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

Jody Davis, Senior Paralegal at the Legal Assistance of the Finger Lakes office of LAWNY, has achieved the seemingly impossible.  At her request, the Appeals Council reversed an ALJ denial in an age 18 determination – cases that are usually hard enough to win at the ALJ level, much less at the Appeals Council.

Jody’s client has a myriad of problems.  He had originally been found disabled based on an equivalency to Listing 111.09A, Communication impairment (speech deficit) associated with documented neurological disorder.  His eligibility was continued based on Listing 112.12A & B, Developmental Disorder, with cognitive/communicative and motor delays.  He had subsequently been diagnosed with Asperger’s Disorder, in addition to other learning, speech and personality disorders.  He had gone through VESID and been placed in supported employment, where he had documented substantial difficulties getting along with supervisors and coworkers. Jody argued that he met Listing 12.10, Autistic disorder and other pervasive developmental disorders.

Despite compelling evidence to the contrary, the ALJ denied the claim.  Among other errors, he gave limited weight to the testimony of the claimant’s guardian because, according to the ALJ, “she did not testify although accorded the opportunity to do so.”  Jody pointed out to the Appeals Council that a review of the hearing tape would reveal that Jody had made the guardian available to the ALJ to answer any questions that he might have.  The ALJ thus improperly discredited the assertions that the guardian had made in various reports in the record.

The Appeals Council, after reviewing Jody’s arguments and a memorandum from its own medical consultant, agreed that the claimant’s condition meets Listing 12.10.  It noted that despite treatment efforts, special education, counseling and training, the claimant has not been able to perform consistently or sustain appropriate behavior.

Congratulations to Jody on this Appeals Council reversal!