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) and 1383(c)(3), are cross-motions for judgment on the pleadings.2 Oral argument was conducted in connection with those motions on May 24, 2017, 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.

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.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF

THE COURT: I have before me a request for judicial review of an adverse determination by the Acting Commissioner of Social Security pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3).

The background is as follows. Plaintiff was born in May of 1983 and today turns 34. Happy birthday. He was 32 at the time of the hearing in this matter and 30 at the time of his application for benefits.

Plaintiff lives in Appalachian with his grandmother and his sister. He graduated high school with an IEP diploma. There is some confusion in the record as to whether he has children. There is a reference at page 389 that he had one child who was removed by child protective services in 2005, but in his meeting with Dr. Lumina at page 461 he denied having children.

In 2012 the plaintiff attended truck driver school and achieved a CDL license. He also has a driver's license. He is not, however, medically cleared currently to drive commercially.

Plaintiff last worked September through December 1 of 2014. He has worked in various capacities casually and an assembly line position, which he stopped due to back issues. He has driven 18 wheeler trucks. He has operated in a fast food environment. He has performed maintenance and as a taxi driver.

Plaintiff was sentenced to prison and served time from 2006 to 2010 for passing bad checks. He also has an extensive juvenile delinquent record and a history of arrest for fraud, assault, harassment and resisting arrest.

Medically he suffers from several physical and mental impairments. Physically he suffers from severe hypertension with organ damage that has led him to experience migraines, has lumbar disc disease, asthma and obesity.

Mentally he has a history of attention deficit and hyperactivity disorder, or ADHD, and intermittent explosive disorder. He has also been diagnosed at times with bipolar disorder, episodic depressive disorder, personality disorder, and social anxiety.

In 2002 he was hospitalized with suicidal ideation. He has also a history of expressing homicidal ideation. He was diagnosed by Dr. Loomis, the consultative examiner, suffering from a mood disorder not otherwise specified, or NOS, ADHD, social anxiety, and personality disorder not otherwise specified with antisocial features.

Procedural history is as follows. Plaintiff applied for Supplemental Security Income payments on August 22nd, 2013, alleging an onset disability date of May 25, 2013. The hearing was conducted on April 11, 2015 by Administrative Law Judge John Ramos. An earlier hearing was adjourned in order to permit plaintiff to obtain counsel.

On September 3, 2013 Administrative Law Judge Ramos issued an unfavorable decision. That decision became a final determination of the Agency on September 15, 2016 when the Social Security Administration Council denied plaintiff's request for review.

In his decision ALJ Ramos applied the five step well-known sequential test for determining disability. I will note that ALJ Ramos's decision is extremely comprehensive.

At step one he determined that plaintiff was not engaged in substantial gainful activity since the date of his application, even though he did receive some income during that period.

At step two he concluded that plaintiff suffers from severe impairments, including degenerative disc disease of the lumbar spine, hypertension, headaches and migraines, obesity, mood disorder, social anxiety disorder, and personality disorder.

He concluded, however, that those impairments did not rise to a level sufficient to meet or medically equal the listings of presumptively disabling conditions as set forth in the Commissioner's regulations, considering several, including 1.02, 1.04, 14.09, 11.00, 1.00 and 14.00. And he went through, among other things, the examination of the B criteria of the mental limitations of 12.02, 12.04, 12.05, 12.06 and 12.08.

He then engaged in the requisite two-step credibility analysis and explained his reasoning for not fully crediting plaintiff's reports of symptomology.

5 After reviewing the medical evidence, ALJ Ramos concluded that plaintiff retains the capacity to perform sedentary work with limitations. Significantly, but not exclusively, he found that plaintiff retains the ability to understand and follow simple instructions and directions, can perform simple and some complex tasks with supervision and independently, can maintain attention/concentration for simple and some complex tasks, can regularly attend to a routine and maintain a schedule, can relate to and interact with others to the extent necessary to carry out simple tasks, but should avoid work requiring more complex interaction or joint effort to achieve work goals, and can handle reasonable levels of simple work-related stress in that he can make simple decisions directly related to the completion of his tasks and handle usual workplace changes or interactions associated with simple work.

Applying that RFC at step four, ALJ Ramos concluded the plaintiff did not have any significant past relevant work.

And proceeded to step five where he concluded that the Medical-Vocational Guidelines set forth in the regulations, or grids, specifically Rule 201.27, directed a finding of no disability and finding it unnecessary to resort to the testimony of a vocational expert in order to carry the Commissioner's burden at step five.

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

The focus of plaintiff's arguments clearly are on non-exertional limitations associated with plaintiff's mental conditions. There are two key pieces of medical evidence in the record, as we've discussed; the opinions and report of Dr. Cheryl Loomis of her October 2, 2013 examination of the plaintiff, and Dr. Kamin's report authored on October 31, 2013.

Dr. Loomis gave the diagnoses that I just mentioned a moment ago. And as we've been discussing, significantly concluded that claimant exhibited moderate impairment in his ability to maintain a regular schedule and relate adequately to others, and marked impairment in his ability to make appropriate decisions and appropriately deal with stress. Dr. Loomis' opinions were accorded great weight by the Administrative Law Judge at page 32 of the Administrative Transcript.

Dr. Kamin went through the psychiatric review technique directed toward whether or not any of the listings were satisfied and did not perform a functional capacity analysis.

In my view, the Commissioner erred in not according weight and rejecting Dr. Loomis' statements concerning the marked impairment in plaintiff's ability to make appropriately decisions and appropriately deal with stress. SSR 85-15 makes it clear that the ability to handle the demands of work is highly individualized. SSR 85-15 makes the following statement: "Because response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant's condition may make performance of an unskilled job as difficult as an objectively more demanding job."

In other words, it is not sufficient, in my view, to include in the RFC to limit the claimant to simple tasks and unskilled work to address the marked impairment in the plaintiff's ability to make appropriate decisions and appropriately deal with stress.

As the Commissioner candidly has noted, while ALJ Ramos makes the statement that Dr. Kamin determined claimant is capable of performing the basic mental demands of unskilled work, despite his multiple disorders, that statement was not made and it's not supported by the record.

I note that the ALJ also failed to consider plaintiff's moderate limitation in his ability to adequately relate to others. And in the area of social functioning, Administrative Law Judge Ramos says that this is at best a mild limitation. That's at page 34. That flies in the face of Dr. Loomis' opinions as well as the documented history of the plaintiff's homicidal ideations, outbursts, his explosive disorder, and so I find error there.

I do not find error with regard to concentration, persistence and pace, because Dr. Loomis concludes there is no impairment in that domain or in that area. But again, there was, according to Dr. Loomis, a moderate impairment in plaintiff's ability to maintain a regular schedule. The RFC in this case concludes that plaintiff would have no impairment in his ability to maintain a regular schedule. That does not draw the support of substantial evidence and a moderate impairment in my view in the ability to maintain a regular schedule needs to be, A, fleshed out, and B, addressed by a vocational expert at step five to determine whether there is work that plaintiff can perform despite this moderate impairment.

At step five obviously the burden rests with the Commissioner. SSR 96-9p indicates that a substantial loss in making simple work-related decisions and responding appropriately to supervisors, co-workers and usual work situations, and dealing with changes in routine work settings will substantially erode the unskilled sedentary occupational base on which the grids are predicated.

So I find that the RFC determination of the Commissioner is not supported by substantial evidence, and that at step five in order to carry her burden, the Commissioner should have elicited the testimony of a vocational expert. I do not, however, find persuasive evidence of disability such that a remand limited to calculation of benefits is warranted. I think that this matter needs to be remanded for further consideration consistent with this decision.

So I will award judgment on the pleadings to the plaintiff without a directed finding of disability, vacate the Commissioner's determination and remand the matter for further proceedings. I'll issue an order to this effect attaching a transcript of this decision.

Thank you both for excellent presentations. Interesting case.

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.