MICHAEL A. TELESCA, District Judge.
Represented by counsel, Thomas Hulett, III ("plaintiff") brings this action pursuant to Titles II and XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying his applications for disabled adult child ("DAC") benefits and supplemental security income ("SSI"). The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). The matter was initially before the Court on the parties' cross motions for summary judgment.
By R&R dated October 22, 2015, Magistrate Judge McCarthy found that the ALJ erred, at step three of the sequential evaluation, in not considering Listing 12.05, see 20 C.F.R., Pt. 404, Subpart P, App'x 1, § 12.05(C), (D), which at the time of the ALJ's decision defined mental retardation.
The record reveals that plaintiff (d/o/b August 1, 1987) received SSI benefits, as a disabled child, through his eighteenth birthday. On May 7, 2008, plaintiff was notified that he was found to be no longer disabled as of May 2008, as a result of a redetermination of disability under the adult SSI standards. Plaintiff requested reconsideration, which was denied in June 2009. Plaintiff then requested a hearing; however, he did not appear for his hearing because notice had not been sent to his proper address. Administrative Law Judge ("ALJ") James E. Dombeck dismissed the case based upon plaintiff's failure to appear. In December 2011, the Appeals Council found that plaintiff had good reason for not appearing for the original hearing and remanded the case. The Appeals Council also noted that plaintiff had filed a subsequent December 2010 application for SSI, and directed the ALJ on remand to consider whether that application should be consolidated with his already pending claims for DAC benefits and reconsideration of SSI benefits.
After a hearing on remand, ALJ Eric L. Glazer ("the ALJ") issued an unfavorable decision on July 2, 2012. In his decision, the ALJ consolidated plaintiff's December 2010 application with plaintiff's claims on remand, and therefore his decision was dispositive of all of plaintiff's claims. The Appeals Council denied review, and this timely action followed.
The ALJ followed the well-established five-step sequential evaluation promulgated by the Commissioner for adjudicating disability claims. See 20 C.F.R. § 404.1520. Initially, the ALJ found that plaintiff had not attained age 22 as of February 1, 1993, the alleged onset date. At step one, the ALJ determined that plaintiff had not engaged in substantial gainful activity since that date. The ALJ also found that plaintiff attained age 18 on August 1, 2005 and was eligible for SSI benefits as a child for the month preceding the month in which he attained age 18. Plaintiff was notified that he was found no longer disabled as of May 7, 2008, based on a redetermination of disability under the rules for adults who file new applications.
At step two, the ALJ found that, prior to attaining age 22 and since May 7, 2008, plaintiff suffered from the following severe impairments: major depressive disorder and borderline intellectual functioning. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment at any relevant time period. Regarding mental health impairments, the ALJ determined that plaintiff had mild restrictions in ADLs, moderate difficulties in social functioning, and mild difficulties in concentration, persistence, or pace. The ALJ found that plaintiff had experienced no prior episodes of decompensation.
Before proceeding to step four, the ALJ determined that, considering all of plaintiff's impairments, plaintiff retained the RFC to perform a full range of work at all exertional levels, but with the following nonexertional limitations: he had sufficient attention and concentration to understand, remember, and follow simple instructions and he could occasionally interact with coworkers and the general public. After finding that plaintiff had no past relevant work, the ALJ found that considering plaintiff's age, education, work experience, and RFC, jobs existed in the national economy which plaintiff could perform. Accordingly, he found that plaintiff was not disabled.
As noted above, the R&R recommended remand on the basis that the ALJ failed to consider Listing 12.05. The Commissioner filed objections to the R&R on November 9, 2015. Doc. 21. The Commissioner's objections present one point, which argues that the R&R incorrectly concluded that the ALJ erred in failing to assess plaintiff's impairments under Listing 12.05.
Plaintiff filed a rebuttal to the Commissioner's objections. Plaintiff argued that his IQ test scores may have improved over time "simply due to his familiarity with the test after numerous examinations." Doc. 23, at 1. Plaintiff's rebuttal also objected to the R&R's failure to address his argument, which was raised in his original motion for judgment on the pleadings, that the ALJ erred in failing to give any weight to the report provided by plaintiff's social worker, Maryellen Montanaro. According to plaintiff, "[e]ven accepting the Commissioner's premise regarding the IQ scores," the case should be remanded for reconsideration of Ms. Montanaro's opinion.
When reviewing a magistrate judge's report and recommendation, a district court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made[,]" 28 U.S.C. § 636(b), and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge[,]"
A claimant's medically determinable impairment can meet Listing 12.05 by satisfying the requirements of one of four alternate prongs, three of which require valid IQ scores in certain ranges. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05(B) (requiring "valid verbal, performance, or full scale IQ of 59 or less"), (C), (D) (requiring "valid verbal, performance, or full scale IQ of 60 through 70," in addition to other requirements). As the Commissioner points out, the regulations provide that an IQ score obtained between the ages of 7 and 16 "should be considered current for 4 years when the tested IQ is less than 40, and for 2 years when the IQ is 40 or above." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.00(D)(10).
Multiple sets of IQ scores appear in this record. In a report of a 1998 intelligence test, school psychologist Theresa Horning reported the results of tests administered in November 1990, January 1992, and December 1994. In 1994, at age 7, plaintiff was assessed as having a full scale IQ of 63. In 1998, at age 10, plaintiff was assessed with a full scale IQ of 68. In 2003, at age 15, plaintiff was assessed with a full scale IQ of 71. Again in 2009, at age 21, plaintiff was assessed with a full scale IQ of 71.
The scores assessed when plaintiff was ages 7, 10, and 15 were no longer valid at the time of the ALJ's decision, nor were they valid during any time relevant to plaintiff's applications. See
The 2005 test results indicated a full scale IQ of 71, which is higher than that required by any of the prongs of listing 12.05. Thus, the valid IQ scores in this record did not implicate listing 12.05, and as a result, the ALJ's failure to explicitly consider this listing was not error. See, e.g.,
The R&R did not reach plaintiff's remaining arguments, having recommended remand on a separate basis. However, plaintiff objects to the R&R's failure to address his argument, raised in his original motion for judgment on the pleadings, that the ALJ erred in failing to consider Ms. Montanaro's opinion. Ms. Montanaro, plaintiff's caseworker at Niagara County Department of Social Services ("NCDSS") in the Protective Services for Adults Unit, stated that she had been working with plaintiff for a little over a year. Ms. Montanaro provided a detailed letter, dated June 2012, describing plaintiff's various limitations. Plaintiff presented to NCDSS "as homeless in March 2011," after "wander[ing] into a church for shelter." T. 652. Ms. Montanaro described how plaintiff missed his first appointment for services after becoming lost on the way to her office from his BOCES program. According to Ms. Montanaro, "[t]he BOCES program and [her] office are one block away from each other and [plaintiff] was given very specific directions . . . but yet still became lost."
Ms. Montanaro described the services provided to plaintiff, which included reminding him of appointments. According to Ms. Montanaro, plaintiff "forgets almost every appointment" and at times he even forgot her name. Because of this tendency, he had almost lost his aid. Ms. Montanaro opined that if plaintiff was granted benefits under the Act, "NCDSS would petition to be his representative payee"; she stated that she was "sure [plaintiff would end up homeless if he was allowed to handle his own money. He does not grasp how to manage finances." T. 653. She also reported that plaintiff needed help with daily living skills, and needed to be reminded to clean his apartment, wash his laundry, and properly store his food. According to Ms. Montanaro, plaintiff "[told] stories that [were] bizarre and very unrealistic," and believed those stories to be true. These stories included one in which plaintiff claimed to have had a one year old son who was shot and killed while sitting on plaintiff's shoulders; "[plaintiff] has never been able to produce any evidence that the child existed or that a shooting ever happened."
Ms. Montanaro concluded the letter by stating that plaintiff was a "very kind, sensitive, gentle and caring individual," who only "cause[d] troubles . . . when his social awkwardness causes misunderstandings."
The ALJ gave "minimal weight" to Ms. Montanaro's opinion, stating no reasoning other than "the regulations do not classify case workers as either physicians or `other acceptable medical sources.'" T. 32 (citing 20 C.F.R. §§ 404.1513, 416.913). The ALJ's decision, however, ignores the fact that the regulations he cited explicitly classify "[p]ublic and private social welfare agency personnel" as "other sources," whose opinions may be used to "show the severity of [a claimant's] impairment(s) and how it affects [the] ability to work." 20 C.F.R. §§ 404.1513(d)(3), 416.913(d)(3).
Because she was an "other source," of course, Ms. Montanaro's opinion is not entitled to controlling weight as would be the case with a treating physician. However, "although an ALJ is not `required to accord controlling weight to a [social worker's] opinion,' he is not `entitled to disregard [it] altogether.'"
Indeed, the Administration has specifically instructed that opinions from "other sources" are to be given serious consideration. SSR 06-3p states:
SSR 06-03p: Titles II and XVI: Considering Opinions and Other Evidence from Sources Who Are Not "Acceptable Medical Sources" in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies (eff. Aug. 9, 2006) (emphasis added).
Here, the ALJ's sole reasoning for rejecting Ms. Montanaro's opinion was because she was not a medical source under the regulations. This constituted reversible error, which was especially significant here, where Ms. Montanaro was the only opinion source from the relevant time frame to have a longitudinal relationship with plaintiff. The Court notes that, in accordance with SSR 06-3p, "in some circumstances, an opinion of an `other source' with a particularly lengthy treating relationship with the claimant may be entitled to greater weight than an `acceptable medical source' such as a treating physician who has had infrequent contact with the claimant."
For the foregoing reasons, the Court sustains the Commissioner's objections and declines to adopt the R&R. However, for the further reasons discussed in this Decision and Order, the Commissioner's motion for judgment on the pleadings (Doc. 19) is denied and plaintiff's motion (Doc. 13) is granted to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order. The Clerk of the Court is directed to close this case.
