The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge*fn9
MEMORANDUM OPINION AND ORDER
Brian Holofchak ("Holofchak") seeks judicial review, pursuant to Social Security Act ("Act") §405(g)("Section 405(g)"),*fn1 of the final decision of Commissioner of Social Security Michael Astrue ("Commissioner") that denied his claim for disability insurance benefits (hereafter simply "benefits"). Holofchak has moved either for summary judgment under Fed. R. Civ. P. ("Rule") 56 or for a remand for reconsideration in light of additional evidence under sentence six of Section 405(g).*fn2
For the reasons stated hereafter, his motion for summary judgment is denied, but his alternative motion for remand is granted.
On June 6, 2005 Holofchak filed an application for benefits, alleging that he had become disabled on April 7 of that year (R. 234-36). That application was initially denied on August 9, 2005 (R. 196), and it was again denied upon reconsideration on October 19, 2005 (R. 191). Invoking his right to further review, Holofchak requested and received a hearing ("Hearing") on March 13, 2008 before ALJ Peter Caras (R. 179). Represented by counsel, Holofchak testified at the Hearing, as did his wife Soledad Holofchak and vocational expert Ronald Malik.
ALJ Caras' April 2, 2008 decision concluded that Holofchak was not disabled within the meaning of the relevant statutes and regulations and was thus ineligible for benefits (R. 165). That decision became Commissioner's once the Appeals Council denied Holofchak's request for review on July 1, 2009 (R. 4). Then on August 25, 2009 Holofchak filed a timely complaint for judicial review, challenging Commissioner's decision on four grounds: (1) that ALJ Caras erred in proceeding to decision without obtaining updated medical evidence, (2) that such additional evidence warrants remand, (3) that ALJ Caras impermissibly drew his own conclusions as to the impact of Holofchak's impairments and limitations and (4) that the denial is not supported by substantial evidence because the jobs that ALJ Caras identified are inconsistent with his findings as to Holofchak's functional capacity.
Holofchak's Medical and Employment Background
In 2000, while working as a crewman for a building contractor, Holofchak fell off a roof and sustained several injuries, including fractures to his legs and right wrist and compression fractures in his lumbar spine (see, e.g., R. 360-428). He underwent several surgeries to repair the injuries to his legs and wrist shortly after the accident (R. 370-73, 429-30). In 2002 his right wrist was fused as a result of the accident (R. 742-44)). Holofchak received physical therapy following the accident and each of his surgeries and was prescribed pain medication (see, e.g., R. 454, 492-93, 626-27). He has remained on pain medication since the accident (R. 938).
Holofchak's lumbar compression fractures resulted in some disc degeneration (R. 732). In 2004 a back surgeon, Dr. Alexander Ghanayam, indicated that Holofchak might require spinal surgery if he later developed spinal stenosis, though he did not recommend surgery at that time (id.). Holofchak continued to see his doctors about his pain and continued to take pain medication along with anti-depressants and medication for migraines, from which he has suffered most of his life (see, e.g., R. 374).
Holofchak never returned to work as a crewman after his accident (see, e.g., R. 263). Instead he took a full-time job as a cashier at Wal-Mart in April 2003 (id.). But because his job as a cashier required him to stand in one place for extended periods of time, he was unable to continue in that position (R. 929-30). Wal-Mart then moved Holofchak to a position on the sales floor, but after some time he found that job also to be too difficult to perform because of pain in his back and legs (R. 930). In April 2005 Holofchak reduced his hours to four hours a day due to his pain (R. 285), and in June 2005 he stopped working altogether (R. 930).
Holofchak's Evidence and Hearing Testimony
In support of his claim for benefits, Holofchak submitted medical records dated through 2005 to Commissioner (see generally R. 180-888). Those records referred to his accident and his subsequent surgeries, therapies and other treatments. But they did not include the results of an MRI that he underwent in November 2005 that showed disc herniation and other degenerative changes in the lumbar spine (R. 908-09). Nor did they include diagnostic or treatment records by Dr. Ronald Michael, who began seeing Holofchak in 2006 and continued to treat him through at least 2008 (see R. 158, 889-901). In fact, there was no medical evidence in the record dated after 2005 other than a December 2006 note from Dr. Glen Ricca attesting that Holofchak was disabled (R. 885).*fn3
During the Hearing ALJ Caras asked Holofchak about his current treatment (R. 939). Holofchak responded that he was currently seeing Dr. Michael about his back (R. 940). Though no medical records from Dr. Michael had been submitted, ALJ Caras did not pose any follow-up questions about Dr. Michael or about his treatment of Holofchak (see id.). Instead ALJ Caras proceeded to ask Holofchak questions about his functional capacities, including how much help he was able to give his wife around the house (R. 939-40). Other than a later line of questioning ...