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 Acting Commissioner, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on February 26, 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 Acting 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 Acting 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 Acting 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 Acting Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

(In chambers, counsel present by telephone. Time noted: 10:12 a.m.)

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

The background is as follows: Plaintiff was born in January of 1970 and is currently 49 years of age. She was 44 years old at the time of the hearing in this matter and 42 at the time of the alleged onset of her disability. Plaintiff stands 5'4" in height and weighs 174 pounds. She's right-hand dominant and lives in an apartment in Syracuse. Plaintiff is divorced, has five children, but all are over the age of 18. Plaintiff does not possess a driver's license. She has a 6th grade education, although she told Dr. Noia she has an 8th grade education. Irrespective of that, she does not have a high school degree, nor does she have a GED.

Plaintiff last worked in October 2012 as a maintenance cleaning person in a commercial building. She stopped working when she fell off her porch and injured herself. She has also worked in various positions as a small engine mechanic, a brake mechanic, a janitor/dishwasher, a housekeeper at a hotel, and laborer.

Physically, plaintiff suffers from shoulder and neck issues. In March of 2015, she underwent an anterior lumbar interbody fusion at the L5-S1 level by Dr. William Lavelle. In 2004 or 2005, the record is unclear, she underwent neck surgery, a C6-C7 fusion. She has treated with Upstate Bone and Joint, Dr. Krystle Williams. She was going to physical therapy in April of 2017, but did not go for six months. She has also treated at New York Spine and Wellness.

Mentally, the plaintiff suffers from anxiety and depression and affective disorder, panic disorder with agoraphobia. She undergoes weekly counseling at the Syracuse Health Center. She is seen by Dr. B. Hines, a psychiatrist. She has not had any hospitalization for any of her mental health issues. She receives Lorazepam for those.

Plaintiff does use a cane to ambulate occasionally for her conditions. She has been prescribed Naproxen, Oxycodone, Hydrocodone, Trazodone, Tramadol, Meloxicam, Lyrica, and Gabapentin. In terms of daily activities, she can cook, clean, do laundry, shower and dress, watch television. She cares for a three-year-old grandchild. She has no hobbies. At 56, during the hearing, she testified she has no computer, but in 3E, the disability report, she says, yes, she has a computer. That's 209. She has two dogs. She rides a bicycle and she likes to fish.

Procedurally, the plaintiff applied for Title II and Title XVI benefits under the Social Security Act on May 2, 2013, alleging a disability onset date of October 15, 2012. A hearing was conducted by ALJ David Begley on November 4, 2014. ALJ Begley issued an unfavorable decision on February 5, 2015. On August 11, 2016, the Social Security Administration Appeals Council denied plaintiff's request for a review.

In the intervening period while she was pursuing the original claims, she applied on September 14, 2016, for benefits. Again, that application was later consolidated with the existing applications.

On May 16, 2016, after plaintiff commenced a challenge in this court of the original adverse determination, the matter was remanded on stipulation to the parties. The Social Security Administration Appeals Council then issued a decision on July 1, 2017, remanding the matter to an ALJ with directives concerning what should be addressed in the new decision.

On November 17, 2017, a hearing was conducted by Administrative Law Judge Kenneth Theurer with a vocational expert. On January 18, 2018, the ALJ issued an unfavorable decision and that became a final determination of the agency. 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 October 15, 2010, the alleged onset date.

At step two, he concluded that plaintiff suffered from severe impairments, including degenerative disc disease of the lumbar and cervical spine, status post-surgery (lumbar/cervical spine), anxiety, and depression.

He concluded at step three that those did not meet or medically equal any of the listed presumptively disabling impairments set forth in the Commissioner's regulations, specifically considering listings 1.04, 12.04, and 12.06. After surveying the record, ALJ Theurer concluded that plaintiff retains the residual functional capacity to perform a full range of sedentary work with certain additional limitations relating to both plaintiff's physical and mental conditions. I won't read it, but it's set forth at page 485 of the Administrative Transcript.

At step four, ALJ Theurer concluded that plaintiff is unable to perform her past relevant work as a tire changer, small engine repair person, kitchen helper, and housekeeper/cleaner.

At step five, after noting that if the Medical-Vocational Guidelines were applied and plaintiff was capable of performing a full range of sedentary work, Rule 201.19 of the grids would direct a finding of no disability. He sought testimony from a vocational expert and concluded based on that testimony that with her RFC, plaintiff can perform as an assembler, a production worker, and inspector, and therefore was not disabled at the relevant times.

As you know, my task is limited to determining whether correct legal principles were applied and the determination is supported by substantial evidence, which is defined as such evidence a reasonable person would find adequate to support a conclusion. It is an extremely deferential standard. I agree with the defendant's counsel on that score.

The primary issue here is the Administrative Law Judge's treatment of listing 1.04. That listing relates to disorders of the spine and contains three parts, A, B, and C. Only one of those three need to be met in order to conclusively establish presumptive disability, Alban v. Astrue, 2012 WL 6728055, that is from 2012, the District of Connecticut.

However, in order to meet one of those three, you must meet all of the criteria of any one, and McKinney v. Astrue, 2008 WL 312758, a 2008 decision from the Northern District of New York, stands for that proposition. And of course, under Poupore v. Astrue, it is plaintiff's burden to establish that a listing has been met. The Administrative Law Judge unfortunately — and this is consistent with my experience with these — the Administrative Law Judge does not contain any sort of robust comprehensive discussion of listing 1.04.

Obviously, as defendant's counsel concedes, because 1.04 is rejected based on the plaintiff's ability to ambulate effectively, it appears that the Administrative Law Judge was focused on subpart C, which relates to lumbar spinal stenosis and does require the inability to ambulate effectively. As counsel concedes, 1.04A does not.

It's true that if the rationale of the ALJ in rejecting listing 1.04 altogether can be gleaned from the entirety of the decision, then — and of course, assuming that that is supported by substantial evidence, then there's no basis to set aside the determination. For that, I can cite Gonzales v. Colvin, 2016 WL 5477591. That is from the Eastern District of New York, 2016. And of course — I'm sorry, Rockwood also stands for that proposition, Rockwood v. Astrue, 614 F.Supp.2d 252 from the Northern District of New York, 2009.

My problem with this, as I indicated during oral argument, I think perhaps if the recitation of the rejection of listing 1.04 ended after the parenthetical, I might dig deeper and try to determine whether that would apply to A and whether that would be supported by substantial evidence.

I'm concerned about the phrase, "because the claimant remains able to ambulate." I think the ALJ was obviously fixated on subsection C because of the existence of stenosis, but as the Commissioner's counsel noted and conceded, there's also evidence of nerve root compression, which would implicate section A. So that section requires neuro-anatomic distribution of pain; limitation of motion of the spine; motor loss, either atrophied with associated muscle weakness or muscle weakness itself; accompanied by sensory or reflex loss; and if there's involvement of the lower back, which there is here, positive straight leg raising test, sitting and supine.

And although there's contrary evidence, there is evidence in the record to support each of those. Neuro-anatomic distribution of pain, 1855. There's clearly impingement. I should say that at the outset, the magnetic resonance imaging testing of October 2013 and August 2014 and the 2017 CT myelogram demonstrates that.

There's limitation on range of motion of the spine, 895, 1855, 1089, 890, and 1077. Motor loss is obviously the weakest of — and no pun intended — of the arguments, but there is some indication of muscle loss or muscle weakness, 1630, for example. There's indication of sensory loss, reflex loss, 1630, 895, 898, 1077. And there are indications of straight leg raising, 311, that's on the left side, 1630, that's on the left side, 1203, 1231, and 1614 on the left side.

So I find clear error because it appears to me that the Administrative Law Judge was focused exclusively on 1.04C and either did not consider or did not explain why he was rejecting 1.04A. Since I can't discern the rationale for rejecting 1.04A, or at best it's unclear, I am remanding under Alban and Norman — the citation for Norman is — bear with me. I can't find it, but in any event it was, I believe, cited in one of the briefs. Oh, here it is. It's 912 F.Supp.2d 2012 — that's F. Supp. 2d 33, I'm sorry. It's a 2012 decision.

So I think this ought to be remanded. I don't find any persuasive evidence of disability, but I think it should be remanded for a fuller consideration of whether or not plaintiff meets or medically equals listing 1.04A. So I'll grant judgment on the pleadings to the plaintiff, without a directed finding of disability, and remand the matter for further proceedings.

Thank you both for excellent presentations. Have a good day.

CERTIFICATE OF OFFICIAL REPORTER

I, HANNAH F. CAVANAUGH, RPR, CSR, 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.