wrong legal standard in assessing significance under the second prong.
The ALJ's ruling contains no discussion of the legal standard employed in determining whether plaintiff's impairment satisfies Section 12.05(c). In fact, it is not clear from the ruling whether Section 12.05(c) was specifically considered at all. On the other hand, the magistrate judge's report and recommendation concludes that there is substantial evidence in the record to support the Commissioner's decision that plaintiff's "work-related functions are not significantly limited by his back pain."
Similarly, the report and recommendation concludes that plaintiff's "other mental problems," aside from his "moderately low IQ," do not "significantly limit his work-related functions."
The report and recommendation does not, however, address the legal standard for assessing "significance" as that term is used in Section 12.05(c). Nor do the Commissioner's motion papers shed any light on the subject.
The Commissioner has not promulgated regulations explaining the "significance" requirement of the second prong of Section l2.05(c).
Nor has the Second Circuit confronted this issue. Other circuits are divided.
There appears to be agreement among those circuits that have addressed Section 12.05(c) that the word "significant" at the very least requires the plaintiff to demonstrate that his additional work-related limitation is "more than slight or minimal."
Further, at least one circuit has held that "significant" does not require the plaintiff to demonstrate that the additional limitation is disabling in and of itself.
Beyond these relatively self-evident propositions, however, there is disagreement over the specific test to be employed in determining whether a low-IQ individual's additional impairment is "significant" for purposes of Section 12.05(c).
The benchmark in the First, Eighth, and Tenth Circuits is whether the additional limitation, considered without regard to the claimant's low IQ, would satisfy the "severity" test set forth at step two of the Commissioner's five-step process for determining disability.
This is not an exacting prerequisite. Indeed, the Second Circuit has held that the step two severity test "may do no more than screen out de minimis claims."
In contrast, the Fourth Circuit has concluded that a claimant is significantly limited within the meaning of Section 12.05(c) when it is shown that the plaintiff cannot perform his or her prior relevant work,
a standard more rigorous than the de minimis threshold of the severity test.
This Court holds that the correct standard for determining whether an "additional" impairment imposes a "significant" work-related limitation under Section 12.05(c) is the severity test employed by the First, Eighth, and Tenth circuits.
The actual wording of the second prong of Section 12.05(c), "a physical or other mental impairment imposing additional and significant work-related limitations of function," is essentially the same as that of the step two severity regulation, which asks whether the claimant has "any impairment(s) which significantly limits [his or her] physical or mental ability to do basic work activities."
Both regulations depend upon whether the claimant's ability to work is limited to a significant degree, strongly suggesting a similar construction. Further, a contrary interpretation would be inconsistent with the existence of Section 12.05(c) in the first place. Section 12.05(c) essentially provides that those individuals with IQ's in the range of 60 through 70 may be found disabled upon a showing that they have an additional limitation that imposes a significant limitation on their ability to work. If "significant" requires something more than "severity," however, then there would be little point in having a special category for those with limited IQ's. If the "additional" limitation must satisfy more than the second step of the five-step analysis, then a qualifying "additional" limitation often would be sufficient in its own right to support a finding of disability, rendering Section 12.05(c)'s provisions for those with low IQ's superfluous.
With this in mind, the Court considers next whether the Commissioner already has found that plaintiff's lower back pain or his "other" mental problems are "severe" within the meaning of Section 404.1520(c). If so, then plaintiff's impairment satisfies the requirements of Section 12.05(c)
and he is entitled to disability insurance benefits. If the Commissioner has decided to the contrary, then plaintiff is not disabled within the meaning of the statute and therefore is not entitled to benefits. Unfortunately, the Court cannot discern from the record whether the ALJ and, hence, the Commissioner found either his lower back pain or his "other" mental problems to be "severe."
The ALJ began with an extensive review of the medical evidence as it pertained to both of these alleged conditions, as well as to plaintiff's IQ.
The ALJ then made the following terse statement: "continuing with the sequential evaluation process, the claimant has a severe impairment which does not meet or equal any listed in Appendix 1 of Subpart P."
Nothing that follows after this statement indicates whether the ALJ intended the phrase "a severe impairment" to refer to one, two, or all of the limitations described by plaintiff. For example, while it is clear that the ALJ was not persuaded that plaintiff's lower back pain in and of itself was a disabling condition,
this leaves unanswered the question of whether his lower back pain presents more than a de minimis limitation. As the ALJ's analysis of the medical and testimonial evidence was undertaken in the context of the fourth step of the disability determination, and thus concerned plaintiff's residual functional capacity in light of his IQ and all other claimed conditions, that analysis is not insightful in terms of ascertaining which particular impairment(s) the ALJ found involved more than a de minimis limitation. For these reasons, the Court cannot determine whether either of the limitations identified by plaintiff, beyond his low IQ, satisfies the second prong of Section 12.05(c). It is necessary for the Commissioner to make a specific finding in that regard.
The Court finds that the correct legal standard for determining whether an "additional" impairment is "significant" within the meaning of Section 12.05(c) is whether the "additional" impairment is "severe" within the meaning of 20 C.F.R. Section 404.1520(c). The Court cannot determine from the record, however, whether the impairments alleged by plaintiff satisfy that standard. Plaintiff's motion for judgment on the administrative record is granted in part and otherwise denied. Defendant's motion for judgment on the pleadings is denied. The matter is remanded to the Commissioner for further proceedings consistent with this opinion.
Dated: March 20, 1998
Lewis A. Kaplan
United States District Judge