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 8, 2016, 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.
(In chambers, via telephone:)
THE COURT: Thank you, both for excellent presentations.
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 December of 1967. She is 5 foot 4 inches in height and has weighed as much as 310 pounds and sometimes more and sometimes less. She's married but has no dependent children. She lives in a house. She has an 11th grade education. She left high school to go to work.
She is a certified nursing assistant and has worked in that field at Van Duyn, a local facility, for 18 and a half years. She left that facility in January of 2007.
The plaintiff suffers from a variety of diagnosed medical conditions, including diabetes and hyperglycemia, asthma, and some other conditions, as well. She's, obviously, obese, in addition.
The plaintiff developed asthma in 2001 and was taken from work to the Community Hospital emergency room. Some of the symptoms associated with her asthma include a development of sinus infections, coughing, vomiting. She experiences asthma when exposed to certain irritants, including cleaning supplies, perfume and other similar irritants.
She has been treated over 20 years by Dr. Robert Polachek. She has also received treatment from Dr. Richard Evans, an expert in pulmonology; although, he apparently closed his office in or about 2009. Her diabetes has been treated, among others, by nurse practitioner Lynn Cahill-Hoy.
The procedural history of this case is as follows: The plaintiff filed an application for disability benefits under Title II of the Social Security Act on February 4, 2009, alleging an onset date of January 11, 2007.
The matter was assigned to Administrative Law Judge John Ramos who conducted a hearing on February 25, 2011, after adjourning prior sessions without taking testimony.
On March 7, 2011, ALJ Ramos issued a decision denying benefits and finding that plaintiff was not disabled at the relevant times.
The Social Security Administration Appeals Council denied review of that decision on July 31, 2012.
An action was commenced in this court by the plaintiff resulting in a remand on stipulation on January 3, 2014.
Following that remand, the Social Security Administration Appeals Council vacated the prior decision and issued an order on February 6th, 2014, providing instructions to the administrative law judge for consideration on remand.
There was a second Title II application filed on September 16, 2013, and that was consolidated into this proceeding.
On May 14, 2014, a second hearing was conducted by ALJ Ramos. He issued a second decision on August 4, 2014, again finding that plaintiff was not disabled at the relevant times.
Social Security Administration Appeals Council denied review on February 2, 2016, making this a final determination of the agency.
In his decision, ALJ Ramos at Step 2 concluded that plaintiff suffers from — after concluding she had not engaged in substantial gainful activity since her alleged onset date, concluded that she suffers from reactive airways disease/asthma, obesity and diabetes mellitus as severe conditions at Step 2, rejecting plaintiff's back pain and lumbar spine conditions and, also, Hodgkin's Lymphoma.
The ALJ then concluded at Step 3 that plaintiff's conditions did not meet or medically equal any of the listed presumptively disabling conditions, including considering 3.03 related to asthma and 9.08 related to diabetes mellitus.
After surveying the record, the ALJ concluded that the plaintiff retains the residual functional capacity to perform sedentary work with limitations, including, pertinently, to this proceeding. The claimant should avoid exposure to fumes and other respiratory irritants and extremes of temperature or humanity.
Applying that RFC finding, the ALJ Ramos concluded that plaintiff is unable to perform her past relevant work as a nurse's aide and, after eliciting the testimony of a vocational expert, concluded that she is capable of performing work in the national economy, including as a surveillance system mopper, a circuit board assembler, and a table worker. He therefore, concluded that she was not disabled at the relevant times and not entitled to benefits.
As you know, my the scope of review in this matter is narrow. My task is limited to determining whether substantial evidence supports the finding of the agency and that correct, legal principles were applied. It is a very deferential standard.
The first argument made is that the remand order was not followed and I agree with that in a couple of respects. First, I think it's clear from the Social Security Appeals Council's order, including at 560 and 561, that the Appeals Council was looking for something very definitive when it comes to environmental restrictions that would be incorporated into an RFC finding and, thereafter, presented to a vocational expert for a determination of whether, with those limitations, plaintiff could perform work available in the national economy.
It, also, very clearly indicates that a better rational should be given for rejection of Dr. Polachek's opinions as a treating physician, even though it's clear he's not a specialist. But, nonetheless, he is a treating physician, treated plaintiff for 20 years and his opinions are controlling, unless they are not supported by medically accepted clinical and laboratory diagnostic techniques or inconsistent with other substantial evidence, in which case, that should have been explained.
In this case, the rejection of Dr. Polachek's opinions concerning irritants, including dust fumes, perfumes, humidity and so forth was not explained and, more importantly, his opinion about absence more than four days per month and a similar opinion by Nurse Practitioner Cahill-Hoy are not referenced and are not explained by — are not discussed by the administrative law judge. But, clearly, they were rejected because the vocational expert testified that, with absences of more than four days per month, there would be no jobs in the national economy that plaintiff could perform. That's at Page 523 of the administrative transcript.
So, in my view, the decision is flawed for those reasons and the Step 5 determination is, therefore, flawed because it is based on faulty residual functional capacity.
So, I have searched the record and, although this case has a tortured history, I am not able to say with a hundred percent conviction that there is overwhelming evidence of disability. And, so, I am not going to make a directed finding of disability.
Instead, I'm going to grant judgment on the pleadings to plaintiff remanding the matter for further proceedings in connection with both my decision and the remand order from the Social Security Administration Appeals council.
Thank you both, again, for excellent presentations. I hope you have a wonderful holiday.
MS. BURKETT: You, too. Thank you, your Honor.
MS. PETERSON: Thank you, your Honor.
(Proceedings adjourned, 2:26 p.m.)
CERTIFICATION
I, DIANE S. MARTENS, Registered Professional Reporter, DO HEREBY CERTIFY that I attended the foregoing proceedings, took stenographic notes of the same, that the foregoing is a true and correct copy of same and the whole thereof.
