Court Holds Learning Disability Can Be Secondary Impairment

January 1, 2009

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

Ann Biddle, Esq., Paul M. Ryther, Esq.

A learning disability can be an impairment in its own right separate from mental retardation, and can thus constitute a “secondary” impairment under the listing for mental retardation, 112.05D. Southern District of New York Judge John Koeltl relied on both the Diagnostic and Statistical Manual (DSM) IV - TR and Social Security’s own directives to its adjudicators, as well as other court decision, for this holding. See Williams o/b/o Buchanan v. Astrue, 2008 WL 4755348 (S.D.N.Y. October 27, 2008).  In particular, the Court cited SSA’s Childhood Evaluation Issues, SSA Publication 64-076.
 
SSA 64-076 is available on the Online Resource Center as DAP #333 and consists of training materials for advocates and adjudicators. These documents address the policies implementing the Commissioner’s Report on Children’s SSI Re-determinations.  The first set of materials include information regarding maladaptive behavior, including training tips, definitions of what “maladaptive behavior” consists of, mental disorders indicative of maladaptive behavior, lists of applicable medications and case adjudication issues.  The second set of materials relates to mental retardation.  A discussion of IQ scores, definitions, diagnoses, and treatment methodology is examined.
 
Note that these training materials (variously referred to the "Headless Child Instruction" or "Pink Cover" manual) were issued prior to the promulgation of the final childhood regulations in January 2001, which change the way that functional equivalency is assessed. To the extent that these materials address ways in which to meet a listing, however, they are still relevant. They are specifically incorporated into SSA's more recent compendium of Q&As issued following publication of the final regulations.  Both documents are available on the Online Resource Center as DAP #333, and are available at www.empirejustice.org.  Although not “official,” advocates can use the web address as a citation in legal documents and in other situations where references to the on-line resource center would not be appropriate.
 
In Williams, the ALJ had refused to consider the claimant’s learning disability an impairment separate and distinct from mental retardation.  As a result, he did not even make a determination as to the severity of the learning disability.  Had he found it severe, it would then of course “automatically” qualify as a secondary impairment under Listing 112.05D.  Consequently, Judge Koeltl remanded the claim for further consideration of that and other issues raised by the claimant’s attorney, Steve Godeski, of the Bronx Neighborhood Office of the Legal Aid Society.  The Court recommended that the ALJ obtain testimony of medical expert on remand.
 
Congratulations to Steve for obtaining this helpful ruling.