The opinion of the court was delivered by: William G. Young, United States District Judge*fn1
Wayne H. Sipe ("Sipe") brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (the "Commissioner"). Sipe challenges the decision of the Administrative Law Judge (the "hearing officer") denying his application for Supplemental Security Income ("SSI") benefits. Sipe requests this Court grant his motion for judgment on the pleadings and remand this case to the Commissioner for further proceedings. Pl.'s Mem. Law ("Sipe Mem."), ECF No. 9. The Commissioner requests this Court affirm the hearing officer's decision and grant his motion for judgment on the pleadings. Def.'s Mem. Law Supp. Mot. J. Pleadings, ECF No. 11.
On February 16, 2006, Sipe filed an application for SSI benefits, alleging disability beginning December 1, 1996. Admin. R. 17. Sipe has filed three previous applications for benefits: first, September 1, 1994, which resulted in an unfavorable decision dated May 10, 1995; second, December 13, 1996, which was dismissed on December 24, 1997; and third, December 9, 2003, which was initially denied on April 8, 2004, then denied at the hearing level on April 27, 2005. Id. The current application was filed within two years after the April 8, 2004, denial, therefore the December 9, 2003, application could be reopened if new and material evidence or other good cause was shown. Id. The hearing officer determined that because the Administrative Record included new and material evidence (a school psychologist's report), the December 9, 2003, application would be reopened to consider evidence of Sipe's condition on and after December 9, 2003. Id.
Sipe's February 16, 2006, application was denied on April 25, 2006, and Sipe filed a timely written request for hearing on May 11, 2006. Id. Sipe testified at a hearing held on March 18, 2008, and the Administrative Record was held open until April 1, 2008. Id. The hearing officer issued an unfavorable decision on August 29, 2008. Id. at 26. Sipe then filed a timely request for review, id. at 12, which was denied by the Appeals Council on October 23, 2009, id. at 6-9. On December 3, 2009, Sipe filed the present action with this Court to review the decision of the Commissioner pursuant to section 205(g) of the Social Security Act. Compl. 1, ECF No. 1.
Sipe was born in 1977. Admin. R. 265. He started using alcohol and drugs when he was seven years old and smokes two packs of cigarettes a day. Id. at 266. He was arrested for armed robbery, assault, gun charges, and an escape attempt in 1996. Id. at 266, 404. He spent six and a half years in prison, and spent an additional five months on parole. Id. at 266. Sipe has between a ninth and tenth grade education, id. at 402, but received vocational training while incarcerated, id. at 403. He is able to read and write "somewhat." Id. His prior employment includes fast-food restaurants, security, and some labor work. Id. at 265. Sipe has a history of both physical and mental impairments. Id. at 265-66.
Sipe was diagnosed with human immunodeficiency virus ("HIV") in 1996. Id. at 333. According to Frederick B. Rose, M.D. ("Dr. Rose"), an HIV physician, Sipe "has most remarkable viral suppression and climb in CD4 count on no antiretroviral therapy."
Id. at 327. Because of Sipe's improvement, Dr. Rose could not support Sipe in his request for disability benefits. Id.
On December 15, 2005, Sipe saw Lisa Kaufman, M.D. ("Dr. Kaufman"), complaining of chronic pain in his legs, shoulders, and back. Id. at 263. Dr. Kaufman noted that Sipe was alert, oriented, and in a pleasant mood with no acute distress. Id. at 264. Dr. Kaufman noted a questionable diagnosis of fibromyalgia and restricted Sipe to light activity and part-time work until he attended rehabilitation. Id. Prior to this appointment, Dr. Rose had provided Sipe with an appointment to see a rheumatologist, id. at 328, which he did not attend, id. at 263.
On February 13, 2006, Sipe sought further treatment for his worsening leg pain. Id. at 260. Sipe saw Megan A. Khosla, M.D. ("Dr. Khosla"), who performed several tests but could not determine the cause of Sipe's neuropathy. Id. at 261-62. The following day, on February 14, 2006, Sipe saw rheumatologist Paul E. Phillips, M.D. ("Dr. Phillips"). Id. at 257. After a physical examination, Dr. Phillips found that Sipe's hip pain could not be explained by musculoskeletal examination, it was not corroborated to any anatomic structures, and he found "no organic reason for [Sipe] to have a pain of this intensity." Id. at 258. Dr. Phillips also found no evidence of inflammatory myosotis or inflammatory arthritis. Id.
On April 19, 2006, a Physical Residual Functional Capacity Assessment was completed which found Sipe could lift ten pounds occasionally and less than ten pounds frequently, stand and walk at least two hours in an eight hour workday, and sit about six hours in an eight hour workday. Id. at 276-81.
On February 15, 2008, Satinder Singh, M.D. ("Dr. Singh") and Debra Buchanan, M.D. ("Dr. Buchanan") completed a Medical Source Statement indicating that Sipe's physical impairments were frequently severe enough to interfere with the attention and concentration necessary to perform simple work tasks, but concluded Sipe could sit for about four hours in an eight hour workday, stand or walk about four hours in an eight hour workday, and lift twenty pounds frequently. Id. at 300-02.
In 1991, at age 14, Sipe was evaluated by Cortland City School District psychologist Marin Vieweg ("Vieweg"). Id. at 309. Vieweg administered several tests, including the Wechsler Intelligence Scale for Children - Third Edition ("IQ Test"). Id. Sipe previously had been given IQ Tests in 1984 and 1988. Id. at 306. In 1991, according to the report,
[Sipe] obtained a Full Scale IQ of 77, suggesting that, at the 90% confidence level, his IQ falls within the range of 73 to 83, and that he functions within the borderline range of cognitive abilities. [Sipe]'s Verbal IQ was 71 (67 to 78) and his Performance IQ was 89 (83 to 97). [Sipe]'s Verbal IQ was within the ...