Opinion
DOCKET NO. 98-CV-0619E(F)
September 29, 2000
Alan B. Block, Esq., c/o Neighborhood Legal Services, Buffalo, NY, attorneys for the plaintiff.
Jane B. Wolfe, Esq., Asst. United States Attorney, Buffalo, NY, attorney for the defendant.
MEMORANDUM and ORDER
Plaintiff seeks review of the Commissioner's decision denying Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. This matter was referred to the Honorable Leshe G. Foschio, United States Magistrate Judge, for his report and recommendation on all dispositive motions pursuant to 28 U.S.C. § 636 (b)(1)(B). Presently before the undersigned are plaintiff's Objections to his June 30, 2000 Report and Recommendation ("the RR") which recommended that plaintiff's motion for judgment on the pleadings be denied and that the Commissioner's motion to remand for further development of the record be granted. Plaintiff's Objections Plaintiff her will be sustained, the RR will not be adopted and this matter shall be remanded to the Commissioner solely for the calculation of benefits.
This Court's review of the Commissioner's decision is limited to assessing whether such is supported by substantial evidence. See 42 U.S.C. § 405 (g); Diaz Shalala, 59 F.3d 307, 312 (2d Cir. 1995) ("The findings of the Secretary are conclusive unless they are not supported by substantial evidence."). Substantial evidence in this context is "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Moreover, this Court must conduct a de novo review of those portions of the RR to which plaintiff specifically objects and may "accept, reject or modify, in whole or in part, the findings or recommendations" in the RR. 28 U.S.C. § 636 (b)(1)(C).
The relevant facts are not in dispute. The plaintiff was born August 24, 1970 in Puerto Rico, is fluent only in Spanish, relocated to the United States in early June of 1995. RR at 3-4. Plaintiff was "most recently employed in March or April 1995 in Puerto Rico as a meat wrapper in a grocery store . . ." RR at 4. Plaintiff applied for disability benefits July 12, 1995 and claimed "that she was disabled based on a previous brain surgery and a nervous condition." RR at 3. Plaintiff would later claim that a "borderline IQ" was also a basis for a finding of disability. RR at 7.
After she had applied for said benefits, plaintiff "underwent a mental status examination performed by Dr. Meliton Tanhehco, a consulting psychiatrist for the [Social Security Administration]" RR at 5. At the conclusion of such, Dr. Tanhehco opined, inter alia, that "her intelligence appeared to be average clinically" and that plaintiff "is capable of directing the use of her funds, however, supervision and assistance would be appropriate." Record at 138. Plaintiff also underwent a "intellectual evaluation performed by clinical psychologist Thomas C. Dickinson, Ph.D. at the request of the SSA." RR at 5. After administering a battery of intelligence testing, including the Weschler Adult Intelligence Scale test and the Test de Vocabulario En Imagenes Peabody, he found that plaintiff "showed Verbal and Performance IQs of 60 and Full Scale IQ of 58." RR at 5. Dr. Dickinson also opined that plaintiff "functioned overall in the low-borderline mentally retarded range," that plaintiff's "knowledge of English was severely limited" but that "she could handle her funds." RR at 6.
By decision dated July 14, 1997, an administrative law judge ("the ALJ") denied plaintiff's application for disability benefits on the basis that plaintiff was not a credible witness, that plaintiff "has no limitations physically, and that she thus would under the Regulations be considered capable of performing heavy, unskilled work" and that plaintiff "retains the capacity to perform simple, unskilled work on a regular basis in a competitive work environment." Record at 20. In rendering this decision, the ALJ did note that the medical evidence had established that plaintiff suffers from "mild mental retardation" discounted the validity of such because plaintiff's capacity for speaking and understanding English was limited, because she appeared "tense" during her testing, because diagnosis only revealed "borderline intellectual functioning" and because Dr. Tanhehco's "professional judgment" showed plaintiff to be of but he average [clinical] intelligence." Record at 14-17, 18-19, 20. After an unsuccessful appeal to the Social Security Appeals Council, the ALJ's decision became the Commissioner's final decision on plaintiff's claim July 31, 1998.
Upon review of this decision, the Magistrate Judge found much the same but noted that the ALJ had erred in "outright rejecting" the validity of plaintiff's IQ testing in support of her disability claim, rather than choosing to further develop the record. Indeed, it Should also be noted that it has been — and continues to be — the Commissioner's position that a remand is necessary because the ALJ did not properly assess the validity of plaintiff's IQ scores. Consequently and after stating that "the evidence in the record does not compel a conclusion that [plaintiff] was or was not disabled based on mental retardation, the RR held that the "matter should be remanded for further development of the record, including intellectual evaluation of [plaintiff], in Spanish of possible." RR at 13.
Plaintiff's principal objection to the RR is that such recommendation basically adopts "the flawed reasoning memorialized in the hearing decision, holding that . . . plaintiff's objective evidence consisting of IQ test scores, obtained by the Commissioner's own consultative examining psychologist, in conformity with the Commissioner's own standards, are invalid . . ." Objections at 2. Plaintiff argues that her low IQ score meets the "mentally retarded" standard under the listing of impairments found in Appendix 1 of 20 C.F.R. Pt. 404, Subpt. P and that she is therefore eligible for benefits without any further need to develop the record. Listing 12.05 in Appendix 1 defines "mental retardation" as "a significantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22)." To establish a disability of mental retardation under listing 12.05(B), a claimant must establish "[a] valid verbal, performance, or full scale I.Q. of 59 or less." Consequently and inasmuch as the record lacks objective medical evidence contradicting plaintiff's IQ test score of 58, plaintiff argues that the ALJ's Decision (as well as the RR) is not supported by substantial evidence and instead argues that the evidence in the record conclusively shows that she meets the requirements of listing 12.05(B). The undersigned agrees.
As indicated by the RR, "if a claimant has an impairment that is listed in the regulations at Appendix 1 of 20 C.F.R. Pt. 404, Subpt. P the claimant must be found disabled as such impairments are considered severe enough to prevent an individual from performing any gainful activity. RR at 9 Moreover, it does not appear to be in dispute that, if plaintiff's Full Scale IQ test score of 58 is valid, she would be entitled to benefits based on her mental retardation. In this case, however, both the ALJ's decision and the RR reject Dr. Dickinson's analysis, finding that other "factors" impugn the validity of such tests.
Such determinations were made in error. A review of the evidence shows that plaintiff is mentally disabled within the meaning of listing 12.05 (B). Firstly, plaintiff's Full Scale IQ of 58 is below the threshold set by listing 12.05(B) and the fact that such number is "borderline" is immaterial. Secondly, there is no medical evidence in the record contradicting the veracity of this score. While it is certainly true that Dr. Tanhehco, as a result of hj5 mental status examination, indicated that plaintiff's "intelligence appeared to be average clinically," the relevance of such a casual observation in discerning plaintiff's intellectual prowess, or lack thereof, in light of an actual assessment made pursuant to an "intellectual appraisal," is, at best, dubious. Moreover, regardless of what it means to possess "clinically average intelligence," Dr. Tanhehco's report states nothing which can be construed to undermine Dr. Dickinson's later examination. Thirdly, there is nothing in Dr. Dickinson's actual report which undermines his findings. While much has been made of plaintiff's apparent "tenseness" and her inability to communicate in English, the effect — if any — that these factors had on her IQ test score is purely speculative and such does not undermine the validity of those tests. In short, there is simply no medical evidence in the record traversing the validity of plaintiff's IQ scores and it was error to hold otherwise.
The undersigned does not mean to state that the Commissioner can never attack the validity of a claimant's IQ test scores. This Court has held — and the parties are in agreement on thZ5 point — that an "ALJ is not required to accept a claimant's IQ scores when they are inconsistent with the record. Vasquez- Ortiz v. Apfel, 48 F. Supp.2d 250, 257 (W.D.N.Y 1999). But where, as here, such scores are not inconsistent with the record and are facially valid, neither the AUJ nor the undersigned may substitute his opinion in lieu of competent medical analysis. See McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983) (noting that "the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion").
As a matter of housekeeping, it must be noted that listing 12.05(B) also requires a finding that plaintiff's mental disability have manifested itself before the age of twenty-two. Absent such a finding, plaintiff cannot be considered disabled under such listing, regardless of her current IQ test score. Nevertheless, inasmuch as mental retardation is considered to be a lifelong condition, score is presumed to accurately reflect an individual's IQ throughout that person's entire life, regardless of the individual's age when the IQ test is administered." Holmes v. Apfel, No. 98 C 5087, 1999 WL 731769, at *5 (N.D. Ill. Aug. 31, 1999); see also Vazsquez-Ortiz, at 257 ("[a]bsent any evidence a change in the plaintiff's intellectual functioning, it is appropriate to assume that plaintiff's IQ has not changed since [her] twenty-second birthday"). Consequently and in the absence of contrary evidence, the undersigned must assume that plaintiff's IQ test taken after her twenty-second birthday correctly reflects her IQ prior to that time. See Holmes, at *6.
Where there is substantial proof in the record of entitlement to benefits and a remand for further proceedings would serve no purpose other than to further delay already lengthy administrative proceedings, the decision of the Commissioner should be reversed and the case remanded solely for calculation of benefits Rivera v. Sullivan, 923 F.2d 964, 970 (2d Cir. 1991); Carroll v. Secretary of Health and Human Servs., 705 F.2d 638, 643-644 (2d Cir. 1983). As applied to the instant matter, the undersigned finds that it is appropriate to remand this case back to the Commissioner solely for the calculation of benefits. In light of the above, any consideration of the Commissioner's motion to remand for further development of the record is moot.
Accordingly, it is hereby ORDERED that plaintiff's Objections are sustained, that plaintiff's motion for judgment on the pleadings is granted, that the Commissioner's motion to remand for further development of the record is denied as moot, that the RR is not adopted, that the Commissioner's final decision on plaintiff's claim is reversed, that this case is remanded to the Commissioner solely for calculation of benefits and that this case in this Court shall be closed.