Opinion
1:15-CV-00212 EAW
2016-07-26
Jerry MUNERLYN, Jr., Plaintiff, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant.
Timothy Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Elizabeth Rothstein, Social Security Administration, New York, NY, for Defendant.
Timothy Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Elizabeth Rothstein, Social Security Administration, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Plaintiff Jerry Munerlyn, Jr. ("Plaintiff"), represented by counsel, brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying his application for Social Security Disability benefits ("SSD"). (Dkt. 1). Plaintiff alleges that the decision of Administrative Law Judge ("ALJ") William M. Weir was not supported by substantial evidence in the record and was based on erroneous legal standards. (Dkt. 9–1 at 1).
Presently before the Court are the parties' opposing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 9; Dkt. 11). For the reasons set forth below, the Commissioner's motion (Dkt. 11) is denied, Plaintiff's motion (Dkt. 9) is granted in part, and this matter is remanded for further administrative proceedings.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Overview
On September 20, 2010, Plaintiff protectively filed an application for social security disability benefits, alleging disability beginning September 30, 1995 due to a learning disability. (Transcript of Administrative Record (hereinafter "Tr.") at 117-20).
Plaintiff's initial application was denied on February 3, 2011. (Tr. 68-72). Plaintiff requested a hearing and appeared, represented by counsel, to testify at the hearing held on October 1, 2012, before ALJ Weir in Buffalo, New York. (Tr. 31-67).
On September 25, 2013, the ALJ issued a decision determining that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 6-27). The Appeals Council denied review on January 8, 2015, and the ALJ's decision became the final decision of the Commissioner. (Tr. 1-4). Plaintiff then commenced this action on March 9, 2015. (Dkt. 1).
B. Non-Medical Evidence
1. Plaintiff's Testimony
At the time of the hearing, Plaintiff was 24 years old with an eleventh grade education and previous work experience as a packer and laborer. (Tr. 35, 50, 132, 137). He stated that he was right-handed and wrote with his right hand, but did "everything" with his left hand. (Tr. 35).
Plaintiff testified that he stopped working on January 24, 2011, when the middle finger on his left hand was caught in a welding machine at work. (Tr. 36-37). He attempted to return to work, but his company did not have light duty work for him to do. (Tr. 55-57).
Plaintiff testified he had received surgery, occupational therapy, and physical therapy for his hand. (Tr. 37-38). At the time of the hearing, Plaintiff was using hydrocodone, Lyrica, and fentanyl patches to manage his pain. (Tr. 39). He had most recently had surgery two weeks before the administrative hearing. (Tr. 41). Plaintiff testified that before the most recent surgery, he could "barely" hold his son or do housework. (Id. ). According to Plaintiff, none of his surgeries had improved his level of pain. (Tr. 43).
Plaintiff testified that his wife and children helped him dress, including buttoning his shirt. (Tr. 49). His children tied his shoes, and his wife would dry him off when he got out of the shower. (Id. ).
Plaintiff claimed that he had attended special education classes in school and still needed his wife or aunt's assistance to read and understand his mail and Social Security paperwork. (Tr. 51). According to Plaintiff, his wife and aunt had filled out his Social Security paperwork on his behalf. (Tr. 52). He claimed that he struggled with multiplication and division and would use the calculator on his phone to see if he received the correct change at a cash register. (Tr. 53).
At the time of the hearing, Plaintiff was receiving Worker's Compensation benefits in the amount of approximately $350 biweekly. (Tr. 54).
When asked if he could do light work such as answering a telephone and reading hours or directions on a sheet of paper, Plaintiff stated he could not do that because he could not read well. (Tr. 58). He also claimed that he could not memorize that information due to his memory issues. (Tr. 59). ALJ Weir asked Plaintiff about his school records, and Plaintiff stated that he enjoyed music and science, and that is why he performed better in those classes than in his other subjects. (Tr. 60). ALJ Weir noted that Plaintiff had received As and Bs in physical education classes but then received an F. (Tr. 61). Plaintiff stated this was because he was "going through family problems" at the time. (Id. ).
2. School Records
Plaintiff's school transcript from Buffalo Public Schools, dated September 25, 2012, states that Plaintiff earned no credit for his high school courses. (Tr. 163-64). His cumulative grade point average was 41.231. (Tr. 163).
Plaintiff submitted reading and math testing dated May 21, 2013, to the Appeals Council. (Tr. 490). Plaintiff correctly answered 51% of the questions posed in the test. (Id. ). The test results showed that Plaintiff's reading and math skills were at a second to third grade level. (Id. ).
C. Summary of the Medical Evidence
The Court assumes the parties' familiarity with the medical record, which is summarized below.
On January 26, 2011, Plaintiff treated with Physician's Assistant (PA) Mark Orlowski at Excelsior Orthopaedics, LLP, following a work injury on January 24, 2011. (Tr. 280). Plaintiff reported that his middle finger on his left hand was crushed when it was caught in a welding machine at work. (Id. ). PA Orlowski reviewed a January 25, 2011 X-ray image of Plaintiff's left hand and noted that the X-ray revealed a "nondisplaced fracture of distal margin of the tuft of the middle finger." (Tr. 282). PA Orlowski noted that Plaintiff's tendons and sensation were intact, and advised Plaintiff on proper wound care. (Tr. 283). Plaintiff was rated at "Total (100%)" degree of disability. (Id. ). PA Orlowski issued a letter dated January 26, 2011, stating that Plaintiff could not return to work until the next evaluation date of February 9, 2011. (Tr. 210).
On February 2, 2011, State agency psychological consultant Dr. Totin reviewed Plaintiff's file and concluded that there was insufficient evidence to find Plaintiff disabled. (Tr. 182). He noted that Plaintiff had been contacted by mail and telephone to provide additional records with respect to his alleged learning disability and his activities of daily living, but Plaintiff did not reply. (Tr. 194). Further, Plaintiff's prior school district was contacted for records and none were received. (Id. ). As a result, with no information in the file, "a programmatic documentation deficit [was] present." (Id. ).
On Feburary 10, 2011, Plaintiff returned to PA Orlowski to have his sutures removed. (Tr. 262). PA Orlowski wrote a letter on that date stating that Plaintiff could not return to work until the next evaluation date of February 24, 2011. (Tr. 209).
On February 28, 2011, PA Orlowski examined Plaintiff and noted that an X-ray taken that day showed no fracture in the left middle finger, but hypertension at the DIP joint. (Tr. 221). PA Orlowski reported that Plaintiff's nailbed wound had healed ; he was hypersensitive to touch at the injured finger and had decreased tactile sensation at the tip of the finger; and he would start therapy for a new splint and initiation of range of motion exercises. (Tr. 222). Plaintiff remained 100% disabled but could "increase use of hand as tolerated." (Id. ). PA Orlowski wrote another letter on February 28, 2011, stating that Plaintiff could not return to work until the next evaluation date of March 21, 2011. (Tr. 207).
On March 21, 2011, PA Orlowski examined Plaintiff and prescribed continued occupational hand therapy. (Tr. 223-25). He noted that Plaintiff's degree of disability was "Total (100%)." (Tr. 225). In a letter, PA Orlowski wrote that Plaintiff could not return to work until the next evaluation date of April 11, 2011. (Tr. 207).
On April 13, 2011, Plaintiff returned to PA Orlowski for examination of his injured finger. (Tr. 226-28). PA Orlowski noted that Plaintiff was "doing as expected," his hypersensitivity was "much improved," his boutonniere deformity was small, but "passively correctable," and Plaintiff would plan to return to work on April 18, 2011. (Tr. 228). Following this examination, PA Orlowski rated Plaintiff's degree of disability as "Mild (25%)." (Id. ).
On May 25, 2011, Plaintiff returned to Excelsior Orthopaedics to treat with Dr. Josh Callahan. (Tr. 229-31). Plaintiff reported that he was "still having some trouble with his middle finger" and that his finger "gave out" when "gripping and grasping objects." (Tr. 229). Dr. Callahan noted that Plaintiff would restart occupational hand therapy but could continue work without restrictions. (Tr. 231).
Plaintiff returned to Excelsior Orthopaedics on June 8, 2011, and was seen by Dr. Jason Matuszak. (Tr. 299-301). An ultrasound of Plaintiff's left middle finger showed possibly two small partial thickness tears or one full thickness tear in the area of the MCP joint. (Tr. 300). Dr. Matuszak instructed Plaintiff to follow up with Dr. Callahan. (Tr. 301).
On June 23, 2011, Plaintiff treated with PA Orlowski, who noted that Plaintiff had not yet been to therapy and stopped using a splint. (Tr. 235). Plaintiff reported that his left hand was "useless for work" and the finger was "pointing up." (Id ). Plaintiff requested surgical reconstruction of the finger, but PA Orlowski suggested Plaintiff try therapy first to remobilize the finger. (Tr. 236).
On August 10, 2011, PA Orlowski reported that Plaintiff's middle finger was still in "DIP hyperextension." (Tr. 240). He noted that Plaintiff would start vocational rehabilitation the following month. (Id. ). Plaintiff reported that he had an upcoming hearing concerning his denied request for reconstructive surgery. (Id. ). PA Orlowski gave Plaintiff a note to restrict him to desk-based duties, he gave Plaintiff a new splint, and he instructed Plaintiff to remain weight bearing as tolerated. (Id. ).
On September 28, 2011, Plaintiff was treated at Excelsior Orthopaedics by PA Jacqueline Lex. (Tr. 308). Plaintiff reported that his symptoms had worsened since his prior visit, and that his finger would lock so that he could not bend or straighten fully his middle finger. (Id. ). Plaintiff was not working, and reported that his surgery was approved. (Id. ). PA Lex instructed Plaintiff to wear his splint at home and continue home strengthening and restorative care. (Tr. 310). PA Lex noted that Plaintiff was released to light duty, but there was no light duty available through Plaintiff's employer. (Id. ).
On October 24, 2011, Dr. Callahan performed reconstructive surgery on Plaintiff's left middle finger. (Tr. 241-43). He prescribed a splint and Lortab as needed for pain and planned for Plaintiff to begin occupational therapy in one week. (Tr. 242).
On November 4, 2011, Plaintiff visited PA Lex for follow up and suture removal. (Tr. 244-46). Plaintiff was not wearing his splint and stated that he removed the splint after it got wet. (Tr. 244). PA Lex ordered a new splint and advised Plaintiff of the importance of wearing the splint. (Tr. 246). She found Plaintiff to be totally disabled and referred Plaintiff to occupational therapy to begin range of motion and strengthening training. (Tr. 246).
On December 7, 2011, Plaintiff returned to Dr. Callahan with complaints of increased pain since receiving therapy. (Tr. 247-50). Plaintiff reported wearing his splint "on and off" throughout the day, and claimed he had pain in his left wrist. (Tr. 247). Dr. Callahan told Plaintiff he could discontinue use of his thermoplastic splint, and should wear a pulley splint or wrap his middle finger with tape. (Tr. 249).
On December 13, 2011, Plaintiff visited nurse practitioner (NP) Salina Mayes of Zenith Medical, P.C., for pain management evaluation. (Tr. 344-47). Plaintiff reported severe pain and worsening symptoms. (Tr. 344). NP Mayes noted Plaintiff was "taken off work until 1/6/12 by Dr. Callahan." (Tr. 346). She opined that Plaintiff had a temporary total disability of 100%. (Id. ).
Plaintiff returned to PA Orlowski on January 6, 2012, with complaints of continued pain and swelling. (Tr. 251-57). PA Orlowski recommended that Plaintiff continue with his home exercise program and remain weight bearing as tolerated. (Tr. 253).
On January 28, 2012, Plaintiff treated with NP Ricardo Melendez of Zenith Medical, P.C. (Tr. 351-53). Plaintiff reported taking Lortab and tolerating it well, with some pain improvement on the medication. (Tr. 351). Upon examination, NP Melendez prescribed Plaintiff Lortab and Cymbalta. (Tr. 353). He noted that Plaintiff would remain out of work due to his levels of pain and injury until the next visit. (Id. ).
On February 8, 2012, Plaintiff returned to Dr. Callahan, reporting that his symptoms had improved with medication and occupational therapy. (Tr. 258). An X-ray revealed "evidence of bony reaction of the middle finger middle phalanx due to the pulley reconstruction tissue." (Tr. 261). Dr. Callahan advised Plaintiff that he had scar tissue forming around his pulley reconstruction which was causing stiffness, swelling, and continued pain in the middle finger. (Id. ). Dr. Callahan stated that if Plaintiff was unable to improve range of motion on his own, he had the option of tenolysis surgery. (Tr. 260). Plaintiff remained at total (100%) degree of disability. (Id. )
Plaintiff returned to NP Melendez on February 25, 2012, with complaints of finger pain radiating to his arm. (Tr. 348). Plaintiff reported that he did not take Cymbalta due to diarrhea, and NP Melendez prescribed Lyrica. (Tr. 348-50). NP Melendez noted that no further narcotics would be prescribed from Zenith Medical because Plaintiff was receiving pain medication through Dr. Callahan. (Tr. 350).
On March 14, 2012, PA Orlowski provided Plaintiff with a cockup splint to wear at night and directed that Plaintiff continue therapy for his middle finger. (Tr. 330).
On March 24, 2012, Plaintiff treated with NP Melendez, reporting that he had worsening symptoms, described as "aching, sharp, throbbing pain and numbing sensation." (Tr. 354). Plaintiff requested a second opinion on Dr. Callahan's suggestion that Plaintiff have a second surgery. (Id. ). NP Melendez stated that Plaintiff would "remain out of work due to levels of pain and injury until next visit." (Tr. 356).
On April 13, 2012, Plaintiff treated with Dr. Callahan, reporting pain and a lump at the base of his small finger on his left hand that was causing additional pain. (Tr. 332). Dr. Callahan noted an "inclusion cyst" at the base of the middle finger overlying the previous incision site, and informed Plaintiff that he had the option of surgical excision for the cyst. (Tr. 334). Plaintiff was advised to continue occupational therapy as prescribed. (Id. ).
On April 14, 2012, NP Melendez noted that Dr. Callahan had advised Zenith Medical to prescribe Plaintiff Lortab. (Tr. 358). NP Melendez issued the prescription and advised Plaintiff to continue occupational therapy. (Tr. 360).
Plaintiff was discharged from occupational therapy on April 26, 2012, due to "lack of progress" and the fact that Plaintiff had made "no functional gains since beginning OT." (Tr. 276).
On May 11, 2012, Plaintiff treated with NP Melendez, reporting that he was discharged from occupational therapy due to no progress. (Tr. 362). Plaintiff claimed he had no use of his left hand, but that his wrist brace provided good support. (Id. ). NP Melendez continued the prescriptions for Lortab and Lyrica and noted that Plaintiff had a 100% temporary impairment for his job. (Tr. 365).
On May 18, 2012, Plaintiff returned to PA Orlowski, complaining of unchanged symptoms and pain at the site of the cyst. (Tr. 336). PA Orlowski advised Plaintiff to continue with home strengthening and remain weight bearing as tolerated. (Tr. 338).
On June 20, 2012, Dr. Callahan examined Plaintiff's finger and found that Plaintiff's range of motion and sensitivity were improving, although the cyst on Plaintiff's finger had increased in size. (Tr. 341). Dr. Callahan instructed Plaintiff to continue his home exercise program and try ice and stretching exercises. (Tr. 341).
Plaintiff returned to NP Melendez on July 20, 2012, reporting no change in his wrist or hand pain. (Tr. 366). NP Melendez prescribed lidocaine compounded cream and continued Lortab, and he discontinued Lyrica. (Tr. 367-68).
On August 7, 2012, Dr. Callahan recommended Plaintiff have surgery to include inclusion cyst exclusion and tenolysis of the middle finger flexor tendons. (Tr. 402).
Plaintiff visited NP Melendez on August 24, 2012, reporting that his pain remained elevated, but that the lidocaine cream was helping. (Tr. 409). NP Melendez reviewed the August 8, 2012 report of an independent medical examiner which concluded that Plaintiff could work with no use of his left arm. (Id. ). NP Melendez noted that Plaintiff was a welder and needed both hands to perform his work, so Plaintiff remained 100% disabled for his job. (Id. ).
Plaintiff returned to PA Orlowski on September 14, 2012, complaining of continued pain in his left hand. (Tr. 414). PA Orlowski reported that Plaintiff had surgery scheduled, and advised Plaintiff to attend therapy for finger range of motion following the surgery. (Tr. 416).
On September 17, 2012, Dr. Callahan performed the excision of the left palmar inclusion cyst, tenolysis of the left middle finger flexor digitorum profundus tendon in the finger and palm, and left middle finger DIP joint capsulotomy. (Tr. 417-19). He prescribed a splint and occupational therapy. (Tr. 419).
On September 28, 2012, Plaintiff treated with PA Orlowski, reporting no change in symptoms. (Tr. 421). Plaintiff had not yet attended physical therapy, but stated that he had an appointment scheduled for the following week. (Tr. 423). PA Orlowski "stressed the need to get to physical therapy as soon as possible to reduce the risk of developing another contracture." (Tr. 423-24).
On October 23, 2012, Plaintiff began occupational therapy at Sister's Hospital. (Tr. 482-83).
On November 26, 2012, Plaintiff visited Dr. Conrad Williams of Zenith Medical, P.C., complaining of "persistent pain." (Tr. 452). Plaintiff appeared to be in "mild distress." (Id. ). He was wearing a finger splint and brace on his left hand and was holding his left arm immobile. (Id. ).
On December 26, 2012, Plaintiff returned to Dr. Callahan, who concluded that Plaintiff was improving. (Tr. 428). He reported that Plaintiff's degree of temporary impairment was 100%. (Id. ).
On January 23, 2013, Plaintiff visited Dr. Williams, reporting that he received some pain relief with a Butrans patch, but that the relief only lasted for one day. (Tr. 453). Dr. Williams increased the dosage of the Butrans patch and continued hydrocodone as needed for pain. (Id. ).
Plaintiff attended a follow up appointment with PA Orlowski on January 30, 2013. (Tr. 429). PA Orlowski advised Plaintiff to continue wearing a splint at night, working on finger range of motion, and attending occupational therapy. (Tr. 430).
On February 26, 2013, Plaintiff returned to Dr. Williams, reporting that his occupational therapy was discontinued by the Worker's Compensation Board. (Tr. 456). Plaintiff continued to experience pain in his left hand. (Id. ). Dr. Williams discontinued use of the Butrans patch and prescribed a fentanyl patch. (Id. ).
On April 22, 2013, Plaintiff treated with Dr. Williams, complaining of pain in the left hand with numbness and tingling radiating up his arm. (Tr. 458). He was wearing a Velcro brace on his left hand and reported that he did not use the fentanyl patch as often as prescribed. (Id. ). Dr. Williams reported that Plaintiff was 75% temporarily disabled. (Id. ).
Plaintiff returned to Dr. Williams on May 20, 2013, reporting that he had run out of hydrocodone and had last used a fentanyl patch three days prior to the appointment. (Tr. 460). Dr. Williams observed a "heart 3-4 mm mass at the distal palmar aspect of the third metacarpal" and administered an injection to the cyst for pain relief. (Id. ). Dr. Williams noted that Plaintiff had a "66-2/3% moderate to marked partial disability." (Id. ).
On June 4, 2013, Plaintiff began physical therapy at Zenith Medical. (Tr. 461-63).
III. DISCUSSION
A. Standard of Review
This Court has jurisdiction to review the final decision of the Commissioner under 42 U.S.C. §§ 405(g) and 1383(c)(3). "In reviewing a decision of the Commissioner, the Court may ‘enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner ... with or without remanding the cause for a rehearing.’ " Emerson v. Comm'r of Soc. Sec. , No. 12 Civ. 6451(PAC)(SN), 2014 WL 1265918, at *9 (S.D.N.Y. Mar. 27, 2014) (quoting 42 U.S.C. § 405(g) ). Title 42 U.S.C. section 405(g) directs the Court to accept findings of fact made by the Commissioner, so long as the findings are supported by substantial evidence in the record. Substantial evidence is "more than a mere scintilla," and "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). "Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have [his] disability determination made according to the correct legal principles." Johnson v. Bowen , 817 F.2d 983, 986 (2d Cir. 1987).
Therefore, the scope of the Court's review is limited to determining whether the Commissioner applied the appropriate legal standards in evaluating the plaintiff's claim, and whether the Commissioner's findings were supported by substantial evidence on the record. See Mongeur v. Heckler , 722 F.2d 1033, 1038 (2d Cir. 1983) (stating that a reviewing Court does not examine a benefits case de novo). If the Court finds no legal error, and that there is substantial evidence for the Commissioner's determination, the decision must be upheld, even if there is also substantial evidence for the Plaintiff's position. See Perez v. Chater , 77 F.3d 41, 46 (2d Cir. 1996).
Judgment on the pleadings may be granted under Rule 12(c) where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc. , 842 F.2d 639, 642 (2d Cir. 1988).
B. Determining Disability Under the Social Security Act
The Social Security Act provides that a claimant will be deemed to be disabled "if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A) ; see Rembert v. Colvin , No. 13–CV–638A, 2014 WL 950141, at *6 (W.D.N.Y. Mar. 11, 2014). A disabling impairment is defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostics techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). The burden is on the claimant to demonstrate that he is disabled within the meaning of the Act. See Draegert v. Barnhart , 311 F.3d 468, 472 (2d Cir. 2002). The individual will only be declared disabled if his impairment is of such severity that he is unable to do his previous work and cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful activity. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In making the disability determination, the ALJ follows a five-step sequential analysis. If the ALJ makes a determination at any step, the evaluation will not continue to the next step. 20 C.F.R. § 416.920(a)(4). The following five steps are followed:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps.
Shaw v. Chater , 221 F.3d 126, 132 (2d Cir. 2000) ; see 20 C.F.R. §§ 404.1520, 416.920.
C. The ALJ's Sequential Evaluation
In applying the five-step sequential analysis at the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity for the relevant time period. (Tr. 11). ALJ Weir noted that Plaintiff worked after the alleged onset date, but the work lasted less than three months and was stopped because of Plaintiff's medically determinable severe impairment. (Id. ).
At the second step, the ALJ determined that Plaintiff's " status post crush injury to the left middle finger with two subsequent surgeries" constituted a severe impairment. (Tr. 11). Further, ALJ Weir determined that Plaintiff's allegations concerning his learning disability were not consistent with the medical evidence, and therefore did not find the alleged learning disability to be a severe impairment. (Tr. 12).
At the third step, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. (Tr. 13). Specifically, ALJ Weir noted:
Only the claimant's left middle finger was injured in the accident and since then he has continued to exhibit loss of motion of his left middle finger. There were no complaints associated with his right upper extremity and physical examinations of that extremity were normal. Therefore, the evidence does not support a finding that there was involvement of one major peripheral joint in each upper extremity that resulted in an inability to perform fine and gross movements effectively.
(Id. ) (citations omitted). Based on these conclusions and an analysis of the evidence, the ALJ determined that Plaintiff had the residual functional capacity:
to perform light work as defined in CFR 416.967(b) except he can lift and carry up to twenty pounds with his right, dominant hand and up to ten pounds with his left, non-dominant hand. He can understand, remember, and carry out simple rote tasks, but he cannot understand, remember, and carry out complex tasks.
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. §§ 404.1567(b), 416.967(b).
The medical evidence considered and summarized by ALJ Weir at the fourth step included, inter alia , Plaintiff's hearing testimony, treatment records, occupational therapy notes, school records, and the opinions of Dr. Callahan, Dr. Matuszak, Dr. Williams, NP Melendez, and PA Orlowski. (Tr. 14-21). ALJ Weir found that Plaintiff made "inconsistent statements" that made Plaintiff's allegations of disabling symptoms less than fully credible. (Tr. 17). ALJ Weir also noted that Plaintiff's credibility was reduced because he failed to attend the consultant examinations scheduled by the Social Security Administration, thereby "intentionally limiting the evidence available" and also did not return his Activities of Daily Living Report as requested by the Administration. (Tr. 21). As part of the fourth step of the sequential analysis, the ALJ determined that Plaintiff was capable of performing his past relevant work as a packer. (Tr. 21).
Even though the ALJ was not required to proceed to an analysis under the fifth step after finding that Plaintiff could perform past relevant work, he did conduct the analysis. ALJ Weir determined that, considering Plaintiff's age as a 22 year old male with a limited education in conjunction with his RFC, there were other unskilled, light jobs existing in significant numbers in the national economy for Plaintiff to perform. (Tr. 22).
Plaintiff raises two primary arguments against the ALJ's determination: (1) that the ALJ "failed to adequately develop the record, and instead decided to rely on specious assumptions about [Plaintiff's] intellectual capabilities" and (2) that the ALJ's RFC assessment was "unsupported by substantial evidence, and did not include a function-by-function analysis." (Dkt. 9–1 at 1).
1. Failure to Develop the Record
Plaintiff contends the ALJ failed to fully develop the record because he did not order an intellectual consultative examination. (Dkt. 9–1 at 19-22). Plaintiff notes that his school transcript revealed that he failed his high school classes and received no credit for them, and that May 2013 testing showed that he had mathematic and reading skills at second and third grade levels. (Dkt. 9–1 at 18). Further, Plaintiff testified at the administrative hearing that he cannot read well and relies on his wife and aunt to complete paperwork, and needs to use a calculator to calculate change at a register. (Id. ). The Commissioner argues that there was no "obvious gap" in the record concerning Plaintiff's intellectual capacity, and therefore there was no requirement for the ALJ to further develop the record. (Tr. 11-1 at 22-25).
"Although the claimant has the general burden of proving that he or she has a disability within the meaning of the Act, because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record." Ubiles v. Astrue , No. 11–CV–6340T(MAT), 2012 WL 2572772, at *7 (W.D.N.Y. July 2, 2012) (internal quotations omitted). This duty to develop the record exists even when the claimant is represented by counsel. Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009). In order to develop the record, the ALJ may order a consultative examination. See 20 C.F.R. § 404.1512(f) ("If the information we need is not readily available from the records of your medical treatment source, or we are unable to seek clarification from your medical source, we will ask you to attend one or more consultative examinations at our expense.").
"An ALJ is not obligated to order a consultative examination if the facts do not warrant or suggest the need for such an examination." Brown v. Astrue , No. 11–CV–6329T, 2012 WL 2953213, at *7 (W.D.N.Y. July 19, 2012). On the other hand, it is a reversible error for the ALJ to fail to obtain a consultative examination if such an evaluation is necessary for the ALJ to make an informed decision. Falcon v. Apfel , 88 F.Supp.2d 87, 90–91 (W.D.N.Y. 2000).
Here, a consultative examination was necessary for ALJ Weir to reach a decision with respect to Plaintiff's limitations in connection with his alleged learning disability. ALJ Weir based his findings that Plaintiff had the RFC to "understand, remember, and carry out simple rote tasks" on his interpretation of the jobs held by Plaintiff post-graduation. (Tr. 18). However, there are no medical opinions in the record concerning Plaintiff's intellectual capacity, despite the fact that this is the disability Plaintiff alleged in his application for benefits. (Tr. 117-20). In fact, State Examiner M. Totin stated on January 12, 2011, that it "would make sense" for Plaintiff to have a consultative examination of Plaintiff's IQ, but there is no evidence that an examination was ever scheduled. (Tr. 180). Instead, the ALJ focused on Plaintiff's impairments related to his left hand injury.
With no medical evidence in the record related to Plaintiff's alleged learning disability or intellectual impairments, the ALJ had a duty to develop the record with respect to those impairments and order a consultative examination. See Swain v. Astrue , No. 12–CV–6233P, 2014 WL 1315399, at *10 (W.D.N.Y. Mar. 31, 2014) (where school records showed, among other things, that claimant primarily received grades of C, D, and F, and was in special educations classes, "[a]t a minimum, the school records likely should have prompted the ALJ to order an intelligence examination."); Skupi e n v. Colvin , No. 13–CV–403S, 2014 WL 3533425, at *6 (W.D.N.Y. July 16, 2014) ("As a general rule, where the transcript contains only diagnostic evidence and no supporting opinion from a medical source about functional limitations ..., to fulfill the responsibility to develop a complete record, the ALJ must recontact an acceptable medical source, order a consultative examination, or have a medical expert testify at the hearing.") (quotation omitted); Laveck v. Astrue , No. 5:10–CV–1355 (RFT), 2012 WL 4491110, at *6 (N.D.N.Y. Sept. 28, 2012) ("Indeed, ... there is scant medical evidence with regard to Laveck's cognitive abilities. Because of the absence of any evidence relating to this impairment, the ALJ should have ordered a consultative intelligence exam."); Fuller v. Astrue , No. 08–CV–0740 (GLS), 2010 WL 3239077, at *11 (N.D.N.Y. June 28, 2010) ("Based on the evidence that Plaintiff attended special education starting in the second grade, has deficits in advanced math, deficits in language skills, and presented evidence of an intellectual impairment, [the] ALJ should have considered whether any intellectual deficits impacted Plaintiff's ability to work. Furthermore, if the ALJ felt the above evidence was not adequate to make a determination, the Regulations allow him to obtain an intellectual consultative examination.").
Because the ALJ erred by not ordering a consultative examination with respect to Plaintiff's alleged intellectual impairments, remand is appropriate. On remand, the Commissioner should obtain valid IQ scores for Plaintiff and obtain a consultative psychological evaluation to assess Plaintiff's mental capabilities.
2. Function-by-Function Analysis
Plaintiff also argues that ALJ Weir erred by not completing a function-by-function analysis with respect to Plaintiff's ability to use his left hand. (Dkt. 9–1 at 22–28). Specifically, Plaintiff complains that "the ALJ failed to assess any manipulative limitations with regards to [Plaintiff's] use of his dominant left hand." (Id. at 23). According to Plaintiff, ALJ Weir's RFC assessment "would allow for [Plaintiff] to engage in manipulative activities using his left hand without limitations." (Id. at 24). The Commissioner contends that, because there is no "per se rule" in the Second Circuit that an ALJ must explicitly address every work-related function, ALJ Weir did not err by issuing a decision without outlining a function-by-function analysis. (Dkt. 11–1 at 28–29).
Plaintiff argues that "[t]he ALJ's assertion that [Plaintiff's] right hand was his dominant hand is flatly contradicted by the record." (Dkt. 9–1 at 23). Plaintiff testified that he used his right hand for writing, but did "everything" with his left hand. (Tr. 35). ALJ Weir explicitly stated that he considered Plaintiff's testimony that he used his non-dominate hand to complete a number of tasks when formulating his RFC. (Tr. 21). As a result, it does not appear to be relevant to the ALJ's RFC finding which hand Plaintiff considers to be his "dominant" hand.
The Social Security Regulations require that "[t]he RFC assessment ... first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, ... [before the] RFC may be expressed in terms of the exertional levels of work..." SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The Second Circuit Court of Appeals has declined to adopt a per se rule, finding "remand is not necessary merely because an explicit function-by-function analysis was not performed." Cichocki v. Astrue , 729 F.3d 172, 177 (2d Cir. 2013). However, an ALJ's analysis at Step Four must address all "relevant limitations." Id. Physical limitations recognized by 20 C.F.R. § 404.1545(b) include "manipulative ... functions, such as reaching, [or] handling. ..." Id.
On the record before the Court, there is no medical evidence to suggest that Plaintiff's only physical limitations would be the weight Plaintiff could lift or carry, and therefore it was error for the ALJ to fail to address the other physical limitations presented by Plaintiff's left hand injuries. Plaintiff's treatment notes related to his hand injury show that range of motion was consistently limited in his left middle finger, and that he was regularly instructed to wear a brace to support his finger. (See Tr. 222, 240, 249, 308, 330, 428, 452). At one point, Plaintiff's middle finger was reported to be hyperextended, and "point[ed] up." (Tr. 235, 240). As Plaintiff contends, these medical records strongly suggest that Plaintiff had additional physical limitations related to his left hand.
The record shows that the Social Security Administration reached out to Dr. Callahan on February 14, 2013, requesting Plaintiff's medical records from September 17, 2012 to present, as well as a completed medical source statement. (Tr. 431). Although the medical records were returned, Dr. Callahan did not complete the medical source statement. The Court questions the Commissioner's apparent failure to follow up to receive a completed medical source statement from Plaintiff's treating physician. It may be helpful on remand for the Commissioner to seek out a completed medical source statement from Dr. Callahan.
Because the Court cannot determine the ALJ's findings with respect to Plaintiff's ability to manipulate objects with his left hand and the impact that might have on Plaintiff's ability to perform work existing in the national economy, this error is another basis for remand. On remand, the Commissioner is directed to provide a written analysis of Plaintiff's manipulative limitations, if any, and the medical evidence supporting those findings.
IV. CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 11) is denied, Plaintiff's motion for judgment on the pleadings (Dkt. 9) is granted in part, and this matter is remanded for further administrative proceedings consistent with this Decision and Order pursuant to sentence four of 42 U.S.C. § 405(g).
SO ORDERED.