United States District Court, S.D. Ohio, Western Division
BRENDAN J. BERGER, Plaintiff,
NATIONAL BOARD OF MEDICAL EXAMINERS, Defendant.
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
Brendan J. Berger, brings this action against the National
Board of Medical Examiners ("NBME") alleging, inter
alia, violations of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq. Mr. Berger
alleges he is a person with a disability under the ADA and is
entitled to extra testing time and other accommodations based
upon a learning disability and Attention Deficit
Hyperactivity Disorder ('ADHD"). NBME denies that
Mr. Berger is disabled within the meaning of the ADA or
entitled to accommodations. This matter is before the Court
on Mr. Berger s motion for a preliminary injunction (Doc. 20)
and NBME's response in opposition (Doc. 27). On July 29
and 30, 2019, the Court held an evidentiary hearing on
plaintiffs motion. The parties have submitted proposed
findings of fact and conclusions of law. (Docs. 34, 35, 36).
For the reasons stated below, the undersigned
GRANTS plaintiffs motion for preliminary
Findings of Facts
Brendan Berger began medical school at the American
University of the Caribbean School of Medicine (AUC) in 2011.
(Doc. 30, Tr. 65-66).
was expected to graduate from AUC in 2015. (Doc. 30, Tr.
Berger has completed all course work and clinical rotations
necessary to graduate from AUC with a Doctor of Medicine
(M.D.) degree except for passing the United States Medical
Licensing Examination ("USMLE") Step 2 CK. (Doc.
30, Tr. 29:15-23).
NBME is a not-for-profit organization that administers the
USMLE together with the Federation of State Medical Boards.
The NBME reviews, processes, and approves (or denies)
requests for accommodations presented in accordance with the
ADA. (DX 23, Declaration of Catherine Farmer, Psy.D. At
¶¶ 3, 4).
USMLE is designed to assess a physician's ability to
apply knowledge, concepts, and principles, and to demonstrate
fundamental patient-centered skills, that constitute the
basis of safe and effective patient care. (DX 23, Farmer
Decl. at ¶ 4).
There are three Steps to the USMLE, namely USMLE Step 1,
USMLE Step 2 Clinical Knowledge (CK), USMLE Step 2 Clinical
Skills (CS), and USMLE Step 3. All exams must be passed
before an individual with an M.D. degree is eligible for
medical licensure in the United States. (DX 23, Farmer Decl.
at ¶ 6).
Berger has taken the USMLE Step 1 without accommodations. A
passing score was set at 192. Mr. Berger passed with a scaled
score of 198. (PX 38).
Berger took the Step 2 CS exam, without accommodations, for
the first time on April 13, 2016. (Doc. 30, Tr. 152). He did
not pass. (Doc. 30, Tr. 152-53).
Berger took the Step 2 CS exam, without accommodations, a
second time on August 17, 2016. He received a passing
outcome. See Step 2 CS Score Report (Aug. 17, 2016)
(DX 16 at 5-6).
Berger has taken the Step 2 CK exam twice, without testing
accommodations and under standard testing conditions. He did
not achieve a passing score on either attempt. Step 2 CK
Score Reports (DX 16 at 7-10).
USMLE Step 2 CK under standard administration consists of
approximately 318 multiple choice test items, divided into
eight 60-minute blocks, administered in one nine-hour testing
session. (Plaintiff Complaint and Defendant's Answer at
NBME's published performance data indicates that 95%-96%
of examinees from US/Canadian schools pass the USMLE Step 2
CK. (PX 57). AUCs published performance data reflects that
89% to 92% of AUC's students pass the USMLE Step 2 CK.
Mr. Berger's Academic History
Berger's mother is from the United States of America and
his father is from France. (Doc. 30, Tr. 19-20). His mother
is fluent in French, as are his two older sisters. (Doc. 30,
Tr. 26, 119-20).
English was the primary language spoken in Mr. Berger's
home during his childhood, and he speaks English fluently.
2010 Beach Report (PX 5 at ¶ 000016). While some French
was spoken in the home, it is estimated that during Mr.
Berger's early childhood, more that 90% of the time
English was spoken around him. (Doc. 30, Tr. 22:1-25, 23:
3-11). Mr. Berger is presently unable to speak French. (Doc.
30, Tr. 35:14-15).
Berger attended a public school in the first grade.
While in first grade he received intervention for literacy
skills and also received tutoring at home. (Doc. 30, Tr.
Berger was homeschooled in the second, third and fourth
grades due to the difficulty he was experiencing in reading
and learning. (Doc. 30, Tr. 29, 39). He was home- schooled by
his mother, a professional educator, who provided intensive
instruction on reading, spelling, written expression, and
math computation from second through fourth grades. (PX 33).
While in second grade Mr. Berger was evaluated by a
psychologist, Jeanne Artner, Ph.D., due to trouble with
reading and behavioral concerns. Dr. Artner reported that Mr.
Berger s behaviors raised the possibility of Attention
Deficit Disorder. She further recommended teaching methods to
stress a phonics approach in reading sight words and using a
multisensory technique in reading lessons. (PX 17).
Berger took the Stanford Achievement Tests in the second,
third and fourth grades. (PX 18, PX 19, PX 20); (Doc. 30, Tr.
134-35). His Total Reading and Reading Comprehension scores
were rated average in the second and third grades and
above-average in fourth grade. The Stanford Achievement Tests
Score Reports do not reflect standard or nonstandard test
Berger resumed his school-based education at the St. Gabriel
Consolidated School in the fifth grade and attended that
school through the eighth grade. (Doc. 30, Tr. 40).
While attending St. Gabriel School, Mr. Berger was given
accommodations, which included extended time to complete
class assignments, examinations, and quizzes. He was
administered oral exams because of his difficulty reading. He
was also allowed to take tests in a small quiet room. (Doc.
30, Tr. 40:15-41:3); (PX 1).
Berger took the Iowa Tests of Basic Skills and Cognitive
Abilities Test in the sixth grade. (PX 21). His total reading
score was in the 96th percentile nationally and his reading
comprehension score was in the 82nd percentile.
(Id.). The score report does not reflect whether or
not Mr. Berger received accommodations on the test.
Berger attended Archbishop Moeller High School (Moeller) from
ninth through twelfth grades. During ninth, tenth, and part
of eleventh grade, Mr. Berger was given informal
accommodations by his teachers, which included extra time to
complete tests, extra sets of textbooks for highlighting, and
use of audio books to address issues of reading and sustained
focus. (Doc. 30, Tr. 41:17-44:19).
During Mr. Berger s eleventh grade year, he underwent a
psychoeducational evaluation with Dr. Alexander Smith in
January through February 2003. (PX 23). Following his
evaluation, Mr. Berger received formal accommodations set
forth in a Moeller Assistance Plan, which continued to
provide extended time for reading and writing assessments due
to his difficulty completing such tasks, a separate area for
testing, and allowance for extra copies of texts and use of
audio tapes of novels. (Doc. 30, Tr. 42:22-45:15); (PX 2).
During the eleventh grade, Mr. Berger took the PSAT exam
without accommodations. (Doc. 30, Tr. 46:8-10). Mr. Berger
testified he struggled with the time constraints of the exam.
(Doc. 30, Tr. 46:11-47:4). He testified he ran out of time
while testing and omitted answers to some questions. (Doc.
30, Tr. 48-51). He acknowledged there was a "guessing
penalty, '' students were encouraged not to guess,
and his omitted answers did not come only at the end of
sections. (Doc. 30, Tr. 138-39). Mr. Berger scored in the
72nd percentile on the verbal section and in the 73th
percentile on the writing skills section of the PSAT. (Doc.
30, Tr. 51:13-52:5); (PX 3 and DX 24-5).
Mr. Berger's senior year, the College Board granted his
request for accommodations on all College Board Exams, which
included the SAT, PSAT, and AP exams. He was approved for
“50% Extended Time accommodations." (Doc. 30, Tr.
52:6-25); (PX 4)
January 2004, Mr. Berger took the SAT with 50% extended time
and scored in the 91st percentile nationally on the Reading
section of the test. (Doc. 30, Tr. 53:7-25); (PX 25).
Berger began college at the University of Cincinnati
("UC"). At the start of his matriculation, he
submitted a request for accommodations to the
University's Disability Services Office. The University
of Cincinnati approved Mr. Berger s request and granted him
accommodations, including double (100%) extended time, a
proofreader, and audio versions of written text. He also took
exams with extended time at the Disability Services Office.
(Doc. 30, Tr. 54:3-55:14); (PX 27).
Berger graduated from UC in 2009, with a B.A. degree in Asian
Studies and a B.S. degree in Biology. (Doc. 30, Tr. 55); UC
Transcript (PX 28).
While at UC, Mr. Berger spent a year abroad in Japan, where
he learned and became fluent in Japanese, (Doc. 30, Tr. 35,
Berger enrolled at the American University of the Caribbean
School of Medicine in 2011 and is currently on an indefinite
leave of absence. (Doc. 30, Tr. 66). He received "time
and a half in a reduced distraction environment as his
testing accommodation" at AUC. AUC Letter (May 2013) (PX
10). Mr. Berger's class rank in the Medical Sciences part
of the school's curriculum was 70 out of 92 students,
with a grade point average of 78.97. In the Clinical Sciences
portion of the school's curriculum, Mr. Berger achieved
11 grades of "honors" and 2 grades of
"pass." AUC Transcript (DX 15).
Berger has applied for and has been granted accommodations
for the Graduate Record Examinations ("GRE"). (Doc.
30, Tr. 161). The accommodations include 100% extended time
over two consecutive days, breaks, a separate room, and an
MP3 Audio Test Format. (Doc. 36) (PX 64) (PX000521).
The Medical College Admission Test
MCAT is a standardized exam, lasts several hours, contains
multiple-choice questions, and is administered on a computer.
See MCAT Essentials at 3 (DX 17). The purpose of the
MCAT "is to test the skills and knowledge that medical
educators and physicians have identified as key prerequisites
for success in medical school and the practice of
medicine." with questions in the Physical Sciences,
Biological Sciences, and Verbal Reasoning, as well as two
30-minute essays. (Id. at 3-5).
Berger took the MCAT twice, first in 2009 and again in 2010,
both times with no accommodations.
2009, in anticipation of taking the MCAT, Mr. Berger applied
for accommodations but was denied. (Doc. 30, Tr. 57:11-18).
Berger spent many hours studying for the MCAT. He took study
courses and studied independently. Compared to his peers he
put in more time and a greater effort studying for the MCAT.
(Doc. 30, Tr. 57:23-58:19).
Berger took the exam in 2009 without accommodations. He
utilized many strategies to get through the examination. He
found it difficult to complete each section, particularly the
verbal reasoning section. He found that he wrote in many
random answers because he was unable to complete the exam.
(Doc. 30, Tr. 58:20 - 60:3).
to being unable to complete substantial portions of the MCAT,
Mr. Berger was not able to demonstrate his knowledge and
skill when taking the 2009 MCAT. (Doc. 30, Tr. 60:4-7).
Berger's total score on the 2009 MCAT was 25, placing him
in roughly the 45th to the 51 st percentile of all
individuals who tested when he did. MCAT Score Reports (DX
24-4). His verbal reasoning score fell in the 27th to the
37.8th percentile and his writing score fell in the 11.9th to
the 35.1 st percentile. (PX 55).
Berger requested accommodations when he took MCAT a second
time in 2010 based upon a learning disability diagnosis.
Request (DX 2ID). The test administrator, the Association of
American Medical Colleges ("AAMC"), denied his
request, noting, among other things, that his 2009
"non-accommodated MCAT score was solidly average even
compared to the elite group who take the MCAT."
See AAMC Denial Letter (May 2010) (DX 21E).
Berger requested reconsideration of AAMC's denial of
accommodations in June 2010, supported by a report of
additional testing done by Cheryl Beach, Ph.D. AAMC again
concluded that accommodations were unwarranted. See
MCAT Letter at 1 (July 13, 2010)(DX9atCMB-0176).
Berger put forth a greater effort studying for the MCAT in
2010. He studied for nearly a year. His study efforts
included taking a study course and working on strategies to
optimize his ability to get through the questions as quickly
as possible. He typically studied three to five hours a day
for the MCAT. (Doc. 30, Tr. 62:7-63:3).
Berger utilized a different strategy for taking the MCAT in
2010. He testified that his test-taking strategy on the
verbal section of the 2010 MCAT exam was "'to
actually not read the passages at all" and "just
read the questions" that followed each passage. (Doc.
30, Tr. 63; Tr. 65 (stating that his "strategy" was
"just reading the questions and not reading the
paragraph"). He would read the questions that followed
lengthy passages, and he would quickly attempt to pick the
best answer by reading a couple of sentences in the
paragraph. He attempted to take educated guesses based on his
limited review of the questions and passage. (Id.).
Berger's verbal reasoning score increased to the 67.8th
to the 83.4th percentile. His physical science results
declined to the 11.6th percentile to the 23.8th percentile,
and his biological science score declined to the 26.8th
percentile to the 41.9th percentile. (PX 30). 2010 MCAT Score
Report (DX 24-4).
Berger's second MCAT score placed him roughly in the
38th-44th percentile. MCAT Score Reports (DX 24-4).
American University of the Caribbean School of
Mr. Berger did not gain admission to U.S. medical schools but
was able to gain admission to AUC.
When Mr. Berger started medical school at AUC, he applied for
accommodations, which entailed submitting his documentation
to the staff in charge of reviewing accommodation requests.
(Doc. 30, Tr. 67:7-14).
approved accommodations including 50% extended time on tests
and exams. (Doc. 30, Tr. 67:13-23).
Additionally, in order to get through the reading material in
medical school, Mr. Berger utilized different assistive
technologies such as text to speech. (Doc. 30, Tr.
During Mr. Berger's AUC matriculation, he took several
exams. He took computerized multiple-choice exams that were
prepared by professors. He also took "Shelf exams, which
are medical school subject matter computerized exams prepared
by the NBME. Mr. Berger received 50% extended time for both
the medical school prepared exams and the Shelf exams. He
passed each of the Shelf exams. (Doc. 30, Tr. 68-69; 94-95);
Mr. Berger's Speech, Language, and Psychoeducational
Berger has impairments in reading, processing, and attention.
He testified that with anything that involves reading, he
needs to seek out ways to use assistive technologies such as
audio books or text to speech. (Doc. 30, Tr. 32:16-33:15).
Berger testified that on standardized exams, because he is
not able to read fast and comprehend, he runs out of time
when extended time accommodations are not provided. (Doc. 30,
Berger was seen by Sharon Collins, M.S., a speech language
pathologist, when he was in kindergarten because his parents
were concerned about his language skills. Ms. Collins
administered assessments relating to Mr. Berger's
articulation skills, language development, auditory
processing, and ability to remember and reproduce letters in
a specific order. See Speech and Language Evaluation
Report at 2-3 (PX 16 at ¶ 000239-240). Her clinical
impressions were age-appropriate articulation and expressive
language skills; delayed receptive language abilities in the
areas of auditory closure, processing complex directions and
statement; and delayed written language skills. (PX000240).
Berger was next evaluated in 1994, when he was in the second
grade. Jeanne Artner, Ph.D., interviewed Mr. Berger and his
mother and administered various academic skills assessments.
See Psychological Test Report at 1-4 (PX 17 at
PX000243-246). Mr. Berger "earned average range standard
scores" and performed at his grade level. (Id.
at 5); (PX000247). There were some discrepancies between his
academic skills and his Full-Scale IQ that "could lead
to him being classified as a student with learning
disabilities." (Id.). Dr. Artner did not
specifically diagnose a learning disability. (See
Id. at 8-9); (PX000250-51); (DX 24, Lovett Decl. ¶
32). Dr. Artner recommended that Mr. Berger be "enrolled
in the special classes for gifted and talented students"
if he returned to public school. Artner Report at 9
Artner reported that some of Mr. Berger s behaviors during
the evaluation "raised the possibility that he might
have Attention Deficit Disorder without Hyperactivity."
Id. She recommended that his mother "discuss
the behaviors with a physician" if she had concerns in
that regard. (Id. at 9); (PX000251). Dr. Artner did
not diagnose Mr. Berger as having ADD or ADHD.
Berger was next evaluated in early 2003, by Alexander Smith,
Ed.D., ABPP. Mr. Berger was a junior in high school, and he
was "concerned about doing well" on his college
admission test and wanted "assistance around documenting
any learning disorder so that accommodations might be
appropriately applied." Psychoeducational Evaluation
Report at 8 (2003) (PX 23 at PX000274).
Smith administered a battery of assessments to Mr. Berger
that are intended to assist in diagnosing learning and
attention disorders. Id. (PX000267). Based
on those assessments. Dr. Smith concluded that: (i)
"Brendan currently functions in the Superior to Average
Range of intelligence"; (ii) "Significant
discrepancies exist between areas of intellectual
functioning"; (iii) "Greatest deficits are noted in
processing speed, affecting timed tests"; (iv)
"Brendan demonstrates discrepancies between ability and
achievement in Written Expression but not within Ohio LD
Guidelines"; and (iv) "There do not appear to be
problems of vigilance or distractibility with continuous
performance tasks," but the problem of distractibility
is still evident both subjectively and qualitatively in
organizing and sticking to a task. (PX 23 at PX000267, 271).
Dr. Smith reported that "given the difference between
Verbal and Performance portions of this assessment (19 point
discrepancy), and for the statistically significant
discrepancy between Verbal IQ and Written Expression
measures, further consideration could be achieved by the
admissions and release committee, and an 'override'
could be considered, resulting in a possible qualification
for special education assistance." (PX000272). Dr. Smith
also reported that the "results of this
psychoeducational evaluation indicate that while he has very
superior verbal and conceptual abilities, there are
significant problems in speed of processing and working
memory which affect his written language skills in
Smith provided a suggested diagnosis of "Learning
Disorder of Written Language 315.2 (DSM-1V)."
Berger returned to Dr. Smith in 2008 to obtain "an
updated psycho-educational re-evaluation that may allow him
to seek accommodations" on the MCAT. Psycho-educational
Re-evaluation Report at 1 (2008) (PX 29 at PX000292).
Smith's 2008 report began by summarizing the findings he
made in 2003: Mr. Berger's "verbal ability was in
the superior range, his performance in the average range,
[and] his full-scale IQ in the high average range."
Id. (PX000293). He then discussed the results from
the assessments he administered as part of his latest
evaluation. The WAIS-III results indicated that Mr. Berger
continued to function "in the Superior to Very Superior
range of intelligence," with some "relative
strengths in verbal reasoning and comprehension skills"
and some "relative weaknesses in memory and processing
speed abilities." Id. (PX000296).
"[R]elative to his overall abilities," Mr. Berger
processed "new visual material less efficiently,"
but "psychometrically" his "scores are still
in the average range." Id. (PX000297). His
W1AT- II results showed no issues in the academic areas of
Reading or Mathematics. Id. (PX000298). Mr. Berger
"continue[d] to show a major discrepancy between his
overall ability and his use of written language."
Id. "[A]lthough his Written Language score
falls in the low average range, it is significantly below the
expected level for his ability." Id.
Smith reported that "there are a number of cognitive
symptoms which, when taken together, resemble an attention
deficit disorder without hyperactivity. . . . While indeed
there may be a blend of ADD and learning disability symptoms
which overlap clinically, there is a preponderance of
evidence in the direction of a specific learning disability.
(Given that ADD itself is also a diagnostic category under
which the ADA law may apply, a further discussion of
differential considerations may be a bit moot)."
Smith noted that "[a] final set of issues, as set forth
in the MCAT's Documenting Learning Disabilities
guidelines for examiners, concerns "substantial
limitation' which impacts specific areas of function
based in an 'average member of the population.' The
problems of processing speed, visual memory, and written
language do indeed continue to disrupt Mr. Berger's
performance, especially during test-taking. This is
particularly true in the area of written composition. While
his score for written language score falls within the average
range, it is in the low end, barely within a standard
deviation of the mean. DSM-IV-TR criteria for the Disorder of
Written Expression call for writing skills to be below those
expected for someone his age, intelligence and
age-appropriate education. The criteria further specify that
these skills significantly interfere with academic
achievement or activities of daily living that require the
composition of written text. They also require that such
deficits are in excess of any sensory limitations. These
conditions apply to Mr. Berger's case." Id.
Smith opined that "Mr. Berger has been able to attain
his current academic performance because of the
accommodations for a learning disability. As noted above, he
has received these accommodations throughout his time at the
University of Cincinnati, and in his final two years in high
school. In comparison with the average student taking the
MCAT, it is unlikely that he could be fairly evaluated, or be
able to accurately demonstrate his capabilities without being
given extra time. In my opinion, based upon the clinical data
of this assessment, he is eligible, under the ADA for
appropriate accommodations for the MCAT for a learning
disability for written language. He would be best served by
allotting him time and a half for essay questions."
Smith's 2008 report reflects a diagnosis under the
Diagnostic and Statistical Manual of Mental Disorders
("DSM"), Fourth Edition, of "Disorder of
Written Expression"" (DSM-IV 315.2) and "Rule
out" Attention Deficit Disorder, NOS (DSM-IV 314.9).
Berger went to see Dr. Smith a third time, in March 2010,
after his initial request for accommodations on the MCAT exam
was denied by the Association of American Medical Colleges.
Dr. Smith administered additional assessments relating to
possible learning disorders and ADHD to redress the
deficiencies cited by the AAMC in its letter denying Mr.
Berger s request for accommodation and to provide further
clarification of the nature of Mr. Berger's learning
problems. See Addendum for Psycho-educational
Evaluation for MCAT Accommodations (2010) (PX 32) (PX000310).
Dr. Smith reported that the additional testing demonstrated
Mr. Berger's "need for accommodations by not only
re-establishing lowered scores for written expression,
but also by expanding the parameters of his disabilities
to include significant deficits for fluency in reading and
math" Id. (emphasis added).
reporting test results. Dr. Smith noted that "scores
with asterisks indicate significantly lowered scores when
compared to the general population and not only to
discrepancies between Mr. Berger's abilities and academic
achievement, as required in the [AAMC's] letter of
10/28/10.” Id. (PX000310) (emphasis in the
original). These included scores on academic fluency, reading
fluency, math fluency, and writing fluency on the
Woodcock-Johnson III Tests of Achievement. Dr. Smith reported
that "[s]ignificantly lowered W-J III scores, each more
than one standard deviation below the mean for his age range
in the normal population, exist in reading fluency, math
fluency, and academic fluency" and these "deficits
are consistent with those original results in the 10/2/08
[report] where lowered speed of processing in the
intellectual assessment also revealed a similar trend."
Id. (PX000311, PX000314).
the Nelson-Denny Reading Test Form-G, Mr. Berger's score
on reading comprehension was “significantly
lower." Id. (PX000312). Dr. Smith found it
"noteworthy that Mr. Berger encountered the same types
of problems of visual fatigue on this particular timed test
of comprehension that he has addressed in the previous 
assessment. Essentially, Mr. Berger fails to complete timed
tests of lengthy text where comprehension tasks are required.
As discussed below, this is now understood as a form of
dyslexia. It is a pattern of 'labored reading'
resulting from incomplete but necessary over-learning of
phonological processing to make word recognition and
association more automatic. While his WJ-III scores do
not show major inadequacies in letter-word recognition
itself, the slowing of this phonological process appears to
affect the speed of comprehension." Id.
(PX000312) (emphasis in the original).
Smith reported that the "results from the Nelson-Denny
Reading Test, Form G Extended Time also support the presence
of a learning disability, based upon his lowered score for
comprehension for timed portions. This is a consistent result
seen across several of the tests. Mr. Berger s problematic
'checking' slows his fluency of performance and
organization across reading, math and written language. When
these deficits in checking are further considered, it may be
that an underlying problem with accurate phonemic encoding
affects subsequent word recognition which in turn prolong the
time necessary for comprehending the longer volumes of text
required in timed sequences. This finding may explain an
overall trend in significantly lowered timed portions and
clarify further his need for accommodations. The scores in
themselves indicate a lowered achievement when timed sections
are utilized. As ...