697 F.3d 145 (2nd Cir. 2012), 11-4209-cv, Talavera v. Astrue

Docket Nº:11-4209-cv.
Citation:697 F.3d 145
Opinion Judge:KATZMANN, Circuit Judge:
Party Name:Christina TALAVERA, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
Attorney:William P. Gottlieb, Axelrod & Gottlieb LLP, New York, NY, for Plaintiff-Appellant. Seth D. Eichenholtz (Varuni Nelson, Kathleen A. Mahoney, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, for Defendant-Appellee.
Judge Panel:Before: STRAUB, KATZMANN, Circuit Judges.[*]
Case Date:October 11, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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697 F.3d 145 (2nd Cir. 2012)

Christina TALAVERA, Plaintiff-Appellant,


Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

No. 11-4209-cv.

United States Court of Appeals, Second Circuit.

October 11, 2012

Argued: Sept. 24, 2012.

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[Copyrighted Material Omitted]

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William P. Gottlieb, Axelrod & Gottlieb LLP, New York, NY, for Plaintiff-Appellant.

Seth D. Eichenholtz (Varuni Nelson, Kathleen A. Mahoney, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, for Defendant-Appellee.

Before: STRAUB, KATZMANN, Circuit Judges.[*]

KATZMANN, Circuit Judge:

In this case, we address two issues of first impression in this Circuit

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relating to the eligibility standards for Supplemental Security Income (" SSI" ) disability benefits on the basis of an intellectual disability under the regulatory framework promulgated by the Social Security Administration (" SSA" ). We first hold that evidence of a qualifying deficit in adult cognitive functioning serves as prima facie evidence that those deficits existed prior to a petitioner's twenty-second birthday, as is required by current SSA regulations. See 20 C.F.R. Pt. 404, Subpt. P, App'x 1, Part A, § 12.05 (hereinafter " § 12.05" ) (" Mental retardation" is defined as the " onset of the impairment" occurring " before age 22." ). We further hold that, to be considered mentally retarded, a petitioner must separately establish deficits in her cognitive and adaptive functioning. See id. (defining " mental retardation" as " significantly subaverage general intellectual functioning with deficits in adaptive functioning" ); see also Novy v. Astrue, 497 F.3d 708, 710 (7th Cir.2007) (Adaptive functioning refers to an individual's " [ ]ability to cope with the challenges of ordinary everyday life." ). In this case, because there is substantial evidence in the record supporting the SSA's finding that Plaintiff-Appellant Christina Talavera does not suffer from qualifying deficits in adaptive functioning, we affirm the judgment of the district court (Gleeson, J. ) upholding the SSA's denial of Talavera's application for SSI benefits.1


Talavera appeals from the August 10, 2011 judgment of the district court, which affirmed the decision of Defendant-Appellee the Commissioner of Social Security (the " Commissioner" ) to deny her December 15, 1999 application for SSI disability benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. Although her application for SSI benefits focused predominantly on her chronic lower back pain, Talavera primarily argues on appeal that the ALJ erred in concluding that she does not suffer from " mental retardation," as that term is used in the relevant SSA regulations.2 See § 12.05.

Attending regular (rather than special) education classes, Talavera completed the tenth grade of her education before dropping out in the eleventh grade. Thereafter, Talavera attempted to earn her GED. However, when her father died, she dropped out of the GED program and began working. In addition, Talavera later attended what she described as " business school" for one year, but discontinued her education when the school she was attending closed down. Talavera v. Comm'r of Soc. Sec., No. 06-cv-3850(JG), 2011 WL 3472801, at *2 (E.D.N.Y. Aug. 9, 2011).

" Talavera's work experience consists of three relatively brief stints in three different jobs: receptionist for four months in 1990, telemarketer for three months in 1992, and cashier for seven months in

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1996." Id. (footnote omitted). She testified that she had no difficulty performing her past work on account of either physical or mental limitations, and that she has no difficulty reading or writing. See Certified Administrative Record (" CAR" ) at 93-96. On October 14, 1996, a few days after suffering a back injury while lifting a box of oil cans at work, Talavera stopped working as a cashier. She has not worked since that time. Talavera, 2011 WL 3472801, at *2.

In the years following her application for SSI benefits in 1999, Talavera has been diagnosed with a variety of medical ailments, including chronic back pain as the result of herniated discs in her neck and a compressed nerve in her spine, migraine headaches, carpal tunnel syndrome, obesity, depression, and anxiety. See id. at *4-8. When asked at the hearing before the ALJ " why do you think you can't do ... a simple sedentary job," Talavera testified she could not work " [b]ecause I get— I have pain [in my back] ... I get pain every day ... in my lumbar spine ... [and] my upper part of my neck which is [my] cervical spine." CAR 179-80.

Talavera lives with her mother and her brother, as well as her two young children. In her testimony before the ALJ, Talavera stated that she cannot care for her children by herself because of her back pain and other physical ailments, and instead relies on her mother's assistance. See CAR 140-41, 177-79. Although Talavera participates in caring for her children in various ways— by, for example, preparing meals, feeding them, and changing diapers, see id. — " her mother was largely responsible for carrying and lifting objects in the household, cooking, cleaning, and shopping," Talavera, 2011 WL 3472801, at *4; see also CAR 177-78.

In addition, Talavera's cognitive functioning has been examined and assessed several times by medical professionals. On December 13, 1996, three years before her accident, Talavera was examined by Dr. Aric Hausknecht, a neurologist, who determined that Talavera's memory, judgment, and communication skills were all within normal limits, as were her abilities to perform calculations, spell, follow commands, and interpret proverbs. CAR at 434. Subsequently, on February 4, 2000, Talavera was examined by Dr. Rafael Munne, a psychiatrist, who reported that Talavera was alert and fully oriented, " had average intelligence," " performed well on cognitive testing," and " seemed capable of understanding and carrying out commands in personal and social environments." Talavera, 2011 WL 3472801, at *7. Next, on May 10, 2000, Dr. Dinoff, a non-examining state agency psychiatrist, reviewed Talavera's medical records and concluded that she suffered from slight limitations in social functioning and slight restrictions in the " [a]ctivities of [d]aily [l]iving" as a result of her anxiety, but that there was " [n]o evidence" she suffered from mental retardation. CAR 335, 338. Thereafter, on February 8, 2001, Talavera was examined by Dr. Renee Ravid, a psychiatrist, who reported that Talavera was alert, had an intact memory, and was able to perform most simple calculations correctly. Dr. Ravid further concluded that Talavera had average intellectual functioning, and enjoyed a satisfactory ability to understand, carry out and remember instructions. Talavera, 2011 WL 3472801, at *8.

Finally, on September 24, 2004, Talavera was examined by Dr. Mindy Zelen, a psychologist. Dr. Zelen reported that Talavera had attended regular education throughout her school years, and had " no difficulties with learning." CAR at 509. She also informed Dr. Zelen that she is able to dress, bathe, and groom herself, but that her mother assists her with cleaning,

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laundry, and shopping; that she navigates public transportation on her own, and that she traveled fifteen miles on public transportation on her own to arrive at Dr. Zelen's office that day; that she socializes with and has close relationships with her family members; that her hobbies include using computers; and that she is able to manage her own personal finances. Id. at 504, 509, 511. On testing, however, Dr. Zelen reported that Talavera had a verbal IQ of 66, a performance IQ of 68, a full scale IQ of 64, and that she read at a fourth grade level. Id. at 502-03. Dr. Zelen stated that she considered these scores " to be a valid and reliable estimate of her current functioning," and that they were consistent with a diagnosis of " [r]ule out mild mental retardation" (meaning that she could not " rule out" mental retardation based on the evidence available to her). Id. at 502, 504, 511-12. Dr. Zelen further observed that Talavera " was cooperative and related adequately," " was well groomed" with " appropriate" eye contact and affect, had " normal" posture and gait, used " fluent" speech, and displayed " coherent and goal-directed" thought processes. Id. at 510. Based on the foregoing assessments, Dr. Zelen concluded that Talavera " could follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration for simple tasks, maintain a regular schedule provided it did not require performance of complex tasks, make simple decisions, and relate adequately to others." Talavera, 2011 WL 3472801, at *8. Dr. Zelen also concluded that Talavera exhibited " slight limitations in understanding, remembering and carrying out simple instructions, moderate limitations in making judgments on simple work-related decisions, and marked limitations in understanding, remembering and carrying out detailed instructions." Id. at *9.

Based on the foregoing, by Order dated September 20, 2005, an SSA Administrative Law Judge (" ALJ" ) concluded that Talavera was not eligible for SSI disability benefits because, despite several " severe" impairments, including chronic back pain, she retained the ability to perform certain...

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