ALJ Decision Reversed in Kid’s Case

November 16, 2009

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Judge John Curtin of the Western District of New York recently issued a decision in a childhood CDR (Continuing Disability Review) case reversing the Commissioner’s decision to terminate benefits and remanding the claim for the calculation of benefits.  Scott p/n/g of SLC v. Astrue, 2009 WL 2929823 (W.D.N.Y. Sept. 10, 2009).

The now ten year old child had been awarded benefits shortly after his premature birth in 1999 based on his low birth weight.  His benefits were continued following a CDR in 2000.  In 2005, he was diagnosed with ADHD and bi-polar disorder. That same year, however, he was found to have medically improved, a determination that was upheld on reconsideration by a Disability Hearing Officer (DHO) and subsequently by an Administrative Law Judge (ALJ).  The DHO found that the claimant continued to have a marked impairment in the domain of acquiring and using information due to delays in language development.  The ALJ, however, ignored that finding and concluded that the child only had a marked limitation in the domain of interacting and relating with others.

Judge Curtin, in reviewing the evidence, determined that the ALJ’s finding of a marked limitation in the domain of interacting and relating with others was supported by substantial evidence.  He also upheld the ALJ’s determination of a less than marked limitation in the domain of attending and completing tasks.  He concluded, however, that the ALJ’s finding of a less than marked limitation in the domain of acquiring and using information was not supported by substantial evidence.

Among other errors, the court noted that the ALJ had failed to address CELF-4 scores that revealed more than two standard deviations below the mean in core language, receptive language and expressive language.  Judge Curtin cited F.M. v. Astrue, 2009 WL 2242134 *8 (E.D.N.Y. July 27, 2009) (which was highlighted in the September 2009 edition of this newsletter) for the proposition that the CELF-4 is a “comprehensive standardized test designed to measure ability or functioning” in this domain.

Judge Curtin held that the record contained persuasive proof of a marked limitation, citing 20 C.F.R.§416.926a(e)(2)(iii), which provides that test scores two standard deviations below the mean demonstrate a “marked” limitation.  The court also found that the ALJ had failed to consider properly evidence from the child’s first grade teacher documenting marked limitations in intellectual skills, as well as in communication and social behavior.

Judge Curtin concluded that a remand for further proceedings would be futile, “as the only conclusion supported by the record evidence is that SLC suffers from a marked limitation in two domains, and is therefore disabled pursuant to the Commissioner’s regulations.”  Music to our ears! Congratulations to SLC’s attorney Denis Clary, who once upon a time was a DAP advocate.