         11-3325-cv
         Douglass v. Astrue

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19th day of September, two thousand and
 5       twelve.
 6
 7       PRESENT: BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10                JOHN GLEESON,
11                         District Judge.*
12
13
14
15       ROBERT T. DOUGLASS,
16
17                                     Plaintiff-Appellant,
18
19                      -v.-                                                     11-3325-cv
20
21       MICHAEL J. ASTRUE, Commissioner of Social
22       Security,
23
24                                     Defendant-Appellee.
25
26
27       FOR APPELLANT:                LOUISE M. TARANTINO, Empire Justice
28                                     Center, Albany, NY (Catherine M. Callery,
29                                     Empire Justice Center, Rochester, NY, on
30                                     the brief).


                *
                The Honorable John Gleeson, of the United States District
         Court for the Eastern District of New York, sitting by
         designation.
 1   FOR APPELLEE:      PETER JEWETT, Special Assistant United
 2                      States Attorney, (Mary Ann Sloan,
 3                      Regional Chief Counsel, Office of the
 4                      General Counsel, Social Security
 5                      Administration, New York, NY, on the
 6                      brief), for William J. Hochul, United
 7                      States Attorney for the Western District
 8                      of New York, Rochester, NY.
 9
10        Appeal from the United States District Court for the
11   Western District of New York (Telesca, J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the judgment of the United States District

15   Court for the Western District of New York be REVERSED and

16   REMANDED.

17       Appellant Robert T. Douglass appeals from a judgment of

18   the United States District Court for the Western District of

19   New York (Telesca, J.), which affirmed the Commissioner of

20   Social Security’s decision terminating his eligibility for

21   Supplemental Security Income and Disability Insurance

22   Benefits (SSI).   We assume the parties’ familiarity with the

23   underlying facts, the procedural history, and the issues

24   presented for review.

25       “After an individual has been found entitled to [SSI]

26   benefits, . . . his benefits may be terminated if there is

27   substantial evidence that the impairment has improved to

28   such an extent that he is now able to work.”    Veino v.

29   Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).    A recipient of

                                   2
1    benefits “‘may be determined not to be entitled to such

2    benefits’” only on the basis of “‘substantial evidence which

3    demonstrates that there has been any medical improvement in

4    the individual’s impairment or combination of impairments

5    (other than medical improvement which is not related to the

6    individual’s ability to work), and the individual is now

7    able to engage in substantial gainful activity.’”     Id.

8    (quoting 42 U.S.C. § 423(f)(1)).   “Thus, in order to

9    ‘determin[e] whether medical improvement has occurred,’ the

10   SSA must compare ‘the current medical severity of th[e]

11   impairment[ ] . . . to the medical severity of that

12   impairment[ ] at th[e] time’ of the most recent favorable

13   medical decision.”   Id. at 586-87 (quoting 20 C.F.R. §

14   404.1594(b)).

15       “When deciding an appeal from a denial of . . .

16   benefits, [this Court] focus[es] on the administrative

17   ruling rather than the district court’s opinion.”     Acierno

18   v. Barnhart, 475 F.3d 77, 80 (2d Cir. 2007) (internal

19   quotation marks and citation omitted).   Our review is

20   deferential, and we set aside the Commissioner’s

21   determination only where such determination “is based upon

22   legal error or not supported by substantial evidence.”

23   Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per


                                   3
1    curiam).     “Failure to apply the correct legal standard

2    constitutes reversible error, including, in certain

3    circumstances, failure to adhere to the applicable

4    regulations.”     Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir.

5    2008) (internal citations omitted).      Substantial evidence

6    means “such relevant evidence as a reasonable mind might

7    accept as adequate to support a conclusion.”      Curry v.

8    Apfel, 209 F.3d 117, 122 (2d Cir. 2000), superceded by

9    statute on other grounds, 20 C.F.R. § 404.1560(c)(2)

10   (internal quotation marks and citation omitted).

11       Any individual may appeal from a final decision of the

12   Commissioner of Social Security to a United States District

13   Court.     42 U.S.C. § 405(g).   “[A]fter reviewing the

14   Commissioner’s decision, a court may ‘enter, upon the

15   pleadings and transcript of the record, a judgment

16   affirming, modifying, or reversing the decision of the

17   Commissioner of Social Security, with or without remanding

18   the cause for a rehearing.’”      Butts v. Barnhart, 388 F.3d

19   377, 384 (2d Cir. 2004) (quoting 42 U.S.C. § 405(g)).        “Our

20   statutory mandate as an appellate court is the same as that

21   of the district court.”     Veino, 312 F.3d at 586.

22       Douglass contends that (1) the Administrative Law Judge

23   (“ALJ”) erred in finding that Douglass’s impairments had


                                      4
1    medically improved between 2000 and 2004; (2) the ALJ made

2    an error of law in determining that Douglass did not qualify

3    as mentally retarded; and (3) the ALJ improperly relied on

4    vocational evidence that failed to consider all of

5    Douglass’s intellectual restrictions.   Because we agree with

6    Douglass’s first and second arguments, we need not consider

7    the third.

8        1. Medical improvement

9        Douglass has been receiving benefits since the age of

10   two due to bronchial asthma and a cardiac defect.    When the

11   Social Security Administration (“SSA”) redetermined his

12   eligibility in 2000, it found that he continued to be

13   eligible for SSI based on a primary diagnosis of “organic

14   mental disorders (chronic brain syndrome)” and a secondary

15   diagnosis of asthma.   The agency then terminated Douglass’s

16   benefits in 2004 after conducting a continuing disability

17   review.   In his review of this decision, the ALJ noted

18   specifically that there had been a “decrease in medical

19   severity” in Douglass’s asthma, depression, and knee

20   impairment, but he made no such statement with regard to

21   Douglass’s intellectual functioning.

22       The ALJ’s decision appears to have been based primarily

23   on the assessment of consultative physician Dr. John


                                   5
1    Thomassen, who examined (but did not treat) Douglass in 2000

2    and 2004, and Douglass’s own statements about his ability to

3    function.   Thomassen performed intelligence testing on

4    Douglass and stated that he had “borderline intellectual

5    functioning” in 2000, but he did not perform tests or make

6    this diagnosis in 2004.   Thomassen’s statement in his 2004

7    report that Douglass could perform “rote tasks” and follow

8    “simple instructions” served as a significant basis for the

9    ALJ’s decision that Douglass was able to work.     However,

10   Thomassen made the same statement in his 2000 report.

11       We agree with Douglass that the ALJ’s decision does not

12   reflect a meaningful consideration of Douglass’s

13   intellectual functioning under the “medical improvement”

14   standard.   Consideration of this point is necessary because

15   Douglass’s limited mental functioning was the primary basis

16   under which he was found to remain eligible for benefits in

17   2000, when his disabling condition manifested itself in low

18   I.Q. scores (Performance I.Q. of 70, Verbal I.Q. of 91, and

19   Full Scale I.Q. of 80) and deficits in adaptive functioning.

20   Indeed, in 2001 Douglass received a composite score of 54 in

21   adaptive behavior, signifying that 99.9 percent of his peers

22   were better able than him to cope with the challenges of

23   everyday life.   A claimant’s intellectual ability is not

24   typically something that improves with time.

                                   6
1        This deficiency is compounded by the fact that the ALJ

2    relied primarily on one-time consultative reports and failed

3    to address substantial additional evidence in the record

4    regarding Douglass’s mental ability to function in a

5    professional setting.     See Mongeur v. Heckler, 722 F.2d

6    1033, 1039 n.2 (2d Cir. 1983) (stating that opinion of nurse

7    practitioner who treated claimant “on a regular basis” was

8    entitled to “some extra consideration”).      For these reasons,

9    the ALJ failed to set forth the “crucial factors” in his

10   determination “with sufficient specificity to enable us to

11   decide whether the determination is supported by substantial

12   evidence.”   Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.

13   1984).

14       2. Mental retardation

15       Douglass is also correct that the ALJ made an error of

16   law before even reaching the “medical improvement” analysis.

17   The ALJ determined at step one of his inquiry that Douglass

18   did not qualify as mentally retarded under the standard

19   enumerated in 20 C.F.R. § 404 Subpart P, App. 1, Pt. A, ¶

20   12.05.   Section 12 lists various mental impairments, and it

21   generally requires claimants to demonstrate that they meet

22   “the diagnostic description in the introductory paragraph

23   and the criteria of both paragraphs A and B . . . of the

24   listed impairment.”     Id. ¶ 12.00(A).   The ALJ determined

                                     7
1    that Douglass failed to satisfy the criteria for mental

2    retardation in paragraph 12.05 because he did not satisfy

3    the “paragraph B” criteria.

4        The listings note, however, that 12.05 has a structure

5    that is “different from that of the other mental disorders

6    listings.”   Id.   In order to be found mentally retarded, a

7    claimant must “satisf[y] the diagnostic description in the

8    introductory paragraph [of the listing] and any one of four

9    sets of criteria” listed in paragraphs A through D of 12.05.

10   Douglass therefore was not required to satisfy the

11   “paragraph B” criteria.   The ALJ’s determination that

12   Douglass did not qualify as mentally retarded, on this basis

13   and without further analysis, was legal error.

14       For the foregoing reasons, the decision of the

15   Commissioner to terminate Douglass’s benefits and the

16   judgment of the district court are hereby REVERSED.      We

17   remand for consideration by the ALJ of Douglass’s case in a

18   manner consistent with this order.

19
20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22
23
24




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