Astrue, No. 09-CV-708, 2011 WL 4056053, at *7 (N.D.N.Y.
June 29, 2011), there is no indication here that any of the test
scores were invalid. Furthermore, although the regulations in place
at the time Plaintiff filed her claim do not specify which score an
ALJ should rely on when more than one test has been administered,
they

do

state

that

“[i]n

cases

18

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.”
20

C.F.R.

Part

404,

Subpart

P, Appendix

1,

§

12.00(D)(6)(c)

(effective December 3, 2013 to February 25, 2014). Accordingly,
courts have found the lower IQ score should generally be used. See
Coogan v. Astrue, No. 08–CV–1387, 2009 WL 512442, at *5 n. 1, *6 n.
2 (D.N.J. Feb. 27, 2009) (an ALJ may not decide which of multiple
IQ scores he prefers because the regulations only require one valid
score in the range of 60 to 70); Ray v. Chater, 934 F. Supp. 347,
350 (N.D.Cal. 1996) (“[I]t can be inferred that when multiple I.Q.
scores are available the [r]egulations prefer the lowest score.”).
Moreover, it is well-established that an ALJ, who is not a medical
professional, may not evaluate and interpret raw medical data such
as diagnostic testing results. See Dennis v. Colvin, 195 F. Supp.3d
469, 473-74 (W.D.N.Y. 2016); Ellis v. Berryhill, No. 16-CV-6317FPG, 2017 WL 2531716, at *3 (W.D.N.Y. June 12, 2017) (“[ALJs] must
be careful not to succumb to the temptation to play doctor.”)
(internal quotation marks omitted). Accordingly, the Court finds it
was improper for the ALJ to determine Plaintiff’s higher IQ scores
were more indicative of her capabilities.
The evidence of record also demonstrates that Plaintiff meets
the second prong of criteria for Listing 12.05(D). Specifically,
there is compelling evidence that Plaintiff has marked restriction

19

of

activities

maintaining

of

social

daily

living

and

functioning.

marked

difficulties

Plaintiff’s

case

in

manager,

Ms. Mansfield stated that Plaintiff has had ongoing issues with
showering and maintaining her personal hygiene, which was the cause
for termination of her job at Wendy’s. She further stated that
Plaintiff lost her most recent job working part-time through
Community

Services

because

she

had

poor

attendance.

T.

220.

Plaintiff’s Medicaid Service Coordinator, Ms. Zinck stated that
Plaintiff was unable to complete paperwork and needs reminders to
make necessary appointments and follow through with them. She
further noted that Plaintiff had recently lost her job for not
understanding the call-in policy that was set in place. T. 218.
Plaintiff’s former supervisor through Community Services, Ms. Delk
stated that Plaintiff did not get along with her co-workers and
often caused problems with them. Furthermore, Plaintiff had ongoing attendance issues that eventually resulted in the loss of a
job.

Plaintiff

was

terminated

despite

Ms.

Delk

working

with

Ms. Mansfield and Ms. Zinck to help her maintain the position with
Community Services, demonstrating that she is unable to maintain
employment, even in a highly supported and structured environment.
T. 229. Finally, Dr. Baskin opined that Plaintiff’s cognitive and
adaptive problem would interfere with her ability to function on a
daily basis and recommended that she continue with Community
Services for the Developmentally Disabled. T. 241.

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It

is

evident

to

the

Court

that

Plaintiff

has

marked

restrictions of activities of daily living and marked difficulties
in maintaining social functioning. Plaintiff has well-documented
significant

limitations

maintaining

personal

hygiene

and

maintaining a schedule, both of which have caused her to be
terminated from jobs. She also has trouble getting along with coworkers and following through with responsibilities of daily life.
These

well-documented

and

on-going

limitations,

coupled

with

Plaintiff’s past full scale IQ scores between the 60 to 70 range,
satisfy the criteria of Listing 12.05(D). Accordingly, the Court
finds the ALJ erred by failing to find Plaintiff’s impairments meet
or equal Listing 12.05(D).
III. Remedy
Under 42 U.S.C. § 405(g), the district court has the power to
affirm, modify, or reverse the ALJ’s decision with or without
remanding for a rehearing. Remand solely for calculation and
payment of benefits is appropriate where the record persuasively
demonstrates the claimant’s disability, Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980), and there is no reason to conclude that
additional evidence exists that might support the Commissioner’s
claim that the claimant is not disabled, Butts v. Barnhart, 388
F.3d 377, 385–86 (2d Cir. 2004).
For the reasons set forth above, the Court finds that the
ALJ’s decision that Plaintiff’s impairments do not meet or equal

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Listing

12.05(D)

was

legally

erroneous

and

unsupported

by

substantial evidence. The evidence demonstrates that Plaintiff was
presumptively disabled under the Listing and had the ALJ properly
considered the evidence of record, a disability finding would have
necessarily followed.
Finally, the record in this case is complete, and further
development cannot reasonably be expected to support a finding that
Plaintiff is not disabled. Accordingly, the Court finds that remand
solely for the calculation and payment of benefits is warranted.
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision was legally erroneous and is not supported
by substantial evidence. It therefore is reversed. Accordingly,
Defendant’s motion for judgment on the pleadings (Docket No. 13) is
denied, and Plaintiff’s motion for judgment on the pleadings
(Docket No. 12) is granted, and the case is remanded solely for the
calculation and payment of benefits. The Clerk of Court is directed
to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

June 10, 2019
Rochester, New York

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