ORDER

DAVID E. PEEBLES, Chief 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), are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on December 11, 2018, 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.

Transcript of a Decision held during a Telephone Conference on December 11, 2018, 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: So I have before me a request for judicial review of an adverse determination by the Acting Commissioner pursuant to 42 United States Code Section 405(g).

The background is as follows: Plaintiff was born in April of 1974 and is currently 44 years old. She resides in Black River, New York in a three-bedroom apartment. The plaintiff apparently is now separated from her second husband. She lives with two young daughters who were 9 and 11 years old at the time of the hearing in this matter. She also has an adult son that apparently does not reside with her. Plaintiff is a high school graduate. She drives.

She last worked in 2013 according to her. She worked as an office manager in a car dealership that apparently her husband had some ownership interest in from 2006 to 2013. She also, prior to that, was an office manager in an insurance company, a manager at a Gander Mountain store, and an inventory manager at West Marine. The — I know the Commissioner has said that it appears from medical records that she worked in 2014, I've reviewed those records at 291, 297, 321, and 336. They appear to just, in my view, repeat from prior notes of treatment dates, without really getting new information from the plaintiff, and at one, that's 309 that was cited by the Commissioner, she actually describes herself as a homemaker. So it doesn't appear to me convincing that she worked in 2014. If she did, it was only the first couple or three months and I think she testified at the hearing that she worked from home at the end of her employment.

In any event, medically she suffers from several conditions that have been diagnosed including obesity, degenerative disk disease of the cervical, thoracic, and lumbar levels, and she describes her pain as having begun in 2013. For that she was on Percocet but is not currently on any prescription medication. She has been diagnosed as suffering from fibromyalgia, and has been prescribed Cymbalta in the past, Lyrica was also tried.

She has had testing, including spinal x-ray on November 5, 2014, to determine whether there is any inflammatory arthritis contributing to her pain and it was at 520 and that was negative. For her arthritis she has sought out various treatment providers including — well, let me finish. She also suffers from migraines, she describes them as persisting three times per month, that's at page 208. She has undergone Botox treatments and describes those treatments as helping tremendously. That's also at 208. She has — her primary health care provider is through Samaritan Family Health Center including Nurse Practitioners Sonja Pierce and Sharen Yaworski.

She has received treatment for her fibromyalgia and migraines from North Country Neurology including from Dr. Abdul Latif and Dr. Mohsin Ali. She also has received treatment through the Arthritis Health Association, Dr. Ramzi Khairallah. Dr. Khairallah has opined that her fibromyalgia accounts for most of the pain she experiences including at 379, 496, and 505 of the administrative transcript.

Plaintiff has undergone injections. She at one point was using a cane, at the — as needed, as directed by her primary health provider, that's at 202 to 204, although at the hearing at page 42 she testified she did not use an assistive device. She also uses a TENS unit three to four times per week, that's at page 46.

Plaintiff has also undergone physical therapy from April of 2015 to June of 2015. She underwent treatment at Pain Solutions of Northern New York, Dr. Bhupinder Bolla. She has been to the Samaritan Medicine — Pain Clinic, and in 2016, went to the Mayo Clinic for pain treatment.

She has been on Percocet in the past, Cymbalta, Neurontin, Effexor, Depakote, trazodone, Ambien or zolpidem, Imitrex and Zofran.

She has some mental conditions including depression and anxiety. According to Dr. Melcher, the consultative examiner, at page 528, she underwent six treatments through the Northern New York Behavioral Health Center, Dr. Jeffrey Aronowitz, from July of 2013 to October of 2013. At the time of the hearing she was not undergoing any mental health treatment claiming payment issues.

In terms of daily activities, plaintiff shops, cooks, does some chores with help, can take care of her personal hygiene, cleans, does laundry, watches television, listens to music, reads, and works on the computer.

In terms of procedural history, plaintiff applied for Title II Disability Insurance benefits on November 15, 2014, alleging an onset date of February 8, 2013. Administrative Law Judge John P. Ramos conducted a hearing on February 13, 2017 to address the application for benefits.

ALJ Ramos issued a decision on March 23, 2017 finding that plaintiff was not disabled at the relevant times and therefore not entitled to the benefits sought.

That became a final determination of the agency on May 25, 2018 when the Social Security Administration Appeals Council denied plaintiff's request for review.

In his decision, ALJ Ramos applied the familiar five-step test for determining disability.

At step one, he concluded that plaintiff had not engaged in substantial gainful activity since February 8, 2013.

At step two, he concluded that plaintiff does suffer from severe impairments that provide more than minimal limitations on the ability to perform work-related functions, including fibromyalgia, migraine headaches, degenerative disk disease of the cervical, thoracic, and lumbar spine, depressive disorder, and anxiety disorder.

Proceeding to step three, ALJ Ramos concluded that plaintiff's conditions did not meet or medically equal any of the listed presumptively disabling conditions set forth in the medical — I'm sorry, in the Commissioner's regulations, considering specifically Listings 1.04, 12.04, and 12.06.

He then concluded, after surveying the record evidence, that plaintiff retains the residual functional capacity or RFC to perform sedentary work, subject to the following limitations: The claimant retains the ability to understand and follow simple instructions and directions, perform simple tasks with supervision and independently, maintain attention and concentration for simple tasks, and regularly attend to a routine and maintain a schedule. She can relate to and interact with others to the extent necessary to perform simple tasks, and she can handle reasonable levels of simple work-related stress in that she can make decisions directly related to the performance of simple work and handle usual workplace changes and interactions associated with simple work.

At step four, applying that residual functional capacity, ALJ Ramos concluded that plaintiff is incapable of performing her past relevant work as an inventory manager and office manager.

At step five, applying the medical vocational guidelines and specifically Rule 201.28, the ALJ concluded that plaintiff is not disabled and therefore ineligible for the benefits sought.

As you know, my task is limited and the scope of review deferential. I must determine whether correct legal principles were applied and whether the determination is supported by substantial evidence.

I have to say that I find this to be a difficult case, as I think most fibromyalgia cases are. Fibromyalgia has been described by many courts, including the Seventh Circuit in Sarchet v. Chater, 78 F.3d 305, as well as the Second Circuit in its decision in Green-Younger v. Barnhart at 335 F.3d 99. One of the difficulties of course of fibromyalgia, as the Seventh Circuit noted in Sarchet, is that its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. And so the Commissioner has issued SSR 12-2p to give guidance as to how the fibromyalgia should be — the claim of fibromyalgia should be analyzed.

In this case, it's clear that the diagnosis at least of Dr. Khairallah supports and complies with SSR 12-2p as providing a medically determinable diagnosis of fibromyalgia. The question then of course becomes what are its limitations. The fact that a mere diagnosis of fibromyalgia exists does not render the plaintiff automatically disabled. But the — the SSR goes on to provide that when there is insufficient evidence to determine whether a person has fibromyalgia or is disabled, the agency will take one or more actions to try to resolve the insufficiency and one of those is to recontact the person's treating or other sources to see if the information we need is available.

In this case, I simply don't think that there is the type of robust analysis, particularly of the opinions of Dr. Latif and Dr. Khairallah who are not even mentioned by name, that I would expect to see. And this is of course an administrative law judge I have a great deal of respect for, ALJ Ramos is a seasoned ALJ, but in this case I think he should have had a better discussion of Dr. Khairallah's notes which clearly support the diagnosis and the existence of the requisite number of trigger points. In fact, even Dr. Lorensen indicates that there are, I'm not sure quite I understand how to interpret it, but Dr. Lorensen said 10 plus trigger points I think in her opinion at page 523. And I guess I would say that I would have to caution — the courts are very clear that caution should be applied when a one-time consultative exam is being used to override the opinions of a treating source, and it's particularly true in fibromyalgia which is elusive, comes and goes, good days, bad days. And the — because of the nature of both the migraines and more importantly the fibromyalgia, I think that it is, it was improper for the administrative law judge to discount Dr. Ali's medical source statement by saying that it is not supported by objective evidence. Dr. Ali, although he primarily treated the migraines, he worked with Dr. Latif hand in hand and presumably is well aware of the medical treatment notes concerning the plaintiff's fibromyalgia.

I also am a little concerned because the plaintiff was found to have a severe impairment in the form of migraines but yet there's no discussion as to whether that impairment factored into the RFC and there are no apparent limitations in the RFC that one could attribute to the migraine headaches.

The vocational expert issue I think is less of a concern to me if the RFC determination is proper. I think SSR 85-15 supports the notion that application of the grids was proper because of plaintiff's lack of any significant limitations that would erode the job base for simple work based on SSR 85-15.

So in sum, I think this is a matter that should be returned to the agency, there's no persuasive evidence of disability so I will order that the Commissioner's determination be vacated and the matter be remanded for a more thorough and careful consideration of plaintiff's fibromyalgia and Dr. Khairallah's and Dr. Ali and Dr. Latif's evidence and perhaps the requirement that they be recontacted for a medical source statement.

Thank you both for excellent presentations, hope you have a good day, and happy holidays.

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.