Robert T. DOUGLASS, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
No. 11-3325-cv.
United States Court of Appeals, Second Circuit.
Sept. 19, 2012.
492 Fed. Appx. 154
For the foregoing reasons, the petition for review is DENIED. Any pending request for oral argument in this petition is DENIED in accordance with
Louise M. Tarantino, Empire Justice Center, Albany, N.Y. (Catherine M. Callery, Empire Justice Center, Rochester, NY, on the brief), for Appellant.
Peter Jewett, Special Assistant United States Attorney, (Mary Ann Sloan, Regional Chief Counsel, Office of the General Counsel, Social Security Administration, New York, NY, on the brief), for William J. Hochul, United States Attorney for the Western District of New York, Rochester, NY, for Appellee.
PRESENT: BARRINGTON D. PARKER, RICHARD C. WESLEY, Circuit Judges, JOHN GLEESON, District Judge.*
Appellant Robert T. Douglass appeals from a judgment of the United States District Court for the Western District of New York (Telesca, J.), which affirmed the Commissioner of Social Security‘s decision terminating his eligibility for Supplemental Security Income and Disability Insurance Benefits (SSI). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
“After an individual has been found entitled to [SSI] benefits, ... his benefits may be terminated if there is substantial evidence that the impairment has improved to such an extent that he is now able to work.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002). A recipient of benefits “may be determined not to be entitled to such benefits” only on the basis of “‘substantial evidence which demonstrates that there has been any medical improvement in the individual‘s impairment or combination of impairments (other than medical improvement which is not related to the individual‘s ability to work), and the individual is now able to engage in substantial gainful activity.‘” Id. (quoting
“When deciding an appeal from a denial of benefits, [this Court] focus[es] on the administrative ruling rather than the district court‘s opinion.” Acierno v. Barnhart, 475 F.3d 77, 80 (2d Cir.2007) (inter-
Any individual may appeal from a final decision of the Commissioner of Social Security to a United States District Court.
1. Medical improvement
Douglass has been receiving benefits since the age of two due to bronchial asthma and a cardiac defect. When the Social Security Administration (“SSA“) redetermined his eligibility in 2000, it found that he continued to be eligible for SSI based on a primary diagnosis of “organic mental disorders (chronic brain syndrome)” and a secondary diagnosis of asthma. The agency then terminated Douglass‘s benefits in 2004 after conducting a continuing disability review. In his review of this decision, the ALJ noted specifically that there had been a “decrease in medical severity” in Douglass‘s asthma, depression, and knee impairment, but he made no such statement with regard to Douglass‘s intellectual functioning.
The ALJ‘s decision appears to have been based primarily on the assessment of consultative physician Dr. John Thomassen, who examined (but did not treat) Douglass in 2000 and 2004, and Douglass‘s own statements about his ability to function. Thomassen performed intelligence testing on Douglass and stated that he had “borderline intellectual functioning” in 2000, but he did not perform tests or make this diagnosis in 2004. Thomassen‘s statement in his 2004 report that Douglass could perform “rote tasks” and follow “simple instructions” served as a significant basis for the ALJ‘s decision that Douglass was able to work. However, Thomassen made the same statement in his 2000 report.
We agree with Douglass that the ALJ‘s decision does not reflect a meaningful consideration of Douglass‘s intellectual functioning under the “medical improvement” standard. Consideration of this point is necessary because Douglass‘s limited men-
This deficiency is compounded by the fact that the ALJ relied primarily on one-time consultative reports and failed to address substantial additional evidence in the record regarding Douglass‘s mental ability to function in a professional setting. See Mongeur v. Heckler, 722 F.2d 1033, 1039 n. 2 (2d Cir.1983) (stating that opinion of nurse practitioner who treated claimant “on a regular basis” was entitled to “some extra consideration“). For these reasons, the ALJ failed to set forth the “crucial factors” in his determination “with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984).
2. Mental retardation
Douglass is also correct that the ALJ made an error of law before even reaching the “medical improvement” analysis. The ALJ determined at step one of his inquiry that Douglass did not qualify as mentally retarded under the standard enumerated in
The listings note, however, that 12.05 has a structure that is “different from that of the other mental disorders listings.”
For the foregoing reasons, the decision of the Commissioner to terminate Douglass‘s benefits and the judgment of the district court are hereby REVERSED. We remand for consideration by the ALJ of Douglass‘s case in a manner consistent with this order.