Appeals Council Persuaded by New Evidence

June 14, 2010

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

Paralegal Amy Leach of the Norwich office of the Legal Aid Society of Mid-New York achieved the near impossible -  a reversal by the Appeals Council based on a claim of mental retardation under Listing 12.05C.  The case involved a redetermination under the adult standards of an eighteen year old who had been receiving SSI (Supplemental Security Income) as a child.  See 42 U.S.C. §1382c(a)(3)(H)(iii) (P.L. 104-193) and 20 C.F.R.§416.987.

The Administrative Law Judge (ALJ) rejected a history of IQ scores and diagnoses of mental retardation, relying instead on his own assessment of the claimant’s adaptive functioning.  He ignored, however, evidence demonstrating the difficulties the claimant had performing sheltered work.  He also failed to accord proper weight to a psychologist who examined the claimant for the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) and opined that he was not ready for competitive employment.  The ALJ “played doctor,” holding that the psychologist, who subsequently became the claimant’s treating psychologist, had conducted an interview that was “very short and certainly not enough to formulate the elaborate opinion.”

Amy argued all this to the Appeals Council, and bolstered her claim with new evidence from the now treating psychologist, who specifically refuted the ALJ’s misinterpretation of his evidence and opinions.  Amy also submitted additional evidence from the psychologist and other sources regarding the claimant’s limited adaptive functioning. 

The Appeals Council, in reversing the ALJ’s decision, relied on numerous reports in the record demonstrating long standing mental retardation and lack of adaptive functioning, as well as the new evidence submitted by Amy verifying the claimant’s current level of functioning.  The Appeals Council also cited the new evidence as proof that the claimant’s mood disorder constituted a secondary impairment in addition to his low IQ scores under Listing 12.05C.

While the redetermination claim was pending at the Appeals Council, Amy’s client reapplied for SSI as an adult.  He also applied for Childhood Disability Insurance Benefits (CDB, formerly known as Adult Disabled Children’s benefits) under his parent’s account based on his claim that he became disabled before age twenty-two.  Both claims were granted.  The Appeals Council specifically affirmed the findings in the subsequent applications.  [For some of the ins and outs of the effect of Appeals Council decisions on subsequent claims, see POMS DI 12045.027 and HALLEX I-5-3-17.]

Congratulations to Amy on this amazing feat!  Amy reports another victory involving a subsequent application.  Her client’s February 2008 denial was upheld by the Appeals Council and appealed to U.S. District Court by Chris Cadin of Legal Services of Central New York.  While the appeal was pending, the claimant, who has severe mental impairments, was approved for benefits as of March 2009.  In October 2009, Chris negotiated a remand in federal court, based on an agreement that the Appeals Council would order that the subsequent favorable decision not be disturbed.  Amy has since prevailed on the remanded claim before the very same ALJ who was just reversed by the Appeals Council – with a favorable decision on the record without a hearing.  Keep them coming, Amy!