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

Kudos to Erin McCormack-Herbert, Staff Attorney at the Partnership for Children’s Rights, for her recent favorable decision in F.M. o/b/o B.M v. Astrue, 2009 WL 2242134 (E.D.N.Y. July 27, 2009).  U.S. District Court Judge Sifton, relying on Erin’s excellent brief opposing the government’s motion for remand, reversed and remanded for the immediate calculation of benefits.

B.M. is an eleven year old who is disabled by deafness in one ear, asthma, severe receptive and language delays, borderline intellectual functioning, and a language disorder not otherwise specified.  Despite evidence of record, including several evaluations from teachers, that B.M. has marked limitations in several domains of functioning, the Administrative Law Judge (ALJ) denied the claim, finding that B.M. only had a marked limitation in the domain of “attending and completing.”

The Commissioner sought remand, conceding that (1) the ALJ failed to discuss or evaluate B.M.’s CELF-4 standardized testing scores, which fell more than two standard deviations below the mean; and (2) the ALJ failed to consider the opinions of the State agency medical consultants who determined that B.M. has a marked limitation in acquiring and using information. The Court, however, agreed with Erin that the record supported a finding of a marked impairment in the domain of “acquiring and using information.”

Judge Sifton rejected the Commissioner’s arguments that the record did not support such a finding.  He held that the Commissioner’s reliance on the fact that tests results from the Wechsler Intelligence Scale for Children (WISC) and the Wechsler Individual Achievement Test (WIAT) placed B.M. in the 12 and 23rd percentiles respectively was insufficient to support a finding that B.M. is not disabled.

First, the Court questioned the testimony of the Medical Expert (ME) upon whom the ALJ relied.  The Court noted that neither the ME nor the Commissioner offered any source for the ME’s assertion that a marked impairment would only occur below the fifth percentile, although it noted that it was presumably based on the fact that a score in the fifth percentile is two standard deviations below the mean. (See 20 C.F.R. §416.926a(e)(2) defining a “marked limitation” as, inter alia, a having a valid score that is two standard deviations or more below the mean.) Judge Sifton found that the test scores were in conflict with other evidence of record concerning functioning, including evidence of classroom performance and observations of school personnel.

The Court also held that B.M.’s marked disability in one area of acquiring and using information (using complex language to share information and ideas) was not “canceled out” by his achievement scores.  Judge Sifton noted that the cognitive abilities tested pertained to comprehension of information and not ability to engage with others in the learning process.  He again rejected the testimony of the ME, and specifically held that “a child may be found to suffer from a marked limitation despite the fact that no individual area within the domain is markedly limited.”  He pointed out that B.M.’s teacher had observed that he had slight or obvious problems in all ten of areas reviewed in the domain of “acquiring and using.” “Taken together, these limitations are consistent with and supportive of a finding that B.M. suffers from a marked limitation in this domain.”

The Court also cited and relied upon several of the new Social Security Rulings (SSRs) for determining functional equivalence, noting specifically that SSR 09-5p states that communication is important to the consideration of “acquiring and using” as well as the domain of interacting with others.

The decision contains a number of invaluable “nuggets” that will undoubtedly be useful in future children’s claims. In the meantime, what a great victory for Erin and her client!  Erin’s Memorandum of Law is available as DAP #520.