Chyat v. Colvin et al

Filing 30

MEMORANDUM and ORDER: The Commissioner's motion 24 for judgment on the pleadings is denied and Chyat's motion 22 for summary judgment is granted in part. Because we remand on the basis that the ALJ did not support his opinion with subst antial evidence and improperly substituted his opinion for medical experts, we need not reach Chyats additional arguments. On remand, the ALJ should pay particular attention to the timing of Chyats symptoms relative to his date last insured. Ordered by Judge Frederic Block on 9/28/2017. (Innelli, Michael) Modified on 9/28/2017 (Innelli, Michael).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NIKOLIS BEN CHYAT,
Plaintiff,
-against-

MEMORANDUM AND ORDER
15-CV-06496-FB

CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.
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Appearances:
For the Plaintiff:
PATRICK JAMES BEST
Andrews, Riegel & Masington, LLC
18 N 8th St
Stroudsburg, PA 18360

For the Defendant:
DARA A. OLDS
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201

JULIA IRENE PORPER
Fortunato & Fortunato, LLC
26 Court Street, Suite 1301
Brooklyn, NY 11242

BLOCK, Senior District Judge:
Nikolis Ben Chyat (“Chyat”) seeks review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying his application for
disability benefits under Title II of the Social Security Act. The Commissioner moves
for judgment on the pleadings, and Chyat moves for summary judgment. For the

following reasons, the Court grants Chyat’s motion insofar as the case is remanded for
further proceedings. The Commissioner’s motion is denied.
I
A.

The Injury
On June 13, 2012, Chyat suffered a work-related injury at his construction job.

He hit his head against a metal beam, falling and injuring his left knee and back. The
facts surrounding the accident are best described in the psychiatric evaluation
performed by Joseph Sheris, Ph.D. on April 8, 2013:
According to the claimant, he was traveling along the dark suspended
flooring when he twisted his ankle on some debris that was scattered in
the area. As he spun, his foot also became caught on the uneven flooring,
and he went face first into a steel I-beam causing a large gash above his
left eye. He reports that he blacked out for a time and awoke lying on his
back. He recalls coming to with the awareness of “extreme pain” in his
knee. He recalled viewing his knee and leg in unnatural position [sic],
dislocated when he looked down. He was by himself in this area. He
called out for help, but no one was around. He somehow got his knee
back in place and eventually crawled to the area where a ladder was
located. He managed to get up to the level above where he was
discovered by others.
The claimant recalls “feeling trapped” and “helpless” following
the accident while he was still on the suspending flooring. He described
yelling for help many times before trying to move. . . . [H]e began to
think irrationally. He states, “I was really scared. I thought I was going
to die there.”
AR 465.1

1

AR refers to the Administrative Record.
2

B.

The Resulting Physical and Psychological Issues
Chyat suffered significant long term impairments, both physically and

psychologically, as a result of this accident. Initially, he suffered from lower lumbar
pain, knee pain, headaches, and dizziness. On August 20, 2012, Chyat underwent left
knee arthoscopy lateral release. In September 2012, MRI scans revealed multilevel
cervical disc bulging from C2-C6 with impingement of the thecal sac from C4-C6 and
multilevel bulging from L2-L5 with impingement of the thecal sac. Chyat’s knee
problems continued, and on February 14, 2014, he underwent a left knee arthoscopy,
plica resection, open lateral release, and proximal realignment.
Chyat also suffered severe psychological problems. On June 20, he reported
dizziness, confusion, and “word finding difficulties” and was diagnosed with post
concussion syndrome.2 AR 405. On February 4, 2013, during a psychological exam
at Behavioral Medicine Associates, Chyat stated, “since accident I have to think really
hard before I speak. I cannot remember simple things. For example the other day I put
my wallet in back pocket then spent the next hour searching my house for wallet. Very
antisocial to the point where I won’t speak to anyone for days/weeks at a time. I can’t
talk right when getting upset, I have a stutter. I get very annoyed.” AR 431.
Chyat reported long term problems stemming from the stress of the accident.

2

Some doctors refer to this diagnosis as “post concussion syndrome” and others as “post
concussive syndrome.” For sake of consistency, the Court will use “post concussion syndrome.”
3

From the same psychological exam:
[Chyat] is reporting symptoms of Post-Traumatic Stress Disorder. He
reported repeated disturbing memories, thoughts and images of this
incident, nightmares of it, he suddenly acts or feels as if it is happening
again. . . . He has lost interest in activities he used to enjoy, feels distant
and cut off from other people. He has difficulty sleeping, is irritable, has
difficulty concentrating, and is hypervigilant. Mr. Chyat also reports
depression, loss of motivation and loss of libido.
AR 432. His symptoms for somatization, depression, and anxiety were all above
the 98th percentile in severity. Id. Chyat was diagnosed with Post Traumatic Stress
Disorder (“PTSD”), a severe major depressive episode, and post concussion
syndrome.
On April 8, 2013, Chyat underwent another psychological evaluation conducted
by Joseph Sheris, Ph.D. In addition to the symptoms described above, Sheris describes
Chyat as suffering from lack of sleep and loss of social interest.Sheris diagnosed
Chyat with PTSD and depressive disorder. He concluded that “from a psychological
viewpoint, there is currently a partial work related disability (50%). . . . He can return
to work on a part time basis situation with minimal stress, as much as his physical
nature can tolerate.” AR 470. On May 29, 2014, Dr. Sheris conducted a second
psychological exam and found Chyat still had twice weekly nightmares, headaches,
backpain, lack of sleep, and feelings of isolation. Dr. Sheris reaffirmed his diagnosis
that Chyat was 50% disabled.
On three occasions, neurologist Mohammad Aslam, M.D., examined Chyat. On
4

November 12, 2012, Aslam diagnosed Chyat with cerebral concussion, postconcussion syndrome, cervical strain, lumbosacral strain, lumbosacral disc, and injury
to the left patella. He diagnosed Chyat as 50% disabled, “primarily due to his
headaches that are still significant.” AR 563. However, he cleared Chyat to return to
work “of moderate nature.” Id. On March 25, 2013, he diagnosed Chyat with
lumbrosacral strian, lumbosacral disc herniation, PTSD, injury to both knees, and
post-concussion syndrome. He now diagnosed Chyat as 67% disabled and opined,
“[t]he patient cannot return to work for all the above problems, especially his knees,
they did not recover. He may not be able to do any type of sedentary work.” AR 555.
Finally, on June 17, 2014, he diagnosed post concussion syndrome, low back pain
syndrome, lumbrosacral disc with lumbosacral radiculopathy, injury to both knees and
“status post-surgery left knee.” AR 548. He finally held “[a]t this time [Chyat] cannot
return to work. Restrictions are total. As I mentioned before he is not capable of any
work at this time, including sedentary work. . . . The patient was hurt more than two
years ago, so it is possible his symptoms may persist indefinitely or permanently.” AR
549.
Chyat also met repeatedly with a pain specialist named Matthew Grimm, M.D.
Dr. Grimm opined on at least four occasions – December 17, 2013, January 15, 2014,
February 11, 2014, and March 17, 2014 – that Chyat’s “temporary impairment” was
100%. AR 44.
5

Chyat’s extensive treatment history also included appointments at NY Ortho
Sports Medicine & Trauma, P.C., for pain management, with Nicky Bhatia, M.D., for
evaluation of post concussion syndrome, with Eric Crone, D.O., for back pain, with
Daveed Frazier, M.D., for back pain, with Howard Rombom, Ph.D., for PTSD,
depression, and post concussion syndrome, Uchenna Uzoukwu, M.D., for his
psychiatric problems, Richard Small, Ph.D., for a disability follow up, and Alfred
Bagamasbad, Psy.D., and Howard M. Romborn, Ph.D., for post-concussion syndrome.
See AR 42-45; 263; 431–33.
C.

Hearing Testimony
At a hearing before the ALJ on July 14, 2014, Chyat testified to the following:
•
•
•
•
•
•
•
•

He was unable to work due to neck, back, and knee pain, lack of
sleep, and headaches.
He could stand for ten minutes before feeling pain.
He could sit for ten to fifteen minutes before feeling pain and
needing to readjust.
He could walk for fifteen to twenty minutes, sometimes using a
cane.
He had trouble lifting a gallon of milk.
He could no longer do previous activities, including working out,
swimming, running, playing basketball, and shopping.
He could drive distances up to two hours, but needed to stop two
or three times for breaks.
He is no longer able to read because of troubles with
concentration and comprehension.

See AR 95-99.
A Vocational Expert (“VE”) Nadine Henzes also testified at the hearing. The

6

VE identified the positions of document preparer, visual inspector, and video monitor
as appropriate jobs for a person with the RFC identified by the ALJ. Chyat’s attorney
questioned the VE about a hypothetical person with the same restrictions, combined
with an inability to concentrate for more than thirty minutes out of every hour. AR
113-14. The VE testified that no jobs existed in the national economy for such a
person. AR 115.
II
On January 22, 2013, Chyat filed his application for disability benefits,
alleging disability as of June 13, 2012, due to his anxiety, depression, and physical
problems with his left eye, head, back, neck, and both knees. Chyat’s application was
denied.
On July 31, 2014, the ALJ rendered his written decision. The ALJ first made
a threshold finding that Chyat last met the insured status requirement of the Social
Security Act on September 30, 2012. Applying the familiar five-step evaluation
process,3 the ALJ first determined that Chyat had not engaged in substantial gainful
activity between his alleged onset date on June 13, 2012 and his date last insured,
3

Social Security Administration regulations establish a five-step process for evaluating
disability claims. The Commissioner must find that a claimant is disabled if she determines “(1)
that the claimant is not working, (2) that he has a ‘severe impairment,’ (3) that the impairment is
not one that conclusively requires a determination of disability, [] (4) that the claimant is not
capable of continuing in his prior type of work, [and] (5) there is not another type of work the
claimant can do.” Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002) (citing 20 C.F.R. §
404.1520(b)-(f)). The burden of proof is on the claimant in the first four steps, but shifts to the
Commissioner at the fifth step. See 20 C.F.R. § 404.1560(c)(2); Shaw v. Chater, 221 F.3d 126,
132 (2d Cir. 2000).
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which he referred to as September 30, 2012.4 Second, the ALJ found that Chyat
suffered the following severe impairments: lumbar radiculopathy, cervical
radiculopathy, and post concussion syndrome. He also found that claimant began
treatment for major depressive disorder, but not until after the expiration of the date
last insured. Third, the ALJ considered whether Chyat had an impairment or
combination of impairments that met or equaled the requirements of a listed
impairment and determined that he did not. Next, the ALJ found that Chyat had the
residual functional capacity (“RFC”) to perform sedentary work, with the following
restrictions:
[Chyat] can lift and carry 10 pounds occasionally and 2 or 3
pounds frequently. He must avoid all exposure to unprotected
heights and moving machinery. He can never climb ropes, ladders
or scaffolds but he can occasionally climb ramps and stairs. The
claimant must avoid concentrated exposure to extreme cold
temperatures, wetness and noise above level three. He needs an
alternate sit/stand option every thirty minutes. He can have
occasional interaction with the public. The claimant cannot
perform work at a fact [sic] production rate pace. He can
understand, remember and carry out simple instructions and make
simple work-related decisions with few work place changes.
AR 41-42.
Applying that RFC to the remaining steps, the ALJ found that Chyat was
unable to perform his past relevant work but could perform other work that exists in
significant numbers in the national economy – namely, document preparer, visual
4

However, later in the same opinion, the ALJ twice referred to Chyat’s “date last
insured” as June 30, 2012. AR 47.
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inspector, and video monitor. The ALJ made this Step Five determination on the
basis of the VE’s testimony.
The Appeals Council subsequently denied Chyat’s request for review,
rendering final the Commissioner’s decision to deny benefits. Chyat sought timely
judicial review.
III
“In reviewing a final decision of the Commissioner, a district court must
determine whether the correct legal standards were applied and whether substantial
evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.
2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If contradictions
appear in the record and an ALJ fails to reasonably explain why he or she opted for
one interpretation over another, the Commissioner’s findings must fall. See, e.g.,
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“[T]he ALJ cannot arbitrarily
substitute his own judgment for competent medical opinion . . .”).
Chyat argues that the ALJ’s residual functional capacity (“RFC”) assessment
was not supported by substantial evidence because the ALJ improperly substituted
his opinion for that of Chyat’s doctors. The Court agrees.
A.

The ALJ Improperly Substituted His Judgment for Trained Medical
Professionals
9

The ALJ held that Chyat was exaggerating his symptoms. He found that
“claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.” AR 42. The ALJ first listed
the record of treatment that Chyat underwent. However, the ALJ did not analyze
the record or explain why he believed it supported a finding that Chyat’s
symptoms were exaggerated.
“To determine whether the findings are supported by substantial evidence,
the reviewing court is required to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be
draw.” Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983). After exhaustive
review, the Court finds the record shows that Chyat was suffering acutely from
knee and back issues, combined with PTSD, post concussion syndrome, and major
depressive disorder, which in combination has resulted in an inability to perform
even sedentary work. The Court notes no less than three of Chyat’s examining
physicians—Drs. Grimm, Sheris, and Aslam, each who met with Chyat multiple
times over a period of several years—also found that his symptoms and medical
issues were disabling.
The ALJ did not explain how his examination of the same record led to a
10

different conclusion. Instead, he simply listed the diagnoses with no analysis or
reasoning. The ALJ also did not address Chyat’s diagnosis of PTSD and gave
almost no treatment to his post concussion syndrome. The ALJ found that Chyat
“did not complain of or seek treatment for a mental impairment prior to the
expiration of the date last insured.” AR 40. However, Chyat was first diagnosed
with post concussion syndrome on June 20, 2012, prior to the date last insured, so
this finding is contrary to the record.
The ALJ considered the findings of two medical professionals in greater
detail: Joseph Sheris and Mohammed Aslam, both of whom saw Chyat multiple
times and concluded that he was unable to return to full-time work. The ALJ
discounted the credibility of both physicians.
Dr. Sheris analyzed Chyat on April 8, 2013 and May 29, 2014 and opined
that Chyat had a 50% partial work-related disability and could return to work parttime with minimal stress. The ALJ gave “some weight to the opinion of Dr. Sheris
. . .” but “does not agree that the claimant is limited to part-time work since there
is nothing to support this opinion.” AR 45.
This conclusory statement does nothing to explain how the ALJ came to
discredit Dr. Sheris. It does not address the severity of the symptoms diagnosed by
Dr. Sheris. Instead, it is a textbook example of an ALJ “arbitrarily substitut[ing] his
own judgment for competent medical opinion.” Balsamo v. Chater, 142 F.3d 75,
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81 (2d Cir. 1998); see also McBrayer v. Sec’y of Health and Human Servs., 712
F.2d 795, 799 (2d Cir. 1983) (“[W]hile an [ALJ] is free to resolve issues of
credibility as to lay testimony or to choose between properly submitted medical
opinions, he is not free to set his own expertise against that of a physician who
testified before him.”).5
The ALJ provides no evidence from the record for his rejection of the
medical conclusion of Dr. Sheris, nor does he impeach Dr. Sheris’s credibility with
the opinion of another doctor. He simply, and impermissibly, concludes that there
is “nothing to support” Dr. Sheris’s opinion.
The ALJ did little better in his treatment of Dr. Aslam’s diagnosis. Dr.
Aslam determined that Chyat:
is still having pain in his knees, even more so. He is still having
significant headaches, they are pretty constant. They get worse at
night. Sometimes he feels dizzy and light headed. He is complaining
of weakness in his lower back, knees, and legs and also has numbness
in the left leg. It runs from the lower back into the left leg in the back
of the knee. Again it is more on the left side. He claims that it is
bilateral and pretty constant.
AR 546. He also found that Chyat:
has significant limitation in the range of motion in the whole spine . . .
There is a lot of paravertebral muscle spasms and trigger point
tenderness and marked limitation in the range of motion in both knees
. . . Reflexes are absent on both sides with downgoing Babinski toes.
5

Defendant’s argument that 20 C.F.R. § 404.1560(c)(2) supercedes Balsamo and
McBreyer misses the mark because this regulation applies to the Step Five analysis, not the
initial determination of RFC at issue here.
12

The straight leg raising is painful on both sides at about 65 degrees.
AR 547.
On the basis of these symptoms, Dr. Aslam concluded that Chyat “is not
capable of any work at this time, including sedentary work” and further concluded
“it is possible his symptoms may persist indefinitely or permanently.” AR 549.
The ALJ gave Dr. Aslam’s opinion “no weight since it is an overestimate of
the claimant’s restrictions.” AR 45. The ALJ’s reasons for rejection were as
follows: On March 25, 2013, (1) Chyat told Dr. Aslam that he could drive for an
hour before stopping; (2) Dr. Aslam claimed that Chyat’s memory, judgment and
comprehension were good; and (3) as part of a larger diagnosis of Chyat’s
symptoms, Dr. Aslam included a section stating Chyat’s “physical capabilities are
normal. There is no weakness in the upper or lower extremities. His limitations are
primarily due to his PTSD and knee injuries,” a section which the ALJ found to be
self-contradictory. Id.
“[A] circumstantial critique by [a] non-physician[], however thorough or
responsible, must be overwhelmingly compelling to justify a denial of benefits.”
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (quoting Wagner v. Sec’y of
Health and Human Servs., 906 F.2d 856, 862 (2d Cir. 1990)). Here, the ALJ
simply substituted his own judgment for that of Dr. Aslam as to what Chyat’s
reported symptoms indicate. These three “inconsistencies,” cherry-picked from the
13

written record of years of diagnostic meetings, are not so “overwhelmingly
compelling” as to overcome Dr. Aslam’s diagnosis of Chyat’s disabilities.
Indeed, it is doubtful whether these minor quibbles are inconsistent with the
diagnosis in the first place. The ability to drive for an hour once does not speak to
the ability to work a full forty-hour work week. See Nelson v. Bowen, 882 F.2d 45,
49 (2d Cir. 1989) (“When a disabled person gamely chooses to endure pain in
order to pursue important goals, it would be a shame to hold this endurance against
him in determining benefits unless his conduct truly showed that he is capable of
working.”). Dr. Aslam is not a psychiatrist, so his remark that Chyat had good
memory, judgment and comprehension is not a medical diagnosis (Dr. Aslam does
not question Chyat’s diagnoses of PTSD and post-concussion syndrome). And
taken in context of the entire report, common sense dictates that Dr. Aslam’s
description of Chyat’s physical capabilities as “normal” refers to his capabilities
outside of Chyat’s exhaustively discussed head, knee, and back problems,
especially since right after describing Chyat’s capabilities as “normal,” Dr. Aslam
talks about Chyat’s limitations due to his knee and head trauma.
The ALJ also cited to “[t]he overall record” and “claimant’s presentation at
the hearing” as reasons to discount Dr. Aslam’s testimony. AR 45. However, the
ALJ did not explain why the record contradicts Dr. Aslam’s testimony, and the
ALJ’s observations as to Chyat’s presentation at the hearing are “entitled to but
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limited weight.” Carroll v. Sec’y of Human and Health Servs., 705 F.2d 638, 643
(2d Cir. 1983). In Carroll, the Second Circuit rejected similar observations, noting
that the ALJ’s observations, “being that of a lay person” were insufficient to reject
medical evidence. Id. The Second Circuit opinion further noted that “since only a
40-minute period was involved,” it was not inconsistent with a medical
determination that the claimant could not do sedentary work. Id. Similarly, the
ALJ’s observations of Chyat at the hearing are insufficient to overcome direct
medical evidence.
In summary, the ALJ erred in rejecting the sound medical findings of Drs.
Sheris and Aslam based on nothing more than vague reference to “the overall
record” and the ALJ’s own lay observations and judgment. This is insufficient to
discard sound medical testimony. The ALJ provided no other reasons for his
conclusion that Chyat was exaggerating his symptoms, nor did he address Chyat’s
PTSD and post concussion syndrome diagnoses. The Court therefore holds that the
ALJ’s conclusion as to Chyat’s RFC was not based on substantial evidence.
B.

Date Last Insured
Chyat urges us to remand with instruction to award benefits. However, the

Court is concerned about an issue raised by Defendant’s Motion for Judgment on
the Pleadings – whether Chyat was disabled before his date last insured.6 The facts
6

The Court rejects Defendant’s argument that the ALJ relied in any way on this issue in
his decision. The ALJ specifically chose not to rely upon it, stating, “the undersigned notes that
15

surrounding this issue appear unsettled. There is at least some evidence that
Chyat’s symptoms worsened with time, as the medical examinations closer to the
date last insured are more optimistic than the examinations several years later. For
example, on November 13, 2012, Dr. Aslam approved Chyat to return to work.
However, neither the parties nor the ALJ squarely address this fact, nor how it
affects Chyat’s status on his date last insured.
Simply because Chyat’s symptoms worsened over time does not compel a
finding that he was not disabled prior to his date last insured. The Second Circuit
has observed:
[E]vidence bearing upon an applicant’s condition subsequent to the
date upon which the earning requirement [i.e., insured status] was last
met is pertinent evidence in that it may disclose the severity and
continuity of impairments existing before the earning requirement
date or may identify additional impairments which could reasonably
be presumed to have been present and to have imposed limitations as
of the earning requirement date.
Lisa v. Sec’y of Dept. Of Health & Human Servs., 940 F.2d 40, 44 (2d Cir. 1991)
(quoting Gold v. Sec’y of Health, Educ. and Welfare, 463 F.2d 38, 41-42 (2d Cir.
1972)).
Similarly here, Chyat may not have had has disability properly diagnosed
until after his date last insured, even though it had onset prior to that date. In

the claimant did not complain of nor seek treatment for a mental impairment prior to the
expiration of the date last insured. However, the undersigned has factored a mental component
into the [RFC].” AR 42.
16

particular, it appears possible from the record that early diagnoses did not
appreciate the severity and permanence of his post concussion syndrome
symptoms, first diagnosed on June 20, 2012. AR 405. See Pollard v. Halter, 377
F.3d 183, 193-94 (2d Cir. 2004) (holding the district court erred by failing to
consider later evidence “strongly suggest[ing] that, during the relevant time period,
[claimant’s] condition was far more serious than previously thought”).
Still, the record before the Court is murky. Neither the parties nor the ALJ
squarely address the timing of symptoms. Even the date last insured itself is unclear;
the ALJ described it as both June 30, 2012 and September 30, 2012 in his opinion.
Given the inconsistent evidence and lack of briefing on this critical question, the Court
is unable to decide the question on the record before it.
On remand, the parties and the ALJ are instructed to address this issue. Doing
so may require further development of the record, to fully understand the
chronological development of Chyat’s symptoms. See Perez v. Chater, 77 F.3d 41, 47
(2d Cir. 1996) (“[b]ecause a hearing on disability benefits is a non-adversarial
proceeding, the ALJ generally has an affirmative obligation to develop the
administrative record”); see also Bender v. Astrue, 2010 WL 5175023, at *7
(N.D.N.Y. Nov. 29, 2010) (holding “it [would] likely be necessary to re-contact the
treating physicians to obtain retroactive assessments of [p]laintiff’s limitations during
17

the relevant time period” because it was unclear from the record if the plaintiff’s
disability onset date was before or after the date last insured).
IV
Because we remand on the basis that the ALJ did not support his opinion
with substantial evidence and improperly substituted his opinion for medical
experts, we need not reach Chyat’s additional arguments. On remand, the ALJ
should pay particular attention to the timing of Chyat’s symptoms relative to his
date last insured. The Court is also sympathetic to the long delay Chyat has faced
in resolving his benefits claim, and, therefore, “think[s] it best that the [ALJ]
disposes of this case as expeditiously as possible.” Pollard, 377 F.3d at 195.
SO ORDERED.

/S/ Frederic Block_
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
September 28, 2017

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