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), are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on November 13, 2015, 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.

DECISION — November 13, 2015

James Hanley Federal Building, Syracuse, New York

HONORABLE DAVID E. PEEBLES

United States Magistrate-Judge, Presiding

THE COURT: I'll have to let that be the last word. This is an interesting case and I, frankly, found it to be a close case. I've been very meticulous in reviewing the records.

I have before me a request for a review of a determination under 42, United States Code, Section 405(g). The background of this case is as follows. The plaintiff was born on — I'm sorry, I won't give the date; born in January, 1964. She lives in Oneida, New York, together with a boyfriend and a 15-year-old daughter. She testified that she has not worked since December 31st, 2011, although, interestingly, she reported on May 22nd, 2012 and again on September 2nd, 2012 to health care providers that she was — to Dr. Zogby that she was working in a part-time light duty position. That's at 470 and 474.

Her last position was an accounts receivable and medical billing position that required her primarily to be seated and did not involve significant lifting. The employment was terminated after the employer, despite some accommodations for plaintiff's medical conditions, found that she could not perform the job. Plaintiff has also worked as a gym receptionist, a pharmaceutical tester and an accounts payable and accounts receivable position in a doctor's office.

Clearly the plaintiff suffers from several medically diagnosed conditions as well as some that may have yet to be diagnosed. For several years she underwent — suffered from chronic lumbar pain and underwent an L4-S1 laminectomy with fusion in May of 2009 performed by Dr. Zogby. Since her surgery she's continued to treat periodically to address her complaints of lower back pain, including with Syracuse Orthopedic Specialists. Although plaintiff's treatment regimen, frankly, with regard to the back has been very conservative consisting primarily of medication. She did say that that was the result of lack of insurance.

The plaintiff clearly suffers from some sort of sleep impairment disrupting her nighttime sleep and resulting in daytime drowsiness. She's undergone several sleep studies both locally and at the Cleveland Clinic. The results have been mixed and she's been diagnosed in various ways. She was referred by Dr. Shukri to Pulmonary Health Physicians where she was seen by Dr. Edward Downing for a consultation regarding her sleep issues. She underwent a sleep study on October 25, 2011 at St. Joseph's Hospital Health Center. That study reflected a significant degree of hypersomnolence and resulting diagnosis of obstructive sleep apnea.

The plaintiff also underwent another sleep consultation with Dr. Antonio Culebras, at the request of Dr. Shukri again, initially on September 10, 2012. Based upon his review, that doctor concluded plaintiff suffers from hypertension, pitting edema and a mild form of peripheral neuropathy. It's clear that she has some sort of hypersomnia or hypersomnolence, but professionals have not been able to agree as to the etiology. She has been diagnosed by some as suffering from narcolepsy but others say that narcolepsy has been ruled out. Those appear at various places; 757, 718, 496, 500, 501 and 509.

Plaintiff also suffers from migraine headaches. She suffers from less than one time per month but they can last up to two to three days. Although as indicated in the new evidence, Exhibit 23F that was submitted to the Appeals Council, it appears that they may have increased in frequency. Plaintiff has undergone significant testing, including several CT head scans and brain MRIs, in an effort to trace the origin of those migraine headaches, all without success.

Plaintiff, as we discussed, has been diagnosed with having fibromyalgia. At one time testing positive for 18 out of 18 possible trigger points. She also has been diagnosed as suffering from systemic lupus erythematosus, which I will refer to as lupus because I can't pronounce the other one. She also claims to experience tremors. Although, again, the etiology is unclear.

She was admitted on June 30, 2011 at St. Joseph's Hospital Health Center, symptoms that included uncontrollable shaking. After a neurological consultation, however, health care providers were unable to determine the cause of those tremors. The plaintiff was, therefore, discharged on July 2nd, 2011 with a diagnosis that included acute cerebellar ataxia, resolved, etiology unclear, with a history of migraines, chronic back, irritable bowel syndrome and hiatal hernia.

The plaintiff has taken a variety of medications over time to address her conditions. I'm not going to read the list, it is extremely extensive, and includes everything up to including Percocet, Ultram, and a variety of others.

Despite her medical conditions, plaintiff appears to have been able — has been able, as defendant's counsel correctly points out, to engage in certain daily activities; watching television, driving her daughter to school, exercising, performing yoga, complete light housework and cooking dinner. Plaintiff filed an application for disability insurance benefits on November 26, 2012 alleging an onset date of June 9, 2011, although at the administrative hearing she amended her onset date to December 13, 2011.

Following the hearing, a hearing conducted by Administrative Law Judge Roxanne Fuller in June 2014, the ALJ issued a decision concluding that plaintiff was not disabled at the relevant times; therefore, ineligible to receive benefits. After including new evidence submitted on behalf of the plaintiff in the record, the Social Security Administration Appeals Council denied plaintiff's request for review on September 4, 2014, making the ALJ's decision the final determination of evidence.

The ALJ's decision is fairly straightforward. She applied the familiar five-step sequential analysis for addressing claims of disability, concluded she had not engaged in substantial gainful activity since her alleged onset date, suffers from severe impairments, including lupus, lumbar spine disorder, arthritis, migraines, and sleep disorders. She concluded, however, that plaintiff's impairments did not meet or medically equal any of the listed presumptively disabling impairments set forth in the regulations.

The ALJ after surveying the available medical evidence then concluded that plaintiff was capable of performing light work subject to additional restrictions; that she should never climb ramps or stairs, never climb ladders, ropes or scaffolds, she should not be exposed to moving mechanical parts or unprotected heights, she should not operate a motor vehicle, and she is able to perform simple routine and repetitive tasks.

Applying that residual functional capacity, the ALJ concluded that the plaintiff was not capable of performing her past relevant work, but after consulting with a vocational expert concluded that there is available work, including as a cashier II, a mail clerk and an office helper, that she is capable of performing not withstanding her limitations, and concluded therefore that she is not disabled.

As you both know, my task is limited and the review that I make is extremely deferential. I must determine whether correct legal principles have been applied and the findings of the ALJ are supported by substantial evidence.

First, with regard to the new evidence. Under the Social Security regulations a claimant is clearly authorized to submit new and material evidence to the Appeals Council when requesting review of the ALJ's decision. It is clear that that was done and that the Appeals Council included the new evidence, and most critically Exhibit 23F, in the record. To be properly considered post-hearing evidence must be new and material and must relate to the period on or before the ALJ's decision.

I don't think there is any question that the evidence here is new, but it is only material if it is relevant to the claimant's condition and probative; in other words, where there is a reasonable probability that the new evidence would have influenced the Commissioner to decide the claimant's application differently.

Let me say this. I looked carefully to see if there were any opinions of Dr. Shukri that would have triggered the obligation of the Appeals Council to apply the Treating Source Rule and explain why it was being rejected. I didn't find any. And I agree with — although I agree with the plaintiff's counsel that it is consistent with prior records, I don't think it provides a basis to overturn the Commissioner's determination.

In that regard, I think this is readily distinguishable from Judge D'Agostino's decision, for example, in Sears against Colvin, because that pretty clearly suggested a condition that was ignored by the ALJ.

Non-exertional limitations, I don't have any problem with the finding of the consultative examiner in bending. I agree with the Commissioner that mild bending is not inconsistent with the ability to perform light work. I do have concerns, however, about the hand situation. The consultative examiner concluded that plaintiff does have a limitation, it is characterized as mild, with grasping. But when you add that to the evidence, the medical evidence in the record that supports plaintiff's hearing testimony that she suffers from hand tremors, I was looking for a discussion by the Administrative Law Judge as to how that might affect the ability to engage in fingering, gross and fine manipulation, and as we've discussed, there is really no consideration of that in the RFC finding and no discussion other than at step two, as plaintiff's counsel indicated, of the tremors. And I think that that's a major flaw in the Commissioner's determination and undermines the RFC finding on a course which the Commissioner's determination and the vocational expert's testimony hinge.

So I am going to grant judgment on the pleadings to the plaintiff, vacate the Commissioner's determination. Quite obviously, there is not compelling evidence of disabilities. This is something that needs to be examined more closely. And after that is done with a fresh look, the ALJ may or may not conclude that plaintiff is disabled at the relevant times but I think it should be examined more closely.

So again, I'm granting judgment on the pleadings to the plaintiff. I appreciate it; both of you did an excellent job at both briefing the issues and arguing. So I hope you both have a good afternoon.

CERTIFICATION

I, EILEEN McDONOUGH, RPR, CRR, 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.