ORDER

DAVID E. PEEBLES, Magistrate Judge.

Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner, pursuant to 42 U.S.C. § 405(g), are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on September 3, 2014 during a telephone conference, held on the record. At the close of argument I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner's determination did not result from the application of proper legal principles and is not supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in this appeal.

After due deliberation, and based upon the court's oral bench decision, a transcript of which is attached and incorporated herein by reference, it is hereby

ORDERED, as follows:

1) Plaintiff's motion for judgment on the pleadings is GRANTED.

2) The Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATED.

3) The matter is hereby REMANDED to the Commissioner, with a directed finding of disability, for the purpose of calculating benefits owing to the plaintiff.

4) The clerk is directed to enter judgment, based upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

Transcript of DECISION held on September 3, 2014, at the James Hanley U.S. Courthouse, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, Presiding.

(In chambers, via telephone:)

THE COURT: All right. Well, again, I'd like to thank you for excellent presentations. This is an interesting case.

I have before me a request for judicial review under 42, United States Code, Section 405(g) of a Commissioner's determination rejecting plaintiff's claims for benefits, based on an ALJ's finding that the plaintiff was not disabled at the relevant times.

By way of background, the plaintiff was born in January of 1976 and is currently, if my math serves me correctly, 38 years old. He is originally from Afghanistan and later moved to Kyrgyzstan. He is orphaned. He came to the United States as a refugee in or about 2004. He has what could be described as the equivalent of a ninth grade education. He has experienced three known concussions. He lives alone in Utica.

It is true, as the Commissioner's counsel represented, that he worked from 2005 to 2008 in two jobs, assisted in finding those jobs and keeping them by the refugee center and people who assisted him in translation and transportation. He has a variety of physical ailments, including one kidney, GERD, and alleged head, back and knee pain.

Procedurally, the history is that he applied for supplemental security income benefits in November of 2010 alleging an onset date of November 13, 2009. A hearing was conducted by ALJ Barry Ryan on May 24, 2012. ALJ Ryan issued a decision on September 10, 2012. That decision became a final determination of the agency when the Social Security Administration Appeals Council denied review on October 25, 2012.

The administrative law judge's decision finds no substantial gainful activity since November 1, 2010. He finds that plaintiff suffers from mild mental retardation at step two but rejects various other ailments, conditions as sufficiently severe at step two to qualify.

At step three, the ALJ reviews listings 12.05B, C and D and concludes that the plaintiff does not meet those listings, deeming the IQ testing of Dr. Tesak to be invalid.

Turning to D criteria, he concludes that plaintiff suffers only mild limitations in the activities of daily living, social functioning, and moderate limitation and concentration, persistence and pace and concludes that he also does not meet the criteria of 12.05D for that additional reason.

The ALJ then concludes, after surveying the medical records and evidence, that plaintiff retains the residual functional capacity to perform a full range of work at all exertional levels. He has the ability on a sustained basis to carry out, understand and remember simple instructions. He responds appropriately to supervision, coworkers and usual work situations, and can deal with changes in a routine work setting.

Applying that RFC finding, plaintiff, according to ALJ Ryan, is capable of performing his past relevant work as a laborer and, so, at step four, he finds no disability.

He goes on to apply his RFC finding and relevant characteristics to the Grid rules at step five, relying on SSR 85-15, and concludes that the non-exertional limitations experienced by the plaintiff do not have a significant effect on the occupational job base on which unskilled work under the Grids is based and concludes, also, at step five that a finding of no disability is warranted.

The first issue surrounds — well, my task, at least initially, is to determine whether the Commissioner's determination is supported by substantial evidence and resulted from the application of the correct, legal standards. Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

In my view, the Commissioner's determination — and the Commissioner concedes — concerning whether or not plaintiff can meet listing 12.05(B) is flawed. 12.05 has a number of prongs. Obviously A does not apply in this case.

B requires a valid verbal performance or full scale IQ of 59 or less. Rule 12.00(D)(6)(c) clarifies that when Wechsler series testing is involved in applying 12.05, the lowest score can be utilized.

In this case, plaintiff was tested by Dr. Jennifer Tesak in December of 2011 with an interpreter present. She administered several tests, including the Wechsler Adult Intelligence Scale-4th — or WAIS-IV — resulted in a full scale IQ of 44, a verbal IQ of 50, and a nonverbal of 58. All of those fall comfortably within 12.05B. That is at Page 422 of the administrative transcript. I'll note, also, that Dr. Tesak assessed the GAF, or global assessment of functioning, of 40 at Page 421, an extremely low GAF in the Court's experience.

In terms of the reliability of these test scores, Dr. Tesak expressed a 95 percent confidence rate, which means that, with regard to the full scale IQ and also the verbal comprehension, those two, even if you were at the high end of the range, applying a 95 percent confidence rate would still fall in the 59 or below range.

Of course, 12.05 also requires that a showing that the plaintiff suffers from deficits in cognitive functioning. The Second Circuit has made that clear in its decision in Talavera, as well as this District's decision, Judge Sharpe's decision in Carpenter versus Commissioner of Social Security.

In reviewing Dr. Tesak's report, which is extremely thorough, there is no question that the plaintiff suffers from substantial deficits in adaptive functioning. In the Court's view, the plaintiff clearly qualifies as disabled under Section 12.05B. I do not find evidence in the record sufficient to challenge the validity of the IQ testing.

I believe that an argument can be made that plaintiff also meets 12.05C. Even if, as Dr. Tesak posits, 20 points were added to the IQ scores, that would put the plaintiff, of course, in the 60 to 70 range, which would then kick in 12.05C and 12.05D.

12.05C, the argument would be that the ALJ failed to take into consideration the cumulative effects at step two of plaintiff's various physical ailments. However, if I were to accept that argument and not find that 12.05B applies, I would remand for further consideration and not for a directed finding of disability.

Similarly, with regard to 12.05D, I think a strong argument can be made, based on Dr. Tesak's report, that plaintiff meets or medically equals D, as well, with marked restrictions in daily living and in maintaining concentration, persistence or pace. Again, if I were to conclude that that is the appropriate section, I would remand for further consideration.

It's clear that when there is no persuasive proof of disability, a remand is appropriate for further proceedings. However, where there is persuasive proof of disability in the record and the further development of the record would serve no useful purpose, the Court can remand with a directed finding of disability.

In this case, I've reviewed a couple of cases that deal with the type of situation that we have: One, of course, we've already discussed, which is the decision from Judge D'Agostino in Salem v. Colvin and the second is a decision from the Southern District in Marmer v. Colvin, not reported but it can be found at — Westlaw 1365471. And, interestingly, those cases involve IQ tests results that are much higher than we find in this case, in the 60 to 70 range, and not in the 40 range that we find here. And I was convinced by Judge Block's decision in Marmer, that a remand with a directed finding of disability was appropriate in this case.

I've reviewed carefully Dr. Tesak's report. She explains very clearly that these IQ test results, in her view, are not skewed by the language barrier. She reports that other testing with nonverbal components confirmed the deficits that this gentleman has that are reflected in the IQ testing results.

So, I conclude the evidence persuasively establishes disability in this case and I will, therefore, grant judgment on the pleadings to the plaintiff and direct a remand of the case to the Commissioner for the sole purpose of calculation of benefits.

I appreciate both of your arguments were thorough and you were well-prepared. I will issue an order memorializing this determining and attach a transcript to this decision and I look forward to working with you both again in the future. Thank you.

MR. JEWETT: Thank you, your Honor.

MS. TARANTINO: Thank you, Judge Peebles.

(Proceedings were adjourned.)