United States District Court, N.D. New York
THOMAS J. MCAVOY, Senior District Judge.
On May 29, 2013, Plaintiff Corey Lyons ("Plaintiff" or "Lyons") commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act ("Act") to review a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying Plaintiff's applications for Title II disability and supplemental security benefits and Title XVI supplemental security income. (Dkt. No. 1). Plaintiff contends that the decision of the Administrative Law Judge ("ALJ") denying his applications is not supported by substantial evidence and is contrary to the applicable legal standards. Pl. MOL (dkt. No. 14). The Commissioner argues to the contrary. Df. MOL (dkt. No. 15). For the following reasons, the matter is remanded for further proceedings.
The parties do not dispute the underlying facts/procedural history of this case. The Court assumes familiarity with these facts and will set forth only those facts material to the issues discussed below.
A. Individualized Education Program 2003-2004 (Massena Central School)
During the 2003-2004 academic year, Lyons was a senior at Massena Central School in Massena, New York; he turned 20 shortly before graduating with an Individualized Education Program ("IEP") diploma. (T. 233). At that time, Lyons was participating in a community-based work program through the Board of Cooperative Educational Services (BOCES) and Vocational and Educational Services for Individuals with Disabilities. (T. 234) Additionally, Lyons was attending a Multioccupations class through BOCES. (T. 234). Lyons was also taking Business Math in a 12:1:1 setting. (T. 234).
The IEP mandated a number of specific modifications in both a testing and classroom setting. (T. 234-235). In testing situations, Lyons needed extended time, a small group setting, and to have directions, test passages, questions, and multiple choice responses read to him. (T. 234). In a class setting, he was given a copy of class notes and, in some cases, an enlarged copy of class materials. (T. 234, 235). Lyons also had to have a program with "hands on activities and reinforcement of skills learned in a small group setting." (T. 235). Lengthy material was to be read and explained to him during class, and he needed to use a calculator and a computer in both class and exam settings. (T. 234, 235). The IEP specifically noted that Lyons was unable to participate in any regular education classes, and he was exempted from the foreign language requirement. (T. 233-234). He was described as needing a structured learning environment where skills and directions were clearly and verbally explained. (T. 235). At that time, Lyons was working at the P&C Food Store, apparently through the school. (T. 235). He hoped to find competitive employment after graduation. (T. 235).
B. Psychological Evaluation by Robert Higgins (May 2004)
In early May 2004, at the request of the Committee on Special Education (CSE), Lyons was evaluated by school psychologist Robert Higgins. (T. 252-263). Higgins summarized a history of significant developmental delays stretching back to 1988, when Lyons was four years old. (T. 252-253). Lyons did not start kindergarten until the age of six; even so, as a first grader who was nearly eight years old he was noted to be having "great difficulty with the first grade curriculum." (T. 253). By 1997, testing revealed that his language skills were some years behind his chronological age. (T. 253). At least as early as the 1996-1997 academic year, Lyons was classified as Other Health Impaired (OHI) and was placed in a 12:1:1 setting. (T. 253). He was returned to a mainstream setting with "significant Resource Room assistance" the following year, although he was still classified as OHI (T. 253). In Fall 1999, however, he was re-classified as OHI and Learning Disabled (LD) and returned to the 12:1:1 setting; at that time, he also began to participate in the Community Based Work Program. (T. 253). He was re-classified as LD only in the 2000-2001 school year, and in 2001-2002 he began to attend a Multioccupations class in a 12:1:1 setting. (T 253, 261). Throughout the remainder of his school career, Lyons participated in some combination of work programs and occupational education, all of which were in a 12:1:1 setting. (T. 253).
The school psychologist also administered the Wechsler Adult Intelligence Scale-Third Edition (WAIS-III) to Lyons. (T. 258-259). In particular, he noted that Lyons had a full-scale IQ of 75, which fell in the borderline range and placed him in the fifth percentile. (258). While there was some variation on the subtests, Lyons's performance on all subtests fell within the borderline range. (258-259). In particular, his Working Memory Index score fell in the third percentile. (259). Higgins noted that Lyons was likely to have problems "holding information to perform a specific task" and that he was likely to make "more frequent errors on a variety of learning tasks" than other adults his age. (259). Finally, the school psychologist administered the Wechsler Individual Achievement Test, Second Edition (WIAT-II). (254, 259-261). He noted that Lyons's actual results in many areas of this test were lower than would be predicted for an individual of his cognitive abilities; for example, his Word Reading and Reading Comprehension scores placed him in the lowest 0.4. and 0.5 percent of individuals his age. (260). Higgins characterized these results as "significant and highly unusual." (260-261). In extrapolating from these results, he said that Lyons would need hands-on instruction at work and would also need reminders until he mastered his tasks. (262). He would be handicapped in jobs requiring reading and writing, and he would learn best in "structured learning situations with skills and directions taught directly and verbally." (262).
D. Consultative Evaluation by Jeanne Shapiro, Ph.D. (May 2010)
On May 27, 2010, at the request of the Social Security Administration (SSA), Lyons was evaluated by psychologist Jeanne Shapiro, Ph.D. (T. 264-273). Dr. Shapiro carried out a mental status examination and also administered the Wechsler Adult Intelligence Scale-IV (WAIS-IV). (T. 269-270). The test yielded a Full Scale IQ of 65, a Verbal Comprehension score of 72, Perceptual Reasoning and Working Memory scores of 69, and a Processing Speed score of 71. (T. 270). Dr. Shapiro characterized these results as "valid" and said that Lyons was functioning in the mild range of mental retardation. (T. 270). Additionally, she administered the Reading subtest from the WRAT-III, which showed that Lyons was reading at the third grade level. Dr. Shapiro noted that Lyons appeared incapable of reading, writing, or performing arithmetic at an age-appropriate level. (T. 272). She characterized Lyons as "capable of learning some rote tasks" but noted that, "taking into consideration the claimant's level of intellectual functioning, " he would probably need vocational training and job coaching. (T. 272-273). She also opined that Lyons' cognitive deficits would also prevent him from handling money. (T. 273).
E. Physical Examination by Roberto Rivera (May 2010)
On May 27, 2010, Lyons was evaluated by Roberto Rivera, M.D., at the request of the SSA. (T. 274-278). Lyons told the doctor that his left shoulder had been injured about a year previously when he was changing a tire at work, and that it had been painful ever since then. (T. 274). However, because he claimed that he could not afford medical care, Lyons had not had his shoulder examined or treated. (T. 274). Dr. Rivera examined Lyons and noted a decreased range of motion in his left shoulder, although an X-ray was negative. (T. 276). The doctor advised further imaging studies, as he did not believe that an X-ray would be of much diagnostic help. (T. 274, 276). Based on the objective results of his examination, Dr. Rivera found that Mr. Lyons had moderate to marked limitations for lifting, carrying, and overhead reaching with his left arm. (T. 276-277).
F. Physical Therapy (August-September 2010)
On August 3, 2010, Lyons was evaluated by physical therapist Eileen Fregoe. (T. 322). Lyons explained that he had experienced pain in his left shoulder for approximately two years, and that it had started while he was changing a tire. (T. 322). He had been unable to seek medical care because he did not have insurance at that time, and the pain had worsened over the last two years. (T. 322). At the time of the evaluation, Lyons rated the pain as six on a scale of ten when he was resting and ten out of ten when he was active. (T. 322). In particular, he had difficulty lifting, raising his hand overhead, and performing repetitive motion. (T. 322). He was also unable to lie on his left side. (T. 322).
Objective testing suggested involvement of the supraspinatus muscle or tendon. (T. 322). Ms. Fregoe also noted that Mr. Lyons had limited strength and range of motion in his left shoulder and that his pain increased with overhead motion. (T. 322). In addition to the limited range of motion, Ms. Fregoe observed impaired scapular stability and a palpably inflamed supraspinatus in the left shoulder. (T. 322, 327). Short-term goals for physical therapy were defined as increasing range of motion and scapular stability of the left shoulder to within normal limits, as well as increasing shoulder strength and eliminating pain. (T. 327). Long-term goals included reaching the maximum level of functioning in lifting and daily activities and being able to sleep on his left side. (T. 327).
On the day of his evaluation, Lyons was treated with hot packs, electrical stimulation, and therapeutic exercise. (T. 329). He returned for treatment on August 5, 10, 12, and 16, 2010, and was given a series of home exercises. (T. 330, 337). By August 24, 2010, Lyons was able to use his left arm but still experienced pain when doing so. (T. 338). He was unable to exercise from August 26, 2010 through September 9, 2010 due to appendicitis, but continued to receive other treatments. (T. 340-342). On September 10, 2010, Lyons was successfully discharged from physical therapy. (T. 343).
G. Adult Function Report (March 2010)
On March 18, 2010, Kim Halpin of the Disabled Clients Assistance Program (DCAP) unit at the St. Lawrence County Department of Social Services helped Lyons complete an Adult Function Report. (T. 188-195, 197). At that time, Lyons was living with a cousin in Norfolk, New York. (T. 188). He cared for a cat and a dog with his cousin's help; and he needed help performing laundry and housecleaning chores. (T. 189, 191). His cousin also did most of the cooking, although Lyons cooked "occasionally." (T. 190). While Lyons did shop, he did so with his cousin; he was unable to pay bills, handle a checking account, or use a checkbook or money orders, and could count change, but "not well." (T. 192).
Lyons contends he has limited use of his hands, and difficulty pushing and pulling. (T. 193). He also contends he has difficulty with attending to and with finishing what he started, and he can only follow "simple" instructions. (T. 194). He also notes that he has trouble remembering things, which he attributes to a poor short term memory. (T. 195).
H. Non-Examining Medical Consultant (Mental) (June 2010)
On June 3, 2010, medical consultant M. Marks reviewed Lyons's file up to that point. Marks concluded that Lyons' history is "more consistent with Borderline Intellectual Functioning" than mental retardation, and that Lyons "retains the capacity to understand and follow simple directions, sustain a reasonable pace, ...