ALJ Rules on 12.05C
September 30, 2011
Author: Louise M. Tarantino| Catherine M. Callery (Kate)
In another case involving listing 12.05C, “Buffalo Bruce” Caulfield of Neighborhood Legal Services convinced an ALJ to order IQ testing before the hearing. Bruce’s client had already undergone a consultative examination, at which he was inexplicably given a TONI (Test of Nonverbal Intelligence), on which he scored an IQ of 76. TONI tests are often administered when a claimant is unable to speak English or otherwise communicate effectively enough to undergo a WAIS (Wechsler Adult Intelligence Scale) examination.
Bruce persuasively argued to the ALJ that TONI scores are typically higher than WAIS-IV scores, which is considered a more comprehensive assessment of verbal comprehension and perceptual reasoning. Bruce cited Section D.1.6.d of listing 12.00:
Generally, it is preferable to use IQ measures that are wide in scope and include items that test both verbal and performance abilities. However, in special circumstances, such as the assessment of individuals with sensory, motor, or communication abnormalities, or those whose culture and background are not principally English-speaking, measures such as the Test of Nonverbal Intelligence, Third Edition (TONI-3), Leiter International Performance Scale-Revised (Leiter-R), or Peabody Picture Vocabulary Test—Third Edition (PPVT-III) may be used.
Bruce’s client was English speaking, and his file was devoid of any evidence of sensory, motor or communication abnormalities. It was unclear why the Division of Disability Determinations would have ordered a TONI in the first instance.
The ALJ agreed with Bruce, and ordered WAIS-IV testing, which did indeed reveal lower IQ scores in the 12.05C range. Those scores, combined with the claimant’s mood disorder and spine dysfunction, prompted the ALJ to award benefits under listing 12.05C. The claimant is now receiving SSI thanks to Bruce’s powers of persuasion.
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