Forges v. Commissioner of Social Security
MEMORANDUM DECISION AND ORDER dated 6/2/16 the The Commissioner's 11 Motion for Judgment on the Pleadings is denied. Judgment in favor of plaintiff, remanding the case to the Commissioner for further proceedings. ( Ordered by Judge Brian M. Cogan on 6/2/2016 ) *Forwarded for jgm. (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HERBERT L. FORGES,
: DECISION AND ORDER
- against : 15-cv-6082 (BMC)
COMMISSIONER OF SOCIAL SECURITY, :
COGAN, District Judge.
Plaintiff seeks judicial review, pursuant to 2 U.S.C. § 405(g), of the decision of
the Commissioner of Social Security that he was not disabled, and thus not entitled to disability
benefits, as of February 26, 2010.
It is common ground that as a result of an inguinal hernia on his right side, for
which he first had surgery in 1992, he has a severe impairment. The surgery was repeated in
2008 as it appears that scar tissue had pinched, trapped, or the surgery had damaged a nerve in
the inguinal area. It is also agreed that plaintiff continues to have some level of chronic pain in
the groin as a result of the hernia and/or the surgeries. The question is whether that level of pain
renders him disabled under the graduated analytical framework in the Social Security Act
regulations, or whether, as the Administrative Law Judge found, he has the residual functional
capacity to perform sedentary work, as he had in his prior employment, with the proviso that he
needs to avoid stairs and ramps.
Plaintiff’s treating surgeon was Dr. Albert M. Wright, who appears to have
performed both surgeries. His post-surgical report of July 11, 2008 (the day after the second
surgery), provides useful background in understanding what Dr. Wright did during the surgery
(but of course sheds no light on plaintiff’s recovery, which is the relevant issue). It recites that
Dr. Wright found a clear herniation. He also found that the ileoinguinal nerve was trapped in
scar tissue, presumably from the 1992 surgery. Dr. Wright freed the trapped nerve from the scar
tissue and stitched up the opening using a mesh patch to join both sides of the hernia. Dr. Wright
observed that plaintiff “tolerated the procedure well.”
The next record from Dr. Wright is a “To Whom It May Concern” note nearly 18
months later (February 26, 2010), which simply says, “I am attending [plaintiff] … and [h]e is
presently medically disabled and unable to work.” There is nothing medical in the record to
indicate why Dr. Wright thought that.
There is more information in another “To Whom It May Concern” note that Dr.
Wright wrote more than two years after that (June 20, 2012). He described plaintiff as a
49 year old male who underwent repair of recurrent right inguinal hernia and
neurolysis of the ilio-inguinal nerve on July 11, 2008. His post-operative course
has been significant for recurrent right groin pains, right hip pains and often pains
in the right medial and upper thigh areas. These complaints have been persistent
in spite of analgesics, warm compresses, home physical therapy and self messages
[sic]. Clinically the right groin, right hip and medial upper thigh have all been
sensitive to touch, press or move. He has hyperaesthesia nerve syndrome which
appears to be a permanent condition.
He has reached maximum medical improvement.
The report of the independent medical examiner dated 6/21/2011 states a 75%
disability. A copy of that report is enclosed.
The IME report for worker’s compensation that Dr. Wright referenced (and is
deemed incorporated) in his note sets forth plaintiff’s subjective complaints (more on that below)
and diagnoses him, twice, as having “hypesthesia.” That is actually the opposite of Dr. Wright’s
diagnosis, noted above, of “hyperaesthesia.” But the use of hypesthesia in the IME report must
be an error, as it refers to a lack of tactile sensation in an area of skin, while hyperaesthesia refers
to painful sensitivity in an area of skin, and if anything is clear from the entirety of this record,
including the IME report cited by Dr. Wright, it is that plaintiff has hypersensitivity in his groin.
Thus, the IME report noted that plaintiff “had two operations to repair a right inguinal hernia.
The surgery was complicated by what appears to be damage to the claimant’s nerves in the area
of the incision causing him to have residual hypesthesia [sic].” The report also notes that
plaintiff had positive right leg raising at 40 degrees due to pain, which seems to further support
hyperaesthesia, not hypesthesia.
Dr. Wright filled out a detailed questionnaire on plaintiff’s condition on October
12, 2012. He noted that he had been seeing plaintiff monthly since July of 2008. He described
plaintiff’s symptoms as “recurrent groin pain which radiates down to the right testicle [and] the
back and the anterior/superior spine.” Similarly, he described his “clinical findings” as “right
groin pain radiating to the right testes, radiates to the back and anterior/superior iliac spine. He
has had difficulty walking and he gets weak.” His diagnosis was “status post-right groin hernia
repair 1992. Nerve entrapment syndrome – right groin.” He gave a “guarded” prognosis. He
noted that the symptoms had been present since October, 2007. Medications consisted of
Motrin, Flexeril, and Gabapentin, which did not produce any side effects.
In terms of functional capacity, Dr. Wright checked “yes” to the question of
whether plaintiff had to lie down during the day, and “yes” to the question of whether plaintiff
had pain, adding that “when he is up and about[,] the pains get worse and he feels weak and he
has to lie down at least one hour,” and that the pain was attributable to “nerve impairment
syndrome.” He found that plaintiff could continuously sit for up to two hours; stand for one
hour; and walk for one hour. He further opined that in an 8-hour workday, plaintiff would have
no problem lifting or carrying up to 5 lbs.; occasionally lifting or carrying from 6-10 lbs.; but
could never lift or carry anything heavier than that. He also found that plaintiff could never
bend, squat, crawl, climb, or reach, nor could he engage in activities involving heights, driving,
temperature changes, or exposure to airborne substances.
Dr. Wright concluded the questionnaire by noting that plaintiff met the
requirements for a “listed” impairment (we are not told which listing, but the questionnaire
recites that it is accompanied by the “relevant” listing for the enlightenment of the treating
physician) because he “has reached maximum medical improvement he continues to have
symptoms of pain with radiation to his testes, back and hip causing impaired ambulation.” He
diagnosed plaintiff has having “hyperaethesia nerve syndrome which appears to be a permanent
Dr. Wright completed another questionnaire about nine months later, on July 17,
2013. It was prefaced by another “To Whom It May Concern” note, which “verif[ies] that I have
attended [plaintiff] for right groin post hernia surgery – nerve entrapment syndrome as well as
hip pains and back pains. He is presently disabled and unable to work. Do please excuse him
from work until he is medically cleared.”
The questionnaire itself yielded answers similar to the answers on Dr. Wright’s
first questionnaire. His “clinical findings and observations” were “Examination of the right
groin shows some tenderness and sensitivity. Pains often radiate to the right side of the back and
impair ambulation.” He described plaintiff’s symptoms as “recurrent” and “severe.” He
checked “yes” to the question of whether plaintiff’s symptoms were “credible” and “reasonable
… given the objective medical findings.” He further noted that plaintiff’s response to the
analgesics he had been receiving was “poor.” The prognosis was, again, “guarded.” He opined
that in an eight hour workday, plaintiff could continuously sit, stand and walk for ½ hour, and lie
down for 8 hours. He further opined that plaintiff could lift and carry “frequently” up to 10 lbs.,
“occasionally” up to 25 lbs., and “never” more than 50 lbs.
The ALJ essentially rejected Dr. Wright’s conclusions, giving them “little weight”
because the ALJ found his opinions to be “conclusory in nature and not supported by treatment
notes,” as well as “not consistent with the minimal objective findings of other examinations and
the opinions of the consultative and independent examiners.” That is all the ALJ had to say
about Dr. Wright.
The ALJ didn’t give plaintiff’s subjective reporting much weight either. Plaintiff
testified that the pain stays with him “around the clock.” He described it as a “tingling feeling”
like hitting your “funny bone” except in his groin, going up and down his leg and into his testes.
The medication he takes (a nerve analgesic) causes the pain to “ease up a little bit,” but he can
still feel it; the pain is “always throbbing,” and the medication sometimes makes him nauseous
and drowsy. He feels the pain when he walks, and when he climbs stairs. He analogized his
pain to receiving a kick in the groin that doesn’t go away. He stated that while he showers every
morning, he has to be very gentle in washing his groin area because it’s painful to the touch. He
has difficulty urinating and defecating because any straining exacerbates the pain. He also gets
swelling at the incision site intermittently.
When asked by the ALJ about his daily activities, plaintiff responded, “When I
take the pills I have to lay back down and rest. I don’t do nothing all day.” He walks about five
blocks to his mother’s house every other day or so. He uses a cane all of the time, even around
the house. He testified that he can cook, but “my brother and son cooks [sic] for me. They do
everything for me.” He gets food from them or his mother and puts it in the microwave.
He testified that Dr. Wright is going to do more surgery “in the near future.” He
had not yet set up his surgery at the time of his testimony because Dr. Wright advised him that he
still needed more time to heal from the prior surgery.
The ALJ found that plaintiff’s testimony about his symptoms “does not
substantiate the allegations of the claimant to the degree alleged.” He based that in part on the
“conservative treatment” that plaintiff had received since surgery “with no evidence of any
further surgery or extensive pain management treatment.” The ALJ also discounted plaintiff’s
testimony because his physical examinations “revealed tenderness in the area but few other
objective findings,” and he also referenced that fact that plaintiff “was found to have no marked
disability from and [sic] Worker’s Compensation evaluations.” The ALJ further found plaintiff’s
testimony internally inconsistent because plaintiff had acknowledged that “he was able to care
for his personal needs, clean and do laundry twice per week, shop twice per month, and cook
twice per day with some assistance.” “Based on these statements,” the ALJ concluded, “it would
appear that the claimant is leading an active existence in spite of his allegations.”
The ALJ preferred the opinions of two consultative physical examiners, upon
which he placed “substantial” weight. Dr. Shannon Gearhart examined plaintiff in August, 2012
and Dr. Thukral examined him in October, 2013. The former is certified by the American Board
of Preventive Medicine; her certification is in Public Health and General Preventive Medicine.
Plaintiff’s oral report to her was consistent with his testimony to the ALJ. She observed that
plaintiff had a normal gait even though he had forgotten to bring his cane, and she felt that the
cane was not necessary. He was limited in his ability to squat to 50% of normal. He had no
difficulty dressing for the exam or getting on or off the examination table, or getting up from his
chair. She noted tenderness on the right side of his abdomen. Flexion on his right hip was
impeded to 70%. She gave him a “stable” prognosis, and concluded that he had “marked”
restrictions for heavy lifting and carrying and “mild” restrictions for prolonged walking,
standing, sitting, as well as squatting, kneeling and climbing.
The examination report from 14 months later by the other consultative examiner,
Dr. Vinod Thukral, who is in the same practice group as Dr. Gearhart, and is board certified in
internal medicine, is very similar to Dr. Gearhart’s. The only differences of note are that he gave
plaintiff a “fair” prognosis, and found “no limitations” for sitting, standing, pulling or pushing,
and “mild” limitations for lifting and carrying. I think it is also significant that he had plaintiff
perform a straight leg raising test, which was negative.
The ALJ also gave “some weight” to the report of Workers’ Compensation
doctors, who found plaintiff partially disabled (under the distinguishable standard of disability in
the Workers’ Compensation Law). The first such report, by Dr. Marilee Mescon, who is board
certified in internal medicine, is dated June 21, 2011. She found that plaintiff had a “marked”
degree of disability, and diagnosed him as having “damage to [his] nerves in the area of the
incision causing him to have residual hypesthesia” and that his condition was “permanent.”
Again, I think hypesthesia is the wrong word here because Dr. Mescon used it in the context of
heightened sensitivity and pain. She also found a positive straight leg raising test with pain at 40
The second worker’s compensation review was performed by a board certified
internist, Dr. David Pulver, on April 25, 2012. He found that plaintiff had a “mild partial
disability,” and he agreed that plaintiff had “continued pain the right groin area.” He observed
“tenderness to light touch in the entire lower right quadrant and medial aspect of the right thigh
as well as along the right aspect of the scrotum.” Significantly, the records he reviewed included
seven progress reports from a Dr. Donald Moore, generated between June 27, 2011 and February
The reference to Dr. Moore is important because it appears that Dr. Moore was a
treating physician on the medical side just as Dr. Wright was a treating physician on the surgical
side. Yet Dr. Moore makes only a limited appearance in this record. The reference to the “seven
progress reports” is mysterious because the seven progress reports are not part of the record, and
yet, coming from a treating physician, they obviously have the potential to contain highly
The only direct evidence in the record from Dr. Moore is a questionnaire that the
Commissioner sent him with a cover letter requesting records. He signed the questionnaire on
August 8, 2013, and returned it with the cover letter, but he declined to provide an answer to that
portion of the questionnaire that addressed plaintiff’s functional capacity, stating instead that he
had “not assessed” functionality. This is problematic because with at least seven treatment
reports, Dr. Moore may be in the best position of all the doctors who evaluated plaintiff to opine
on his functional capacity. In addition, Dr. Moore’s questionnaire noted that Dr. Wright had
indicated that plaintiff was “fit for work” as of April, 2009, but there is nothing in the record
indicating that Dr. Wright had such an opinion, leaving me wondering why Dr. Moore thought
that was Dr. Wright’s opinion.
Dr. Moore is further referenced in an affidavit that plaintiff has submitted to this
Court in opposition to the Commissioner’s motion for judgment on the pleadings. There,
plaintiff avers that “I have been seeing Dr. Albert Wright and Dr. Donald Moore regularly since
2008, and continue to do so.” (Although the affidavit may be technically improper as outside of
the administrative record, I will consider this averment, at least, in light of plaintiff’s pro se
status.) That averment further highlights the issue of why there are no records from Dr. Moore
in the administrative record, and establishes that Dr. Moore was a treating physician.
It is not as if the Commissioner made no effort to get records from Dr. Moore.
She specifically requested them in the cover letter dated August 8, 2013. (The Commissioner’s
brief on the instant motion asserts that an earlier request was also made, but the citation to the
record must be incorrect, as no such request is contained there, and I cannot find it elsewhere in
the record.) However, the boilerplate request is ambiguous and may have misled Dr. Moore or
his staff. It advises Dr. Moore that plaintiff is proceeding to a hearing for disability benefits, and
then requests “Medical records dating from March 2010 until the present date,” which Dr. Moore
apparently did not supply. This may be because the request also enclosed the questionnaire, but
the letter does not expressly refer to the questionnaire. Perhaps it is most useful to quote the
entire letter to show why Dr. Moore may have been confused:
A claim for disability benefits, filed by the above-named individual under the
Social Security Act, is before the Office of Disability Adjudication and Review
for hearing and decision.
Please provide the following information within the next ten days:
Medical records dating from March 2010 until the present date
If you are currently registered as a user of the Electronic Records Express (ERE),
use the attached barcode information when submitting the requested evidence
(RQID, RF, and DR fields). If you are not a registered user of ERE, fax the
evidence, along with the enclosed barcode, using this fax number– (877)3798558. Remember that the enclosed barcode must be the first page of each set of
documents being faxed. Note: If you request payment, the request should be
returned to the address shown above or sent via the fax number noted below
– it is different than the FECS fax number used for medical evidence.
Your assistance in furnishing this information will facilitate the adjudication of
this claim and will be greatly appreciated. A medical release form is enclosed.
We are authorized to pay up to $10.00, which is the same amount that the
Disability Determination Service Office pays for such a report. If you require
payment for the evidence, please supply us with the necessary information
requested on the attached page and return this letter by mail or fax (718)330-2009
to our office as soon as possible. If you have any questions, please contact Jaimie
Hanlon at the phone number listed above.
(Emphasis in original, except note that the “$10.00” is underlined by hand). I do not understand
the sentence “We are authorized to pay up to $10.00, which is the same amount that the
Disability Determination Service Office pays for such a report,” and Dr. Moore may not have
either. “[S]uch report” may refer to the questionnaire; the language does not suggest that the
provision of medical records constitutes a “report.” But I could easily see Dr. Moore coming
away from this letter thinking that if he breezed through the questionnaire and signed it, he had
satisfied the request for medical records.
The fact that Dr. Moore marked the questions as to functional capacity as “not
assessed” tends to confirm this. It suggests that he was looking at his historical records and did
not find the assessment required by the questions, so when he wrote “not assessed,” what he
meant was that his medical records did not contain such an assessment. And since he completed
the questionnaire, in a fashion anyway, he concluded that he did not need to send in the records.
He does not appear to have interpreted the cover letter as requesting him to undertake an
assessment of plaintiff’s residual functional capacity; if he did so interpret it, he chose not to do
There is a potential further indication that Dr. Moore may have understood, or
misunderstood, that the only request of him was to complete the questionnaire based on his
medical records. The cover letter enclosing the questionnaire has the $10.00 reimbursement
amount underlined by hand. This was likely done by the doctor or one of his staff. It shows that
he focused on that nominal amount. Based on that focus, he might have concluded that rather
than taking the time and effort to locate and copy the records in exchange for $10.00, it would be
easier to just fill out the questionnaire in the cursory manner that he did.
Since plaintiff is proceeding pro se and has not demonstrated any familiarity with
the law, I have undertaken to discern what points of error could reasonably be raised on this
record. It seems to me there are two related issues.
First, there is the question of whether the ALJ afforded appropriate deference to
the opinions of Drs. Wright and Moore. Under the treating physician rule, see Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008), the Commissioner must give a treating physician's opinion
“controlling weight” regarding “the nature and severity of … impairments” if his 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(c)(2). Because the treating physician’s opinion is so significant, the Commissioner is
required by statute to “make every reasonable effort to obtain from the individual’s treating
physician[s] … all medical evidence … necessary in order to properly make [a disability
determination], prior to evaluating medical evidence obtained from any other source on a
consultative basis.” 42 U.S.C. § 423(d)(5)(B). “Every reasonable effort” is defined by the
regulations as “an initial request for evidence from your medical source and, at any time between
10 and 20 calendar days after the initial request, if the evidence has not been received … one
followup [sic] request to obtain the medical evidence necessary to make a determination.” 20
C.F.R. § 404.1512(d)(1).
A closely related principle that is implicated in the instant case is the statutory and
regulatory duty of the ALJ to fully develop the claimant’s complete medical history for at least
twelve months prior to the application date. See Ericksson v. Comm’r of Soc. Sec., 557 F.3d 79,
83 (2d Cir. 2009); see also 42 U.S.C. § 423(d)(5)(B) (providing that ALJ “shall develop a
complete medical history of at least the preceding twelve months for any case in which a
determination is made that the individual is not under a disability”); 20 C.F.R. § 404.1512(d)
(“Before we make a determination that you are not disabled, we will develop your complete
medical history for at least the 12 months preceding the month in which you file your application
unless there is a reason to believe that development of an earlier period is necessary.”).
Although this duty is set forth in terms of a twelve-month period, the ALJ’s obligation may go
beyond that “if there [is] reason to believe that the information [is] necessary to reach a
decision.” DeChirico v. Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998).
It seems clear that relying on the single-examination results of consulting
physicians, as opposed to treating physicians, is a permissible but not optimal way of
determining functional capacity. The cases have recognized that “a consulting physician’s
opinions or report should be given limited weight” because “consultative exams are often brief,
are generally performed without benefit or review of claimant’s medical history and, at best, only
give a glimpse of the claimant on a single day. Often, consultative reports ignore or give only
passing consideration to subjective symptoms without stated reasons.” Cruz v. Sullivan, 912
F.2d 8, 13 (2d Cir. 1990) (internal quotation marks omitted).
In the instant case, the consultants’ examinations upon which the ALJ placed
primary reliance suffer from at least some of these infirmities. There is no indication, for
example, that Dr. Gearhart reviewed any medical records. She obtained plaintiff’s medical
history entirely based on his description, and the bulk of her report pertains to areas of his body
as to which he has no problems. This suggests a once-over physical examination in which his
post-surgical difficulties played no particular role. There are only two paragraphs that might
bear on his particular impairment, containing her observations about his “General Appearance,
Gait, and Station,” which she found essentially normal, and his “Musculoskeletal” conditions,
which she found normal except for some reduced flexion in his right hip. She did not comment
that the reduced flexion might be the result of the pain in his groin, and her broad, self-evident
diagnosis of “history of right inguinal hernia, status post-repair x2,” with a prognosis of “stable,”
did not acknowledge Dr. Wright’s diagnosis that plaintiff has “hyperaesthesia nerve syndrome
which appears to be a permanent condition” and “nerve entrapment syndrome.”
This seems to me to be a significant omission, first, because there seems no doubt
on this record that this is plaintiff’s problem, and, second, because the whole point of a
consulting examination should have been to assess the severity of this condition and the
functional limitations it imposed, not to engage in meaningless observations of plaintiff’s “Skin
and Lymph Nodes”; “Head and Face”; “Eyes;” “”Ears, Nose, and Throat;” “Neck;” “Chest and
Lungs;” and other body parts that have nothing to do with his impairment.
The later examination by Dr. Gearheart’s practice-partner, Dr. Thurkal, suffers
from the same shortcomings, and need not be addressed further. I do note, however, that Dr.
Gearheart is a preventive medicine specialist and Dr. Thurkal is an internist, and while they are
qualified as physicians to evaluate plaintiff’s impairment, it seems that a surgeon would be better
able to evaluate the specific effect of hyperaesthesiatic nerve syndrome on functional capacity.
The examinations of Dr. Gearheart and Dr. Thurkal might constitute substantial
evidence if a better record could not be compiled despite reasonable effort. But I think more
effort needs to be made. We have two treating physicians, one of whom, Dr. Wright, performed
the two crucial surgeries on plaintiff and followed up with him for a substantial period thereafter,
and the other one, Dr. Moore, his internist, who plaintiff apparently consults with regularly and
who the record indicates generated at least seven treatment notes. More of an effort needs to be
made before I can determine whether the ALJ appropriately discounted Dr. Wright’s conclusions
as treating physician. These are physicians who actually put their hands on plaintiff in the most
probative way on multiple occasions over a period of years. Their views are almost certainly
worth more than two consultants who observed plaintiff walk a few steps and ascend and
descend from an examining table.
Even with regard to the ALJ’s assessment of Dr. Wright’s opinion on the current
record, I am not convinced that the ALJ gave it sufficient consideration. I understand that the
ALJ was justifiably concerned with the absence of treatment notes, but all of the workers’
compensation doctors agreed with Dr. Wright that plaintiff has damage to the inguinal nerve
which without doubt is capable of producing the level of pain of which he complains. It is
therefore not correct to say that Dr. Wright’s assessment is “not consistent with the minimal
objective findings of other examinations and the opinions of the consultative and independent
examiners.” I think Dr. Wright’s opinion is not consistent with the consultative examiners, and it
is consistent with the workers' compensation examiners. But considering that Dr. Wright has
done the surgery and has been laying hands on plaintiff on a monthly basis since, I do not see
why the ALJ preferred the consultants.
In any event, especially in the absence of an effort to obtain more records, it
seems to me that the ALJ’s perfunctory dismissal of Dr. Wright’s evaluation as “conclusory”
was itself conclusory. And I think in light of the likely confusion on the part of Dr. Moore as to
what was being asked of him, an additional request is necessary.
I am therefore remanding the case for further development of the record and, upon
such further development, to reevaluate the weight to be given to the opinions of plaintiff’s
treating physicians. Specifically, with regard to Dr. Wright, he should be requested to furnish
copies of all treatment notes and other records showing consultations or examinations with
plaintiff. With regard to Dr. Moore, he should be requested to conduct a physical examination of
plaintiff to the extent necessary to answer the questions on the questionnaire relating to
functional capacity that he previously marked as “not assessed.” The request to Dr. Moore
should also make it clear that copies of all of his treatment notes and records are being requested,
and it should be pointed out to him that the record before the Commissioner shows that there are
at least seven such treatment notes in existence, although the Commissioner does not have
copies. In addition, the request to Dr. Moore should direct his attention to his reference in the
questionnaire to an opinion by Dr. Wright that plaintiff is “fit for work;” Dr. Moore should be
advised that the Commissioner cannot find such a reference, and he should be requested to
identify its source.
Finally, if any material gap in the treatment records of plaintiff remains after
reasonable efforts to secure them, the ALJ should order an additional consultative examination,
but this time by a general surgeon who should be specifically directed to examine plaintiff and
opine on the existence and, if found, impact of plaintiff’s hyperaesthesia nerve syndrome on
plaintiff’s functional capacity. That consultation should include a review of all of plaintiff’s
medical records that report upon the effects of plaintiff’s surgery.
The Commissioner’s motion for judgment on the pleadings is denied. The Clerk
of Court is directed to enter judgment in favor of plaintiff, remanding this case to the
Commissioner for further proceedings in accordance with this decision.
Digitally signed by Brian M. Cogan
Dated: Brooklyn, New York
June 2, 2016
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