Opinion
04 Civ. 9794 (DLC).
March 6, 2006
Appearances:
For Plaintiff: Michael D. Hampden Legal Services for Children, Inc. New York, New York.
For Defendant: Susan D. Baird Assistant United States Attorney New York, New York.
OPINION AND ORDER
Plaintiff Katherine Cruz filed a motion for reconsideration of this Court's August 23, 2005 Opinion and Order (the "Opinion") denying her motion for judgment on the pleadings. Although plaintiff largely presents an argument not made in her original motion, plaintiff nonetheless correctly points to a mistake of law in the Opinion. The motion for reconsideration is therefore granted, and the case is remanded solely for a calculation of benefits.
BACKGROUND
The facts underlying plaintiff's original motion for judgment on the pleadings are laid out in the Opinion. See Cruz v. Barnhart, No. 04 Civ. 9794 (DLC), 2005 WL 2010152, at *2-*8 (S.D.N.Y. Aug. 23, 2005) ("Cruz I"). Familiarity with those facts is assumed.Plaintiff brings this "Motion for Reargument and Reconsideration Under F.R.C.P. Rules 59(a) and (e) and 60(b) (6), and Local Civil Rule 6.3" to challenge a single aspect of the Opinion, specifically the construction of the diagnostic description in the listing for mental retardation at 20 C.F.R. Pt. 404, Subpart P, App. 1, § 112.05 (the "Listing"). Cruz had argued in her motion for judgment on the pleadings that her son Anthony Vega satisfied the criteria for mental retardation laid out in subparagraph F of Listing. The Opinion explained that in order to qualify as disabled on the basis of mental retardation, a claimant must satisfy both the specific criteria laid out in subparagraph F and the diagnostic description of mental retardation in the opening paragraph of the Listing. See Cruz I, 2005 WL 2010152, at *12; see also 20 C.F.R. Pt. 404, Subpart P, App. 1 § 112.00A.
The Opinion found that Cruz had offered persuasive evidence that Vega met the two requirements of Section 112.02B2a, incorporated by reference into 112.05F, but went on to find that Cruz had not established that Vega satisfied one of the requirements of the diagnostic description, "significantly subaverage general intellectual functioning." Cruz I, 2005 WL 2010152, at *12 (quoting 20 C.F.R. Pt. 404, Subpart P, App. 1 § 112.05). Citing the Social Security Administration's Technical Revisions to Medical Criteria for Determinations of Disability, 67 Fed. Reg. 20018, 20022 (Apr. 24, 2002), the Opinion concluded that a claimant must prove an IQ of approximately 70 or below in order to establish "significantly subaverage general intellectual functioning." Cruz I, 2005 WL 2010152, at *12. Because Vega's IQ scores were deemed unreliable, the Opinion concluded that Cruz had failed to provide persuasive proof that Vega met the diagnostic description, and therefore denied her motion for judgment on the pleadings. Id. at *13.
DISCUSSION
Plaintiff makes a motion to reconsider under Fed.R.Civ.P. 59 (e) and Local Rule 6.3. "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995). A motion for reconsideration is not an opportunity for a party to "plug the gaps of a lost motion with additional matters." Carolco Pictures Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988) (citation omitted). Arguments raised for the first time on a motion for reconsideration are therefore untimely. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Stroh Cos., Inc., 265 F.3d 97, 115-16 (2d Cir. 2001).
Plaintiff also moves for reconsideration under Rules 59(a) and 60 (b) (6), Fed.R.Civ.P. Rule 59 (a) does not apply as there was no trial in this case. See Fed.R.Civ.P. 59(e). A motion under Rule 60 (b) (6) is similarly improper because the basis for plaintiff's request, a mistake of law in the court's final judgment, would justify relief under another provision of the Rule. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64 (1988) (nothing that Rule 60 (b) (6) "grants federal courts broad authority to relieve a party from a final judgment . . . provided that the motion . . . is not premised on one of the grounds for relief enumerated in clauses (b) (1) through (b) (5)"); United States v. Cirami, 535 F.2d 736, 740 (2d Cir. 1976) ("Rule 60 (b) (1) and 60 (b) (6) are mutually exclusive. . . .").
Rule 59 (e) does not prescribe the specific grounds on which a motion for reconsideration may be brought, but it is clear that "district courts may alter or amend judgment to correct a clear error of law or prevent manifest injustice." Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004); Greene v. Town of Blooming Grove, 935 F.2d 507, 512 (2d Cir. 1991) ("The `narrow aim' of Rule 59(e) is `to mak[e] clear that the district court possesses the power to rectify its own mistakes in the period immediately following the entry of judgment.'") (quotingWhite v. N.H. Dep't of Employment Sec., 455 U.S. 445, 450 (1982)). Thus, while the decision whether to grant such a motion is left to the discretion of the district court, it may he an abuse of discretion to let stand an error of law brought to its attention in a timely manner. See RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003) (noting, on review of a denial of a motion for reconsideration, that "[a] court abuses its discretion when its decision rests on a legal error"); cf. In re 310 Assocs., 346 F.3d 31, 35 (2d Cir. 2003) (noting that it is an "abuse of discretion not to correct [an] obvious factual mistake") (citing Cappillino v. Hyde Park Cent. Sch. Dist., 135 F.3d 264, 266 (2d Cir. 1997)).
Cruz bases her motion for reconsideration on the fact that "plaintiff's argument for a finding of disability was imprecise and may have been misconstrued by the Court." As explained above, a motion for reconsideration is not the proper vehicle for the rehabilitation of poorly made arguments in an unsuccessful motion. Moreover, the legal argument and supporting authorities that Cruz advances here are notably absent from her original motion papers. See Cruz I, 2005 WL 2010152 at *12 (noting Cruz's focus on adaptive functioning and neglect of general intellectual functioning). Yet, while the justification Cruz invokes for her current motion is, on the surface, insufficient, the thrust of Cruz's argument is that the Court erred in its interpretation of a regulation. This is a proper basis for a motion for reconsideration.
In the terminology of Local Rule 6.3, the gravamen of Cruz's argument is that the Court "overlooked" the structure of the Listing in 20 C.F.R. Pt. 404, Subpart P, App. 1, § 112.05.
In the alternative, the Court invokes its authority under Fed.R.Civ.P. 60 (b) (1) to reopen the judgment to correct its own mistake. See In re 310 Assocs., 346 F.3d 31, 35 (2d Cir. 2003).
The specific question presented by this motion is whether the Opinion erred in holding that Vega could not demonstrate "significantly subaverage general intellectual functioning" as required by the diagnostic description of mental retardation in Section 112.05 without proving an IQ score below 70. To qualify as mentally retarded, a claimant must satisfy both the diagnostic description and one set of the severity criteria laid out in subparagraphs A through F. Of these, three explicitly require a specific IQ score and three make no reference to IQ at all. This difference is significant. After the listings for mental disorders were originally proposed, the Social Security Administration ("SSA") received several comments that the listing for mental retardation "relied too heavily on IQ." Disability Insurance and Supplemental Security Income; Mental Disorders in Children, 55 Fed. Reg. 51,208, 51,225 (Dec. 12, 1990). In response, the SSA added new subparagraphs to Section 112.05, including subparagraph F, "which use deficits in adaptive behavior as an alternative to IQ scores." Id. The text of subparagraph F, unlike subparagraphs C, D, and E, thus does not make IQ score a criterion for determination of severity of mental retardation.
The Opinion held that the diagnostic description independently required proof of IQ to establish a claimant's level of intellectual functioning. The Listing itself, however, suggests that this is not always so. "Standardized intelligence test results are essential to the adjudication of all cases of mental retardation that are not covered under the provisions of listings 112.05A, 112.05B, and 112.05F." 20 C.F.R. Pt. 404, Subpt. P, App.1 § 112.05D(11). But those three listings "may be the bases for adjudicating cases where the results of standardized intelligence tests are unavailable, e.g., where the child's young age or condition precludes formal standardized testing." Id. Similarly, the SSA explained in its announcement of the final rules that subparagraph F "is to be used when a child has mental retardation which coexists with another physical or mental impairment but valid IQ tests results are lacking. Instead of demonstrating an IQ of 60 through 70, the child must demonstrate a specified level of dysfunction in the cognitive/communicative domains of 112.02B." Disability Insurance and Supplemental Security Income, 55 Fed. Reg. at 51,212. Reading the diagnostic description to require an IQ test would completely frustrate the purpose of subparagraph F, as reflected in both the Listing itself and the SSA's announcement in the Federal Register.
The Opinion based its interpretation of the diagnostic description, and in particular the requirement of an IQ score under 70, on a response by the SSA to a commenter in Technical Revisions to Medical Criteria for Determinations of Disability, 67 Fed. Reg. 20,018, 20,022 (Apr. 24, 2002). This statement does appear to suggest that the diagnostic description's definition of retardation would require evidence of an IQ score of 70 or below, but it is neither sufficiently specific nor considered to sub silentio read subparagraphs A, B, and F out of the Listing, and to overrule the explicit statement to the contrary made elsewhere.
In order to maintain subparagraph F as a viable means of establishing mental retardation, a claimant must be permitted to satisfy the diagnostic description in connection with a claim under subparagraph F without reference to an IQ score. In a "Policy Interpretation Ruling," the SSA explained how a claimant with mild mental retardation could prove the required level of intellectual functioning.
The SSA does not dispute in this case that a claimant could establish eligibility under Section 112.05F without proving IQ score, but argues only that the Commissioner's finding is supported by substantial evidence and that Cruz has not made the required showing to justify reconsideration of this Court's Opinion.
[T]he significantly subaverage general intellectual functioning needed to establish that component of the diagnosis of mild mental retardation is shown by a valid verbal, performance, or full scale IQ of 60 through 70 (under Listing 112.05D) or "marked" limitation in the area of cognition/communication (under Listing 112.05F, by reference to Listing 112.02B1b or 112.02B2a).Social Security Ruling, SSR98-1p; Title XVI: Determining Medical Equivalence in Childhood Disability Claims When a Child Has Marked Limitations in Cognition and Speech, 63 Fed. Reg. 15248, 15250 (Mar. 30, 1998). Thus, the SSA itself publicly advised that proof of a marked cognitive limitation would satisfy both subparagraph F and the intellectual functioning prong of the diagnostic description. The Listing's explanation of severity confirms that "tests of language development or bizarre speech patterns" may substitute for standardized tests of intelligence in some circumstances. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.05C (2) (b); see also Disability Insurance, 55 Fed. Reg. at 51225 (noting that "deficits in adaptive behavior [would be used] as an alternative to IQ scores" for claimants under subparagraph F). Cruz has satisfied this requirement; indeed, "the ALJ clearly determined" that Vega had marked limitation in cognitive and communicative function under § 112.05F. Cruz I at *11.
This interpretation implies that to the extent the diagnostic description is an independent requirement of the listing for mental retardation, it is surplussage. It would appear that this is often the case. Claimants under paragraphs C, D, and E must all prove IQ scores under 70 in order to meet their severity requirements. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.05C-E. In all of these cases, an independent requirement of the diagnostic description that the claimant prove an IQ score under 70 would be entirely redundant, but this is how the SSA interprets the Listing. See, e.g., Social Security Ruling, SSR98-1p, 63 Fed. Reg. at 15250 (discussing satisfaction of diagnostic description for claimant under subparagraph D). It might be more productive to read the specific criteria laid out in subparagraphs A through F as elaborations on, rather than independent of, the diagnostic description. At least part of the Listing itself seems to reflect this conceptualization. See id. § 112.05 ("Mental Retardation: Characterized by significantly subaverage intellectual functioning with deficits in adaptive functioning. The required level of severity for this disorder is met when the requirements in A, B, C, D, E, or F are satisfied."). Nevertheless, the SSA and several courts view the Listing as presenting two independent requirements. See, e.g., Blakes v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003) (holding that "the regulations introduced a new, dual requirement");Barnes v. Barnhart, 116 Fed. Appx. 934, 938 (10th Cir. 2004) (discussing the SSA's argument that "the capsule definition states additional elements that claimant must meet"); Castillo v. Barnhart, No. 00 Civ. 4343, 2002 WL 31255158, at *14 (S.D.N.Y. Oct. 8, 2002) (noting "the requirement under the final rules not only that the two prongs of 112.05D be met, but also that the diagnosis [sic] description . . . be met"); see also Social Security Acquisence Ruling 03-1 (7): Blakes v. Barnhart, 68 Fed. Reg. 74,279, 74,280 (Dec. 23, 2000) (rejecting the assertion that the diagnostic description had ever not imposed additional requirements).
CONCLUSION
The Court's previous interpretation of Section 112.05 was in error. The diagnostic description does not require proof of an IQ score under 70 when a claimant seeks to establish mental retardation under subparagraph F of the Listing. Because Cruz has established by persuasive evidence that Vega meets the diagnostic description in addition to the severity criteria, Cruz is entitled to judgment on the pleadings. See Rivera v. Sullivan, 923 F.2d 964, 970 (2d Cir. 1991) (reviewing cases holding that "reversal and the immediate award of benefits" is "appropriate `when the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose'") (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)). The final decision of the Commissioner is reversed and the case is remanded solely for the calculation of benefits.SO ORDERED.