Kennerson v. Astrue
Filing
17
DECISION AND ORDER granting 4 Plaintiff's Motion for Judgment on the Pleadings; denying 8 Commissioner's Motion for Judgment on the Pleadings, and remanding the case to the Commissioner for calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/3/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CATHY KENNERSON,
Plaintiff,
No. 10-CV-6591(MAT)
DECISION AND ORDER
-vsMICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
I.
INTRODUCTION
Cathy Kennerson (“Kennerson” or “Plaintiff”), brings this
action pursuant to Title XVI of the Social Security Act, seeking
review of the final decision of the Commissioner of Social Security
(“Commissioner”) denying her application for Supplemental Security
Income (“SSI”). Plaintiff has moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rule of Civil Procedure
(“Rule 12(c)”) seeking to reverse the judgement of the Commissioner
and remand for calculation of benefits, or alternatively, for
further administrative proceedings.
The Commissioner has opposed
the motion and cross-moved for judgment on the pleadings.
For the
reasons set forth below, this Court finds that the record as a
whole supports a finding that Plaintiff is disabled within the
meaning of the Social Security Act (“the Act”).
Accordingly, the
matter is remanded to the Commissioner for calculation and payment
of benefits.
II.
FACTUAL BACKGROUND
A.
Overview
Plaintiff’s
application
for
Supplemental
Security
Income
(“SSI”) benefits, filed on January 15, 2008, alleged impairments of
borderline
intellectual
functioning,
a
learning
disability,
depression, dependent personality disorder, and low back pain with
an onset date of November 5, 2003. T.136, 232.1 After her claim was
denied on April 24, 2008, T.64-67, Plaintiff filed a written
request for a hearing which took place before ALJ Edward Pitts on
May 12, 2010. T.10. Plaintiff was represented by counsel, Mark M.
McDonald, Esq., who has continued represent her in this proceeding.
In a decision dated May 27, 2010, the ALJ found that Plaintiff
was not disabled within the meaning of the Act. T.10-17. The
Appeals Council denied Plaintiff’s request for review on September
15, 2010, making the ALJ’s decision the final decision of the
Commissioner. T.1-5. This proceeding followed.
B.
The Evidence Before the ALJ
1.
Biographical Information and Plaintiff’s Testimony
Kennerson was born on April 9, 1983, and was twenty-four
years-old on the she filed her SSI claim. Her father was deceased.
T.282.
Her mother, who is a severe alcoholic and developmentally
disabled, is not involved in her life, having previously abandoned
Kennerson
on
several
occasions
when
Kennerson
was
a
minor.
T.247-49.
At the time of the hearing, Kennerson lived with her
1
Numerals preceded by “T.” refer to transcript of the administrative
proceeding.
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boyfriend and his family. T.41.
three
children
together,
but
Kennerson and her boyfriend have
the
children
were
removed
from
Kennerson’s care at infancy because she was not able to care for
them. T.315.
Kennerson testified that she had been in a special education
program since the first grade and at one point, a social worker
classified her as mentally retarded. T.309-10. She eventually
graduated from high school with an IEP diploma, T.247-49, but was
never able to obtain her GED because she could not pass the test.
T.27. Apparently, Kennerson had received SSI benefits as a child but lost
them because her mother failed to apply for their renewal.
T.303-05.
Between September 2002 and April 2003, Kennerson worked with
the
State
Education
Department,
Office
of
Vocational
and
Educational Services for Individuals with Disabilities (“VESID”)
between five and twenty hours a week training to be a dishwasher.
The VESID reports indicate that her job coach worked with her to
learn “all phases of the dish room operation, racking, rinsing,
washing
pots
and
pans,
stacking clean dishes.”
dish
machine,
operation,
sorting
and
T.177-89.
Between April and May 2003, VESID began teaching Kennerson how
to do assembly work. T.191.
In June 2003, she was obtained
competitive employment as a parts inspector by Badger Technologies.
T.168. However, the pace was too fast and she needed extensive
supervision. T.30. She explained that she “didn’t really understand
what [she] was doing” and that her supervisor had to come help her
“almost like an hour every couple hours[.]” T.30. She was laid off
-3-
after six months because “she just couldn’t handle” the work or the
pace of the job. Id. Kennerson stated that this was the longest she
had ever held a job. Id. The ALJ agreed that her brief employment
at Badger Technologies did not qualify as past relevant work.
T.31.
Kennerson testified that she had not worked since 2006 because
she has problems completing job applications and dealing with
inconsistent
job
duties.
T.31.
She
also
cited
back
pain and
numbness as reasons for not returning to work. Id. She thought she
might be able to work if her duties were consistent and not too
difficult or stressful. T.31, 52.
With regard to her back pain and numbness, Kennerson stated
that she saw a doctor (Dr. Daoud) periodically. T.32. She was
prescribed Vicodin for back pain, but she stopped taking it because
she did not want to become addicted. T.33. Dr. Daoud prescribed
ibuprofen instead. Id. In November 2008, she saw Dr. Daoud after
injuring her knee due to slipping on ice. T.33-34. She had seen Dr.
Daoud only once or twice since then for her back pain because she
lacked transportation. T.34-35. At the time of the hearing, she was
looking for a doctor located closer to her home. T.34.
Kennerson testified that she received psychological treatment
for a couple of months in 2009, T.37-40, but soon after, she moved
out of the county and was no longer eligible for services. T.38-40.
She did not seek further treatment due to transportation issues.
T.38. Kennerson stated that she has never taken any medications for
any psychological conditions. T.40.
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Kennerson testified that while at home, she performs chores
such as washing dishes and windows, and putting clothes in the
dryer. T.41-42. She makes sandwiches for herself and cooks boxed
food, but sometimes needs help measuring ingredients. T.42, 50. She
goes grocery shopping but always with a person to help her, because
she is afraid she of exceeding her food stamp budget. T.42-43.
Kennerson stated that she does not do yard work, but is able to
sweep the porch. T.43. She has never had a bank account, and has
problems counting change. T.50. Kennerson usually stays at home,
watching television or playing computer games. Id. She uses the
Internet to chat with family, but needs help getting to the correct
webpage. T.43-44.
The heaviest things Kennerson can lift are her children, aged
two and three years-old, who weigh approximately thirty pounds
each. T.46. Because Kennerson felt she could not physically and
mentally take care of her children on her own, they currently live
with her boyfriend’s mother, with whom she shares joint custody.
T.46-47, 50. Kennerson testified that she usually has the children
on weekends, unless the stress of taking care of them is too much.
Tr. 46. She explained that she would sit on the floor and play with
them, or watch as they play in the yard. T.47.
Kennerson has never had a driver’s license because she could
not concentrate enough to study for and pass the test. T.45.
Kennerson is reliant upon others for transportation. Id.
Kennerson related that she is sometimes “fidgety” when she
sits. T.47. Cold and damp weather bother her legs and back.
-5-
T.47-48. On a good day, she can sit for thirty to forty-five
minutes, and can stand for an hour to an hour-and-a-half. T.48. On
a bad day, she can stand for fifteen minutes. Id. She has tried to
exercise by stretching. She testifies that she smokes less than a
half a pack of cigarettes per day, and does not drink or use drugs.
T.49.
Kennerson explained sometimes she has trouble controlling her
temper because of stress, which is usually brought on by money or
family issues. T.50 She becomes nervous around people and will try
to block them out. T.50. She took public transportation once, but
was very frightened by the experience. T.51. In addition, she had
difficulty figuring out the bus schedule. T.51.
Kennerson has received benefits from the Department of Social
Services (“DSS”). T.53. She testified that DSS employees would pick
her up and she would do chores such as washing windows and dusting.
T.53-54. DSS credited her for nine hours of work per day, but
usually she worked only four or five hours. T.55. She worked with
three or four others individuals and got along well with them.
T.56. Kennerson was not sure she if could do this work five days
per week because of the pain it caused and because of the confusion
she experienced as the result of always needing instructions from
her supervisor. Id.2 That is, every time she asked to do another
2
Kennerson’s testimony was wholly consistent with a Function Report
completed in March 2008, for the New York State Office of Temporary and
Disability Assistance, with regard to her physical, social, cognitive,
and work-related limitations.
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task, she has to ask someone to explain to her how to accomplish
it. T.56.
The Social Security Disability Report (“SSDR”) shows that the
Department
of
Social
Services
pays
for
Kennerson’s
and
her
boyfriend’s rent and utilities and gives them cash assistance and
food stamps. T.112. A New York State Office of Temporary and
Disability Assistance report, dated March 6, 2008, states that
Kennerson never had a bank account, does not understand money
orders, and will forget things if she does not write them down.
The report also indicates that Kennerson does not like to be around
people, does not understand them, and becomes stressed when things
change unexpectedly. T.148-51.
2.
Medical Evidence
A psychological report dated September 16, 1994, from an
evaluation performed by the Penn Yan school district psychologist
when Plaintiff was eleven and a half years-old indicates that she
was classified as mentally retarded by the Seneca Falls school
district in the first grade. T.309-10. Upon entering the Penn Yan
school district at the end of second grade, she received resource
room support in reading, math, and language, as well as special
class instruction and speech therapy.
She was assessed again on November 6, 2000, and November 9,
2000, by the Penn Yan school district to determine an appropriate
vocational program. At that time, she was in the eleventh grade and
had a disability classification of “mentally retarded”. Her math
level
was
in
third
percentile;
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reading
was
in
the
twelfth
percentile; and writing was in the sixth percentile. T.311. Due to
her difficulties with reading and comprehending assignments given
to her in a class on early childhood education, she was enrolled in
the Targeted Jobs Training Program. T.312.
Kennerson underwent a Social Work Evaluation at the Karl D.
Warner Clinic which was performed by Patricia Hetrick, MSW, CSW, on
May 3, 2002. Hetrick issued the following diagnoses: adjustment
disorder
(mixed);
learning
disorder;
borderline
intellectual
functioning; and mild mental retardation. Hetrick observed that
Kennerson’s
mood
was
mildly
depressed
with
flat
affect;
she
assigned her a GAF (Global Assessment of Functioning) score of 60.
T.303.
Kennerson
denied
any
depression
or
suicidal
ideation.
Hetrick found that Kennerson’s borderline intellectual functioning
resulted in her being was unable to advocate for herself. Kennerson
also needed individual supportive counseling, service coordination,
rehabilitative
counseling,
a
supportive
work
program,
and
a
psychological evaluation to determine eligibility for services.
T.305.
Consequently, Kennerson was assessed by psychologist Drew
Arnold, Ph.D. at the Karl D. Warner Clinic on May 23, 2002, to
determine whether she qualified for services as an individual with
mental retardation or other developmental disability. T.247-49. Dr.
Arnold based his diagnosis on the “Adaptive Behavior Assessment”
system, a record review, and a personal interview. T.247.
-8-
Dr. Arnold reported the results of three of Kennerson’s
previous Wechlser Intelligence Scale IQ tests with verbal IQ (VIQ),
performance IQ (PIQ), and full-scale IQ (FSIQ) scores as follows:
September 2001:
September 1994:
August 1991:
T.247.
The
1994
test
was
VIQ 83, PIQ 80, FSIQ 80
VIQ 76, PIQ 71, FSIQ 71
VIQ 84, PIQ 71, FSIQ 76
administered
as
part
of
a
school
psychological evaluation, but the record does not indicate who
administered the 1991 and 2001 tests. T.309-10. Id. In 1991 and
1994, the Wechlser test for children was administered; in 2001 and
2002, the Wechlser test for adults was administered. Id.
Dr. Arnold noted that Kennerson was referred for special
education when she was in the first grade and, prior to that time,
had “experienced significant learning disabilities” which were
“functionally consistent with those that would be expected based
upon her performance on cognitive measures.” T.247.
Dr. Arnold reported that Plaintiff appeared with adequate
grooming and hygiene. Although she displayed a moderately elevated
level of anxiety, she denied experiencing such symptoms. T.248.
According to the Adaptive Behavior Assessment System utilized by
Dr. Arnold, Kennerson had a composite score of 82, indicating that
she functioned in the low normal to higher borderline range of
functioning. T.248. Although she displayed an adequate ability to
function independently in the community, she did have marked limits
in her ability to access community resources independently. T.248.
Her academic skills were not sufficient to allow her to engage in
complex legal transactions, such as a signing a lease. She also had
-9-
difficulties budgeting and managing her finances. T.249. Although
she could perform basic domestic activities, she did not always
utilize her skills in an appropriate manner. Id. She was limited in
her ability to prepare her own meals and required assistance in
meal planning and nutrition. She was able to maintain “most” basic
self-care activities. T.249. Dr. Arnold determined that although it
was evident she needed help in some areas, her skill deficits did
not
qualify
her
for
services
as
an
individual
with
mental
retardation. T.249.
On April 21, 2008, Dr. Richard Altmansberger, a state agency
psychiatric consultant, conducted a psychiatric review at the
request of the Commissioner. Dr. Altmansberger determined that
Kennerson
suffered
from
organic
mental
disorders,
namely,
borderline intellectual functioning and a learning disability.
T.256. He assessed Kennerson as having mild difficulties with daily
living activities and social functioning and moderate limitations
in
understanding,
remembering,
and
carrying
out
detailed
instructions; performing activities on a schedule; responding to
changes; setting realistic goals; and making plans independently.
T.255-70.
Dr.
Altmansberger’s
residual
functional
capacity
assessment indicated that she had moderate limitations in a number
of
areas,
including
instructions
workplace.
and
understanding
responding
T.268-70.
Dr.
and
remembering
appropriately
Altmansberger
to
found
detailed
changes
that
in
the
there
was
“sufficient evidence in the file” indicating that Plaintiff is
“able to perform simple work.” T.272.
-10-
On July 8, 2008, Dr. Richard Hoyt, Ph.D. assessed Kennerson
and completed a psychiatric report. Dr. Hoyt observed that she was
adequately dressed and groomed and did not display any unusual
behavior or delusional thinking. Kennerson presented as passive,
with a mildly blunted affect. She was not strongly engaged with her
environment.
T.282.
He
reported
that
Kennerson
communicated
effectively, except that her memory was vague on details and she
had poor ability to perform basic mathematical calculations, even
on paper. Dr. Hoyt noted that Kennerson told him that she had
trouble learning in school, but she could not remember the nature
of her disability.
Although she reported that she had previously
worked in a factory, Kennerson could not tell Dr. Hoyt what she did
there.
and
Kennerson had a reluctance to be around groups of people
became
dismayed
and
confused
by
noise
and
multiple
interactions. She lacked insight regarding her difficulties in
maintaining
employment
and
regarding
her
own
functional
limitations. Dr. Hoyt’s intelligence testing showed a mild mental
retardation in the borderline range.
The results of the IQ test
Dr. Hoyt administered were as follows: VIQ 73, PIQ 70, FSIQ 70.
Two subtests were in the developmentally disabled range.
Dr. Hoyt
opined that he had 95% confidence that a retest would put her IQ
within the same range.
T.282-85.
Dr. Hoyt stated that Kennerson could be expected to have
difficulty
acquiring,
retaining,
and
especially
applying
information. She could likely follow simple, concrete instructions,
but would require close supervision and could not be expected to
-11-
exercise
independent
judgment.
She
could
not
manage
her
own
finances, count change, understand paying bills, or ensure her own
safety without supervision. As an example, Dr. Hoyt explained that
Kennerson would know to call 911 if she saw smoke, but she would
not think to investigate if there really was a fire or try to see
if there were anything she should do while waiting for the fire
department. T.285.
Dr. Hoyt’s functional assessment indicated that Kennerson was
dependent on her caseworker for transportation and shopping and
does not use public transit. He reported that she had problems with
judgment in regards to childcare, household maintenance, and money
management. He diagnosed a mild affective disorder and a dependent
personality disorder.
T.282-85.
Dr. Hoyt stated that Kennerson’s overall functional skills
were in the dependent range and that she was particularly impaired
with
respect
to
exercising
independent
judgment.
Dr.
Hoyt
concluded that the combined intelligence testing and the functional
assessment
results
indicated
that
developmentally disabled level.
she
was
functioning
at
a
He opined Kennerson could not be
expected to maintain competitive employment. T.285.
In
January
2009,
Kennerson
sought
treatment
from
Kelly
Behavioral Health for symptoms of depression. She reportedly had
been isolating herself, not sleeping, and having daily mood swings.
Her stressors included lack of housing and financial difficulties.
On January 26, 2009, a Psychosocial-Psychiatric assessment was
conducted by Amanda Hackett, a social worker, and approved by
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psychiatrist
Jennifer
Palamara,
M.D.
Dr.
Palamara
estimated
Kennerson’s intelligence as low average. T. 298-301. In an followup
appointment
Kennerson
on
with
October
depression,
19,
a
2009,
Dr.
learning
unspecified personality disorder.
Palamara
diagnosed
disability,
and
an
T.306-07. Her GAF score was
rated at 65 for the prior year (2008) and 55 for the current year
(2009).
3.
The ALJ’s Decision
On May 27, 2010, the ALJ denied Plaintiff’s application for
SSI benefits. T.25.
the
Social
In making his determination, the ALJ applied
Security
Administration’s
five-step
evaluation process for determining disability.
416.920(a).
sequential
See 20 C.F.R.
The ALJ made the following findings:
(1)
Plaintiff has not engaged in substantial gainful
activity during the relevant time period;
(2)
her
only
severe
disability;
(3)
her impairment does not meet any of the listings in
20 C.F.R. Part 404, Subpart P, Appendix 1;
(4)
that despite her impairment, Plaintiff retains the
residual functional capacity (“RFC”) to perform
work at all exertional levels and that she has the
ability to (i) understand, carry out, and remember
simple instructions and tasks; (ii) interact and
respond appropriately to supervision, coworkers,
the general public, and usual work situations; and
(iii) deal with changes in a routine work setting;
(5)
that she has no past relevant work;
(6)
that Plaintiff is a younger individual as defined
by the regulations, has at least a high school
education, and can communicate in English; and
impairment
-13-
is
a learning
(7)
based on Medical Vocational
Plaintiff is not disabled.
Guideline
204.00,
See T.10-17. On June 9, 2010, Plaintiff requested the Appeals
Council review the ALJ’s decision, which was denied September 15,
2010, thereby rendering the ALJ’s decision the final decision of
the Commissioner.
T.1-5.
III. JURISDICTION AND SCOPE OF REVIEW
Title
42
U.S.C.,
§
405(g)
grants
the
district
courts
jurisdiction over claims based on the denial of Social Security
benefits.
When considering these cases, the court must accept the
findings of fact made by the Commissioner, provided that such
findings are supported by “substantial evidence” in the record. 42
U.S.C. § 405(g).
Substantial evidence is “such relevant evidence
as
mind
a
reasonable
conclusion.”
might
accept
as
adequate
to
support
a
Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121,
149 (1997) (quotation omitted). In reviewing claims under the Act,
the Court 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).
Review by 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. Barnhard, 335 F.3d 99, 105-06 (2d Cir. 2003).
Judgment on the pleadings may be granted under Fed. R. Civ. P.
12(c) “where the material facts are undisputed and where judgment
on the merits is possible merely by considering the contents of the
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pleadings.”
Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639,
642 (2d Cir. 1988) (citation omitted).
IV.
DISCUSSION
In her appeal to this Court, Plaintiff argues that the ALJ
failed to identify all of Plaintiff’s severe impairments at step
two (Point I of Plaintiff’s Memorandum of Law (“Pl. Mem.”)); failed
to perform the “special technique” required when the claimant has
a mental impairment (Pl. Mem, Point I); erred with respect to the
application of Listing 12.05C (Pl. Mem., Point II); improperly
performed the residual functional capacity assessment (Pl. Mem.,
Point III); failed to call a vocational expert (Pl. Mem., Point
IV); and improperly assessed Plaintiff’s credibility (Pl. Mem.,
Point V).
As discussed below, the Court finds that the ALJ erred in his
determination regarding Listing 12.05(C). The Court further finds
that there is substantial evidence in the record to support a
finding that Plaintiff meets the requirements of Listing 12.05(C)
and therefore is disabled. The Court has determined that remand
with for calculation of and payment of benefits is the proper
remedy.
See
Parker
v.
Harris,
626
F.2d
225,
235
(2d
Cir.
1980)(stating that where “the record provides persuasive proof of
disability and a remand for further evidentiary proceedings would
serve
no
purpose,”
the
proper
remedy
-15-
is
remand
solely
for
calculation of benefits); accord Carroll v. Secretary of Health &
Human Servs., 705 F.2d 638, 644 (2d Cir. 1983).
The
remainder
of
the
arguments
forth
by
Plaintiff,
if
successful, would result in a remand for development of the record
and a new hearing. Since the Court is remanding for a calculation
of benefits based upon Plaintiff’s argument concerning Listing
12.05(C),
the
Court
need
not
address
Plaintiff’s
remaining
contentions in detail.
A.
The ALJ’s finding that Plaintiff does not satisfy listing
12.05C contains errors of law and is not supported by
substantial evidence.
According to Listing 12.05C, a claimant must demonstrate
significantly sub-average general intellectual functioning with
deficits in adaptive functioning initially manifesting during the
developmental period, i.e., before age twenty-two. Since the record
showed
Plaintiff
intellectual
demonstrated
functioning”
and
“some
“some
sub-average
deficits
in
general
adaptive
functioning which manifested while she was a child” (e.g., the
special education services she received since attending first
grade, T.247-49), the ALJ examined the requirements of Listing
12.05C.3
1.
Listing 12.05(C): The IQ Score Requirement
Listing 12.05(C) is part of the listing dealing with mental
retardation in adults.
To meet Listing 12.05(C), a claimant must
3
Plaintiff does not argue that she meets any of the requirements of
paragraphs A, B, or D of Listing 12.05.
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satisfy the diagnostic description in the introductory paragraph of
12.05, and both prongs of section (C). 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.00(A). Thus, meeting Listing 12.05(C) necessitates (1)
an IQ score between 60 and 70 and (2) a physical or other mental
additional impairment imposing an additional and significant workrelated limitation of function. 20 C.F.R. Pt. 404, Subpt. P, App.
1 §§ 12.05, 12.05(C).
The
regulations
provide
that
when
separate
verbal,
performance, and full-scale IQ scores are provided, the “lowest
should be used in conjunction with 12.05.”
12.00(D)(6)(c).
20 C.F.R. § 404 App. 1,
When there are multiple IQ tests, the lowest IQ
score should be used unless there is some indication that the score
is invalid.
See Davis v. Astrue, 7:06-CV-00657 (LEK), 2010 WL
2925357, at *5 (N.D.N.Y. July 21, 2010) (“Although there is no
definite rule on the issue of how to reconcile multiple IQ results,
courts tend to prefer the lowest IQ score across multiple, valid
tests.”) (citing Coogan v. Astrue, No. 08–1387, 2009 U.S. Dist.
LEXIS 15678, at *6 n. 2, 2009 WL 512442 (D. N.J. Feb. 27, 2009)
(stating that it is not the ALJ’s task to decide which IQ score he
prefers as Listing 12.05(C) requires only one valid score in the
applicable range); Ray v. Chater, 934 F. Supp. 347, 350 (N.D. Cal.
1996) (opining that the regulations prefer the lowest score amongst
multiple tests)).
The ALJ here concluded that Plaintiff’s “IQ scores, combined
with her high levels of adaptive functioning, are generally too
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high to meet the requirements” of Listing 12.05(C). T.13. In
particular, the ALJ determined that “there is no conclusive IQ
testing that demonstrates that the claimant has a valid IQ below
70.”
T.13 (emphasis supplied). This was error, since a claimant
need not have an IQ below 70 in order to satisfy the first prong of
Listing 12.05(C).
The
ALJ
also
discounted,
without
justification,
the
intelligence testing performed by Dr. Hoyt in 2002 which resulted
in performance and full-scale IQ scores of 70, both of which
satisfy the first requirement of Listing 12.05(C). The ALJ found
that the full score IQ 70 was not consistent with prior testing,
T.13. However, Plaintiff also had a performance IQ of 70 obtained
in
2002,
which
could
qualify
for
the
first
part
of
Listing
12.05(C). The previous tests show that Plaintiff scored a PIQ of 71
in 1991, a PIQ of 71 in 1994, and a PIQ of 80 in 2001. T.247, 283.
Apart from the sole test score of 80 in 2001, the other performance
IQ tests scores were consistent with each other, including the one
from 2002. In addition, they were consistent with Dr. Hoyt’s
prediction that if retested, there was a 95% probability that her
IQ would fall within the 67-75 range. T.285. Where three of the
four test scores are 70 or 71, the “outlier” in this set of data
instead appears to be the IQ score of 80 obtained in 2001. In
short,
the
ALJ
failed
to
adduce
adequate
justification
for
rejecting the more recent testing by Dr. Hoyt in favor of results
-18-
that were seven, fourteen, and seventeen years older.4 See Ferraris
v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (stating that the ALJ
must set forth “the crucial factors in any determination . . . with
sufficient specificity to enable [the court] to decide whether the
determination is supported by substantial evidence”) (internal
citations omitted).
The ALJ also was not justified in discounting Dr. Hoyt’s
opinion and giving greater weight to Dr. Arnold’s opinion based
upon Dr. Arnold’s “expertise”. As Plaintiff points out, the record
indicates that both are licensed psychologists and, therefore, have
similar levels of expertise. Moreover, if additional weight were to
be accorded to one, it arguably should have been to Dr. Hoyt, given
that he administered an IQ test himself. Dr. Arnold did not
administer an IQ test and instead applied the “Adaptive Behavior
Assessment” system. Dr. Arnold did not explain how his adaptive
behavior score related to the Wechsler IQ test, which the Social
Security regulations describe as “essential to the adjudication of”
claim such as Plaintiff’s under Listing 12.05(C). See 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.00(D)(6)(b), (C).
Further error occurred in the ALJ’s rejection of Dr. Hoyt’s
test
results
as
“inconsistent
with
the
longitudinal
medical
4
The record indicates that the September 1994 test (71 for both full
scale and performance; 76 for verbal) was administered by School
Psychologists at Penn Yan Central Schools. T.309-10. That report was
signed by Amy Bolger, School Psychology Intern, and approved by Nancy
Jameson, School Psychologist. The source of the 1991 and 2001 tests are
not part of the record.
-19-
evidence in the record”, T.16. If the ALJ finds an IQ score to be
invalid because it is inconsistent with evidence in the record, he
should explain the basis for his decision. Davis v. Astrue, 2010
U.S. Dist. LEXIS 73225, at *17;
2010 WL 2925357, at *5 (N.D.N.Y.
2010) (citations omitted). Here, apart from the ALJ’s conclusory
statement cited above, there is no explication of his reasons for
finding inconsistency between Dr. Hoyt’s test results and the
remainder of the record. It bears noting that both Dr. Hoyt and Dr.
Arnold made very similar findings concerning Plaintiff’s deficits
in adaptive functioning. Compare T.247-40 (Dr. Arnold’s report)
with T.284-85 (Dr. Hoyt’s report). This is not a case where, for
instance, the test administrator has called into question the
results or accused the claimant of malingering. Indeed, the Court
cannot discern any basis in the record or in the ALJ’s decision for
rejecting Dr. Hoyt’s test results out of hand. Therefore, the Court
determines that Plaintiff is entitled to use the lowest score from
test Dr. Hoyt administered (either a performance or a full scale IQ
score of 70) to meet the first requirement of Listing 12.05(C).
2.
Listing 12.05(C): Other Severe Impairment
The second part of Listing 12.05C requires that the claimant
have a “physical or other mental impairment imposing an additional
and significant work-related limitation of function.”
20 C.F.R. §
404 App. 1, 12.05. A number of circuit courts have disputed the
proper test for evaluating whether a claimant’s impairment imposes
“an
additional
and
significant
-20-
work-related
limitation
of
function,” but the Second Circuit has not ruled on this issue.
MacMillan v. Astrue, No. 1:07–CV–0959 (LEK/VEB), 2009 WL 4807311,
at *7 (N.D.N.Y. Dec. 7, 2009) (citing Hinkle v. Apfel, 132 F.3d
1349, 1352 (10th Cir. 1997) (adopting the severity test utilized at
step two of the sequential evaluation) with Flowers v. United
States Dep’t of Health & Human Servs., 904 F.2d 211, 214 (4th Cir.
1990) (requiring claimant to be unable to perform his or her prior
work to show the required additional and significant limitation)).
Revisions to paragraph 12.00(A) have clarified the “additional
limitation” requirement of Listing 12.05(C), and now direct an ALJ
to “assess the degree of functional limitation the additional
impairment[ ] 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[ ], as defined in §§ 404.1520(c) and
416.920(c).” 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(A); see
also MacMillan, 2009 WL 4807311, at *7 (citation omitted). The
Act’s regulations thus provide that the proper test for evaluating
an impairment, apart from a claimant’s low IQ, for purposes of
Listing 12.05(C), is the same
sequential
evaluation
to
test used at step two of the
determine
whether
an
impairment
is
‘severe.’” MacMillan, 2009 WL 4807311, at *7 (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’
-21-
impairment
imposes
a
“significant” work-related limitation under section 12.05(c) is the
severity test . . . .”).
In the context of a step two severity determination, basic
work activities include the ability to understand, carry out, and
remember simple instructions; use judgment; respond to supervision,
coworkers, and usual work situations; and deal with changes in a
routine work setting.
20 C.F.R. § 416.921; SSR 85-28, 1985 WL
56856 (S.S.A.), at *3. The Second Circuit has emphasized that step
two is limited to ruling out de minimis claims.
Dixon v. Shalala,
54 F.3d 1019, 1030 (2d Cir. 1995). If the impairment’s symptoms
cause “a limitation or restriction having more than a minimal
effect on an individual’s ability to do basic work activities, the
adjudicator must find that the impairment[ ] is severe.” SSR 96-3P,
1996 WL 374181 (S.S.A.), at *2.
The ALJ found that Plaintiff did not have any other severe
impairment besides her learning disability, which he presumed was
the cause of her low IQ. See T.13 (noting that Plaintiff’s full
scale IQ of 70 was not consistent with prior testing although it
showed that she has “a significant learning disability”). The ALJ,
in finding that Plaintiff’s learning disability was a severe
impairment, relied on the report of Dr. Palamara, which does not
contain any indication as to the cause of Plaintiff’s learning
disability. T.307. The remainder of the record contains no medical
opinion to support the ALJ’s assumption that Plaintiff’s learning
-22-
disability is solely a function of her low IQ for purposes of
meeting the mental retardation listing in 12.05(C).
“It is plain that mental retardation is different from a
learning disorder.” Williams v. Astrue, 07CIV4134JGK, 2008 WL
4755348, at *10 (S.D.N.Y. Oct. 27, 2008). In connection with
Listing 112.05(C), the childhood analog of Listing 12.05(C), the
Commissioner has explained that “mental retardation requires both
significantly
subaverage
general
intellectual
functioning
and
deficits in adaptive functioning.” Id. (citing Childhood Disability
Evaluation
Issues,
Disability,
SSA
Social
Pub.
No.
Security
64-076
Administration
(March
1998)).
Office
A
of
learning
disability is an impairment in its own right, distinct from mental
retardation, and the Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, Text Revision (“DSM-IV-TR”) has separate
diagnoses for Learning Disorder and Mental Retardation. Id. at 41,
56. It stands to reason that a learning disorder can exist even in
the presence of a primary diagnosis of mental retardation, and thus
may satisfy the second prong of §12.05(C). See id. (citing DSM-IVTR at 49 n.10 (“A diagnosis of LD . . . can serve as an additional
and significant impairment under Listings 112.05D and F.”). In
addition,
a
learning
disorder
is
a
separate
impairment
from
borderline intellectual functioning. Williams, 2008 WL 4755348, at
*10.
Here,
Plaintiff’s
learning
disability
and
below-average
intelligence/borderline intellectual functioning were diagnosed
-23-
separately by different doctors, and the ALJ was not justified in
grouping Plaintiff’s intellectual impairment with her learning
disability.
The ALJ is not a medical expert and cannot assume that
separate diagnoses referred to the same impairment. See Balsamo v.
Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“In the absence of a
medical opinion to support the ALJ’s finding as to Balsamo's
ability to perform sedentary work, it is well-settled that ‘the ALJ
cannot
arbitrarily
substitute
his
own
judgment
for
competent
medical opinion. . . .’”) (quotation omitted); see also Goldthrite
v. Astrue, 535 F. Supp. 2d 329, 339 (W.D.N.Y. 2008) (“An ALJ must
rely on the medical findings contained within the record and cannot
make his own diagnosis without substantial medical evidence to
support his opinion.”). Indeed, the Commissioner’s own consultant,
Dr. Altmansberger, gave separate diagnoses of a learning disorder
and
borderline
intellectual
functioning,
T.256,
as
did
Dr.
Palamara. In overlooking this, the ALJ failed to give proper weight
to the findings of Dr. Altmansberger as a disability analyst
retained by the COmmissioner. See 20 C.F.r. § 416.927(f)(2)(i)
(“[A]dministrative law judges must consider findings of state
agency medical and psychological consultants or other program
physicians or psychologists as opinion evidence. . . .”).
Dr. Altmansberger determined that Plaintiff had “moderate
limitations” in the following areas: understanding and remembering
detailed
performing
instructions;
activities
carrying
within
a
out
detailed
schedule;
-24-
instructions;
maintaining
regular
attendance and being punctual within limits customarily tolerated
in the workplace; and setting realistic goals or making plans
independently of others. T.268-70. Dr. Altmansberger reported that
she would have moderate difficulty the following areas: maintaining
concentration, persistence, and pace; understanding, remembering,
and carrying out detailed instructions; performing activities in a
schedule; responding to changes; setting realistic goals; or making
plans independently. T.255-70. Although Dr. Altmansberger found
that Kennerson did not have significant limitations in certain
areas, the ALJ failed to explain how Kennerson’s numerous moderate
limitations, which affect virtually all of the skills and aptitudes
required to obtain and maintain substantial gainful employment, had
no more than a minimal effect on her ability to perform basic work
activities. See 20 C.F.R. § 404.1521 (“An impairment or combination
of impairments is not severe if it does not significantly limit
[the
claimant’s]
physical
or
mental
ability
to
basic
work
activities.”); 20 C.F.R. § 404.1521(b) (stating that basic work
activities are the abilities and aptitudes necessary to do most
jobs).
The ALJ failed to accord appropriate weight to the opinion of
Dr. Hoyt,
who
performed
an
extensive
review
of
Plaintff
and
administered IQ tests. As the result of her IQ scores, Dr. Hoyt
ranked Plaintiff in the range of “mild mental retardation to
borderline”. Consistently with Dr. Altmansberger, Dr. Hoyt stated
that
Plaintiff
cannot
exercise
-25-
independent
judgment;
cannot
remember details; has poor ability to perform calculations even on
paper; and can be expected to have difficulty acquiring, retaining,
and, in particular, applying information. T.284. Dr. Hoyt opined
that the combined intelligence testing and functional assessment
were indicative of functioning at a developmentally disabled level.
T.282-85.
Dr. Hoyt’s assessment is not inconsistent with that of Dr.
Arnold, who stated that Plaintiff could not be expected to answer
complex questions or those requiring sophisticated or up-to-date
information.
Dr.
Arnold
determined
that
Plaintiff’s
adaptive
composite score was in the low normal to higher borderline range,
consistent with her intellectual ability.
T.247-49. The remaining
medical evidence is consistent with Dr. Arnold’s and Dr. Hoyt’s
opinions.
In
particular,
Dr.
Palamara
estimated
Plaintiff’s
intelligence to be in the low-average range. T.300-01.
The medical evidence overwhelmingly supports that
Plaintiff
had borderline intellectual functioning, which, in itself, is
considered to be a severe impairment typically requiring the
testimony
of a
vocational
expert
to determine
its
effect
on
employability. See Cangelosi v. Chater, No. 94-CV-2694, 1996 WL
663161, *7 (E.D.N.Y. Nov. 5, 1996) (in determining the claimant’s
ability to work, the ALJ should have also considered the effect of
his low I.Q. scores because “[a] claimant’s borderline I.Q. is ‘a
severe impairment causing nonexertional limitations’”) (quoting Lee
v.
Shalala,
872
F.
Supp.
1166,
-26-
1170
(E.D.N.Y.
1994) (citing
Cunningham v. Heckler, 895 F.2d 492, 496 (8th Cir. 1990) (stating
that a claimant who alleges an I.Q. between 70 and 79 has “alleged
a
severe
impairment
and
may
be
considered
disabled
after
consideration of vocational factors”)).
Moreover, there is substantial medical evidence in the record
to
support
a
finding
that
Kennerson
has
additional
severe
impairments apart from her low IQ and learning disability. Although
the ALJ characterizes the Dr. Palamara’s report as diagnosing
Kennerson only with a learning disorder (Axis II), Dr. Palamara
also included an Axis I diagnosis of depression, NOS (not otherwise
specified), and an Axis II diagnosis of personality disorder).
T.300. This was consistent with Dr. Hoyt’s previous diagnosis of a
dependent
personality
disorder,5
and
observations
by
several
5
The Diagnostic and Statistical Manual of Mental Disorders, 4th
Edition Text Revision (DSM-IV-TR), defines dependent personality disorder
as a pervasive and excessive need to be taken care of that leads to
submissive and clinging behavior and fears of separation, present in a
wide variety of contexts and present by early adulthood. At least five
of the following criteria should be present for a diagnosis of dependent
personality disorder: difficulty making decisions, even minor ones,
without guidance and reassurance from others; requiring others to take
responsibility for major decisions and responsibilities beyond what would
be age-appropriate; difficulty disagreeing with others due to an
unreasonable fear of alienation; unable to initiate or complete projects
or tasks due to a belief that he or she is either inept or that the
appearance of success would lead a support person(s) to abandon him or
her; takes on unreasonably unpleasant tasks or sacrifices things in order
to win the approval of others; unable to spend time alone due to a lack
of self-reliance and an unreasonable fear of being unable to care for
oneself; inability to remain independent of a close relationship as
manifested by seeking a substitute support relationship immediately after
one ends; unrealistic preoccupation with the thought of being left to
care for oneself.
-27-
providers, including Dr. Arnold, that Plaintiff suffered from
anxiety and depression.
Dr.
Hoyt
transportation
reported
and
that
was
Plaintiff
dependent
on
transportation and for assistance shopping.
does
not
her
use
public
caseworker
for
Reports of her social
functioning indicated that she has an aversion to being around
people and gets confused by multiple interactions. Dr. Hoyt opined
that Plaintiff would require close supervision and that Plaintiff’s
overall functional skills were in the dependent range. T.282-85.
Dr. Palamara similarly diagnosed a personality disorder, and there
is no basis for concluding that it was a different diagnosis than
the
“dependent
personality
disorder”
diagnosed
by
Dr.
Hoyt,
especially since Dr. Palamara’s review was performed subsequently
to that performed by Dr. Hoyt and was less extensive.
With
regard
to
her
depression,
anxiety,
and
dependent
personality disorder, ALJ did not find these afflictions to be
severe essentially based upon her lack of treatment and the fact
she does not take psychotropic medication and has never been
hospitalized. T.12. The Second Circuit has noted that a claimant’s
refusal or inability to obtain treatment for a mental illness is
not necessarily probative of the severity of the individual’s
disability. DeLeon v. Secretary of Health and Human Servs., 734
F.2d 930, 934 (2d Cir. 1984); see also Day v. Astrue, No. 07 Civ.
157(RJD), 2008 WL 63285, at *5 n. 7 (E.D.N.Y. Jan. 3, 2008) (A
“‘lack
of
treatment
[should
not
-28-
be
used]
to
reject
mental
complaints both because mental illness is notoriously underreported
and because it is a questionable practice to chastise one with a
mental impairment for the exercise of poor judgment in seeking
rehabilitation.’”) (quoting Regennitter v. Commissioner of Soc.
Sec. Admin., 166 F.3d 1294, 1299–1300 (9th Cir. 1999) (further
quotation omitted); accord Clark v. Astrue, 2010 WL 3036489, at *5,
2010 U.S. Dis. LEXIS 78479, at *14-15 (S.D.N.Y. 2010).
Moreover, a ruling issued by the Commissioner provides that an
“adjudicator must not draw any inferences about an individual’s
symptoms and functional effects from a failure to seek out or
pursue medical treatment without first considering any explanations
that the individual may provide, or other information in the case
record, that may explain infrequent or irregular medical visits or
failure to seek medical treatment.” SSR 96-7p, 1996 SSR LEXIS 4, at
*22 (S.S.A.). Here, the record indicates Plaintiff’s attempts to
continue with mental health treatment were frustrated by her lack
of insurance coverage and the unavailability of transportation.
T.282 (noting that she stopped attending counseling because her
sister was no longer available to drive her); T.284 (“Dependent
upon case worker for transportation, help shopping. Does not use
pubic transportation.”). In addition, the ALJ failed to take into
account Plaintiff’s borderline intellectual functioning and lack of
insight into her own limitations, which were likely contributors in
her failure to continue mental health treatment. See T.283 (noting
that Plaintiff “demonstrated lack of insight maintaining employment
-29-
and her own functional limitations). Although the psychological
evaluations indicated that Plaintiff was suffering from depression
and anxiety, she sometimes denied experiencing such symptoms. See,
e.g., T.248 (Dr. Arnold noted that she “displayed a moderately
elevated level of manifest anxiety but denied experiencing symptoms
of anxiety or anxiety based disorder”).
Relatedly, the ALJ erred in stating that Dr. Palamara assigned
a GAF of 65 (which he felt indicated only “mild symptoms”) to
Plaintiff in January 2009. T.12-13. That GAF score was for the year
prior to the intake report on which it was noted (i.e., the report
dated January 14, 2009). T.300. Kennerson’s GAF in January 2009, by
contrast, was 55, see T.300, which indicates moderately severe
limitations. See DSM-IV-TR at 34.
An ALJ is required to find that an impairment is severe if the
symptoms cause a limitation or restriction having more than a
minimal effect on the individual’s ability to perform basic work
activities. This is so, even if the objective medical evidence
would not, standing alone, establish that the impairment is severe.
SSR 96-3p, 1996 SSR LEXIS 10, at *5-6 (S.S.A.). The ALJ erred in
failing to find that Plaintiff’s depression and anxiety, dependent
personality disorder, and borderline intellectual functioning also
were
severe
impairments
insofar
as
they
individually
and
cumulatively impose more than slight limitations on her ability to
perform basic work activities within the meaning of 20 C.F.R. §
416.920(a). Therefore, Plaintiff has satisfied the second condition
-30-
of Listing 12.05(C).
Accordingly, this Court finds that Plaintiff
meets the requirements of Listing 12.05(C) and is disabled.
B.
The ALJ erred in failing to apply the Special Technique.
As noted above, because this Court reverses on the listings,
the Plaintiff’s remaining arguments do not need to be addressed.
The Court, however, briefly notes in this section and Section IV.C.
two additional errors that affected the proceedings.
In addition to the five-step analysis outlined in 20 C.F.R. §
404.1520, there are regulations governing an ALJ’s evaluation of
the severity of mental impairments. 20 C.F.R. § 404.1520a. These
regulations require application of a “special technique” at the
second and third steps of the five-step framework. Kohler v.
Astrue, 546 F.3d 260, 265 (2d Cir. 2008); see also 20 C.F.R. §§
404.1520a(a), 416.920a(a). This technique “requires a reviewing
authority to determine first whether the claimant has a ‘medically
determinable mental impairment.’” Id. at 265–66 (quoting 20 C.F.R.
§ 404.1520a(b)(1)). “If the claimant is found to have such an
impairment, the reviewing authority must ‘rate the degree of
functional
limitation
resulting
from
the
impairment(s)
in
accordance with paragraph (c),’ . . . which specifies four broad
functional
areas.”
Id.
at
266
(quoting
20
C.F.R.
§
404.1520a(b)(2)). These areas are as follows: “(1) activities of
daily
living;
(2)
social
functioning;
(3)
concentration,
persistence or pace; and (4) episodes of decompensation.” Id.
-31-
(citing
20
C.F.R.
§
404.1520a(c)(3)),
see
also
20
C.F.R
§
416.920a(c)(3).
The regulations also require that the application of the
special technique be documented. Kohler, 546 F.3d at 266 (citing 20
C.F.R. § 404.1520a(e)). The ALJ’s written decision must “reflect
application of the technique, and . . . ‘include a specific finding
as to the degree of limitation in each of the [four] functional
areas.’” Id. (quoting 20 C.F.R. § 404.1520a(e)(2)).
Kohler distinguishes between discussing the relevant evidence
in the context of the claimant’s residual functional capacity, and
applying it to the four functional areas set forth in the “special
technique”. 546 F.3d at 268. Unless the ALJ has performed the
latter analysis, he or she has not adequately considered the entire
record when determining the severity of the claimant’s impairments.
Id. In other words, the ALJ is required to “make specific findings
regarding the claimant’s degree of limitation in each functional
area; it is not sufficient to discuss the limitations in the
context of the claimant’s residual functional capacity.”
Moore v.
Astrue, Civil No. 3:10–CV–0709 (CFD)(TPS), 2010 WL 4976756, at *3
(D. Conn. Dec. 2, 2010) (citing Kohler, 546 F.3d at 268).
In
her
memorandum,
Plaintiff
uses
the
term
“special
psychiatric review technique”,6 but based on the law cited to by
Plaintiff, the Court assumes Plaintiff was in fact arguing a
6
Typically, a medical or psychological consultant will complete a
standard document, known as a “Psychiatric Review Technique Form”
(“PRTF”). Id.
-32-
failure to properly apply the special technique. See Reinhardt v.
Astrue, 2009 WL 6315326, at *5 n.6
(N.D.N.Y. Dec. 30, 2009)
(“Plaintiff uses the term ‘psychiatric review technique.’ Based on
the law cited to by Plaintiff, the Court assumes Plaintiff was in
fact arguing a failure to properly apply the special technique
analysis.”) (citation omitted).
The Commissioner did not respond
to this specific argument.
Here, as Plaintiff points out, although the ALJ did find that
Plaintiff
has
a
severe
mental
impairment,
i.e.,
a
learning
disability, it does not appear that the ALJ employed the special
technique at the second and third steps of the five-step sequential
evaluation, as required by 20 C.F.R. § 404.1520a(c). See Booker v.
Astrue, No. 1:07–cv–646 (GLS), 2011 WL 3735808, at *3 (N.D.N.Y.
Aug. 24, 2011) (“Because the learning disability falls under the
rubric of mental impairments, the ALJ was required to employ the
special technique required in the evaluation of such impairments.”)
(citation omitted). Courts have held that the failure to apply the
special technique is not harmless error, as the Commissioner may be
suggesting in his failure to respond to Kennerson’s argument. See
Moore,
2010
WL
4976756,
at
*3
(rejecting
as
without
merit
Commissioner’s argument that because plaintiff made it past the
step two screening step, the ALJ’s failure to utilize the special
technique was not particularly significant).
C.
The ALJ erred in assessing Residual Functional Capacity
and erroneously relied exclusively on the Medical
Vocational Guidelines.
-33-
The Court also agrees with Plaintiff that the ALJ’s finding of
Plaintiff’s Residual Functional Capacity (“RFC”) and his reliance
on the Medical Vocational Guidelines (the “Grids”) were in error.
At step four, the ALJ must make specific findings regarding a
claimaint’s work-related abilities and must consider both the
exertional
and
non-exertional
claimaint’s impairments.
199, 204 (W.D.N.Y. 2005).
limitations
created
by
the
Antonetti v. Barnhart, 399 F. Supp. 2d
Because the Grids only consider the
physical, or exertional, levels required for different types of
work, use of the Grids is inappropriate where the claimant has
physical or mental impairments that are not related to physical
strength.
20 C.F.R. § 404 App. 2, 200.00(e).
Where, as here, the
claimant has non-exertional limitations that significantly affect
her work-related abilities, the ALJ cannot meet the Commissioner’s
burden in step five by relying on the Grids.
F.2d 601, 603 (2d Cir. 1986).
Bapp v. Bowen, 802
Instead, the ALJ must introduce the
testimony of a vocational expert (“VE”) or other similar evidence
to show that a job exists in the national economy that the claimant
can obtain and is capable of performing.
Id.
In his RFC determination, the ALJ found that the Plaintiff
could “perform a full range of work at all exertional levels” and
that she was “capable of sustaining unskilled routine work with
limited social contact.” T.14-16. The ALJ then relied on the Grids
to make his ultimate finding of no disability. T.16-17.
The ALJ
made no specific findings with regard to Plaintiff’s work-related
-34-
capabilities and limitations despite the overwhelming evidence in
the record that she does in fact have non-exertional limitations.
An ALJ cannot ignore a claimant’s non-exertional limitations and
then make a non-disability determination based upon the Grids. See
Antonetti, 399 F. Supp.2d at 204 (“The ALJ found that plaintiff did
not suffer from any significant non-exertional impairments that
would
preclude
reliance
on
the
Guidelines.
In
fact,
[the]
vocational expert . . . testified that if plaintiff’s mental
impairments
created
difficulties
with
plaintiff
maintaining
concentration or making decisions, it would have a ‘negative
impact’ on plaintiff’s ability to keep a job.”). To meet the
Commissioner’s burden, the ALJ was required to make specific
findings of Plaintiff’s non-exertional limitations and then consult
a VE or obtain similar testimony. His failure to do so here was
error.
C.
Summary
When making a determination of disability, the ALJ and a
reviewing court must examine the entire record and consider the
whole person. See 20 C.F.R. § 404.1523 (providing that consider the
combined effect of all of the claimant’s impairments must be
evaluated, without regard to whether any such impairment, if
considered separately, would be of sufficient severity). Plaintiff
presents as a wishful young woman who does not understand the
extent of her own limitations. She wants to have her own apartment
and
live
independently,
but
she
-35-
is
dependent
on
others
for
transportation, shopping, and her own safety. T.282-84, 304.
She
would like to have a job but requires one that provides almost
constant supervision and does not vary from day-to-day. T.52, 284.
She has expressed an interest in working in childcare, but her own
children were removed from her home because she was unable to care
for them. T.247, 298. After reviewing the record in its entirety,
the Court concludes that contrary to the ALJ’s decision, the
substantial evidence supports a finding that Plaintiff suffers from
a number of severe mental impairments and adaptive deficits that,
in concert with her low IQ, place her within the parameters of
Listing 12.05(C). Therefore, the Court finds, Kennerson suffers
from a disability within the meaning of the Act.
V.
ORDERS
Plaintiff’s motion for judgment on the pleadings is granted.
The Commissioner’s motion for judgment on the pleadings is denied.
Plaintiff’s claim is remanded to the Commissioner for calculation
and payment of benefits.
IT IS SO ORDERED.
S/Michael A. Telesca
___________________________________
Honorable Michael A. Telesca
United States District Judge
DATED:
Rochester, New York
August 3, 2012
-36-
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