Case Remanded for Consideration of Listing 12.05C

December 18, 2011

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

Jeffrey Nieznanski of the Bath office of LAW-NY recently won a remand from U.S. District Court Judge Richard Arcara.  His appeal involved the claim of a 48 year old woman who had been diagnosed as mentally retarded in the course of an examination for bariatric surgery.  Her IQ scores were 70, 68 and 66. In fact, the examiners concluded that she was not  capable of giving informed consent.  In addition to obesity and limited intelligence, the claimant also suffers from a number of other medical impairments, including fibromyalgia.  She lived with her parents, had no friends, and had had trouble in school.

Following the hearing, the ALJ ordered another    consultative examination, which revealed IQ scores of 71, 72 and 75.  The ALJ, however, never mentioned those scores in his decision.  Nor did he even consider the claim under Listing 12.05C.  He merely made a perfunctory finding that the claimant did not meet Listing 12.05D.  Judge Arcara found the ALJ’s failure to analyze the listing properly to be error.  He faulted the ALJ for failing to reconcile the various IQ scores in the record.  The ALJ also improperly assessed whether the claimant’s impairment began before age 22, as required by Listing 12.05.  The Court held that the ALJ did not examine the evidence thoroughly nor did he apply the correct legal standard.

The Court also found the ALJ erred in failing to call a vocational expert.  Instead, the ALJ had denied the claim on the Medical-Vocational Guidelines (the “grids).  The ALJ had conceded that the claimant’s borderline intellectual functioning was a severe impairment at step two of the Sequential Evaluation, but went to conclude that she did not have any significant non-exertional impairments.  Judge Arcara found this to be error.  He ordered that on remand a vocational expert should specifically consider the effect of the claimant’s borderline intellectual functioning on her ability to work.

The decision in Gordon v. Astrue is available as DAP #544.  The Empire Justice Center served as co-counsel with Southern Tier legal Services in this case.  Congratulations to Jeff Nieznanski for this victory!