Swain v. Berryhill

Filing 17

DECISION AND ORDER granting in part and denying in part 11 Motion for Judgment on the Pleadings; denying 13 Motion for Judgment on the Pleadings. Defendant's cross-motion for judgment on the pleadings [#13] is denied, and Plaintiff's motion for judgment on the pleadings [#11] is granted insofar as this matter is remanded to the Commissioner for clarification of the reason that Plaintiff does not meet Listing 12.05(C). The Court is expressly not remanding the matter for a new de novo hearing, or for a reconsideration of Plaintiff's physical impairments. Nor is the Court remanding the matter for the ALJ to revisit steps four and five of the sequential analysis, unless, for some reason, upon remand the ALJ changes his mi nd about his step three finding. Rather, the Court is remanding the matter for the limited purpose of obtaining clarification of the finding concerning Listing 12.05(C). To the extent that Plaintiff's motion [#11] is based upon anything other than the Commissioner's determination at step three concerning Listing 12.05(C), it is denied. Signed by Hon. Charles J. Siragusa on 6/13/18. (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
DARRYL SWAIN,
Plaintiff

DECISION AND ORDER

-vs17-CV-6110 CJS
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
________________________________________

APPEARANCES
For the Plaintiff:

Stephen R. Ruotsi, Esq.
Kenneth R. Hiller, Esq.
Law Offices of Kenneth Hiller
60000 North Bailey Avenue, Suite 1A
Amherst, New York 14226

For the Defendant:

Graham Morrison, Esq.
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
Kathryn L. Smith, A.U.S.A.
Office of the United States Attorney
for the Western District of New York
100 State Street
Rochester, New York 14614

INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”),
which denied the application of Darryl Swain (“Plaintiff”) for Supplemental Security
Income Benefits (“SSI”). Now before the Court is Plaintiff’s motion (Docket No. [#11]) for

1

judgment on the pleadings and Defendant’s cross-motion [#13] for judgment on the
pleadings. Plaintiff’s application is granted in part, Defendant’s application is denied, and
this matter is remanded for further administrative proceedings.
FACTUAL BACKGROUND
The reader is presumed to be familiar with the parties’ submissions, which contain
detailed recitations of the pertinent facts. The Administrative Record is exceptionally
lengthy, comprising 939 pages. This is due to the fact that this action dates back to April
7, 2009, when Plaintiff first applied for SSI benefits.
For purposes of resolving the pending applications, it is sufficient to note the
following facts. Plaintiff, who was born in 1966, applied for SSI benefits, claiming to have
become disabled on December 15, 2007. (T. 13).1 Although, even prior to the alleged
onset date Plaintiff has barely any reported earnings or work history. In that regard,
Plaintiff reportedly described his work history as follows: “He has worked off and on over
the years detailing cars, installing grass and washing windows.” (T. 906). Plaintiff
claimed to be disabled primarily due to lower back pain, ankle pain, tumors in his back,
and a limited ability to read and write. (T. 15).
On August 4, 2010, a hearing was held before an Administrative Law Judge
(“ALJ”), at which Plaintiff appeared with an attorney representative. Plaintiff’s attorney
requested a consultative mental examination. (T. 181, 299). When the ALJ asked why
such an examination was necessary, the attorney indicated that Plaintiff had only a ninthgrade education, and was unable to read or perform math at an “appropriate level.” (T.
299). When the ALJ asked the attorney whether he had attempted to obtain Plaintiff’s
1

Unless otherwise indicated, citations are to the Administrative Record, Docket No. [#9].

2

school records, the attorney stated that he had requested Plaintiff’s records from the
Rochester City School District, but that such records had been destroyed. (T. 299-300).
Curiously, Plaintiff, who was present during this discussion, did not inform his attorney or
the ALJ that he had attended school in Alabama, not Rochester. (T. 189-192, 300). In
any event, the ALJ denied the request for a consultative mental examination, but agreed
to leave the record open for two weeks following the hearing, to allow Plaintiff to submit
any additional school records that could be located. Plaintiff did not submit any
additional evidence within that period. During the hearing, Plaintiff testified, in pertinent
part, that a typical day involved him waking up at around 6 a.m.; socializing with his
father-in-law; going back to bed around 11 a.m. because “[he] really d[id]’t have anything
to do”; socializing with family until about 7 or 8 p.m.; and then going to bed. (T. 309-310).
On August 19, 2010, the ALJ issued a Decision, denying Plaintiff’s claim for SSI
benefits. As part of the ruling, the ALJ found, at the third step of the familiar five-step
sequential analysis used to evaluate such claims,2 that Plaintiff’s mental impairments did
not meet or equal Listing 12.05(c), “mental retardation.” (T. 18). On this point, the ALJ
stated in pertinent part:

2

“A five-step sequential analysis is used to evaluate disability claims. See 20 C.F.R. §§ 404.1520,
416.920. First, the Commissioner considers whether the claimant is currently engaged in substantial
gainful activity. If he is not, the Commissioner next considers whether the claimant has a severe
impairment which significantly limits his physical or mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant
has an impairment which is listed in ... the regulations.... Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual
functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the
Commissioner then determines whether there is other work which the claimant could perform. The
claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden at
step five.” Colvin v. Berryhill, No. 17-1438-CV, --- Fed. Appx. --- , 2018 WL 2277791, at *1 (2d Cir. May
18, 2018) (citations and internal quotation marks omitted).

3

The ‘paragraph C’ criteria of Listing 12.05 are not indicated as there is no
evidence of deficits of adaptive functioning before age 22 (the claim
appears to have also good adaptive functioning currently), nor the
intellectual test scores required for the criteria of Listing 12.05.
(T. 18). The ALJ further noted that Plaintiff had no more than mild restrictions in his daily
activities, and stated: “The claimant’s testimony at the hearing did not indicate limitations
one would expect from a person alleging serious mental deficits and debilitating mental
functioning.” (T. 17). Prior to reaching step four of the sequential analysis, the ALJ found
that Plaintiff had the residual functional capacity (“RFC”)
to lift/carry 20 pounds occasionally and 10 pounds frequently. He can sit 6
of 8 hours and stand and walk 6 of 8 hours. He must avoid concentrated
exposure to the hazards of work involving hazardous moving machinery
and unprotected heights. He cannot perform commercial driving. [Plaintiff
does not have a driver’s license due to owning child support.] The claimant
is limited to unskilled simple work involving one to two step tasks.
(T. 18). In making this determination, the ALJ stated that she did not find Plaintiff to be
credible:
[T]he undersigned has found his credibility as a witness to be poor and his
demeanor during the hearing consistent with the limitations established in
[the RFC finding].
The evidence does not indicate that the claimant is disabled. There is no
objective evidence that a medical provider has stated that he is disabled or
assigned him any work limitations. His treatment consists of conservative
care with routine medication management, with most of his conditions listed
as stable or controlled. His activities of daily living are very active, to his
credit working when he has jobs and visiting with family and grandchildren.
He participated in outpatient alcohol treatment for two to four days a week.
There is no evidence of any of the mental problems that the claimant
alleges.

4

(T. 20). At step five of the sequential analysis, the ALJ concluded that Plaintiff was not
disabled because he could perform specific light and sedentary jobs. (T. 23-24).
Shortly after the ALJ’s decision was issued, Plaintiff’s counsel obtained four pages
of school records (from Alabama), including IQ test results. (T. 189-192). The records
indicate that Plaintiff generally received poor grades, and that IQ testing, performed in
1973 and 1975, showed scores of 73 and 72, respectively. (T. 189-190). Plaintiff
submitted the school records to the Appeals Council. However, the Appeals Council
declined to review the ALJ’s determination.
Plaintiff eventually commenced an action in this Court, Swain v. Astrue, Docket
No. 12-CV-6233P, which upon consent of the parties was assigned to the Honorable
Marian W. Payson, United States Magistrate Judge. On March 31, 2014, Judge Payson
issued a Decision and Order, reversing the Commissioner’s decision and remanding the
case to the Commissioner. Preliminarily, Judge Payson noted that Plaintiff was only
challenging the Commissioner’s determination insofar as it pertained to his alleged
mental impairments. Payson Dec. & Order at p. 10 (“Petitioner does not contest the
Commissioner’s findings regarding [his] physical impairments or his anxiety around
crowds and strangers. Petitioner only contests the Commissioner’s findings relating to
Petitioner’s intellectual limitations.”). Accordingly, Judge Payson stated that she
accepted the Commissioner’s determinations regarding Plaintiff’s physical impairments
and his alleged anxiety around crowds, and would only “focus[ ] on petitioner’s
intellectual impairments.” Id. at p. 13.
With regard to such intellectual impairments, Judge Payson observed that Plaintiff
was maintaining that the ALJ had erred by denying his request for intelligence testing; by
5

making a mental RFC determination that was not supported by substantial evidence; and
by improperly finding that he was not credible. However, Judge Payson found, instead,
and sua sponte, that “the fundamental error with the Commissioner’s determination
stem[med] from the failure of the Appeals Council to conduct a review of the ALJ’s
decision in light of the new evidence that petitioner submitted – specifically his school
records.” Payson Decision and Order at p. 14; see also id. at p. 15 (“I conclude that there
is a reasonable possibility that the school records [obtained post-hearing and submitted
to the Appeals Council] would have affected the ALJ’s decision.”).
In particular, Judge Payson found that the school records could have affected the
ALJ’s analysis, at step three, of whether Plaintiff met the requirements of Listing
12.05(C). On this point, Judge Payson stated:
To meet the requirements of Listing 12.05(C) a claimant must demonstrate
the following: (1) deficits in adaptive functioning initially manifested . . .
before age 22; (2) [a] valid verbal, performance, or full scale IQ of 60
through 70; and, (3) a physical or other mental impairment imposing an
additional significant work-related limitation of function. 20 C.F.R. Pt. 404,
Subpt. P., App’x 1, § 12.05;
Payson Decision and Order at p. 16. Judge Payson noted that the school records were
relevant because they “are evidence that [Plaintiff] suffered a deficit prior to the age of
twenty-two,” and because the IQ scores, while “slightly outside the permissible range,”
could provide a basis to find “equivalency to Listing 12.05(C).” Id. at p. 17. Judge
Payson further observed that the ALJ had already found that Plaintiff had other physical
impairments that imposed significant work-related limitations of function. Id. Judge
Payson added, “Accordingly, all that would be left for petitioner to meet Listing 12.05(C)
is a valid IQ score between 60 and 70.” Id. at p. 18. Judge Payson further indicated that
6

new IQ testing would be required, because the IQ test results from 1973 and 1975 were
“too stale to establish that petitioner has met the second prong of the listing.” Id. In
conclusion, Judge Payson stated:
[A] review of the record before the Court, which now includes petitioner’s
school records, does not permit a conclusion that substantial evidence
supports a finding that petitioner does not meet the requirements of Listing
12.05(c).
***
I conclude that a remand pursuant to sentence four of 42 U.S.C. § 405(g) is
appropriate. On remand, the Commissioner should obtain valid IQ
scores for petitioner and obtain a consultative psychological
evaluation to assess petitioner’s mental capabilities.
Id. at p. 21 (emphasis added). In response to Judge Payson’s ruling, the Appeals
Council issued an order remanding the “case to an Administrative Law Judge for further
proceedings consistent with the order of the court.” (T. 401).
On remand, the Commissioner obtained IQ testing and a psychological evaluation,
both from consultative examiner Christine Ransom, Ph.D. (“Ransom”). The IQ testing
indicated, inter alia, that Plaintiff had a full scale IQ score of 68. (T. 903). However, the
psychological evaluation concluded that despite Plaintiff’s IQ score, he had no significant
problems with adaptive functioning, and “no [psychological] disorder.” (T. 908). For
example, the evaluation made the following observations about Plaintiff: he “denied
generalized anxiety, panic attacks, manic symptomology, thought disorder cognitive
symptoms and deficits other than a learning disability” (T. 906); his speech was “fluent
and intelligible” (T. 907); his thought processes were “coherent and goal-directed with no
evidence of hallucinations, delusions or paranoia” (T. 907); his affect was “full” and
“appropriate” (T. 907); his memory, attention and concentration were “intact” (T. 907); his
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intellectual functioning was “mildly deficient” and his general fund of information was “in
the borderline range” (T. 908); and his “current adaptive functioning” was “in the low
average range.” (T. 908). In pertinent part, Ransom’s psychiatric evaluation report
stated:
Intellectual functioning was found to be in the mildly deficient range with a
Full Scale IQ score of 68. General fund of information was found to be in
the borderline range.
***
Adaptive functioning appears to be in the low average range.
***
This individual will show no evidence of limitation following and
understanding simple directions and instructions, perform[ing] simple tasks
independently, maintain[ing] attention and concentration for simple tasks,
maintain[ing] a simple regular schedule and learn[ing] simple new tasks,
perform[ing] complex tasks, relat[ing] adequately with others and
appropriately deal[ing] with stress.
The results of the evaluation are consistent with the absence of a cognitive
deficit. Even though cognitive functioning is in the mildly deficient range[,]
adaptive functioning appears to be in the low average range. There is no
evidence of a psychiatric condition which would interfere with the claimant’s
ability to function on a daily basis.
DIAGNOSIS[:] No disorder.
(T. 908). Ransom reported that Plaintiff claimed to have difficulty managing money, but
otherwise, she noted that Plaintiff was able to handle all of the normal activities of daily
living, and that he spent his time watching television and socializing with family members,
including grandchildren. (T. 908).3

3

During the psychological exam, Plaintiff reportedly denied any “drug history” (T. 906), however,
the medical records indicate both that he has tested positive for having used cocaine and marijuana, and
that he admitted to using crack cocaine during his younger years.

8

On May 7, 2015, a hearing was conducted before a new ALJ. At the start of the
hearing, the ALJ and Plaintiff’s attorney discussed the scope of the hearing, in light of
Judge Payson’s remand order. The ALJ and Counsel agreed that the purpose of the
remand was to consider Plaintiff’s mental limitations, not his physical limitations. (T.
345).4 In particular, Plaintiff’s counsel indicated that the issues to be considered at the
hearing were Plaintiff’s IQ and his adaptive functioning. (T. 345-346). Plaintiff’s counsel
asserted that the full-scale IQ testing score of 68 established the requirement, under
Listing 12.05(C), for an IQ score of between 60 and 70. As for the psychological testing,
Plaintiff’s counsel indicated that she disagreed with Ransom’s findings concerning
adaptive functioning. (T. 345-346) (“Dr. Ransom . . . made a [finding] that the adaptive
functioning in her estimation appeared to be in the low average range, and so therefore,
she did not find any cognitive deficits. I would have to disagree with that finding from Dr.
Ransom.”).
As evidence that Plaintiff actually had more serious deficits in adaptive functioning
than Ransom found, Plaintiff’s counsel elicited testimony from him that he could barely
read; that he had difficulty counting change when shopping at a store; that he had
difficulty telling time from an analog clock; that he frequently argued with people,
including his wife; and that his wife helped him with his shopping because she is more
savvy at finding bargains. When asked about his daily activities, Plaintiff indicated,
apparently to his counsel’s surprise, that he essentially provides daycare for his three

4

As part of this discussion, the ALJ and Plaintiff’s counsel discussed the fact, addressed further
below, that Plaintiff’s primary care physician, Dr. Guo, executed conflicting physical RFC reports.
Plaintiff’s counsel acknowledged that Guo’s reports were inconsistent, and indicated that she had decided
not to seek clarification from Dr. Guo, since the purpose of the remand was only to consider Plaintiff’s
mental functioning. (T. 344-345).

9

grandchildren, ages 3, 7, and 12, on a daily basis. (T. 368-369). For example, Plaintiff
indicated that he picks up the seven-year-old grandchild at his daughter’s home each
morning, walks him to the bus at 8 a.m., and then returns to pick him up at 11 a.m. (T.
369); that while the older child is at school, he takes the three-year-old grandchild to the
park to play (T. 369); and that at 3:30 p.m., he picks up the twelve-year-old from the
school bus, and watches all three children until their mother returns home from work. (T.
369).
On June 23, 2015, the ALJ issued a Decision finding that Plaintiff was not
disabled. (T. 280-289). The ALJ noted, preliminarily, the procedural history of the case,
and accurately observed: “Pursuant to the District Court remand order, the Appeals
Council has directed me to obtain valid IQ scores and a consultative psychological
evaluation to assess the claimant’s mental capabilities.” (T. 280, 902-909). Regarding
the testing that had been performed by Ransom, the ALJ stated, in pertinent part:
[A]n intellectual evaluation was performed in February 2014[.] . . . The
claimant readily recalled, understood and responded to instructions. His
scores on the WAIS-IV were 68 Full Scale, 70 Verbal, Perceptual
Reasoning 71, Working Memory 74, and Processing Speed 70. The
WRAT-IV reading achievement score placed his ability at the second grade
level, which is in the mildly deficient range. However, the claimant reported
he could dress, bathe, groom, prepare food, cook, clean, do laundry, take
public transportation, and socialize with family and grandchildren daily. The
consultative examiner, Dr. Ransom, states that based on the claimant’s
report his adaptive functioning is in the low average range. She concludes
there is no cognitive disorder and no evidence of a psychiatric condition
which would interfere with the claimant’s abilities to function on a daily
basis. There is no other diagnosis in the file pertaining to his cognitive
abilities.
***
[During Dr. Ransom’s examination,] claimant reported no mental health
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treatment or medication but a history of special education. During the
testing, the claimant was noted to readily recall and understand instructions
and had adequate attention and concentration. . . . Dr. Ransom concluded
the claimant had no disorder because even though cognitive functioning
was in the mildly deficient range, adaptive functioning was in the low
average range. Some weight is accorded to the opinion of Dr. Ransom
because her opinion is based in part on objective test results. However, I
find the claimant’s low average adaptive functioning does cause some
limitations and [would restrict Plaintiff] to simple work.
(T. 284, 287).
The ALJ conducted the five-step sequential analysis. At the third step of that
analysis, the ALJ found that Plaintiff did not meet any listing for a mental impairment,
stating:
The claimant’s mental impairment has been considered under the
requirements of listing 12.05 and 12.06. Mental deficiency refers to
significantly sub-average 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.
The required level of severity for this disorder is met when the requirements
in paragraphs A, B, C, or D are satisfied.
The requirements in paragraph A are met when there is mental incapacity
evidenced by depending upon others for personal needs . . . . In this case,
these requirements are not met because the claimant is independent in her
[sic] personal needs, including dressing, bathing, grooming, preparing
meals, and doing laundry.
Turning to the requirements in paragraph B, they are not met because the
claimant does not have a valid verbal, performance or full scale IQ of 59 or
less. There is no evidence of an IQ in this score range.

11

In terms of the requirements in paragraph C, they are not met because the
claimant does not have a valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of function.
Finally, the requirements in paragraph D are met if the claimant has a valid
verbal, performance, or full scale IQ of 60 through 70, resulting in at least
two of the following: marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence or pace; or repeated episodes of
decompensation, each of extended duration.
***
For both paragraph C and D, the claimant has a history of poor school
performance and a reference to the Otis-Lennon test in 1973 that revealed
an IQ score of 73 and a WISC in 1975 that had an IQ score of 72. Both
scores are above the requisite listing requirements.
The claimant never reported any adaptive functioning or cognitive problems
to his providers but an intellectual evaluation was performed in February
2014 at the request of the State agency. It is also noted that the claimant
never alleged any mental or cognitive impairments until the time of his first
hearing. His medical records specifically state there is no special needs
related to learning. The claimant’s speech and language skills were found
to be in the borderline range. The claimant readily recalled, understood
and responded to instructions. His scores on the WAIS-IV were 68 full
scale, 70 verbal, Perceptual reasoning 71, Working memory 74, and
processing speed 70. The WRAT-IV reading achievement score placed his
ability at the second grade level, which is in the mildly deficient range.
However, the claimant reported he could dress, bathe, groom, prepare
food, cook, clean, do laundry, take public transportation, and socialize with
family and grandchildren daily. The consultative examiner, Dr. Ransom,
states that based on the claimant’s report his adaptive functioning is in the
low average range. She concludes there is no cognitive disorder and no
evidence of a psychiatric condition which would interfere with the claimant’s
abilities to function on a daily basis. There is no other diagnosis in the file
pertaining to his cognitive abilities.

12

In activities of daily living, the claimant has mild restriction. The claimant is
able to bathe, dress, and groom himself. He can prepare meals and do
housework. He also testified he will work odd jobs as he finds them.
In social functioning, the claimant has mild difficulties. The claimant reports
he does not like being around crowds of three to four people and he stays
away from strangers. The claimant testified he is currently living apart from
his wife but that they still meet up to go shopping and he eats at her house
frequently. The claimant also sees his grandchildren daily and helps with
homework if able. He is also able to sued public transportation and states
he will ask for help if needed.
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. The claimant states he is a slow learner and will be
easily frustrated. The claimant testified he is responsible for getting two of
his grandchildren to and from school but has trouble with helping them in
homework. He has trouble making change and requires help when
‘stretching’ his food stamps at the grocery store.
As for episodes of decompensation, the claimant has experienced no
episodes of decompensation, which have been of extended duration.
Accordingly, the requirements in paragraph D are not satisfied.
(T. 283-284).
Prior to reaching step four of the sequential analysis, the ALJ found, as part of his
RFC determination, that Plaintiff’s mental impairments limited him to “unskilled, simple
work involving one to two step tasks.” (T. 285). At step four, the ALJ found that Plaintiff
had no past relevant work. (T. 288). At step five, the ALJ concluded that Plaintiff was not
disabled, because despite his limitations there were jobs existing in significant numbers
in the national economy that he could perform. (T. 288). Plaintiff appealed, but on
December 27, 2016, the Appeals Council declined to review the ALJ’s determination. (T.
263-265).
13

On February 21, 2017, Plaintiff commenced this action. On October 6, 2017,
Plaintiff filed the subject motion [#11] for judgment on the pleadings. Plaintiff asserts two
grounds for his motion. First, he contends that the ALJ failed to follow the remand
instructions of Judge Payson and the Appeals Council. In that regard, Plaintiff argues
that Judge Payson essentially remanded the action for one reason, namely, to obtain IQ
testing. According to Plaintiff, Judge Payson determined that he met two of the three
requirements of Listing 12.05(C), and that all he needed to meet the remaining
requirement was to produce an IQ score between 60 and 70, which he did. Plaintiff
maintains that Judge Payson’s ruling on this point is “law of the case,” and that he
therefore must be found disabled.
Second, Plaintiff contends that the ALJ failed to follow the “treating physician rule”
when he evaluated RFC reports submitted by his treating physician, Dr. Guo (“Guo”). In
that regard, Guo treated Plaintiff for essentially a year, between 2013 and 2014. (T. 286).
Plaintiff’s decision to begin treating with Guo seems to have coincided with the fact that
his previous physician, Dr. Atalla, refused to continue prescribing narcotic pain killers to
Plaintiff, after Plaintiff tested positive for using cocaine and marijuana. (T. 654, 656, 670).
Dr. Guo began prescribing Plaintiff the narcotic painkillers Norco and Hydrocodone.5
In any event, Guo completed three different reports concerning Plaintiff’s ability to
work: A “Physical Assessment for Determination of Employability” for the Monroe County
Department of Social Services, dated August 6, 2014 (T. 670-673); a second “Physical
Assessment for Determination of Employability” for the Monroe County Department of

5

Indeed, most of the records obtained from Dr. Guo’s office pertain to Plaintiff’s requests for refills
of his hydrocodone prescription. (T. 672, 554-555, 560-561, 563, 566-567; 570 “[W]as more interested in
getting his hydrocodone . . . He is still concerned about getting his hydrocodone.”).

14

Social Services, dated December 2, 2014 (T. 674-677); and a “Physical Residual
Functional Capacity Questionnaire,” on a form provided by Plaintiff’s attorney, dated
December 18, 2014. (679-683). Suffice it to say that although the three reports were
completed within four months of each other, the forms completed for Monroe County
expressed opinions that were significantly different than those expressed in the form
provided to Plaintiff’s attorney. For example, the forms provided to Monroe County
indicated that Plaintiff’s inability to work was expected to last six months, that he could lift
up to 15 pounds, and that in an 8-hour workday he could walk “2-4 hours,” stand “2-4
hours,” and sit “more than 4 hours.” (T. 671, 673, 675, 677). However, the form provided
to Plaintiff’s attorney indicated that Plaintiff could only occasionally lift “less than 10 lbs.,”
that he could “stand/walk” “less than 2 hours” in a workday, and that he could sit only
“about 4 hours” in a workday. (T. 681). Further, Guo’s report to Plaintiff’s attorney
indicated that Plaintiff would need to take at least two unscheduled breaks, lasting fifteen
minutes each, twice per day, and that he would likely miss about two days per month
from work. (T. 681-682). Because of the discrepancies between the reports, the ALJ
indicated that he gave only “little weight” to the reports. (T. 287). In doing so, Plaintiff
contends, the ALJ failed to properly apply the treating physician rule, because he failed
to give a sufficient explanation for the weight that he assigned to Guo’s report.
On December 4, 2017, Defendant filed the subject cross-motion [#13] for
judgment on the pleadings. Defendant’s motion argues, first, that the ALJ “properly
assessed Plaintiff’s mental limitations under [Listing] 12.05.”6 In this regard, Defendant’s
argument is almost exclusively focused on the absence of current deficits in adaptive
6

Def. Memo of Law [#13-1] at p. 15.

15

functioning, as indicated by Ransom’s evaluation report, and on the alleged absence of
evidence of such deficits prior to age 22. As for Plaintiff’s recent full scale IQ score of
68, Defendant states, “Although Plaintiff’s full-scale IQ score was 68, the ALJ properly
determined it did not interfere with Plaintiff’s ability to function on a daily basis.”7 On this
point, Defendant’s counsel argues that an “ALJ may reject and IQ score as invalid when
it is inconsistent with the record,” citing Burnette v. Colvin, 564 F.App’x 605, 607-608 (2d
Cir. Apr. 30, 2014).8 Defendant further contends that the ALJ properly assessed
Plaintiff’s physical RFC, and that he properly gave little weight to Dr. Guo’s reports, which
were inconsistent with each other and with Guo’s treatment notes.
On December 26, 2017, Plaintiff filed a reply [#14], which reiterates his two
arguments discussed earlier. With regard to Listing 12.05(C), Plaintiff contends that he
has demonstrated adaptive deficits prior to age 22, with evidence that he was in special
education classes, received poor grades and did not graduate. Plaintiff also maintains
that his poor work history is indicative of adaptive deficits. Plaintiff further contends that
Defendant defaulted in responding to his argument that the ALJ failed to comply with
Judge Payson’s remand order. That is, Plaintiff reiterates that on remand, the ALJ was
only supposed to obtain an IQ score and determine whether such score met the
requirement of Listing 12.05(C). Further, Plaintiff reiterates his argument that the ALJ
failed to properly evaluate Dr. Guo’s opinion evidence.
On May 24, 2018, counsel for the parties appeared for oral argument, with
Defendant’s counsel appearing by telephone with the Court’s permission. During oral

7

Def. Memo of Law [#13-1] at pp. 16-17.

8

Def. Memo of Law [#13-1] at p. 17.

16

argument, Defendant’s counsel agreed with Plaintiff’s contention that Judge Payson had
remanded the action only for the ALJ to make a finding as to whether Plaintiff’s IQ was
between 60 and 70. Further, Defendant’s counsel agreed that Plaintiff’s IQ scores from
1973 and 1975 were stale. Defendant’s counsel nevertheless indicated that Plaintiff’s IQ
score results, as found by Ransom, were “borderline,” and that the ALJ therefore
properly found that Plaintiff did not meet Listing 12.05(C).
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the Commissioner
of Social security as to any fact, if supported by substantial evidence, shall be
conclusive.” The issue to be determined by this Court is whether the Commissioner’s
conclusions “are supported by substantial evidence in the record as a whole or are based
on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
Substantial evidence is defined as “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
In appropriate cases, a court may remand an action to the Commissioner for
further proceedings, including for a “clearer explanation for the decision”:
The Social Security Act authorizes a court, when reviewing decisions of the
SSA, to order further proceedings. As expressly stated: “The court shall
have power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g); Butts[ v. Barnhart], 388 F.3d [377,] 382 [(2d
Cir. 2004)]. If “ ‘there are gaps in the administrative record or the ALJ has
applied an improper legal standard,’ “ the court will remand the case for
further development of the evidence or for more specific findings. Rosa [v.
Callahan,] 168 F.3d [72,] 82–83 [(2d Cir. 1999)] (quoting Pratts v. Chater,
94 F.3d 34, 39 (2d Cir.1996)). Remand is particularly appropriate where
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further findings or explanation will clarify the rationale for the ALJ's
decision. Pratts, 94 F.3d at 39 [(“Remand is particularly appropriate where,
as here, we are unable to fathom the ALJ's rationale in relation to the
evidence in the record without further findings or clearer explanation for the
decision.”) (citation and internal quotation marks omitted)].
Grace v. Astrue, No. 11 CIV. 9162 ALC MHD, 2013 WL 4010271, at *14 (S.D.N.Y. July
31, 2013).
DISCUSSION
Plaintiff’s motion presents two issues: First, whether the ALJ properly followed
Judge Payson’s remand order; and second, whether the ALJ properly evaluated the
opinion evidence submitted by Dr. Guo, concerning Plaintiff’s physical impairments.
With regard to the second issue, the Court finds that Plaintiff’s argument lacks
merit. To begin with, such argument is irreconcilable with Plaintiff’s primary argument,
which is that Judge Payson remanded the action solely for a determination of his IQ
score. As will be discussed below, the Court does not entirely agree with that primary
argument. Nevertheless, it is clear that Judge Payson did not remand the action for a
further consideration of Plaintiff’s physical impairments. Rather, the Commissioner’s
original decision rejected Plaintiff’s contention that he was physically unable to work (T.
18-23), and Judge Payson left that aspect of the Commissioner’s decision intact.
(Payson Decision and Order at p. 13: “Petitioner does not contest the Commissioner’s
findings regarding his physical impairments and anxiety around crowds and strangers,
and the Court thus accepts those findings[.]”). Moreover, at the beginning of the second
administrative hearing, the ALJ and Plaintiff’s counsel agreed that Judge Payson had
remanded the matter for a re-consideration of Plaintiff’s mental limitations, not his

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physical limitations. (T. 345) (Plaintiff’s Attorney: “I agree with that. Judge Payson’s
ruling – Judge Payson’s Decision said that the finding – the physical findings of the
Administrative Law Judge would stick, that we [are] here basically because that [sic] no
intellectual evaluation was afforded [sic].”) (emphasis added).
Judge Payson did not remand the matter for a completely de novo review of
Plaintiff’s claim. Judge Payson’s ruling in that regard is law of the case. Accordingly,
Plaintiff’s attempt to rely upon Dr. Guo’s physical RFC reports to establish disability is
unavailing. In any event, the Court does not believe that the ALJ erred by giving Dr.
Guo’s opinions little weight. As Plaintiff’s attorney admitted at second hearing, Guo’s
reports were obviously inconsistent. Moreover, the more-restrictive of those opinions,
upon which Plaintiff relies, is not supported by Guo’s own notes or by the record as a
whole.
As for Plaintiff’s contention that the ALJ failed to follow Judge Payson’s remand
order, the Court agrees that the Commissioner’s decision must be reversed and
remanded for additional administrative proceedings, though not for the reason that
Plaintiff maintains.
To begin with, the Court finds that both Plaintiff and Defendant are incorrect to
assert that Judge Payson remanded the matter solely for a determination of Plaintiff’s
current IQ score. Despite Judge Payson’s statement that “all that would be left for
petitioner to meet Listing 12.05(C) is a valid IQ score between 60 and 70,” she actually
remanded the matter with instructions for the ALJ to obtain both IQ testing and “a
consultative psychological evaluation to assess petitioner’s mental capabilities.” The
Court understands Judge Payson to have requested a psychological evaluation to
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address the issues of Plaintiff’s general intellectual functioning and adaptive functioning.
If Judge Payson had only wanted Plaintiff’s IQ score, she would not have ordered the
additional testing. Interpreting Judge Payson’s decision as a whole, the Court
understands her to have meant that if Plaintiff could establish “significantly sub-average
general intellectual functioning with deficits in adaptive functioning” initially manifested
before age 22, then “all that would be left for [him] to meet Listing 12.05(C) is a valid IQ
score between 60 and 70.” However, Judge Payson did not actually state that Plaintiff
had satisfied the requirements for general intellectual functioning or adaptive functioning
under Listing 12.05(C). Rather, she indicated that Plaintiff’s school records were
evidence of adaptive deficits prior to age 22.
In sum, Judge Payson remanded the matter for a consideration of whether
Plaintiff met the general requirements for Listing 12.05 (“significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested during the
developmental period”) and the IQ portion of sub-section C (“a valid verbal, performance,
or full scale IQ of 60 through 70").9 It appears Judge Payson was satisfied that the “other
impairment” portion of sub-section C (“a physical or other mental impairment imposing an
additional and significant work-related limitation of function”) was satisfied by Plaintiff’s
severe physical impairments, as found by the ALJ. For all of the foregoing reasons,
Plaintiff’s contention that the ALJ’s decision must be reversed because it failed to comply

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The Court’s view in this regard happens to coincide with that of Plaintiff’s counsel at the
administrative hearing. As is clear from counsel’s statements to the ALJ, she understood that at the
hearing, she needed to prove both the IQ and adaptive functioning elements of Listing 12.05(c). In that
regard, counsel argued to the ALJ that she agreed with Dr. Ransom’s finding concerning Plaintiff’s fullscale IQ score of 68, but disagreed with Ransom’s findings regarding a lack of adaptive functioning
deficits. (T. 345-346). Obviously, counsel would not have needed to dispute Ransom’s determination
regarding adaptive functioning if all she needed to do was prove an IQ score between 60 and 70.

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with Judge Payson’s remand order (by considering evidence other than his IQ score)
lacks merit.
Nevertheless, the Court agrees that the matter must be remanded. In that regard,
the ALJ clearly found that Plaintiff did not meet the requirements of Listing 12.05(C).
Unfortunately, the rationale for that determination is unclear to the Court. On one hand,
the ALJ stated that the requirements of sub-section C were not met, “because the
claimant does not have a valid verbal, performance, or full scale IQ of 60 through 70 and
a physical or other mental impairment imposing an additional and significant work-related
limitation of function.” (T. 283). However, that statement on its face appears incorrect,
since Plaintiff has a full-scale IQ score of 68, and Judge Payson already found (and it is
undisputed in any event) that he also has the requisite “other” physical impairment.
Thus, unless there was some reason that the ALJ believed Plaintiff’s full-scale IQ score
of 68 was invalid, his finding that Plaintiff failed to satisfy sub-section C would be
erroneous.
On the other hand, the ALJ also seems to have found that Plaintiff did not satisfy
Listing 12.05 generally, insofar as it required “significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during the
developmental period.” In that regard, the ALJ cited to Ransom’s report, which found
that Plaintiff’s adaptive functioning was in the low average range; to Plaintiff’s
independent activities of daily living; and to the absence of any complaints about
adaptive functioning in the medical record. (T. 284). However, while the ALJ’s
observations on those points find support in the record, it is also undisputed that Plaintiff
“has a history of poor school performance,” as shown by his placement in special
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education classes, his poor grades, his ability to read at only a second-grade level, and
his failure to complete high school. Courts have found that such facts may be sufficient
to establish “significantly subaverage general intellectual functioning with deficits in
adaptive functioning.” See, e.g., Parent o/b/o B.A.K. v. Colvin, No. 1:14-CV-00519
(MAT), 2017 WL 2470818, at *3 (W.D.N.Y. June 8, 2017) (“[C]ourts have found
circumstantial evidence, such as the following, sufficient to infer deficits in adaptive
functioning prior to age 22: evidence a claimant attended special education classes;
dropped out of school before graduation; or had difficulties in reading, writing, or math.
Here, B.A.K. attended special education classes, where she had an individualized
education program (“IEP”); thus, plaintiff has established that B.A.K. had the required
deficits in adaptive functioning.”) (citation omitted). Although the ALJ referred to
Plaintiff’s history of “poor school performance,” he did not expressly explain how it
factored into his analysis of Plaintiff’s general intellectual functioning and adaptive
functioning, if at all.
As the ALJ noted at the beginning of his decision, his task was “to assess the
claimant’s mental capabilities” in light of his IQ scores and psychological evaluation. (T.
280). Indeed, Judge Payson’s remand order was specifically concerned with having the
Commissioner obtain IQ testing and psychological testing, and then determine whether
Plaintiff satisfied Listing 12.05(C). Unfortunately, the ALJ’s decision failed to provide a
clear explanation on that point. Accordingly, the Court will remand the matter to the
Commissioner for a clearer explanation of the ALJ’s determination that Plaintiff does not
meet Listing 12.05(C). In that regard, the ALJ should clarify whether he found that
Plaintiff does not have “significantly subaverage general intellectual functioning with
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deficits in adaptive functioning initially manifested during the developmental period,” or
whether Plaintiff does not have “a valid verbal, performance, or full scale IQ of 60
through 70," or both, and why.
CONCLUSION
Defendant’s cross-motion for judgment on the pleadings [#13] is denied, and
Plaintiff’s motion for judgment on the pleadings [#11] is granted insofar as this matter is
remanded to the Commissioner for clarification of the reason that Plaintiff does not meet
Listing 12.05(C). The Court is expressly not remanding the matter for a new de novo
hearing, or for a reconsideration of Plaintiff’s physical impairments. Nor is the Court
remanding the matter for the ALJ to revisit steps four and five of the sequential analysis,
unless, for some reason, upon remand the ALJ changes his mind about his step three
finding. Rather, the Court is remanding the matter for the limited purpose of obtaining
clarification of the finding concerning Listing 12.05(C). To the extent that Plaintiff’s
motion [#11] is based upon anything other than the Commissioner’s determination at
step three concerning Listing 12.05(C), it is denied.
So Ordered.
Dated: Rochester, New York
June 13, 2018
ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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