Mehaffey v. Social Security Administration
ORDER ADOPTING 26 REPORT AND RECOMMENDATIONS by District Judge Martha Vazquez; OVERRULING 27 Objections filed by Debra Lynn Mehaffey; and DENYING 18 Motion to Remand to Agency. See Order for Specifics. (gr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DEBRA LYNN MEHAFFEY,
Civ. No. 16‐78 MV/GJF
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on U.S. Magistrate Judge Gregory Fouratt’s
Proposed Findings and Recommended Disposition (“PFRD”) [ECF No. 26] and Plaintiff’s
Objections [ECF No. 27]. In the PFRD, Judge Fouratt made findings and recommendations on
(1) May Plaintiff argue, for the first time in her reply brief, that her time as an inspection
supervisor does not qualify as past relevant work?
(2) If Plaintiff may advance this argument, does her argument undercut the ALJ’s finding
that she could return to work as an inspection supervisor as that position is generally performed
in the national economy?
See PFRD 9-10.
Judge Fouratt recommended that this Court answer both of the above in the negative.
Nevertheless, Plaintiff’s Objections fail to convince this Court that the
magistrate judge’s recommendations are erroneous. At the outset, Plaintiff has yet to demonstrate
why this Court should abandon the general rule of waiver. Even if this Court could be convinced
to ignore the rule, it finds no error in Judge Fouratt’s findings or recommendation regarding
Plaintiff’s past relevant work. For the following reasons, and having conducted a de novo review,
the Court hereby overrules Plaintiff’s Objections and adopts the PFRD.
STANDARD OF REVIEW
When a party files timely written objections to a magistrate judge’s recommendation, the
district court generally will conduct a de novo review and “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(C); see also FED. R. CIV. P. 72(b)(3). However, to preserve an issue for review, “a party’s
objections to the magistrate judge’s report and recommendation must be both timely and
specific.” United States v. One Parcel of Real Prop., With Buildings, Appurtenances,
Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa, Oklahoma, 73 F.3d 1057, 1060
(10th Cir. 1996) (“One Parcel”).
Where a party files timely and specific objections to a magistrate judge’s proposed
findings and recommendation, “on  dispositive motions, the statute calls for a de novo
determination, not a de novo hearing.” United States v. Raddatz, 447 U.S. 667, 674 (1980). The
Tenth Circuit has stated that a de novo determination pursuant to § 636(b) “requires the district
court to consider relevant evidence of record and not merely review the magistrate judge’s
recommendation.” In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). The Supreme Court has
noted that, although a district court must make a de novo determination of the objected to
recommendations under § 636(b)(1), the district court is not precluded from relying on the
magistrate judge’s proposed findings and recommendations. See Raddatz, 447 U.S. at 676 (“[I]n
providing for a ‘de novo determination’ rather than de novo hearing, Congress intended to permit
whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a
magistrate’s proposed findings and recommendations.”) (quoting 28 U.S.C. § 636(b)(1));
Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42 of Stephens Cnty., Okla., 8 F.3d 722, 724-25
(10th Cir. 1993) (holding that as part of a de novo determination, “the district court ‘may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate . .
. .’”) (quoting 28 U.S.C. § 636(b)(1); Raddatz, 447 U.S. at 676) (emphasis omitted).
Plaintiff filed an application for Disability Insurance Benefits and Supplemental Security
Income on August 6, 2012.
Pl.’s “Motion to Reverse and Remand for a Rehearing with
Supporting Memorandum” (“Motion”) 3, ECF No. 18. Plaintiff claimed disability beginning on
February 1, 2006, based on emphysema, esophageal spasms, osteoporosis, and high blood
pressure. AR 228. The Social Security Administration (“SSA”) denied Plaintiff’s application
initially on March 19, 2013, and upon reconsideration on September 13, 2013. AR 75, 76. At
her request, Plaintiff received a de novo hearing before Administrative Law Judge (“ALJ”) Eric
Weiss on May 13, 2015. AR 37-74. On June 5, 2015, the ALJ issued his decision, finding that
Plaintiff was not disabled within the meaning of the Social Security Act (“the Act”). AR 18-29.
The Social Security Administration’s (“SSA’s”) Appeals Council declined review on December
Consequently, the ALJ’s decision became the final decision of the
Commissioner. 20 C.F.R. § 422.210(a) (2016). Plaintiff timely filed her appeal to the U.S.
District Court on February 3, 2016. ECF No. 1.
On April 25, 2017, Magistrate Judge Fouratt issued his PFRD, recommending that this
Court deny Plaintiff’s Motion on two grounds: first, because Plaintiff waived the only contested
issue in this case by failing to raise it until her reply brief [PFRD 10-11, ECF No. 26], and
secondly, because “Plaintiff’s ability to return to her past relevant work as an inspection
supervisor mandates a finding of nondisability.”
Id. at 11-14.
Plaintiff timely filed her
Objections on May 9, 2017, requesting “that the recommended findings be rejected and/or
modified, in whole or in part . . . and that this case be remanded for further proceedings.” Pl.’s
Objs. 6, ECF No. 27. First, Plaintiff argues that the general waiver rule is not absolute, and that
“departure from the general rule will not offend the policies that underlie the rule: fairness and
judicial economy.” Id. at 3. She also challenges Judge Fouratt’s recommendation on the merits,
arguing that Plaintiff’s work as an inspection supervisor was actually a composite job, and
therefore, “the ALJ could not have relied on the DOT1 to determine that [Plaintiff] could perform
past work as ‘ordinarily required by employers throughout the national economy.’” Id. at 5
(citing SSR 82-61, 1982 WL 31387, at *2 (Jan. 1, 1982)). In fact, she contends that “as a matter
of law, none of the past relevant job tests apply in [Plaintiff’s] case.” Id.
A. Standard of Review
When the Appeals Council denies a claimant’s request for review, the ALJ’s decision
becomes the final decision of the agency.2 The Court’s review of that final agency decision is
both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing
Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497–98 (10th Cir. 1992)) (“The
standard of review in a social security appeal is whether the correct legal standards were applied
and whether the decision is supported by substantial evidence.”)
The factual findings at the administrative level are conclusive “if supported by substantial
evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a
DOT is the acronym for the Dictionary of Occupational Titles, produced by the U.S. Department of Labor.
A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which generally is the ALJ’s
decision, not the Appeals Council’s denial of review. 20 C.F.R. § 404.981 (2015); O’Dell v. Shalala, 44 F.3d 855,
858 (10th Cir. 1994).
reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373
F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004);
Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). An ALJ’s decision “is not based on
substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting it.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
Substantial evidence does not, however, require a preponderance of the evidence. U.S. Cellular
Tel. of Greater Tulsa, L.L.C. v. City of Broken Arrow, Okla., 340 F.3d 1122, 1133 (10th Cir.
2003). A court should meticulously review the entire record but should neither re-weigh the
evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214.
As for the review of the ALJ’s legal decisions, the Court reviews “whether the ALJ
followed the specific rules of law that must be followed in weighing particular types of evidence
in disability cases.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The Court may reverse
and remand if the ALJ failed “to apply the correct legal standards, or to show . . . that she has
done so.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
Ultimately, if substantial evidence supports the ALJ’s findings and the correct legal
standards were applied, the Commissioner’s decision stands and the plaintiff is not entitled to
relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.
B. Sequential Evaluation Process
The SSA has devised a five-step sequential evaluation process to determine disability. See
Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2015).
At the first three steps, the ALJ considers the claimant’s current work activity, the medical
severity of the claimant’s impairments, and the requirements of the Listing of Impairments. See
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App’x 1. If a claimant’s
impairments are not equal to one or more of those in the Listing of Impairments, then the ALJ
proceeds to the first of three phases of step four and determines the claimant’s residual functional
capacity (“RFC”). See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase
two, the ALJ determines the physical and mental demands of the claimant’s past relevant work,
and in the third phase, compares the claimant’s RFC with the functional requirements of his past
relevant work to determine if the claimant is still capable of performing his past work. See
Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f). If a claimant is not prevented
from performing his past work, then he is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f).
The claimant bears the burden of proof on the question of disability for the first four steps, and
then the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S.
137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987). If the claimant cannot
return to his past work, then the Commissioner bears the burden, at the fifth step, of showing that
the claimant is capable of performing other jobs existing in significant numbers in the national
economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51
(10th Cir. 1988) (discussing the five-step sequential evaluation process in detail).
THE ALJ’S DECISION
The ALJ issued his decision on June 5, 2015. Administrative R. (“AR”) 29. At step one,
he found that Plaintiff had not engaged in substantial gainful activity since the alleged disability
onset date of February 1, 2006. AR 20. Because Plaintiff had not engaged in substantial gainful
activity for at least twelve months, the ALJ proceeded to step two. AR 20-23. There, he found
that Plaintiff suffered from the following severe impairments: (1) chronic obstructive pulmonary
disease (“COPD”); (2) moderate degenerative disc disease at L4-L5 with moderate lumbar facet
arthropathy; and (3) mild degenerative osteoarthrosis of the hips. AR 20. At step three, the ALJ
found that none of Plaintiff’s impairments, alone or in combination, met or medically equaled the
severity of a Listing. AR 23-24. Thus, he turned to step four, where he began by crafting
Plaintiff’s RFC. “[A]fter careful consideration of the entire record,” the ALJ found that Plaintiff
possessed the residual functional capacity to perform light work with the following restrictions:
[Plaintiff] is able to lift, carry, push, and pull twenty pounds occasionally and ten
pounds frequently; is able to stand or walk up to six hours in an eight-hour
workday with normal breaks; and is able to sit for up to six hours in an eight-hour
workday with normal breaks. [Plaintiff] can never climb ladders, ropes, and
scaffolds. [Plaintiff] can occasionally climb ramps and stairs and crawl.
[Plaintiff] can frequently balance, stoop, kneel, and crouch. [Plaintiff] must avoid
more than occasional[ ] exposure to extreme cold, heat, and wetness as well as
unprotected heights. [Plaintiff] must avoid all exposure to irritants such as fumes,
odors, dust, and gases.
In the second phase of step four, the ALJ identified three instances of past relevant work3
in Plaintiff’s employment history, including inspector (DOT #619.381-010), customer service
clerk (DOT #279.357-054), and inspector supervisor (DOT # 609.131-010). AR 27-28. As to
the position of inspector supervisor, he stated:
The record additionally reflects [Plaintiff] worked as inspection supervisor from
1992 to 1995 and 1998 to 2000. Her earnings records indicated that she worked
at or above substantial gainful activity during this time. The vocational expert
testified and defined the job of inspector supervisor, as a light, skilled job with a
specific vocational profile of 8, meaning it takes anywhere from four to ten years
to learn. However, the vocational expert testified that [Plaintiff] performed the
job of inspector supervisor at the heavy exertional level. I find that [Plaintiff]
worked at substantial gainful activity and worked as an inspector supervisor for a
sufficient amount of time to learn the skills to return to this job. Therefore, I find
that [Plaintiff’s] past work as an inspector supervisor qualifies as past relevant
“Past relevant work” is a term of art defined by regulation as “work that [a claimant has] done within the past 15
years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” 20
C.F.R. § 404.1560(b)(1) (2016).
At the third and final phase of step four, the ALJ compared Plaintiff’s RFC with the
functional requirements of her past relevant work to determine if she was still capable of
performing that work. See AR 28-29. The ALJ relied on the VE’s testimony “that a hypothetical
person with the same vocational profile and limitations as [Plaintiff] could return to past relevant
work as an inspector supervisor as generally performed in the national economy.” AR 29. That
testimony led the ALJ to find that “[i]n comparing [Plaintiff’s] residual functional capacity with
the physical and mental demands of an inspector supervisor I find [Plaintiff] is able to perform
this work as generally performed.” AR 29.
Because the ALJ found that Plaintiff was not prevented from performing her past work, he
determined that Plaintiff had not been under a disability, as defined by the Act, during the
relevant time period. AR 29. See 20 C.F.R. §§ 404.1520(f), 416.920(f). See also 20 C.F.R. §
1560(b)(3) (“If we find that you have the residual functional capacity to do your past relevant
work, we will determine that you can still do your past work and are not disabled.”).
Accordingly, he denied Plaintiff’s claim. AR 29.
PLAINTIFF’S WAIVER OBJECTION IS OVERRULED
In his PFRD, Judge Fouratt correctly narrowed the live issues for this Court’s review. See
PFRD 9-10. Moreover, he properly noted that the sole controversy persisting between the parties
derives from Plaintiff’s reply brief, thereby rendering the issue incompetent for review under the
general rule of waiver. See id. at 10-11.
In her Objections, Plaintiff offers no justification for failing to raise the issue of past
relevant work prior to her reply. To the contrary, she states only that “[i]nadvertently, an
argument as to whether [Plaintiff] has past relevant work as an ‘[i]nspection [s]upervisor”
pursuant to SSR 82-61 was only made in the reply.” Pl.’s Objs. 1-2.4 Plaintiff maintains that
addressing the “pure legal issue” of whether she can return to past relevant work will not offend
the policies of “fairness and judicial economy” that underlie the rule of waiver. Id. at 3. Further,
she takes the odd position that the “PFRD includes a rebuttal” of Plaintiff’s argument, thereby
satisfying “the preservation rule.” Id.
This case provides an exemplar of both why the rule of waiver exists and why it must be
In Plaintiff’s Motion, Plaintiff’s counsel omitted an indispensable component of
Plaintiff’s argument. By doing so, Plaintiff’s counsel implicitly conceded that Plaintiff could
return to past relevant work as an inspection supervisor, thereby mandating a finding of
nondisability and guaranteeing the failure of Plaintiff’s suit. Yet, faced with this quandary,
Plaintiff’s counsel declined to seek an agreed remedy with opposing counsel, just as he elected
not to move this Court for a form of relief that would have allowed both Plaintiff and Defendant
to fully brief a new argument before this Court’s review. Instead, through Plaintiff’s reply and at
a point in litigation where opposing counsel is precluded from further argument without leave of
court, see D.N.M.LR-Civ. 7.4(b), Plaintiff’s counsel advanced the new argument that Plaintiff had
no past relevant work as an inspection supervisor.5
This assertion is also misleading. SSR 82-61 is mentioned nowhere in Plaintiff’s Reply. Plaintiff’s entire
argument (initiated only in her reply brief) centered on her past relevant work as an inspection supervisor not
comporting with the DOT description for the position. See infra, note 5. Now in her Objections, she seeks to make
for the first time an additional argument under SSR 82-61 that Plaintiff’s past relevant work constituted a
“composite job.” This too is improper. See United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001)
(“In this circuit, theories raised for the first time in objections to the magistrate judge’s report are deemed waived.”).
The failure of this attempt will be discussed infra in section VI.
The relevant section of Plaintiff’s Reply is titled “[Plaintiff] Did Not Have Past Work as an Inspector Supervisor.”
Pl.’s Reply 2, ECF No. 24. She argued that Plaintiff’s duties as an inspection supervisor, as described by Plaintiff
during her testimony, were not consistent with the job of inspection supervisor provided by the vocational expert.
See id. at 3.
In the Tenth Circuit, “arguments raised for the first time in a reply brief are generally
deemed waived.” United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011) (citation omitted).
In Stump v. Gates, the court explained the basis for this “rule of waiver”:
This court does not ordinarily review issues raised for the first time in a reply
brief. The reasons are obvious. It robs the appellee of the opportunity to
demonstrate that the record does not support an appellant’s factual assertions and
to present an analysis of the pertinent legal precedent that may compel a contrary
result. The rule also protects this court from publishing an erroneous opinion
because we did not have the benefit of the appellee’s response.
Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). In social security cases, “the district court
acts as a first-tier appellate court.” Hamilton, 961 F.2d at 1501 (10th Cir. 1992) (citation
omitted). Therefore, when reviewing social security cases on appeal, this Court applies the
general rule of waiver for the same reasons articulated in Stump.
Here, the rationale of Stump convinces this Court to enforce the rule of waiver.
Obviously, Plaintiff’s counsel is asking this Court to rule on a new argument without the benefit
of opposing counsel’s response. See Stump, 211 F.3d at 533. Nevertheless, Plaintiff’s counsel
appears unaware of his responsibility to cure this litigation failure, arguing as recently as
Plaintiff’s Objections that the rule of waiver should be discarded since “Defendant never argued
‘waiver’ nor asked the Court for surreply.” Pl.’s Objs. 3. And, while Judge Fouratt presented a
clear and well-supported recommendation on Plaintiff’s new argument, that recommendation
might well have been enhanced by the benefit of the Commissioner’s analysis “of the pertinent
legal precedent that may compel a contrary result.” Stump, 211 F.3d at 533. After all, the
Commissioner and her legal counsel are devoted full-time to the field of social security law,
unlike the district courts.
In addition, this Court shares the Tenth Circuit’s interest in the accurate and reliable
adjudication of disputes. See id. To allow Plaintiff to propound new arguments in a reply brief
without the benefit of a full debate between the parties clearly would imperil that interest and
should be permitted only in exceptional circumstances and upon proper justification. This record
presents neither. The “inadverten[ce]” referenced by Plaintiff’s counsel hardly satisfies, and the
citations counsel proffers are inapposite, in that both stand for the proposition that the Tenth
Circuit will “not consider an issue raised for the first time on appeal.” See Tele-Commc’ns, Inc.
v. C.I.R., 12 F.3d 1005, 1007 (10th Cir. 1993); Daigle v. Shell Oil Co., 972 F.2d 1527, 1539
(10th Cir. 1992) (“As a general rule we refuse to consider arguments raised for the first time on
appeal unless sovereign immunity or jurisdiction is in question.”). Neither these cases, nor
Plaintiff’s argument, nor the continuing conduct of Plaintiff’s counsel helps persuade this Court
to abandon the rule of waiver. To the contrary, the rule exists to be exercised, in the sound
discretion of the district courts, upon occasions such as this. The Court deems Plaintiff’s
argument that she had no past relevant work as an inspection supervisor to have been waived.
THE COURT FINDS NO ERROR IN THE MAGISTRATE JUDGE’S
As mentioned above, Plaintiff has done little to assist this Court in exercising its
discretion in her favor. That trend has persisted through Plaintiff’s Objections, where rather than
responding directly to Judge Fouratt’s recommendations, Plaintiff has chosen to again advance a
new, substantive argument at an impermissible stage in the litigation. Specifically, Plaintiff
attacks Judge Fouratt’s recommendation to affirm the ALJ’s finding that Plaintiff could return to
her past relevant work as an inspection supervisor, but not for reasons discussed in either the
substantive litigation or the magistrate judge’s PFRD. See Pl.’s Objs. 2-5. Rather, Plaintiff
advances the altogether new notion that “[t]he VE clearly identified [Plaintiff’s] work for
Bigelow Components as a composite job because it had ‘significant elements of two or more
occupations[ ]” described in the DOT.” Id. at 5 (emphasis in original). Plaintiff also offers two
regulatory citations which she claims support her position. Unfortunately for Plaintiff, these
citations, and this argument writ large, merit little of this Court’s attention, as they constitute an
impermissible attempt to introduce a new argument during the objection stage.
Under Tenth Circuit precedent, it is axiomatic that “[i]ssues raised for the first time in
objections to the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater,
75 F.3d 1421, 1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1030, 1030–31
(10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate
judge’s report are deemed waived.”). See also ClearOne Commc’ns, Inc. v. Biamp Sys., 653
F.3d 1163, 1185 (10th Cir. 2011) (same); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th
Cir. 2010) (same); Pevehouse v. Scibana, 229 F. App’x 795, 796 (10th Cir. 2007) (unpublished)
(finding the “the district court correctly held that [a petitioner] had waived [an] argument by
failing to raise it before the magistrate”). In a recent social security case, the Tenth Circuit had
occasion to apply the objection-stage rule of waiver. The court explained that even where a new
case had been decided after the filing of the plaintiff’s brief, “the authorities it relied on were
available when [the plaintiff] filed his brief.” Collins v. Colvin, 640 F. App’x 698, 700 (10th Cir.
2016) (unpublished) (citations omitted). Consequently, rather than allowing the plaintiff to
propound a new argument with this new authority through his objections, the Tenth Circuit held
that the plaintiff “could have raised the argument in his opening brief, and we consider it
Pursuant to Tenth Circuit precedent, this Court deems Plaintiff’s objection to the PFRD
waived to the extent it argues that Plaintiff’s past relevant work as an inspection supervisor
represented a composite job.
Additionally, the Court hereby overrules Plaintiff’s general
objection to Judge Fouratt’s finding that Plaintiff had past relevant work as an inspection
supervisor. The Court has conducted a de novo review of the record and Judge Fouratt’s PFRD,
and even if it were not to consider the entire challenge waived because it was raised for the first
time only in Plaintiff’s Reply, it nonetheless finds no error in Judge Fouratt’s analysis
concerning Plaintiff’s past relevant work as an inspection supervisor, or how he interpreted her
position in light of the DOT. Accordingly, the Court will overrule Plaintiff’s objections and
adopt the magistrate judge’s PFRD.
Following its de novo review of both the PFRD and the record, the Court finds no error in
Judge Fouratt’s findings or recommendations.
IT IS THEREFORE ORDERED that the Commissioner’s Objections to the PFRD
[ECF No. 27] are OVERRULED, and U.S. Magistrate Judge Gregory Fouratt’s PFRD [ECF No.
26] is ADOPTED in toto.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Reverse or Remand [ECF No.
18] is HEREBY DENIED, and the Commissioner’s final decision is HEREBY AFFIRMED.
IT IS SO ORDERED.
THE HONORABLE MARTHA VAZQUEZ
UNITED STATES DISTRICT JUDGE
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