Attorney Jennifer Karr of the Rochester office of the Empire Justice Center won a remand in a child’s case in the Western District of New York. The Magistrate Judge agreed the ALJ erred in failing to consider test scores in finding the child’s impairments were not functionally equivalent to a listing. Although the ALJ had found the child had a marked limitation in the domain of attending and completing tasks, he failed to account for test results in the domain of acquiring and using information. Consideration of the scores in only one domain violated the “whole child” approach set forth in the regulations. Moreover, the test scores, which were two standard deviations below the mean, may, according to the court, be persuasive proof of a marked limitation.
The court also agreed that the Appeals Council erred in refusing to consider new and material evidence. New tests scores were relevant to assessment of the child’s learning disability. The Appeals Council erred in rejecting them simply because they post-dated the ALJ’s decision. See Chelaun Johnson, o/b/o D.T. v. Commissioner of Social Security, 6:18 CV 6486-JGW (W.D.N.Y. Mar. 18, 2020).