District Court Remands 12.05C Claim

March 10, 2010

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

It is not unusual for a record to contain a number of different IQ scores, resulting from repeated testing over the years.  And it is not unusual for the various scores to range significantly, with some meeting the requirements of Listing 12.05 for mental retardation and some not – even taking into consideration SSA’s policy of considering the lowest score in any one series. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(D)(6)(c). U.S. District Court Judge William Skretny has held, however, that an ALJ must consider all of those scores when reviewing a claim under Listing 12.05.

In Winn v. Astrue, 2010 WL 301911 (W.D.N.Y. Jan. 19, 2010), the record contained results of six different IQ tests, with scores ranging from a high of 84 to a low of 64, and given over an fourteen year period.  The most recent test, administered when the plaintiff was twenty-six years old, revealed scores of 70 or below.  The ALJ, however, failed to even mention those results in his decision, citing only test results from 2001 and 2005.  The Court found this to be   reversible error.  It noted that consideration of scores after plaintiff reached the age of twenty-two was permissible, citing McMillan v. Astrue, 2009 WL 4807311, at *7 (N.D.N.Y. Dec. 7, 2009).

Judge Skretny also agreed that the ALJ erred in failing to consider whether the plaintiff actually met Listing 12.05C.  The ALJ, in her decision, had considered the “B” and “C” criteria of the mental   impairment listings generally, without considering the specific separate criteria of Listing 12.05C.  [Advocates should be aware that this “template” analysis has been seen in other ALJ decisions as well.]  As such, the Court remanded the claim for further consideration under Listing 12.05.

The plaintiff was represented on appeal by Kate Callery of the Empire Justice Center and will be ably represented on remand by Debbie Olszowka of Niagara County Legal Aid Society.