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.1 Oral argument was conducted in connection with those motions on December 13, 2018, 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.

THE COURT: I have before me a request for judicial review of a determination by the Acting Commissioner finding that the plaintiff was not disabled at the relevant times and, therefore, ineligible for the benefits sought.

The background is as follows. The plaintiff is 47 years old, having been born in October of 1971. He was 41 years old at the alleged onset of his disability. He stands 5-foot 5-inches in height and weighs 135 pounds.

Plaintiff is left-handed. He is married and lives with his wife and his 17-year-old daughter — or, daughter who was 17 at the time of the hearing in this matter I should add. He has another child who is away at college. That's at page 328 of the Administrative Transcript.

Plaintiff and his wife live in a trailer in Homer, New York. They have six cats and three dogs. The plaintiff has primary care for the animals. Plaintiff dropped out of school in ninth grade for academic and behavioral reasons. That's at page 363. Before dropping out he repeated seventh grade twice and eighth grade once. He did achieve a GED. He also attended Tompkins County Community College for two to three years but did not achieve a degree.

Plaintiff last worked at Walmart for two or three months in 2012. He was let go. At the hearing plaintiff testified that he was let go because he could not focus or remember. He has also worked as an elevator repair apprentice, a security guard, a construction worker, a hotel maintenance worker, and in a hardware store, a Lowes to be specific, as a customer service associate.

In 2004 the plaintiff underwent a serious accident resulting in carbon monoxide poisoning. He was sent for emergent care to Upstate Medical Center where he was placed in a hyperbaric chamber. It's at 251, 270 and 362 of the Administrative Transcript. He testified that for the first five years after the accident he was fine but then his short term memory loss began in around 2010.

Plaintiff has also suffered from migraine headaches, although they appear to be well controlled. That's at page 253 of the Administrative Transcript.

Plaintiff further suffers from depression, although he has not received any specialized medical treatment and has not been hospitalized from the condition. He has been prescribed Lexapro in the past, although he stopped it in August of 2013. He has also been prescribed Prozac.

Plaintiff has treated at Upstate Hospital, including with Dr. Amy Sanders, a neurologist, and Dr. Lauren Warren-Faricy, a neuropsychologist. He has also treated with Family Health Network with Physician Assistant Bradley Stevens, who was identified incorrectly by the Administrative Law Judge as a doctor. Also Dr. Lynn Cunningham from Cortland Medical Associates. Magnetic Resonance Imaging testing, or MRI testing, of plaintiff's brain has proven unremarkable.

Plaintiff smokes both cigarettes and marijuana daily. That's at page 273, 316 to 318, 322 and 247. He has been told that he should quit. That's at 255 and 273.

In terms of his daily activities, plaintiff takes care of his animals, helps with housework, watches television, drives, mows the lawn, cooks, does laundry and socializes. That's at 248 and 330.

Procedurally, plaintiff applied for Title II and Title XVI benefits protectively on August 11, 2014, lending a disability onset date of December 16, 2012. In support of those applications, plaintiff claims that he has a cognitive disorder, memory problems, depression, mood swings and sleep loss. That's at page 64 and 182.

The hearing was conducted by Administrative Law Judge Roxanne Fuller on September 20, 2016. ALJ Fuller issued a decision on January 5, 2017 finding that plaintiff was not disabled at the relevant times and, therefore, ineligible for the benefits sought. That became a final determination of the Agency on December 4, 2017 when the Social Security Administration Appeals Council denied plaintiff's request for review.

In her decision ALJ Fuller applied the now familiar five-step test for determining disability.

In that sequential test at step one ALJ Fuller concluded that plaintiff has not engaged in substantial gainful activity since December of 2012. She found that his work at Walmart in 2015 did not qualify as substantial gainful activity.

At step two the ALJ concluded that plaintiff suffers from severe conditions, including depression and a cognitive disorder.

At step three she concluded that plaintiff did not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, and specifically considering listings 12.02 and 12.04.

As was noted when going through the B criteria of those listings, significantly Administrative Law Judge Fuller found that the plaintiff had a marked difficulty in the area of concentration, persistence or pace. At page 14 of the Administrative Transcript.

The Administrative Law Judge then engaged in the two step credibility determination in considering plaintiff's subjective reports of his symptoms.

She then concluded that plaintiff retains the RFC, or residual functional capacity, to perform a full range of work at all exertional levels with the following limitations: He is only able to perform simple, routine, repetitive tasks; work in a low stress job, defined as having only occasional decision-making required and only occasional changes in the work setting.

Proceeding to step four, ALJ Fuller concluded that plaintiff is not capable of performing his past relevant work as a construction worker, security guard, lumber yard salesperson, hotel maintenance person or elevator repair helper.

With the assistance of testimony from a vocational expert, at step five the ALJ concluded that plaintiff is capable of performing work available in the national economy, including in the positions of cleaner, assembler, assembler II, and machine tender, and is therefore not disabled.

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

Two themes appear from plaintiff's brief and argument. The first surrounds the rejection of the opinions of Dr. Warren-Faricy, which are inconsistent with the RFC determination. And secondly, whether the RFC determination is inconsistent with the finding at step three when performing the psychiatric review technique that plaintiff is markedly limited in concentration, persistence and pace.

I note that the plaintiff in his brief suggested that Dr. Caldwell in her opinion ruled out cognitive disorder. It's actually not what Dr. Caldwell found. Dr. Caldwell found that a cognitive disorder should be ruled out. Of course, the ALJ did conclude that plaintiff suffers from a neurocognitive disorder.

But I have to say that although little weight was given to Dr. Warren-Faricy's opinions, which are inconsistent with the residual functional capacity, the explanation was less than robust. Dr. Warren-Faricy is the only acceptable medical source that diagnosed the plaintiff as suffering from a cognitive or neurocognitive disorder. She is an expert in the field of neurocognitive areas. She's a neurocognitive psychologist — neuropsychologist, I'm sorry. She administered her exam which lasted 11 hours between testing and interviews. Very significant. I'm not convinced that the Administrative Law Judge's rejection of her opinions was adequately explained. True, she's not a treating source, but, nonetheless, I thought there should have been more discussion concerning the rejection or the providing of little weight to her opinions.

Obviously, the parties disagree as to the significance of the disconnect or alleged disconnect between the step three determination, where a marked limitation was found in the psychiatric review technique in concentration, persistence and pace, and the RFC. It is true that under SSR 96-8p findings consistent with the B or in connection with the B criteria are not an RFC, and an RFC requires a more specific and different analysis. But, nonetheless, marked is a significant category, it is not extreme, and I agree with the Commissioner that it suggests that there could be work to be performed.

Nonetheless, I think that the fact that there is not a more significant limitation in the RFC to concentration, persistence and pace is not supported by substantial evidence and should have been. And even with moderate limitation in concentration, persistence and pace, as cases cited by the plaintiff note, including Hudson and Karabinas, the limitation should be expressly included in the RFC, and there is support for the limitation.

Dr. Caldwell herself indicated that plaintiff is mildly limited in this area. At 329, 330. Dr. Noia did not. But Dr. Noia's opinion was rendered in 2010, and as it was suggested, this plaintiff really did not begin to deteriorate until some five years after his accident. And according to his testimony and the medical records, it appears that his memory issues and his cognitive issues are on the increase, and so I place less weight and stock on Dr. Noia's opinions from 2010.

Dr. Warren-Faricy, on the other hand, her opinions are much more supportive of the marked limitation on concentration, persistence and pace. And so I thought that there should have been a more comprehensive analysis of why Dr. Warren-Faricy's opinions were rejected and a more comprehensive analysis as to why, despite the finding at step three of a marked limitation, plaintiff could, nonetheless, perform competitive work as set forth in the ALJ's determination.

So, in sum, I'll grant judgment on the pleadings to the plaintiff. I don't find persuasive evidence of disability, and so I will remand the matter to the Agency for further analysis and consideration without a directed finding of disability.

Thank you both for excellent presentations. Happy holidays.