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Appeals Council Remands for IQ Test

October 31, 2017

Marty Roberts of the Geneva office of LawNY does not give up easily.  Her client had been represented by Jody Davis, now retired from LawNY, who had argued equivalency to Listing 12.05C based on intellectual disabilities.  Following an unfavorable decision, Jody persuaded Marty to appeal the case to United States District Court, where Marty was offered a voluntary remand.  At the remanded hearing, Marty was again unable to persuade the ALJ her client met or equaled Listing 12.05. Nevertheless, she persisted.

Marty went back to the Appeals Council, and the Appeals Council listened. Not only did Marty get another remand; the remand order was based on Marty’s astute arguments, something that does not happen often at the Appeals Council. Marty argued the ALJ failed to develop the record when he allegedly relied on a medical expert who testified at the hearing.  The ALJ had overlooked two important points.  Although the medical expert testified he did not believe the claimant’s limitations met or equaled Listing 12.05C, the expert admitted it was very hard to assess the claim without a “really good psychological assessment in the record.”  The Appeals Council agreed with Marty that the ALJ should have obtained a new psychological assessment before deciding the claim.

The Appeals Council also agreed the ALJ erred in claiming the medical expert’s opinion was based on his review of the entire medical record including the claimant’s hearing testimony.  As Marty pointed out, the medical expert testified before the claimant testified!  The Appeals Council ordered the next ALJ to obtain a psychological consultative examination including an IQ assessment and, if warranted , additional expert testimony.

On remand, Marty will face a different ALJ, and the claim will be assessed under the revised Listing 12.05. See But we are confident Marty will persist—and finally prevail.


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