Appeals Council Reverses ALJ Findings
September 30, 2011
Author: Louise M. Tarantino| Catherine M. Callery (Kate)
Ellen Rita Heidrick of the Southern Tier Legal Services division of LAW-NY is celebrating her first fully favorable decision from the Appeals Council. Ellen’s client’s SSI benefits had been terminated following an age 18 review. Ellen argued at the ALJ hearing and to the Appeals Council that her client met listing 12.05C. The ALJ agreed that the young man’s IQ scores, all of which were in the mild mental retardation or borderline range, were severe and met the first prong of listing 12.05C – an IQ score between 60 and 70. The ALJ found, however, that his second impairment of social anxiety was not severe.
The Appeals Council disagreed, finding that the client’s anxiety disorder was indeed severe. The Appeals Council found that the ALJ had relied too heavily on the findings of an earlier consultative examiner, to the exclusion of a later one and – significantly – an examination performed in conjunction with a subsequent application that was approved. In fact, the Appeals Council granted review based in part on its new and material evidence provisions, relying on the new evidence developed in conjunction with the subsequent claim. Although Ellen was chagrined that the Appeals Council did not agree that the client meets listing 12.05C, she was pleased with its ruling that he cannot perform work without support or maintain a full 40-hour week schedule.
Ellen also notes that if not for the subsequent application and the new consultative report it generated, this case might not have had the same favorable outcome. Yet another reason for concern over the new Social Security Ruling SSR 11-1p, discussed on page one, which prohibits the filing of new applications while appeals are pending. In the meantime, congratulations to Ellen for making the most out of the old rules while she could!
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