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ALJ Grants Claim Under New 12.05 Listing

October 31, 2017

Advocates should be aware by now that new mental impairment listings have been in effect since January. See http://www.empirejustice.org/issue-areas/disability-benefits/rules--regulations/new-mental-impairment-listing.html#.WeeeWcte671.  Among other changes, the new listings revised the criteria for evaluating intellectual disorders.

Jenna Karr of the Rochester office of the Empire Justice Center used new Listing 12.05 to her advantage, securing a fully favorable decision from an ALJ in an Age - 18 review.  Her client had been approved in 2014 based in large part on IQ testing performed by a consultative examiner when the client was only 15-years-old. The ALJ relied on those scores in the redetermination even though scores obtained at younger ages (i.e., before age 16) are generally considered less reliable. See POMS DI 24515.055. The ALJ cited the POMS, but determined the older scores were representative of the claimant’s current functioning.  He also noted the claimant had been sent to a consultative examiner before the hearing for a new evaluation, but the CE did not perform an intellectual evaluation despite the claimant’s intellectual disability.

Jenna was thus able to argue Listing 12.05 because the claimant had a full scale score of 71-75 accompanied by verbal IQ score of 63. She also persuaded the ALJ that her client met the “B” criteria of the listing. Jenna relied on the client’s special education records and testimony from the client’s mother to demonstrate marked limitations in two areas of the “B” criteria: understanding, remembering, or applying information; and adapting and managing oneself. Among other limitations, the client was barely able to read and could not write a letter, nor could she prepare simple meals or shop by herself. She got lost using public transportation. These two marked limitations demonstrated significant deficits in adaptive functioning, as required by the second paragraph of the new listing.

Congratulations to Jenna for mastering this new listing and preserving her client’s SSI benefits.

 





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