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 May 15, 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:

Transcript of a Decision held during a Telephone Conference held on May 15, 2015, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.

THE COURT: Thank you both for excellent and spirited arguments and written presentations.

I have before me a request for judicial review of a Commissioner's determination under 42 United States Code Section 405(g).

The background of this matter is as follows: The plaintiff was born in August of 1977, and is currently 37 years old. She has a 12th grade education and one year of college education. She left college, however, based on a severe automobile accident which she apparently suffered in June of 2005. That is reflected at page 435 of the administrative transcript. She has worked in various positions in the past including in medical records and in day care training. She last worked on March 31st, 2009. She worked at Walmart for 10 years off and on, primarily, or her last job at least was working overnight stocking shelves. She left due to lower back pain, migraines, leg pain, and inability to concentrate. She also has one year as an account receivable specialist, and according to her, she was laid off due to attendance problems.

She has treated with various sources. She treated with Dr. Ann Marie Moukala-Cadet from March 2012 forward. She was — she has been prescribed Topamax for headaches, Naproxen, Lyrica, and Cymbalta at various times for backaches. Her — primarily she has treated with Dr. Cadet for headaches, legs, lower back pain, arm pain, wrist pain, and shoulder pain. She has also undergone treatment since at least September 2010 for mental health issues and at various times been diagnosed with post-traumatic stress disorder, anxiety, and depression. She has been prescribed Lexapro.

One of her treating sources, as we've discussed, is Dr. Timothy Roche who she treated with from August 2010 through July 2012. Dr. Roche provided a medical source statement which we have been discussing, it appears at page 563 to 67 of the administrative transcript. She also has seen a sleep specialist, and a Dr. Henda Bouali, another specialist who discerned a vitamin D deficiency.

Procedurally, the plaintiff applied for Disability Insurance and SSI benefits on April 4, 2011, alleged an onset date of March 31, 2009. There was indication of a separate subsequent application which was denied and there was no request for a hearing. The ALJ considered that to have been reopened. The hearing was conducted by ALJ Elizabeth Koennecke on July 10, 2012. The ALJ I'm sorry, it was a prior application from December 22, 2009, I'm sorry, and it was denied in May of 2010. The administrative law judge issued a decision on August 22, 2012, finding that the plaintiff was not disabled at the relevant times and denying her application for benefits. The determination became a final determination of the agency on September 27, 2013 when the Social Security Administration Appeals Council denied plaintiff's application for review.

In her decision, ALJ Koennecke applied the familiar five-step protocol for determining disability, found that plaintiff had not engaged in substantial gainful activity since her alleged onset date, found that she suffers from somatization disorder and PTSD diagnosed variously, rejected dizziness, migraines, pain, sleep problems, and fibromyalgia as also potential severe conditions at step 2.

At step 3 she found that plaintiff's conditions did not meet or medically equal any of the listed presumptively disabling conditions. She then surveyed the medical evidence and concluded that the plaintiff, despite her conditions, retains the residual functional capacity, or RFC, to lift and/or carry 10 pounds occasionally, sit for six hours in an eight-hour workday, and stand and/or walk for two hours in an eight-hour day. The claimant has no postural, manipulative, communicative, visual, or environmental limitations. She retains the ability on a sustained basis to frequently understand, carry out, and remember simple instructions, to frequently respond appropriately to supervision, coworkers, and usual work situations and to frequently deal with changes in a routine work setting. She found that to be consistent with a full range of sedentary work.

After concluding at step 4 that plaintiff is unable to perform her past relevant work, the ALJ applied the Medical Vocational Guidelines or grids and concluded at step 5 that the plaintiff is not disabled and that there is in fact work in the national and local economy she is capable of performing.

As you well know, my role in this matter is extremely circumscribed, I apply a test that is extremely deferential. My role is to determine whether there is correct — whether the correct legal standards were applied by the administrative law judge and whether her decision is supported by substantial evidence.

Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

In this case, I find two problems. The first is whether the RFC is not supported. I do not find any indication that the physical components, by that I mean focused on the back issues, are of concern and provide limitations that were not recognized by the administrative law judge. I think, however, that there is ample evidence that the combination of her headaches and mental impairments do interfere with her ability to perform work-related functions on a regular basis. Dr. Schroeder at page 443 is very clear about the plaintiff's inability to perform on a regular basis. Dr. Roche indicates as much at page 563, 565, and 566. At 566 he states that the plaintiff could be expected to be absent more than three times per month. The case law is fairly clear that anything over two is problematic. At the very least, a vocational expert is needed in such a situation to determine whether the job base on which the grids are predicated is sufficiently eroded by the inability to maintain a regular work schedule.

I understand completely the Commissioner's argument that even though there is substantial evidence supporting the plaintiff's view, the Commissioner prevails if there is substantial evidence to support the ALJ's view. In this case, I do not believe there is. The best that the ALJ was able to cite is the opinion of Dr. Inman-Dundon and at page 466, the doctor concludes, after checking the box for moderate limitation in this particular area, that the plaintiff does appear to have trouble dealing with stress and perhaps some difficulty keeping a regular schedule. So in my view, that is not substantial evidence that she can maintain a regular schedule. At best, it somewhat undermines potentially Dr. Schroeder and Dr. Roche's opinions.

The second issue I have is the rejection of Dr. Schroeder's opinions as a treating source. He is entitled to considerable deference and if his opinions are going to be discounted, the administrative law judge has an obligation to state the basis for that determination. I understand that Dr. Roche is not perhaps a mental health specialist, but the mere statement that his opinions are not supported by his objective findings in my view is not enough. I — he saw the plaintiff some 12 or 13 times over the period before the hearing. His notes are replete with reference to plaintiff's anxiety, depression, 525, 526, 528, 532, 536, 544, and so I do not find that the rejection of Dr. Roche's opinions was sufficiently detailed and supported in the record.

So I am going to grant judgment on the pleadings to the plaintiff. I do not find, however, that there is convincing evidence of disability. I think that this needs another look and a careful consideration of the issues that I just raised, and so I will direct that the matter be returned to the agency for further proceedings without a directed finding of disability.

Thank you both for your excellent presentations, and I hope you both have an excellent weekend.

(Proceedings Adjourned, 2:34 p.m.)

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.