D'Amore v. Commissioner of Social Security
Filing
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MEMORANDUM DECISION AND ORDER, denying Deft's 12 Motion for Judgment on the Pleadings. The case is remanded to the Commissioner for further administrative proceedings consistent with this decision. The Clerk is directed to enter judgment accordingly. (Ordered by Judge Brian M. Cogan on 12/30/2011) c/m with Unpublished Cases to Pltff. Fwd. for Judgment. (Galeano, Sonia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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X
PASQUA D'AMORE,
MEMORANDUM
DECISION AND ORDER
Plaintiff,
II Civ. 0350 (BMC)
- againstCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
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X
COGAN, District Judge.
Plaintiff prose brings this action pursuant to the Social Security Act, 42 U.S.C. § 405(g),
seeking review of the determination of an Administrative Law Judge ("' ALJ") that she is not
disabled. Before the Court is the Commissioner's motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12( c). Plaintiff has not filed any opposition to this
motion. For the reasons set forth below, the Commissioner's motion is denied, and the case is
remanded for further proceedings consistent with this decision.
BACKGROUND
Plaintiff filed a Title II application for disability insurance benefits on March 3, 2008,
alleging that from January 4, 1990 through June 30, 1995, the date last insured, she was disabled
due to severe problems with her neck, back, left shoulder, left hip, left leg, left hand, and left
foot. At the time of her application, plaintiff was 63 years old and understood limited English.
She was educated through the fifth grade in her native country of Italy, and subsequently
immigrated to the United States. From 1979 to 1985, plaintiff worked as a sewing machine
operator, hand presser, and seamstress. From 1986 to 1990, she worked for two companies as a
factory assembler and packer, and she had two accidents while at work during this period. First,
in May 1987, she fell and injured her left side. Second, in October 1988, she hit her head on a
pipe while moving a box of tools. As a result of these injuries, plaintiff stopped working in
January 1990 because she had pain ''everywhere." She visited several doctors for treatment, and
submitted medical records to the Social Security Administration detailing these visits. A
summary of these records is set forth below.
a. Medical Evidence Submitted to the ALJ
Plaintiff received treatment from an orthopedic surgeon, Dr. Alvin Bregman, beginning
in March 1980. On April3, 1989, Dr. Bregman noted in a workers' compensation report that
plaintiff was totally disabled due to left cervical radiculopathy and pain in the left shoulder and
neck. On September 11, 1990, Dr. Bregman noted that he was treating plaintiff for left cervical
radiculopathy and left lumbar strain. Dr. Bregman also submitted a worker's compensation form
for plaintiff at this time, stating that plaintiff complained of neck spasms and neck, head, and left
upper extremity pain, and assessing plaintiff with "total disability."
Dr. Bregman submitted a second worker's compensation form on May 9, 1991 in which
he diagnosed plaintiff with left cervical radiculopathy and left lumbar sprain and opined that she
was totally disabled. Dr. Bregman noted that plaintiff complained of neck and back pain and
cervical spasms, and stated that plainti:fr s motor function was normal, her cervical flexion and
extension was 40 to 110 degrees, with lateral rotation to 60 degrees bilaterally. He again
assessed plaintiff as totally disabled in his May 5, 1992 worker's compensation form, noting that
plaintiff had subacromial tenderness, and active abduction of the left shoulder to 120 degrees.
He diagnosed left shoulder rotator cuff tendinitis and left cervical radiculopathy.
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In a worker's compensation report dated November 24, 1992, Dr. Bregman assessed
plaintiff with "partial disability." He noted that plaintiffs left shoulder abduction was to 90
degrees (active) and 100 degrees (passive), that she complained ofleft shoulder and neck pain,
and that the drop test was positive. Dr. Bregman diagnosed left shoulder rotator cuff tendinitis
and left cervical radiculopathy.
On March 4, 1993, Dr. Bregman submitted another form for worker's compensation,
noting that plaintiffs active abduction of the left shoulder was to 90 degrees, and active flexion
to 160 degrees. The drop arm test was positive, and plaintiff had normal ranges of motion in her
neck and back. Straight leg raising was negative. Dr. Bregman diagnosed left shoulder rotator
cuff tendinitis and assessed that plaintiff was capable of"light duty" work only.
Plaintiff obtained treatment from a chiropractor, Dr. Richard Matteo, from February 9,
1990 through November 20, 1995. During their first meeting, Dr. Matteo diagnosed left cervical
radiculopathy after a cervical and foramina! compression test was positive, Tinel signs were
positive, and plaintiff complained of cervical tenderness. Dr. Matteo subsequently reported
diagnoses of cervical radiculitis, headaches, and cervicalgia, and assessed plaintiff with "total
disability" in worker's compensation forms that he completed on behalf of plaintiff throughout
the five years he treated her.
Plaintiff was examined by a neurologist, Dr. Carlisle St. Martin, on November 15, 1990.
His examination of plaintiffs cervical spine revealed some discomfort with some paraspinal
spasm bilaterally radiating towards her trapezius. Her sensory exam was unremarkable and her
deep tendon reflexes were equal in the upper and lower extremities. Dr. St. Martin noted "rule
out herniated cervical disc" and suggested testing to determine the existence of some disc
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pathology. Dr. St. Martin also assessed "totally disability" for purposes of plaintiff's worker's
compensation claim on March 8, 1991. 1
On January 23, 1991, plaintiff visited Dr. Robert Karlan for a neurological evaluation.
Her motor examination, including gait, strength and coordination, was unremarkable. Reflexes
were present and equal, and there were no sensory deficits. Cranial nerves including fields,
fundi, and eye movements were normal. Dr. Karlan's impression was that there was evidence of
cervical radiculitis with no other neurologic abnormalities. He had previously found that
plaintiff had suffered from post-concussion syndrome after her accident in 1988, but had
conducted an electroencephalogram that revealed normal findings and concluded that there was
no involvement of the nervous system.
Dr. Walter Bottizer conducted an MRI of plaintiff's cervical spine on January 24, 1992
which showed evidence of posterior ridging at cervical vertebrae four-five but was negative for
frank disc herniation. The MRI also showed normal cervical lordosis, preserved vertebral body
weight, no evidence of compression fractures, normal intervertebral disc spaces, and essentially
unremarkable bone and intervertebral disc space signal characteristics.
X-rays of plaintiff's thoracic, lumbosacral, and cervical spine from February 19, 1996
(after the date last insured) revealed osteodegenerative changes and a loss of range of motion.
An MRI of plaintiff's cervical spine from February 21, 1996 revealed anterior disc bulges at
cervical vertebrae 4-5, 5-6, 6-7, and between her seventh cervical vertebrae and first thoracic
vertebrae, and minimal posterior disc bulges at cervical vertebrae 4-5 and 5-6. There was a
benign hemangioma at her seventh cervical vertebrae.
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Plaintiff submitted to the Appeals Council several additional worker's compensation fonns submitted by Dr. St.
Martin throughout 2000 and 2001, in which he also assessed plaintiff with total disability
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a. Plaintifrs Administrative Hearing
Plaintiff appeared with counsel before an ALJ on July 28, 2009 to challenge the
Administration's denial of her benefits application. She testified that she stopped working in
January 1990 because she had pain "everywhere," including her head, neck, left arm, leg, and
shoulder, and suffered from headaches and dizziness. From the time she stopped working until
1995, she could sit for no more than ten to twenty minutes, stand no more than five minutes, and
could walk no more than four to five blocks. Plaintiff testified that at the time of the hearing in
2009, she could not do anything, including cooking, shopping, cleaning or bathing herself; she
could only sit down, get up, and walk two or three blocks. In response to the ALJ's questioning,
she also stated that she went to Italy for three weeks in 2001 and 2005, and twice to Florida after
1995.
The ALJ then heard testimony from Dr. Edward Spindell, a board-certified orthopedic
surgeon. Dr. Spindell stated that he found no indication of a disability lasting a year or more
prior to December 1995, and that plaintiffs medical conditions did not constitute a "severe"
impairment or combination of impairments under the Act. Plaintiff's attorney then attempted to
question Dr. Spindell on the basis of his findings; however, the ALJ interrupted plaintiff's
counsel on numerous occasions, telling him at various times to "go on to the next question" and
that "the record speaks for itself," and preventing Dr. Spindell from answering certain questions
by arguing to plaintiff's counsel that plaintiff had returned to work after her accidents and that
the findings of Dr. Matteo were not quantified. The ALJ also asked Dr. Spindell several yes or
no questions that suggested that the ALJ was skeptical of plaintiffs impairments.
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In response to plaintiff's questioning, Dr. Spindell did acknowledge that Dr. Karlan had
diagnosed plaintiff with mild cervical radiculitis. Nevertheless, he testified that Dr. Karlan's
clinical findings did not corroborate this diagnosis because he reported no neurological deficits,
weakness, atrophy, or sensory or reflex changes. Dr. Spindell also expressed an inability to read
Dr. Matteo's notes, but stated that Dr. Matteo's finding of positive cervical and foramina!
compression test was not explained with sufficient specificity as he did not report specific nerve
root information. Dr. Spindell also declined to credit positive results in a head drop test, as these
tests were not explained with sufficient detail. Finally, plaintiff's attorney attempted to question
Dr. Spindell on Dr. Bregman's determination that plaintiff was totally disabled, but the ALJ
interrupted this line of questioning because (1) Dr. Bregman's diagnosis was in the form of
worker's compensation forms; (2) he did not document the reasons for his conclusion; and (3)
his conclusion was inconsistent with other evidence in the file.
Plaintiff's attorney had previously relied on worker's compensation reports- referred to
as C-4s- on several occasions during the hearing. Each time, the ALJ expressed frustration that
these documents were only part of the worker's compensation package, and asked plaintiff's
attorney whether there were independent medical examination reports ("IMEs") that
corroborated plaintiffs disability. Plaintiff's attorney stated that he was unsure, but
acknowledged that he did not have all the reports because there was a charge that plaintiff could
not pay. Plaintiff's attorney asked the ALJ to subpoena the records from plaintiff's worker's
compensation attorney, but the ALJ refused. The ALJ stated that plaintiff was not indigent and
that "if [plaintiff] didn't want to pay for it, then I'm going to ignore the C4s." Despite protests
from plaintiffs attorney, the ALJ ordered production of the records within three days after the
hearing and stated that he would decide the case without them if they were not produced. Three
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days later on July 31, 2009, plaintiff's attorney submitted various employment and worker's
compensation documents, but no IMEs.
b. The ALJ's Decision
On October 20,2009, the ALJ denied plaintiff's application after finding that plaintiff did
not suffer from severe impairments that significantly limited her ability to perform basic workrelated activities for twelve consecutive months. The ALJ gave great weight to the findings of
Dr. Karlan, and significant weight to the findings of Dr. Bottizer and Dr. Spindell, the sum of
which, according to the ALJ, supported a conclusion that plaintiff was not disabled. The ALJ
gave no weight to the opinions of treating physicians Bregman, St. Martin, and Matteo. In
making this determination, he found that Dr. Bregman's and St. Martin's conclusions were
inconsistent with their clinical findings and the objective evidence in the record. Specifically,
the ALJ contrasted their findings to Dr. Karlan 's, which indicate mild cervical radiculitis and a
normal electroencephalogram and neurological exam, and to Dr. Bottizer's MRI, which was
negative for evidence of disc herniation in plaintiff's neck. However, he also emphasized several
times that Dr. Bregman's and St. Martin's assessments of total disability in the form of worker's
compensation reports "were unaccompanied by the clinical examinations and objective testing
upon which they were based," and thus were unsubstantiated and uncorroborated. Regarding Dr.
Matteo's findings, the ALJ noted chiropractors are not "acceptable medical sources," and
therefore their opinions "need not be assigned controlling weight." Again, however, he
emphasized that Dr. Matteo's finding that plaintiff was unable to work was unsubstantiated and
uncorroborated in deciding to afford Dr. Matteo's finding of total disability no weight.
Plaintiff appealed her unfavorable decision through counsel in a letter dated October 20,
2009. On November 3, 2009, plaintiff submitted the complete worker's compensation file to the
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Appeals Council, which included IMEs. By letter to the Appeals Council dated September 8,
2010, plaintiff contended that the ALJ's decision was not based on substantial evidence and that
the ALJ failed to fulfill his duty to fully develop the record. The Appeals Council declined to
review the ALJ's determination on November 24, 2010, making the ALJ's determination the
fmal decision of the Administration.
DISCUSSION
I.
The Legal Framework and Standard of Review
Disability benefits are available to anyone who is deemed "disabled" as that term is
defined in 42 U.S.C. §§ 423(d) and 1382c. A person is "disabled" when "he is unable to engage
in any substantial gainful activity by reason of a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). A
"physical or mental impairment" consists of "an impairment that results from anatomical,
physiological or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic technique." !d. at§ 1382c(a)(3)(D).
"The burden of proving disability is on the claimant." Mimms v. Heckler. 750 F.2d 180,
185 (2d Cir. 1984). Nevertheless, in weighing the medical evidence, the ALJ is obligated to
adhere to the rules set forth in 20 C.F.R. § 416.927(d), which requires that the Commissioner
give a treating physician's opinion "controlling weight" if her opinion is '"well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the claimant's] case record." 20 C.F.R. § 416.927(d)(2).
Additionally, an ALJ may not reject a treating physician's diagnosis because supporting clinical
or diagnostic evidence is not in the record, regardless of whether plaintiff is represented by
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counsel. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496,
505 (2d Cir. 1998). Unlike trial judges, ALJs have an affirmative duty to develop a complete
medical record before making a disability determination, in light of the non-adversarial nature of
benefits proceedings. See Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008); Tejada v. Apfel,
167 F.3d 770,774 (2d Cir. 1999); Pratts v. Chater, 94 F.3d 34,37 (2d Cir. 1996). However,
"where there are no obvious gaps in the administrative record, and where the ALJ already
possesses a 'complete medical history,' the ALJ is under no obligation to seek additional
information in advance of rejecting a benefits claim." Rosa, 168 F.3d at 79 n.5 (quoting Perez v.
Chater, 77 F.3d 41, 48 (2d Cir. 1996)).
In reviewing a disability benefit determination, a district court must determine whether
the correct legal standards were applied and whether substantial evidence supports the decision.
See Schaal, 134 F.3d at 501. The former determination requires the court to ask whether "the
claimant has had a full hearing under the [Commissioner's] regulations and in accordance with
the beneficent purposes of the Act." Echevarria v. Sec'y of Health & Human Servs., 685 F.2d
751, 755 (2d Cir. 1982) (internal quotation marks omitted). The latter determination requires the
court to ask whether the decision is supported by "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91
S. Ct. 1420 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S. Ct. 206
(1938)).
A remand by the court for further proceedings is appropriate when "the Commissioner
has failed to provide a full and fair hearing, to make explicit findings, or to have correctly
applied the ... regulations." Manago v. Barnhan, 321 F. Supp. 2d 559, 568 (E.D.N.Y. 2004).
Remand is also appropriate when the ALJ has failed to fully develop the administrative record.
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See Butts v. Barnhart, 388 F.3d 377,385 (2d Cir. 2004); Rosa, 168 F.3d at 82-83 (internal
quotation marks and citation omitted).
II.
Duty to Develop the Record
A review of the administrative record indicates that the ALJ failed to fulfill his duty to
develop plaintiffs medical history by not taking any steps to determine whether objective tests
and clinical findings supported plaintiff's treating physicians' assessments of total disability, and
by denying plaintiff a fair opportunity to cross-examine the testifying medical expert at her
administrative hearing. Viewed together, these errors prevented the development of a complete
administrative record and require remand.
First, the ALJ erred by affording the total disability determinations of Drs. Bregman, St.
Martin, and Matteo no weight because they "were unaccompanied by the clinical examinations
and objecting testing upon which they were based," and therefore were "unsubstantiated and
uncorroborated." A treating physician's failure to fully explain the basis of his findings does not
necessarily mean that a sufficient explanation does not exist. See id at 80; Clark v. Comm'r of
Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Thus, in the event an ALJ concludes that the
opinions of a claimant's treating physicians lack support from objective clinical examinations, he
must first take steps to develop the record before making a disability determination, and may not
simply reject the opinions as unsupported. See Rosa, 168 F .3d at 79; Clark, 143 F .3d at 118;
Duncao v. Astrue, No. 09-CV-4462, 2011 U.S. Dist. LEXIS 49833, at *69 (E.D.N.Y. May 6,
2011); Rivas v. Barnhart, No. 01 Civ. 3672, 2005 U.S. Dist. LEXIS 1114, at *66-67 (S.D.N.Y.
Jao. 28, 2005); Cleveland v. Apfel, 99 F. Supp. 2d 374, 380 (S.D.N.Y. 2000). Apart from the
ALJ's statement that "[e]very reasonable effort was made to develop the medical history of the
claimant" in accordance with Second Circuit law, nothing in the ALJ's decision or the record
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suggests that the ALJ made any attempt to determine whether clinical examinations and
objective findings not in plaintiffs medical record supported these assessments. This was error. 2
Although an ALJ need not seek additional information "when there are no obvious gaps
in the administrative record, and where the ALJ already possesses a 'complete medical history,'"
Rosa, 168 F.3d at 79 n.5 (quoting Perez, 77 F .3d at 48), the ALJ' s decision and the record before
this Court establishes that the plaintiffs medical history was not fully developed in the instant
case. Three of plaintiff's treating physicians concluded in worker's compensation forms that
plaintiff was totally disabled as a result of cervical radiculopathy or other cervical impairment.
However, the ALJ declined to afford these conclusions any weight because they were based on
examinations that were not of record, and therefore it was unclear "how their findings were
arrived at." Thus, the ALJ acknowledged that the record before him was potentially incomplete,
as it did not include evidence from the underlying examinations that led plaintiff's treating
physicians to conclude that she was disabled. Moreover, the ALJ's questioning of plaintiffs
attorney at the hearing uncovered that plaintiff had not submitted the complete worker's
compensation file because of the cost of obtaining the records from plaintiffs previous attorney.
Plaintiff requested that the ALJ subpoena the files, but the ALJ refused. Instead, the ALJ
ordered plaintiff to produce the complete file within three days, or he would ignore the worker's
compensation reports altogether. When plaintiff was unable to submit the complete file within
three days, the ALJ made his disability determination without it. Thus, the ALJ could not have
reasonably believed that the administrative record was complete, and he should have taken steps
2
While the treating physicians' assessments of"total disability" in the context of worker's compensation reports are
not binding on the Social Security Administration, see 20 C.F.R. § 404.1504, these assessments nevertheless "put
the AU on notice that there were potentially valid opinions relating to the disability of the plaintiff in the Social
Security context." Blais v. Astrue, No. 08-CV-01223, 2010 U.S. Dist. LEXIS 57234, at *24 (N.D.N.Y. May 13,),
report and recommendation adopted sub nom. Blais v. Comm'r of Soc. Sec. Admin., 20 l 0 U.S. Dist. LEXIS 57243
(N.D.N.Y. June 10, 2010).
II
to determine whether the disability determinations of Drs. Bregman, St. Martin, and Matteo were
supported by objective medical evidence. 3
Second, I am troubled by the ALJ's adversarial approach to plaintiff and her attorney,
which "has no place in a hearing to determine Social Security disability." Mira v. Astrue, No.
09-CV-2012, 2011 U.S. Dist. LEXIS 98848, at *46 (E.D.N.Y. Sep. 2, 2011); see also Burgess,
537 F.3d at 128 (noting the non-adversarial nature of disability benefits proceedings); Ginsburg
v. Astrue, No. 05 CV 3696,2008 U.S. Dist. LEXIS 63447, at *47 (E.D.N.Y. Aug. 18, 2008)
(remanding due in part to plaintiff's inability to cross-examine medical expert). The most
significant example of this was the ALJ's continual disruption of plaintiff's cross-examination of
Dr. Spindell, which effectively prevented plaintiff from challenging the basis for Dr. Spindell's
conclusion that plaintiff was not disabled. The ALJ repeatedly interrupted plaintiff's attorney by
instructing him to "go on to the next question," and that "the record speaks for itself," and
prevented Dr. Spindell from answering certain questions by asserting that the findings of
plaintiff's treating physicians were not supported and that plaintiff had returned to work after her
accidents. Further, he asked Dr. Spindell numerous leading questions that strongly implied that
the ALJ had determined that plaintiff was not disabled, questions with which, based upon the
tone of the hearing, Dr. Spindell unsurprisingly agreed. This conduct denied plaintiff the fair
hearing to which she was entitled and prevented an adequate development of the record as to the
nature of plaintiff's impairments and the reliability of Dr. Spindell's disability determination.
3
Plaintiffs complete worker's compensation file became part of the administrative record when she submitted it to
the Appeals Council on November 3, 2009. See Perez v. Chater, 77 F.3d 41,45 (2d Cir. 1996). While this file
included additional worker's compensation reports from Drs. Matteo and St. Martin, as well as medical examination
records from other doctors, the record remains unclear as to whether there are any outstanding medical records from
these doctors. Thus, this Court has no way of knowing whether plaintiff's treating physicians had an objective
medical basis for concluding that she was totally disabled.
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Additionally, plaintiff's cross-examination of Dr. Spindell further highlighted the gaps in
the record and the significance of the ALJ' s failure to obtain additional evidence from plaintiff's
treating physicians. After Dr. Spindell testified that there was no indication of nerve
involvement in plaintiff's impairments, plaintiff questioned Dr. Spindell on the positive results of
tests conducted by Drs. Matteo and/or Bregman, including a cervical and foramina! compression
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test and a head drop test. Dr. Spindell answered that the record contained insufficient detail for
him to evaluate these findings, and that these tests therefore did not factor into his determination
that plaintiff was not disabled. Under these circumstances, the ALJ should have concluded that
further development of plaintiff's medical history was required. However, not only did the ALJ
fail to fulfill his duty by declining to give these findings any weight without further investigation,
he compounded this error by affording significant weight to Dr. Spindell's determination that
plaintiff was not disabled, a conclusion also based on an inadequately developed record.
Accordingly, remand is required in this case.
The Commissioner notes in its brief that a positive cervical and foramina! compression test indicates pressure on
the nerve root.
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CONCLUSION
For the foregoing reasons, defendant's motion for judgment on the pleadings is denied.
The case is remanded to the Commissioner for further administrative proceedings consistent with
this decision. The Clerk is directed to enter judgment accordingly.
SO ORDERED.
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U.S.D.J.
Dated: Brooklyn, New York
December 30, 2011
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