The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Plaintiff Keith M. James, proceeding pro se, filed an application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act (the "Act") on August 20, 2002. Plaintiff's application was denied initially and on reconsideration. The Appeals Council remanded the case for further proceedings on August 12, 2005. Plaintiff, then represented by counsel, testified at a hearing held before an Administrative Law Judge ("ALJ") on February 24, 2006. By decision dated March 27, 2006, the ALJ concluded that plaintiff was not disabled within the meaning of the Act. On September 15, 2006, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review. Plaintiff filed the instant action seeking judicial review of the denial of SSI and DIB pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The Commissioner now moves, unopposed, for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), seeking affirmation of plaintiff's denial of benefits on the ground that the ALJ's decision that plaintiff is not disabled is supported by substantial evidence. For the reasons set forth more fully below, the Commissioner's motion is denied and this case is remanded for further proceedings consistent with this opinion.
A. Non-medical and Testimonial Evidence
Plaintiff, born in 1960, attended school in Guyana through 12th grade. (R. 820.*fn1 ) Along with his family, plaintiff immigrated to the United States at some point before 1984. (R. 860.) Plaintiff worked as a security guard, which included both stationary and patrolling duties. (R. 832-33.) Plaintiff then worked as a fire guard for six years until 2000. (R. 820-21.) Plaintiff's responsibilities as a fire guard included assessing the fire hazards in his place of employment and writing reports regarding his findings. (R. 821, 854.) To perform these duties, plaintiff received six months of on-the-job training. (R. 821.) Although the complaint is silent as to when he became disabled, plaintiff alleges that he ceased working in 2000 due to illness associated with an HIV infection. (Compl. 1, ¶ 4; R. 822, 856-57.) Notably, plaintiff's complaint does not indicate when he became disabled, however, plaintiff's original application before the Social Security Commission indicated that the onset date of his alleged disability occurred on February 1, 2002. (Compl. 1; R. 818.)
Plaintiff was represented by counsel during his May 5, 2004 and February 24, 2006 hearings. (R. 818, 849.) Plaintiff testified that he is a reformed smoker and used to drink alcohol on occasion. (R. 863-64.) He denies ever using drugs or having a drug problem. (R. 864.) According to plaintiff, he does not have friends and only socializes with family members. (R. 863.) During plaintiff's May 5, 2004 hearing, he stated that he suffers from the following: the shakes, nervousness, cold sweats, inability to sleep, diarrhea, a lack of energy, a feeling of weakness, and blurry vision. (R. 860, 868-70.) Plaintiff also stated that he has hallucinations, sees shadows, hears voices, feels depressed and confused, experiences anxiety attacks, and has memory loss. (R. 869-71.) During plaintiff's February 24, 2006 hearing, he stated that he suffers from the following: a lack of energy, a feeling of weakness, dizzy spells, back pain, headaches, joint pain, diarrhea, depression, inability to sleep, memory loss, shortness of breath, and double-vision. (R. 823, 824, 826, 827, 829, 831, 833, 836.) Plaintiff also stated that he hears voices and sees shadows. (R. 831.) Plaintiff takes a variety of medications for his ailments, including Ibuprofen, Namenda, Gabapentin, Risperdal, Epzicom, Diphenhydramine, and Kaletra. (R. 453.)
B. Medical and Psychiatric Evidence
In January 2002, plaintiff visited the emergency room at Kings County Hospital Center ("KCHC"), complaining of itching all over his body, as well as abdominal pain and bloody stool.
(R. 147-48, 151.) An emergency room physician diagnosed plaintiff with psoriasis and dermatitis, gave plaintiff an ointment, and referred him to a dermatology clinic. (R. 147-48.) After plaintiff's second visit to a dermatologist, which resulted in a diagnosis genital warts and a possible diagnosis of syphilis, he was referred to a sexually transmitted disease ("STD") clinic.
(R. 153.) Laboratory tests performed by the STD clinic confirmed that plaintiff tested positive for herpes simplex type 2 and HIV. (R. 155-56.)
In April 2002, plaintiff visited KCHC complaining of headaches and joint pain. (R. 161.) Measuring 5 feet 4 inches tall and weighing 127 pounds at that time, plaintiff stated that he normally weighed 170 pounds. (R. 161, 163.) Dr. Paul Riska's examination of plaintiff proved uneventful, but the doctor ordered laboratory and blood tests, including tests for hepatitis. (R. 164.) Later that month, plaintiff also visited a dietitian for the purpose of preventing further weight loss. (R. 179.) Plaintiff was given a dietary plan. (Id.)
Clinical notes from plaintiff's regular visits to Dr. Riska from May through July of 2002 indicate that a rash he developed continued to improve, he tolerated his medication, was asymptomatic of AIDS, and plaintiff reported that he was doing well and had "no complaints."
(R. 181, 183, 193, 194.) Plaintiff's blood tested positive for hepatitis A and B at that time. (R. 180.)
In September 2002, plaintiff again visited Dr. Riska, complaining of pain all over his body, occasional back pain, and occasional bloody stool. (R. 202.) Dr. Riska's exam revealed that plaintiff had no oral thrush and had full muscle strength in his extremities. (Id.) Dr. Riska assessed plaintiff with nonspecific problems related to AIDS and indicated that plaintiff's symptoms could relate to his noncompliance with medication. (Id.)
At the request of the Commissioner, Dr. Soo Park also examined plaintiff on September 23, 2002. Plaintiff reported suffering from night sweats, nausea, vomiting, diarrhea, and dizziness. (R. 398-400.) Dr. Park concluded that plaintiff had no oral thrush and had full range of motion in his neck and spine, as well as normal sensation and muscle strength. (R. 398-99.)
Four days later, plaintiff visited Dr. Riska complaining of genital warts. He denied having diarrhea, shortness of breath, coughing or chest pain at that time. Dr. Riska referred plaintiff to the STD clinic. (R. 212-13.) Plaintiff continued to visit Dr. Riska through February 2003. During these visits, Dr. Riska noted that plaintiff's skin problems were resolved and he did not present oral thrush, but that plaintiff complained of generalized pain, weakness, and back pain, which could be relieved by sitting. (R. 215, 226, 238.) Plaintiff's hepatitis test was negative.
(R. 249.) Dr. Riska's assessment of plaintiff was asymptomatic AIDS. (R. 194, 227, 230, 291.) For the duration of the six months that plaintiff visited Dr. Riska, plaintiff's body weight ranged from 127 to 132 pounds. (R. 161, 212, 226, 230.)
In January and February 2003, plaintiff visited Dr. Pierre Arty at a psychiatric clinic. (R. 381-86.) During these visits, plaintiff told Dr. Arty that living with his mother was depressing, he had difficulty sleeping, and he had lost ten pounds during the last four months. (Id.) Plaintiff denied suicidal plans, but admitted feeling helpless. (Id.) Plaintiff also stated that he experienced auditory hallucinations about twice a week for the past two or three weeks. (Id.) Dr. Arty diagnosed plaintiff with major depressive disorder, ruled out a diagnosis of possible dementia and mood disorder, and prescribed Risperdal and Zoloft. (Id.) After plaintiff reported that his conditions did not change since their second meeting, Dr. Arty recommended an increase in plaintiff's psychiatric medication. (R. 384.)
In March 2003, plaintiff visited the emergency room of KCHC, and an outpatient clinic, complaining of constant headaches. (R. 257-60, 262.) At that time, plaintiff walked without noticeable weakness and exhibited no evidence of sensory or motor deficit. (R. 260, 262.) Doctors diagnosed plaintiff with headaches and provided him with Tylenol and Motrin for the pain. (R. 260.) Weeks later, after a visit to a nutritionist, plaintiff reported that his headache episodes had ceased. (R. 263, 265.)
Between March and May 2003, plaintiff's psychiatric symptoms also improved. (R. 385-87.) Plaintiff reported that he did not feel as depressed, (R. 386), and although he still heard voices and saw shadows, it was not as often as before. (R. 385, 387.) Dr. Arty attributed plaintiff's continued symptoms to the fact that plaintiff failed to take his medication during this period. (R. 387.)
Plaintiff visited Dr. Pooja Tolaney once every month from July to October 2003. During these visits plaintiff first complained of generalized body pain and dizziness when bending over, as well as a generalized body ache, and later complained of generalized sharp, needle-like body pain. (R. 273, 281-83.) Plaintiff maintained his body weight during this time period, and did not report night sweats, coughing, shortness of breath, nausea, or vomiting. (R. 275, 281-82.) Dr. Tolaney concluded that plaintiff's physical examinations were normal and that his HIV status was stable. (R. 276, 299.)
Plaintiff visited Dr. Riska in December 2003 and visited Dr. Tolaney regularly from March to October 2004. Each of these examinations proved unremarkable as plaintiff's HIV remained stable. In March 2004, plaintiff reported that his depression was under control with medication though, in May 2004, plaintiff reported feeling well but depressed. (R. 298, 309.) In August 2004, plaintiff had no medical complaints and reported that he had been socializing more often. (R. 316.) In October 2004, plaintiff complained of aches and pains and weight loss. (R. 323.) Dr. Tolaney noted that plaintiff reported similar ailments in the prior year and stated that plaintiff's weight had not changed. (R. 323.)
Experiencing pain in his left leg, plaintiff visited the emergency room in November 2004 and Dr. Tolaney in January 2005. Emergency room physician, Dr. Selwin Warerton, diagnosed plaintiff with paresthesia and proscribed Motrin. (R. 335, 342.) Dr. Tolaney noted that x-rays of plaintiff's hip and spine were normal. (R. 349.) An MRI performed on plaintiff's spine in February 2005, however, showed a herniated disc at L4-L5. (R. 350.) Plaintiff's HIV remained stable during this time. (R. 352.)
In March 2005, plaintiff visited an orthopedic clinic for his back pain. (R. 361.) Upon examining plaintiff, Dr. Manoj Mathews noted that plaintiff's range of motion on his lower right extremity was within normal limits, with a muscle strength rating of four out of five, and that, plaintiff had tenderness on his left lower extremity, with a muscle strength rating of four out of ...