Magistrate Demands Logic
January 21, 2010
Author: Catherine M. Callery (Kate)| Louise M. Tarantino
How many times have we scratched our heads when reading ALJ decisions that defy logic? Luckily for Alan Bock, Magistrate Foschio of the Western District of New York recently decided that logic is required in ALJ decisions! The Magistrate agreed with Alan that ALJ Harvey erred in finding the claimant in a continuing disability review (CDR) not disabled under the Medical-Vocational Guidelines.
The claimant, who was 52 years old at the time the CDR commenced, had originally been found disabled in 1989 based on a seizure disorder and borderline intellectual functioning. Although his seizure disorder may have improved, there was no similar evidence of improvement in brain functioning. He continued to display the cognitive deficits that had been attributed to a serious head injury in the mid-1970s.
The Magistrate held that the ALJ’s determination that claimant had some college education was not based on substantial evidence. Although he had completed two years of college before his head trauma, his current educational abilities contradicted his numerical grade level. The Magistrate relied on Alan’s reference to 20 C.F.R. §416.964(b) for this finding: formal education completed before an impairment began may no longer be useful or meaningful in terms of analyzing ability to work. He rejected the Commissioner’s argument that because the claimant testified that he received his college education “before 1990,” he must have earned his certificate before his head injury in the mid 1970s as illogical: the Commissioner’s “bald assertion” was “mere speculation.”
The Magistrate also held that the ALJ erred in failing to consider the claimant’s borderline intellectual functioning as a nonexertional limitation, and instead relying on the Grid. He recommended that the claim be remanded for vocational testimony. U.S. District Court Judge Arcara adopted Magistrate Foschio’s Report and Recommendation in Pullam v. Astrue, --F.Supp.2d ---, 2009 WL 4571841 (W.D.N.Y. Dec. 07 2009).
Congratulations to Alan for his very logical work on this case.
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