The opinion of the court was delivered by: John Gleeson, United States District Judge
Victor Lahoz brings this action seeking review of a decision of the Commissioner of Social Security denying him benefits. The Commissioner now moves for judgment on the pleadings affirming that decision. Lahoz cross-moves for judgment on the pleadings, either remanding the case to the agency solely for the calculation of benefits, or, in the alternative, for further proceedings. Oral argument was heard on August 6, 2010. For the reasons stated below, the Commissioner's motion is denied, Lahoz's motion for remand solely for the calculation of benefits is also denied, and Lahoz's motion for remand to the agency for further proceedings is granted.
Lahoz was born in 1955 in the Dominican Republic. He moved to the United States and became a legal permanent resident in 1976. He obtained a GED and worked as an electrician repairing cell phones and beepers, and was also employed as a manager of electronic equipment facilities. He worked as a freelance photographer and videographer at weddings and other events until 2001. According to Lahoz, he stopped working because he frequently suffers from sudden convulsive epileptic seizures.
Dr. Alveris Molina began treating Lahoz in October 2003 and continued to treat him until after he filed the application for benefits under consideration here. He treated Lahoz for various ailments, including seizure disorder, "anxiety-depression," diabetes, and hypertension. Tr. 332. The record also reveals that Lahoz has a long history of lower back pain. Though Dr. Molina's treating notes are not part of the record, he did respond to a Residual Functional Capacity assessment questionnaire. Among other things, Dr. Molina estimated that Lahoz could "occasionally" lift and carry 20 lbs. of weight in a competitive work situation and could only "rarely" lift and carry 50 lbs. Tr. 631. More importantly, Dr. Molina's answers to the questionnaire noted that Lahoz suffered from depression and anxiety, and that "emotional factors contribute to the severity of [Lahoz's] symptoms and functional limitations." Tr. 629. Dr. Molina gave Lahoz a "guarded" prognosis, and stated that Lahoz was "incapable of even 'low stress' jobs" because "stress increases [the symptoms of] seizure disorder." Id.
Dr. Molina referred Lahoz to Dr. Anil Kapoor, a neurologist, so that Lahoz could receive treatment for his epilepsy. In March of 2006, Dr. Kapoor advised that Lahoz likely suffered from a "seizure disorder of a generalized type," and scheduled a follow-up appointment with Dr. Virginia Moreno, an epileptologist. In April 2006, Dr. Moreno diagnosed "primary generalized epilepsy" and prescribed Depakote, an anti-epilepsy drug.
Hospital notes made part of the record before the Commissioner show that Lahoz was treated in the emergency department at Elmhurst Hospital several times in 2007, 2008, and 2009. On each occasion, Lahoz was admitted after a convulsive seizure. Notes from September 8, 2008 report Lahoz as stating that he "[u]sually has similar seizures 1-4 times/month," but he admitted "to skipping doses of Depakote because of side effects." Tr. 379, 390. Lab tests and radiology reports revealed levels of valporic acid lower than would be expected for someone taking Depakote as prescribed.
After he applied for benefits, Lahoz underwent a neurological exam at the request of a state agency with Dr. David Finkelstein on April 24, 2007. Dr. Finkelstein's conclusion was that Lahoz suffered from seizure disorder and spinal stenosis, and that the prognosis was "fair." According to Dr. Finkelstein, Lahoz should "avoid heights and not operate heavy machinery with his seizures" and should "avoid situations where he may be injured should he have a seizure." Id. Additionally, Dr. Finkelstein found that Lahoz had "some mild limitations in ability to ambulate" and that "frequent pain may limit ability to sustain activity." Id.
Lahoz applied for SSI benefits on February 21, 2007. He stated that he was disabled from February 1, 2007, due to pain, convulsions, and black-outs. Following the initial denial of his claim, Lahoz requested a hearing, which was held on March 17, 2009 before Administrative Law Judge ("ALJ") Jeffrey Jordan.
At the hearing, Lahoz was assisted by a paralegal from Queens Legal Services. See Tr. 18 & 140.*fn1 For the most part, he spoke through a Spanish interpreter. Lahoz testified that he "had to leave work because of the epilepsy," and that after he left work "the epilepsy attacks increased." Tr. 36. He stated that he had convulsive seizures that caused him to lose consciousness and bite his tongue to the point that it bled. The loss of consciousness attendant on a seizure lasted more than half an hour. Because of the seizures, Lahoz said, he was afraid to go out alone. Lahoz stated that he had seizures "once or twice a month," and that he had been hospitalized as a result of epileptic attacks "more than 50 times." Tr. 40-41.
Lahoz stated that even though he took his medication as prescribed by his doctor, he was often found on the street and taken to the hospital having suffered a seizure. Lahoz testified that he did not drink alcohol, but that people "are always thinking [he's] a drunk" when he has a seizure. Tr. 42. When the ALJ confronted Lahoz with an Elmhurst hospital report that suggested Lahoz was intoxicated with alcohol when admitted for a seizure, Lahoz explained that he had taken Nyquil for flu a few hours before the seizure. Lahoz also stated that the most he could lift was a "container of milk that is like 12 pounds or so." Tr. 44.
Dr. Gerald Winkler, who had no prior experience with Lahoz, testified at the hearing as a medical expert. Having reviewed the medical records, he agreed that Lahoz had epilepsy. But Dr. Winkler noted "some concerns in the record about the reliability of medication taking," and pointed out that some of the test results showed lower valporic acid levels than one would expect from a patient who was taking the prescribed amount of medication. Tr. 47. Dr. Winkler also noted that Lahoz himself indicated to one of his doctors that he had skipped doses due to side effects. On the question of alcohol, Dr. Winkler found that the involvement of alcohol in the seizures was not established by the medical records.
Finally, the ALJ heard from a vocational expert, Donald Slive. The ALJ asked him to assume a hypothetical individual the same age as Lahoz, with Lahoz's education and work experience, who could lift and carry 50 pounds occasionally, 25 pounds frequently, could stand and walk six hours in an eight-hour work day, sit for the same period, but who had to avoid unprotected heights and balancing. In response to the ALJ's questions, the vocational expert stated that Lahoz was unable to perform his past work, which required the use of a ladder, but identified available jobs at the medium or light exertional level that, in Slive's opinion, Lahoz could perform: hand packer, final assembler, and assembler of small products. Tr. 51-52. When asked by Lahoz's representative whether the employer would require the employee "to have the ability to concentrate on the job," the vocational expert replied that the jobs required the employee to be "90% on task." Tr. 53.
At the conclusion of the hearing, Lahoz's representative stated that Lahoz suffered from "seizures, anxiety, depression, dizziness, hypertension," and that he was unable to communicate in English. She stated that Lahoz met listing sections 11.02 (convulsive or grand mal epilepsy) and 12.06 (anxiety-related disorders).
ALJ Jordan issued a decision denying Lahoz's application for benefits on April 17, 2009. The ALJ concluded that Lahoz suffered from a seizure disorder that rendered him unable to do his past work as a photographer, but that he retained the residual functional capacity for a restricted range of medium work. Tr. 19-28. Lahoz requested review of the ALJ's hearing decision in May 2009; the Appeals Council denied that request ...