Inconsistent, But Favorable Decision

Tuesday, August 6th, 2019

I represent a 56 year old claimant with intellectual disabilities, who threw out garbage and shoveled snow for New York State. The claimant stopped working because he was unable to remember even simple, recurrent things. His former co-worker had always helped him by telling what to do because he forgot things, but that co-worker passed away.

The State determined that the claimant was unable to perform his work duties, and awarded him a disability pension. The claimant then went for a two day cognitive evaluation at Hofstra University to evaluate his ability to work. In a highly detailed 25 page, single spaced report, the Hofstra psychologist conducted objective testing that revealed the claimant had a Full Scale IQ of 58.

A second psychologist from Hofstra confirmed that the claimant met all the criteria of the listing for intellectual disability. That report showed that the claimant cannot subtract, multiply, or divide, and can only add up to ten using his fingers. We also obtained an opinion from the psychologist that requested opinions regarding mental limitations using vocationally familiar terms, which included being off task. The psychologist determined that the claimant would be off task at least 20% of the time. The Social Security consultative examiner’s report confirmed that the claimant cannot perform simple calculations, or count backwards. Based on a detailed neurological evaluation, another one of the claimant’s doctors, dual board certified in psychiatry and neurology and pain medicine, also concluded that the claimant was unable to work due to sleep apnea.

ALJ Pellegrino rejected the mental limitations detailed in the Hofstra report, and therefore, the ALJ said that the claimant would not be disabled under the medical-vocational “Grid” rules. However, the ALJ said that because the second Hofstra psychologist said the claimant would be off task 20% of the time, he was disabled, and entitled to Social Security Disability benefits. The odd thing is that the ALJ rejected the cognitive limitations in the Hofstra report, but accepted the off task limitation as a result of the those limitations.

Previous Next