NOT FOR PUBLICATION

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 February 24, 2017 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, with a directed finding of disability, for the purpose of calculating benefits owing to the plaintiff.

4) The clerk is 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.

Transcript of a Decision held during a Telephone Conference on February 24, 2017, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.

(In Chambers, Counsel Present by Telephone.)

THE COURT: All right. Thank you both for

excellent and spirited presentations.

I have before me a request for judicial review of an adverse determination by the Commissioner under 42 United States Code Sections 405(g) and 1383(c)(3).

The background is as follows: Plaintiff was born in October of 1983 and is currently 30 — 33 years old? Let's see. October, so he is, yes, 43 years old — sorry, no, 33. He was born — he is 5-foot-9 and 180 pounds. He has an eighth-grade education, he dropped out in ninth grade. He was in regular education courses while at school, he's not achieved a GED. He's right-hand dominant and does not drive. Plaintiff has a history of alcohol abuse but has not consumed alcohol since 2008 when he was hospitalized for alcohol poisoning, that's at 321. Plaintiff has some modest criminal history, a drug conviction of 2004.

Plaintiff has never worked on a full-time basis. He's quit several jobs, allegedly due to anxiety. He was a barber at one point. He last worked in 2005 as a furniture driver helper, that's at 236. He quit as a barber due to seizures.

His primary care physician is Dr. Aranda. He also has seen several others for his seizure issues. As counsel correctly noted, he — there is a chronicled history of both petit and grand mal seizures with tongue biting. He underwent some testing which confirmed the presence of the seizures. In 2008 he suffered a seizure, nearly drowned and had to be pulled out of the river by a friend, that's at 303, 305 and 46. Dr. Aranda at several points including the point in time that I listed, April of 2014, has characterized these seizures as poorly controlled, also at — not well controlled in 2015, that's at 1107 and 1117.

The plaintiff underwent EEG testing in April of 2008, showed irregularities. In February of 2011 went to the emergency room with a grand mal seizure, that's at 629, and in June of 2011, again went to the emergency room with seizures, that's at 673. He's been diagnosed by some as having anxiety and/or panic disorder with or without agoraphobia and also on occasion been diagnosed as having major depressive disorder. There is at least a suspicion of a link between the mental condition and his seizure disorder including at 1158.

In terms of daily activities, he plays video games, watches television. He does not, however, like crowds.

This case has had a tortured procedural history. The application for benefits was first made in

September 2008, alleging an onset date of January 1, 2006. A hearing was conducted by Administrative Law Judge Marie Greener on March 23, 2010. ALJ Greener issued an unfavorable decision on April 29, 2010, and the Social Security Administration Appeals Council denied plaintiff's request for review on December 17, 2010. The matter — an action was commenced on January 26, 2011 in this court seeking judicial review. The matter was remanded once an appeal at the Second Circuit was perfected or it was filed, on consent, and the matter was remanded on March 14, 2013. The Social Security Administration Appeals Council then issued a decision on July 30, 2013, implementing the remand back to an ALJ.

ALJ Greener conducted a second hearing on April 17, 2014. She issued a decision, again unfavorable, on August 18, 2014. A second action was commenced in this court on October 21, 2014 by the plaintiff seeking judicial review. Again, the matter was remanded on consent on June 3, 2015. On June 11, 2015, the Appeals Council issued an order remanding the matter and directing that it be reassigned to a new administrative law judge.

On December 22, 2015 a supplemental hearing was conducted by Administrative Law Judge John P Ramos. On January 14, 2016, ALJ Ramos issued a decision, again unfavorable.

In his decision, Administrative Law Judge Ramos applied the now familiar five-step test for determining disability, concluding that plaintiff had not engaged in substantial gainful activity since September 19, 2008; at step 2, concluded that the plaintiff suffers from a seizure disorder, and a herniated nucleus pulposus, but rejected the — any other disorders including alcohol abuse and anxiety disorder as being sufficiently severe at step 2. The plaintiff — the ALJ did notice, did note plaintiff's EEG from December 15, 2009 and from April 2008 confirming the existence of irregular activity, also from July 13, an EEG.

At step 3, the ALJ concluded that the plaintiff's conditions were not sufficiently severe as to satisfy the listed presumptively disabling conditions set forth in the Commissioner's regulations, and specifically examined 11.02 and 11.03, as well as 1.04.

The ALJ then surveyed the available medical evidence and concluded that the plaintiff retains the residual functional capacity to perform sedentary work and went through what sedentary work is, except that he cannot operate hazardous equipment such as cutting tools or machinery with unprotected moving parts, cannot drive for business purposes, and cannot work at unprotected heights or around water such as swimming pools, lakes, or rivers. In addition, he can only occasionally reach in all planes, handle, finger, push/pull with either upper extremity/hand and cannot operate foot controls with either lower extremity.

At step 4, applying that RFC, the ALJ concluded plaintiff had no past relevant work.

At step 5, the administrative law judge concluded that if the plaintiff was able to perform a full range of sedentary work, a finding of no disability would be directed by Medical Vocational Guideline Rule 201.24 but he concluded that the additional limitations set forth in the RFC eroded the job base on which the grids were predicated and therefore elicited testimony of a vocational expert and concluded based on that testimony that there were two positions that plaintiff could perform, notwithstanding his limitations, including as a surveillance system monitor and a call-out operator, and concluded therefore that the plaintiff is not disabled.

As you know, my task is limited to determining whether correct legal principles were applied and substantial evidence supports the determination. The standard of review is extremely limited, and deferential.

At step 2, the step 2 determination is intended to eliminate only those limitations, those conditions that have no more than a minimal effect on the ability to work. It's intended to screen out frankly only de minimus claims. The record in this case is replete with record entries that the plaintiff suffers from anxiety and panic disorder. It appears to be linked in some way to his seizures. As counsel indicated, even the report of Dr. Long whose report was given substantial — considerable weight, I should say, by the administrative law judge, suggests that the plaintiff, plaintiff's ability to perform work activities is impaired by the mental limitations. At page 240, she states, "The results of the present evaluation appear to be consistent with psychiatric problems which may interfere with Mr. Webb's ability to function on a regular basis." She diagnosed him as suffering from generalized anxiety disorder and panic disorder without agoraphobia.

As I also indicated, the report from December 1, 2008 of P. Kudler, K-u-d-l-e-r, at 265, reflects that claimant may have difficulties doing complex detailed tasks due to anxiety. He also states he has difficulty with crowds of people and would probably work best in a low-contact environment.

So these and the many other reports that speak to the mental limitations satisfy me that it was error for the administrative law judge not to include plaintiff's mental conditions at step 2. I also note that Dr. Moore at page 325 opines that plaintiff is only able to work a 20-hour workweek with reasonable accommodations. So I find that is error.

Dr. Russell indicated plaintiff cannot work due to panic disorder and agoraphobia which is quite severe, that's at 306, and assesses a GAF of 45. GAF of 45 of course indicates, among other things, serious impairment in social, occupational, or school functioning.

This error is not harmless. It's prejudicial because it was not included in the RFC finding, and therefore not included in the hypothetical that was given to the vocational expert and which the step 5 determination is predicated.

The RFC also again is infected, Dr. Russell assigned that GAF of 45, there's another indication of a GAF of 50. Dr. Moore indicated plaintiff cannot function, 50 percent, that's at 325. Dr. Aranda said he would be off task more than 30 percent — 33 percent of the time, that's at 834. The vocational expert testified that anything above 8 to 15 percent off task would not be acceptable.

It's clear also that the RFC does not fully take into consideration the plaintiff's seizures, the extent of the seizures, and his post-seizure symptoms and the effect it would have on absenteeism.

With regard to medical opinions, again, all of the people that examined, the professionals that examined and/or treated plaintiff essentially said that he's unable to work. Dr. Aranda, 835; Dr. Magurno, 330; Dr. Moore, 326; Dr. Russell, 306. And the ALJ relied on a nonexamining individual, Dr. Devere, to counter that. I understand that the strict opinion about ability to work is a matter reserved to the Commissioner, but if you read those opinions, especially Dr. Aranda, the objective components of those clearly are inconsistent with the ability to perform work-related functions.

I think also that Dr. Aranda's opinions were entitled to controlling weight in that there's an insufficient explanation for rejection, didn't take into account the lengthy relationship, the treating relationship between Dr. Aranda, the number of times that he treated. The opinion is supported by medical evidence and it's consistent with other opinions including Dr. Kudler, Dr. Long, Dr. Russell, and Dr. Moore.

So the step 5, I find that the step 5 determination is infected by all of these errors. I am going to grant judgment on the pleadings to the plaintiff. In this case, particularly given the tortured history, the length of time it's been pending, and the fact that I believe the record convincingly establishes that the plaintiff is disabled, I am going to remand with a directed finding of disability for the purpose of calculating benefits.

Again, thank you both for excellent presentations, I hope you have a good afternoon. Go out and enjoy our nice weather.

CERTIFICATE OF OFFICIAL REPORTER

I, JODI L. HIBBARD, RPR, CRR, CSR, Federal Official Realtime 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.