ORDER

DAVID E. PEEBLES, Magistrate Judge.

Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.2 Oral argument was conducted in connection with those motions on August 22, 2019, during a telephone conference held on the record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner's determination did not result from the application of proper legal principles and is not supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in this appeal.

After due deliberation, and based upon the court's oral bench decision, a transcript of which is attached and incorporated herein by reference, it is hereby

ORDERED, as follows:

1) Plaintiff's motion for judgment on the pleadings is GRANTED.

2) The Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATED.

3) The matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination.

4) The clerk is respectfully directed to enter judgment, based upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

(In chambers. Counsel present by telephone. Time noted: 2:29 p.m.)

THE COURT: I have before me a request for judicial review of an adverse determination by the Commissioner of Social Security pursuant to 42, United States Code, Section 405(g) and 1383(c)(3).

The background is as follows: Plaintiff was born in March of 1977. She is currently 42 years old, was 37 years old at the time of her alleged disability onset date of January 2, 2015. Plaintiff is 5'4" in height and weighs anywhere between 195 and 197 pounds. She has been characterized as obese.

Plaintiff has a local high school diploma. When she attended high school, she was classified as learning disabled. She has attended one semester of college at Mohawk Valley Community College. Plaintiff lives in a house with a son who's 12 years old and has special needs. Plaintiff drives and has a license.

In terms of work, plaintiff has worked as a substitute teacher in various settings over the span of 1999 to 2010. In addition, she was a retail cashier and stock person part-time from 2002 to 2003. She was a full-time childcare worker from 2000 to 2001. She was in a customer service position at an insurance agency between 2003 and 2005. The evidence is equivocal as to whether she stopped for medical reasons or whether she was fired. She also served as a customer service relation person in a bank in 2010 for six months. She resigned from that position due to anxiety.

Plaintiff suffers from both physical and mental impairments. Physically, she suffers from fibromyalgia, neck pain, back pain, migraines, asthma, bilateral hip pain, bilateral knee pain, and right ankle pain. She has testified that, and has told care providers that, her pain is often as high as eight to ten on a scale of one to ten. She has been observed on occasions as having an antalgic gait. She underwent left knee surgery by Dr. Sullivan in June of 2016.

The testimony of the plaintiff suggests that she suffers from migraine headaches approximately 12 times out of 30 days, that's at page 54. She told Dr. Miller that she has migraines one time per month and every one to five days, that's at 345. The plaintiff has treated at Slocum Dickson Medical Group where she has seen a physiatrist, Dr. Michael McNulty, and a primary doctor, Dr. Mohsin Syed. She has also seen Physician's Assistant Jessica Kast from March of 2015 and Dr. Michael Miller at Bassett Hospital, as well as Dr. John Sullivan, an orthopedic specialist at Slocum, and Dr. Allan Smiley, a rheumatologist. Mentally, plaintiff suffers from — oh, she also underwent left knee surgery by Dr. Sullivan, but I guess I mentioned that.

Plaintiff suffers from ADHD, anxiety, and depression. She has not, however, received any specialized treatment, but stated that she was going to go to a neighborhood center for an evaluation. She was evaluated, apparently by Dr. David Stang, on September 30, 2017, who observed that she suffers from major depressive disorder, social anxiety disorder, generalized anxiety disorder, PTSD, and ADHD.

In terms of medications, plaintiff has been prescribed over time various medications including Gabapentin, Propanolol, Duloxetine — which is, I think, Cymbalta — Furosemide, Clonazepam or Klonopin, Lisinopril, Hydralazine, Lexapro, Ventolin, Depakote, Topamax, and has had injections of Botox, Toradol, and Baclofen.

In terms of daily living activities, plaintiff, when she can, testified that she cooks, cleans, does laundry, shops two to three times a month. She can do childcare, shower, dress, and watch television.

Procedurally, plaintiff applied for Supplemental Security Income, or SSI, benefits on January 2, 2015, alleging an onset date of January 2, 2015, the date of the application. She claimed disability based on ADHD, fibromyalgia, hip problems, anxiety, and depression. I note that there was an earlier, apparently, Title II application filed in February 2012. That was denied after a hearing by an ALJ on March 1, 2013.

In connection with the current application, plaintiff testified at a hearing, along with a vocational expert, held on February 22, 2017, by Administrative Law Judge Kenneth Theurer. The ALJ issued a decision on April 12, 2017, finding that plaintiff was not disabled at the relevant times and therefore ineligible for the benefits sought. On November 17, 2017, the Social Security Administration Appeals Council denied plaintiff's request for a review.

In his decision, the ALJ applied the familiar five-step sequential test for determining disability. At step one, he concluded plaintiff had not engaged in substantial gainful activity since the date of her application.

At step two, he concluded that plaintiff suffers from severe impairments that impose a significant limitation on her ability to perform basic work functions, including fibromyalgia, lumbosacral spondylosis, migraine headaches, anxiety disorder, depressive disorder, and Attention-Deficit/Hyperactivity Disorder.

He concluded, however, at step three that those did not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering listings 1.04, the 14.00 series, 12.04, 12.06, and 12.11.

He then found that plaintiff retains the residual functional capacity, or RFC, to occasionally lift ten pounds, sit for approximately six hours, and stand or walk for approximately two hours in an eight-hour day with normal breaks. He went on to provide that she can occasionally climb ramps or stairs, but never ladders, ropes, or scaffolds. She can also occasionally balance, stoop, kneel, crouch, and crawl. The claimant should avoid smoke, dust, and other known respiratory irritants and she is limited to simple routine and repetitive tasks in a work environment free of fast paced production requirements, and that involves only simple work-related decisions with few, if any, workplace changes. The claimant must also be able to alternate from a seated to a standing position or vice versa two times per hour for five minutes while remaining on task. Applying that RFC, the ALJ concluded that plaintiff is incapable of performing her past relevant work as an insurance customer service relations representative.

At step five, after noting that if plaintiff could perform a full range of sedentary work, the Medical-Vocational Guidelines, and specifically Grid Rule 201.28, would direct a finding of no disability. He concluded, with the benefit of a vocational expert's testimony, that notwithstanding plaintiff's other limitations, exertional and nonexertional, she can perform as a ticket taker, a document preparer, and an order clerk (food and beverage).

The ALJ did note that the sit/stand option was not addressed in the Dictionary of Occupational Titles, but that the vocational expert applied professional experience to conclude that that would not preclude the plaintiff from performing in those positions.

As you know, the Court's standard of review is extremely deferential. I must determine whether correct legal principles were applied and the determination is supported by substantial evidence, which is defined as sufficient evidence for a reasonable person to conclude that a fact is established.

Going first to the argument of sitting, there are several opinions that specifically addressed sitting. Dr. McNulty, on August 7, 2014, at page 20, limited plaintiff to four hours in an eight-hour workday. Dr. McNulty subsequently, in December of 2014, also confirmed the four-hour limitation at 355. Physician's Assistant Kast, on February 11, 2016, also opined that plaintiff can only sit for four hours in an eight-hour workday, that's at 494. Dr. Jenouri, in his February 24, 2017, opinion, limited plaintiff to four hours, that's at 713 and 715. However, Dr. Jenouri, on March 8, 2016, limited plaintiff to six hours of sitting in an eight-hour workday, that's page 504. Dr. Sullivan concluded that plaintiff could sit for eight hours in an eight-hour workday, that's on February 29, 2016, and that's at 595.

In my view, it was for the Administrative Law Judge to choose between these conflicting opinions. The Administrative Law Judge at page 30 explained his reasoning for settling on six hours and so I do not find error in connection with that argument.

In terms of what I used to call credibility, the evaluation of plaintiff's symptomology under SSR 16-3p, I do not agree that the Administrative Law Judge simply used boilerplate language without sufficiently outlining his reasoning. It is true that at the bottom of page 29 and the top of page 30 he uses language that is clearly boilerplate language that we see in most opinions, but he, both before his RFC assessment when he was discussing the listings, and also on pages 30 and 31, he analyzes the available evidence and I am able to glean his rationale even though he did not specifically address each and every one of the regulatory factors that are specified in the ruling.

I will say in that regard, I'm not sure I agree, respectfully, with my colleague Magistrate Judge Jeffrey Cole in Minger v. Berryhill, 307 F.Supp.3d 865, a case cited by the plaintiff. He found fault in the fact that the analysis of symptomology came after the residual functional capacity finding. In my view, as long as it's explained, obviously the ALJ's thinking is memorialized, whether it came before or after the RFC finding. It clearly went into the calculus that lead to the RFC determination, so I don't find error in that regard.

I am troubled, however, with regard to the absentee issue. Obviously, the vocational expert testified that more than one absence per month would make plaintiff unemployable, and I'm summarizing and simplifying. In my view, that goes directly to the heart of a disability determination. So the question is: Did plaintiff establish, as it was her burden, that she was likely to be absent more than one time per month. There are several opinions that speak to it.

Dr. David Stang, on October 2, 2017, at page 11, opined that plaintiff would be absent more than three times per month. Dr. Michael McNulty, on August 7, 2017, that's at page 20, opined that plaintiff would be absent two to three times per month. Dr. McNulty also, on December 27, 2014, again indicated plaintiff would be likely absent two to three times per month, that's at 357. Dr. Michael Miller opined that plaintiff would be absent more than three times per month, that's December 11, 2014, and that's at 349. Physician's Assistant Jessica Kast stated on February 11, 2016, plaintiff would be absent more than three times per month, that's at page 496. Dr. John Sullivan opined on February 29, 2016, that plaintiff would be absent two to three times per month, that's at page 598. Dr. Jenouri, in his two reports, did not opine on the issue.

There is no contrary medical opinion specifically addressing this issue. As I indicated before, at page 61, the vocational expert testified that a person who's absent more than one time per month would not be employable. The ALJ merely says that these opinions are speculative and essentially is substituting his medical judgment for the judgment of these various treatment providers and, in my view, that is improper.

And I think very — I read very carefully a case cited by the Commissioner, and that is 606 F. App'x 621, it's a Second Circuit case from 2015. I think that that's distinguishable. That was the source that — the source opinion that was rejected there was from a consultive source who opined that the plaintiff could not maintain a regular schedule. In this case, we have multiple treating sources that have rendered that type of opinion and those opinions are uncontradicted by any medical opinions in the record.

So I don't find persuasive proof of disability. I think the matter should be looked at and an explanation should be given — a better explanation should be given as to why the various opinions on absenteeism were rejected. And in that regard, the agency may see fit to pose interrogatories, to recontact treating sources, or to ask a consultive examiner an opinion concerning that issue.

So I'll grant judgment on the pleadings to plaintiff without a directed finding of disability and remand the matter for further proceedings.

Thank you both for excellent arguments and I hope you have a good day.

MR. JONES: Thank you, your Honor.

MS. BYUN: Thank you, your Honor.

(Time noted: 2:47 p.m.)

CERTIFICATE OF OFFICIAL REPORTER

I, HANNAH F. CAVANAUGH, RPR, CSR, NYACR, Official U.S. Court Reporter, in and for the United States District Court for the Northern District of New York, DO HEREBY CERTIFY that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.