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), are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on April 5, 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 matter is hereby REMANDED to the Acting Commissioner, with a directive that the Acting Commissioner retain a psychiatric medical expert to examine plaintiff's medical records to determine whether she suffers from a somatic symptom disorder that substantially limits her ability to perform work related functions.

3) 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.

DECISION

THE COURT: Okay. I will have to let that be the last word.

Plaintiff in this action has commenced suit under 42, United States Code, Section 405(g), challenging a determination by the Acting Commissioner finding that she was not disabled at the relevant times and, therefore, ineligible for the disability insurance benefits sought.

The background is as follows. Plaintiff was born in April of 1968. She is just short of 51 years of age now; was 44 years old at the time of the alleged onset of her disability. She is 5-foot 5-inches in height. Her weight has fluctuated, due to her thyroid condition, between 130 and 175 pounds. She's right-handed.

Plaintiff has an Associate's Degree which she secured in 2005, and has taken additional college courses. She was not a member of the military. Plaintiff has a driver's license but claims that she does not drive because she does not feel safe in doing so. Plaintiff lives in a house in Endicott with her husband and two children, who at the time of the hearing were 24 years old and 18 years old, respectively, a son and daughter.

In terms of work, the record is somewhat vague. She has worked from January 2010 to date in Broome County as an activity leader one day per week; she was a dental assistant in 2002, a pharmacy tech and trainer from 1999 to 2010, three days a week, roughly five hours per day, and a cashier from November 2011 to January 2012 on a seasonal situation part time.

Medically plaintiff has complained of many different types of symptoms, including brain fog, fatigue, dizziness, hypothyroidism, Lyme disease, depression, anxiety. She suffers from degenerative disc disease of the cervical spine, as reflected in a February 10, 2014 Magnetic Resonance Imaging testing. That's at 11F. She has seen, as counsel notes, many care providers; Dr. Tali Reeis-Martin, who apparently is the primary care provider; Dr. Ronald Stram for her Lyme disease; Dr. Timothy Howland for thyroid issues; Dr. Joseph Loverro for fibromyalgia and pain; Nurse Practitioner Nancy Evans and Dr. Ramanjan for thyroid; Dr. Asha Gupta for allergies and immunology issues; Dale Fluegal, a chiropractor, among others.

In terms of activities of daily living, plaintiff indicates that her husband and children do most of her chores. She is not social. She has not attended any of her daughter's cheerleading events, did not attend her son's college graduation. She did tell Dr. Long, however, at page 385 and 391, that she does cleaning, laundry and shopping, she does watch television, explores the internet and reads.

Procedurally plaintiff applied for Title II benefits on October 15, 2014, claiming disability based on chronic fatigue, fibromyalgia, thyroid issues and immune system disorder, and an onset date of July 1, 2012. Also included in the claims was Lyme disease and Epstein-Barr. That's at 75 and 231.

A hearing was conducted by Administrative Law Judge Elizabeth Koennecke on March 27, 2017. ALJ Koennecke issued an unfavorable decision on September 6, 2017. That became a final determination of the Agency on March 20, 2018 when the Social Security Administration Appeals Council denied her request for review.

In her decision ALJ Koennecke applied the familiar five-step sequential test for determining disability. After determining that plaintiff was insured through March 31, 2016, she determined that plaintiff had not engaged in substantial gainful actively between the alleged onset date of July 1, 2012 and the date of last insured.

At step two she concluded that plaintiff suffers from severe conditions/impairments that limit her ability to perform basic work activity, including degenerative disc disease of the cervical spine, atrial fibrillation and hypothyroidism.

She concluded at step three, however, that the conditions did not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, considering listing 1.04 specifically.

After examining the medical evidence, ALJ Koennecke concluded that plaintiff retains the residual functional capacity to lift 20 pounds continuously, 50 pounds frequently and 100 pounds occasionally; carry 20 pounds continuously and 50 pounds frequently; sit eight hours at a time and in a workday; stand eight hours at a time and in a workday; and walk eight hours at a time and in a workday. There were other limitations also set forth, both exertional and non-exertional, in addition.

In applying that residual functional capacity, ALJ Koennecke concluded at step four plaintiff is unable to perform any of her past relevant work.

At step five, after noting that if the Medical-Vocational guidelines, or Grids, were applied, based on the ability to perform a full range of medium work, a finding of no disability would be directed by Rule 203.28. ALJ Koennecke concluded based on testimony of a vocational expert that plaintiff, despite her limitations and the non-exertional limitations limiting the job base on which the Grids are predicated, could still perform as a photocopy machine operator, a marker and a kitchen helper.

As you know, my task is limited to determining whether correct legal principles were applied and the termination is supported by substantial evidence, defined as such evidence as reasonable minds would accept to support a conclusion. It is an extremely deferential standard.

I note that we're dealing with a closed period of July 1, 2012 to March 31, 2016. At step two the regulations provide that an impairment or combination of impairments is not severe if it does not significantly limit the claimant's physical or mental abilities to do basic work activities. That's 20 CFR Section 404.1521(a). That section goes on to describe what is meant by basic work activities, including the abilities and aptitudes necessary to do most jobs.

Clearly the second step requirement is de minimis and intended to screen out only the weakest of cases. If a condition or impairment is improperly omitted at step two, the error could be harmless if the Commissioner continues through the sequential analysis provided that limitations associated with that condition are included in the RFC. A decision is vulnerable to challenge, however, when the ALJ omits an impairment at step two and also fails to consider the effects of that impairment in the succeeding steps leading to the decision without substantial evidence to support.

In this case, and this is an interesting one, I have to say, one has to consider the nature of somatic symptom disorders. Somatization was defined by Magistrate Judge J. Francis as, "The conversion of mental experiences or states into bodily symptoms," citing Dorland's Dictionary. That's in Anderson versus Commissioner of Social Security, 2002 WL 31045861. He goes on to state, and that's in footnote 3, goes on to state, "A patient with this disorder may simply complain of being sickly or may have specific symptoms, such as double vision, fainting, abdominal pain, bowel problems, painful menstruation, or sexual indifference. These complaints are often presented in a dramatic and exaggerated manner, but the patient is vague about the exact nature of the symptoms."

The nature of somatic or somatoform disorder is also observed and noted in Fagner versus Berryhill, 2017 WL 2334889 from the Western District of New York, where it was noted that somatization is, "The expression of mental phenomena as physical (somatic) symptoms." Citing the Merck Manual.

The Commissioner's regulations also recognize the existence of somatic symptoms, including at 12.07A, noting that, "These disorders are characterized by physical symptoms or deficits that are not intentionally produced or feigned, and that, following clinical investigation, cannot be fully explained by a general medical condition, or other mental disorder."

This plaintiff seems to present a classic case of somatization, and that was specifically noted by the medical examiner, Dr. Chandrasekhar, who noted at page 941 most of the physical manifestations appear to be from somatization. I also note that Dr. Winkler at page 905 indicated a need to rule out physical issues. Dr. Long also noted that physical symptoms seem to be exacerbated by stress. That's at page 391. And Dr. Reeis-Martin noted that plaintiff's depression could be related to what is going on; in other words, it could be related to her mental condition. At 399, 401 and 403, and there are other entries as well.

The ALJ Koennecke rejected the somatic symptom disorder at step two based on a lack of objective evidence. That's clearly not supported and it does not provide substantial evidence. The Court noted in Easter versus Bowen, 867 F.2d 1128, from the Eighth Circuit 1989, that it is inappropriate to reject the existence of somatoform disorder and its disabling effects based upon the lack of objective evidence alone. Plaintiff clearly did not allege the existence of a mental condition in applying for benefits, but that is consistent with, as counsel argues, the very nature of a somatic disorder. She believes her symptoms are caused by physical issues, but she presents a classic case because she has consulted with so many physicians and many physicians have been unable to pinpoint the source of her issues.

The error at step two in this case is not harmless because there are no limitations set forth in the RFC that relate to and address the somatic symptom disorder. It also affects the hypothetical at step five and, therefore, undermines the Commissioner's determination.

In my view this is a case of where I agree with plaintiff's counsel that there should be a psychiatric medical expert retained to review the records of plaintiff's treatment to determine whether there is, in fact, proof or evidence of a somatic disorder. The ALJ clearly has a duty even in counseled cases to fill gaps. Dr. Winkler and Dr. Chandrasekhar both appear to suggest a need for further evaluation to determine the extent of somatization. There are references also to plaintiff, by the way, seeing a psychologist at 660 and 661.

You know, listing 12.07, I agree with counsel, it could be argued that it's harmless error not to consider 12.07 since the ALJ found that the B criteria were not met, but clearly that did not take into account the somatization and the somatic symptom disorder, and so I am not definitively able to say that that's harmless error. I don't find definitive proof of disability.

And so I'm going to grant judgment on the pleadings to plaintiff and remand the matter with the directive that the Agency retain a psychiatric medical examiner to review plaintiff's records and determine disability, and specifically to consider the possibility of a somatic symptom disorder.

It's been an interesting case. I appreciate both of your arguments, and I hope you have a good weekend.