Nesbit-Francis v. Commissioner of Social Security Administration
Filing
30
ORDER denying 22 Motion for Judgment on the Pleadings; granting 24 Motion for Judgment on the Pleadings: Plaintiffs motion for judgment on the pleadings is denied and defendants cross-motion for judgment on the pleadings is granted. The Clerk of Court is directed to enter judgment accordingly and to close this case. See attached Memorandum & Order. Ordered by Judge Denis R. Hurley on 2/14/2017. (Gapinski, Michele)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DIANE M. NESBIT-FRANCIS,
Plaintiff,
-againstCOMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM & ORDER
Civil Action No. 15-1703
Defendant.
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APPEARANCES:
OSTERHOUT DISABILITY LAW, LLC
Attorneys for Plaintiff
521 Cedar Way, Suite 200
Oakmont, PA 15139
By:
Karl E. Osterhout, Esq.
ROBERT L. CAPERS
UNITED STATES ATTORNEY, EASTERN DISTRICT OF NEW YORK
Attorney for Defendant
271-A Cadman Plaza East
Brooklyn, New York 11201
By: Candace Scott Appleton, AUSA
HURLEY, Senior District Judge:
Plaintiff Diane M. Nesbit-Francis ("Plaintiff") commenced this action pursuant to
42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social
Security (the "Commissioner" or "Defendant") which denied her claim for disability insurance
benefits and Supplemental Security Income. Presently before the Court are Plaintiff's motion and
defendant's cross-motion for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). For the reason discussed below, Plaintiff's motion is denied and defendant's
cross-motion is granted.
BACKGROUND
I.
Procedural Background
Plaintiff applied for disability insurance benefits (DIB) on May 3, 2012, and for
Supplemental Security Income (“SIB”) on May 16, 2012. (Transcript ("Tr.") 15.) Plaintiff alleges
that since July 16, 2008, she has been disabled due to depression, and migraine headaches. (Tr.
19, 231.) She has been diagnosed with adjustment disorder, consisting of anxiety, depression,
insomnia, anhedonia, and feelings of hopelessness. (Tr. 56, 348.)
Plaintiff's DIB and SSI claims were denied on August 1, 2012. (Tr. 15.)
Subsequently, Plaintiff filed a request for a hearing, which was held on July 2, 2013 before
administrative law judge ("ALJ") David Z. Nisnewitz. (Tr. 15, 29-72.) Plaintiff waived her right
to a lawyer. (Tr. 30-31.) Plaintiff, together with psychological expert, Dr. Sharon Grand, Ph.D.
(Tr. 55-59, 64-67, 70-71), and vocational expert, Peter Mansey (Tr. 60-64) testified. This hearing
was adjourned to obtain additional medical records from Dr. Ana Romeo, an internist and
Plaintiff's primary care physician. (Tr. 71.) A second hearing was held on September 10, 2014,
during which Plaintiff was represented by attorney Gabrielle Muller. (Tr. 74-132.) Plaintiff and
psychological expert, Dr. Sharon Grand, testified again at the second hearing. However, a
different vocational expert, Stephen Davis, testified. (Tr. 102-32.) On October 9, 2014, the ALJ
determined that Plaintiff was not disabled. (Tr. 15-22.) Review by the Appeals Council was
requested. (Tr. 6-9.) The Appeals Council reviewed the ALJ’s decision in accordance with the
terms of the Settlement Agreement in Padro v. Astrue, 11-CV-1788 (CBA)(RLM) and on
January 27, 2015 denied the request for review. (Tr. 1-5, 10-14.) This action followed.
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II.
Factual Background
A.
Non-Medical Evidence
Plaintiff was born on September 16, 1956 and holds a bachelor's degree in human
resources. (Tr. 32-33.) She has two adult children and one grandchild. (Tr. 35.) From 1991 to
1994, Plaintiff “volunteered” as a library liaison, although it was a paid position. (Tr. 38, 287.)
From 1994 to 2000, Plaintiff worked as a community worker at a housing complex in the Bronx
where her duties included managing client files, conducting fund-raising efforts, and completing
internal reports. (Tr. 286.) This position entailed supervisory, budgeting, training, and client
management skills. (Tr. 61, 286.) From 2000 until 2008, the Plaintiff worked as a program
director for a rental assistance program helping clients who lived in transitional housing to locate
permanent housing. (Tr. 37, 286.) In this role, she supervised three other people and was
responsible for hiring and firing workers. (Tr. 286.) In addition to conventional desk work and
paper work, Plaintiff would conduct home inspections and organize meetings. (Tr. 109.) She was
let go from this position due to interpersonal conflicts with her supervisor. (Tr. 39-40, 44, 57, 8384.)
In 2012, Plaintiff began working at Pomonok Senior Center for four to five hours
a day, three days a week. (Tr. 40-42.) Although she refers to this as "volunteer work," she was
compensated $230.00 every two weeks. (Tr. 40, 62.) By the time of the second hearing in 2014,
Plaintiff was working two hours a day, two days a week. (Tr. 80.) She cited "too much stress" as
the reason for reducing her time. (Tr. 81.) She was compensated $80.00 every two weeks for this
activity. (Tr. 88.)
Plaintiff lives alone in an apartment, and she takes care of herself on a daily basis.
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(Tr. 291-301.) She has no difficulty dressing, bathing, using the bathroom, feeding herself, or
maintaining her appearance. (Tr. 292-93.) She prepares her own meals on a daily basis. (Tr. 293.)
She cleans her own home, vacuums, does laundry, and shops for herself. (Tr. 43, 53, 294.) She
goes outside three times a week. (Tr. 43, 294.) She can walk, use public transportation and drive
a car. (Tr. 53-54, 294.) Her hobbies include reading and writing. (Tr. 295.) She has friends she
talks to and meets regularly. (Tr. 54.) She attends church every week. (Tr. 43, 296.)
In addition to depression and anxiety, Plaintiff testified that frequent migraine
headaches prevent her from seeking and holding employment. (Tr. 44-45, 291.) These headaches
are comorbid with her clinical diagnoses of depression and adjustment disorder. (Tr. 56, 348.)
Together these reported impairments limit her ability to manage stress and to concentrate. (Tr.
314.) Her psychological condition, in part, stems from a history of domestic violence at the hands
of her deceased husband. (Tr. 34-35, 82.) Plaintiff was hospitalized for a nervous breakdown in
1988, after her husband physically abused her and "almost killed" her. (Tr. 34-36, 99, 312.) In
1999, she was admitted to the emergency room at North Shore Hospital for a severe headache
after reportedly losing consciousness. (Tr. 67-68, 312.) She testified that she experiences
headaches two to three times per week and that they last for hours. (Tr. 45-46.) Sometimes a
headache “knocks [her] down” and keeps her in bed although she could not say how often that
happened. (Id.)
At the continued hearing, Plaintiff stated she was taking medication for
hypertension. Her left foot was swollen, limiting her ability to walk. (Tr. at 77.) She cut back her
hours at the senior center because it was too stressful; she would get headaches and start
“thinking about things that had happened in the past,” including the abuse by her now deceased
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husband. (Tr. 80-82, 87-88, 99.)
In her disability report, she indicated that she does not have any limitations
associated with lifting, standing, walking, sitting, using stairs, kneeling, squatting, reaching,
using her hands, seeing, hearing, or talking; she can follow spoken instructions, and written
instructions, but that she did have trouble remembering things. (Tr. 296-99.)
Peter Mansey, a vocational expert testified at the July 2, 2013 hearing. Based on
the testimony of the psychological expert, Dr. Grant (see infra), he opined that Plaintiff could not
do “her past relevant work because it was a skilled level.” Specifically, her prior work as “an
administrator, social welfare” is “sedentary with a SVP of 8" and her work as a community
trainer is “light with an SVP of 6.” Mr. Mansey stated he “would reduce her skill level to semiskilled, and also jobs that did not have . . . high pressure, or production quotas.” (Tr. at 60-61.)
He testified that a number of jobs exist in the national economy that meet the criteria of
moderately complex and low stress, including information clerk, receptionist, and calculating
machine operator. (Tr. 62-64.)
A different vocational expert, Stephen Davis, testified at the September hearing.
After summarizing the testimony of Mr. Mansey, the ALJ asked Davis if assuming she could do
light work, would she be able to perform any of her prior jobs. He responded, “[L]et me tell you
what I came up with first because my jobs are a little bit different.” (Tr. at 107.) Davis
categorized her prior work of “program director, case management” as “095.137-101, SVP 7"
which is light, skilled and sedentary” and her “community worker” as “195.367-018, SVP 6,
skilled, classified as light.” (Tr. at 107.) He opined that with residual functional capacity to do
light or sedentary work, “she can definitely do the community worker” and “probably couldn’t
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do” her past job as program director. (Tr. at 125.) He further testified that there are other jobs that
she could perform for which there exist jobs and to which her skills are transferrable. (Tr. 125127.) When questioned further as to why he ruled out program director he replied he relied on the
“doctor’s testimony . . . that she was not performing at – well below a college level person or
what would be expected of a college level person.” When the psychological expert confirmed
that there was nothing in the record to justify the referenced statement, Davis replied that “if
that’s the case, then she could do the program director job” given a RFC of moderately complex
work that is moderately stressful. (Tr. 128-30.)
B.
Medical Evidence - Treating Sources1
1.
Dr. Ana Romeo
Plaintiff’s primary care physician is Dr. Ana Romeo, an internist. From April to
June 2008, Dr. Romeo reported that her physical examination of Plaintiff - including
neurological and spinal - were largely unremarkable. Plaintiff’s weight was 247 and her blood
pressure readings was 126/70 in June; her prior blood pressure readings in April and May were
130/70 and 126/82, respectively. Her electrocardiogram (“ECG”) was normal and her cholesterol
was high. Dr. Romeo diagnosed obesity and dyslipidemia. (Tr. 492, 505-09.)
In August 2008, Plaintiff complained of heart palpitations and dizziness. She
weighed 250 pounds, her blood pressure was 130/70 and her ECG was normal. (TR. 510.) In
February and March 2009, Dr. Romeo noted that Plaintiff’s dyslipidemia and hypertension were
1
The record contains medical documents relating to Plaintiff’s treatment for a cyst,
uterine fibroids and testing to screen for diseases with negative results. (See Tr. 369-407, 491,
498-99,500-02, 509). As these documents are unrelated to the impairments at issue, their
contents are not be set forth herein.
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controlled; she exhibited swelling in both legs and her blood pressure was 140/90 and 145/90
respectively. (Tr. 511-12.) In June 2009, Plaintiff’s ECG was normal, her blood pressure 155/90
and her weight was 255. (Tr. 514.)
According the record, Plaintiff did not see Dr. Romeo again until May 14, 2012.
At that time, she weighed 264 and her blood pressure was 140/90. She was well kept and the
physical examination finding were unremarkable. There were no motor or sensory deficits, no
edema in the extremities and the neurological examination was normal. Laboratory results
showed higher than normal cholesterol levels and an ECG revealed non-specific inferior
abnormalities. Dr. Romeo diagnosed borderline blood pressure with no history of hypertension;
obesity and a history of dyslipidemia. (Tr. 473-89.)
On July 30, 2012, Plaintiff was seen by Dr. Romeo complaining of swelling in her
ankles for a few days. She weighed 264 pounds and her blood pressure was 150/90. On
examination, she appeared well kept, had normal affect and was fully orientated. Physical
examination findings were unremarkable except for minimal non-pitting edema in the ankles
with good distal pulses. There were no motor or sensory deficits. Dr Romeo diagnosed
unspecified essential hypertension and mixed hyperlipidemia and recommended a low
cholesterol diet, increased physical exercise for the mild ankle swelling, pressure stockings, and
elevating the legs. She referred Plaintiff to a cardiologist and prescribed Avapro,
Hydrochlorothiazide, Lipitor and aspirin for hypertension and lipid levels. (Tr. 474-75.)
Dr. Romeo saw Plaintiff again on September 10, 2012. Her blood pressure was
130/80 and her weight was 266 pounds. Physical examination was unremarkable and Plaintiff
was fully orientated, appeared well kept and had a normal affect. (Tr. 476.) An electrocardiogram
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conducted on September 22, 2012 revealed normal left ventricular function and wall motion, left
ventricular filling pattern consistent with diastolic dysfunction, normal right ventricle with
normal function, moderately dilated left atrium, normal right atrium, normal trileaflet aortic
valve, mild to moderate mitral regurgitation, mild tricuspid regurgitation and physiologic
pulmonic regurgitation. (Tr. 481.)
Plaintiff saw Dr. Romeo on February 3, 2013 and complained of chest pain
without palpitations a few days earlier and right shoulder pain of several months duration. She
weighed 258 pounds and her blood pressure was 120/70. Physical examination was unremarkable
except for pain in the right shoulder with reduced abduction and the neurological examination
was normal. There were no motor or sensory deficits and no edema in the extremities. Dr.
Romeo diagnosed unspecified essential hypertension and mixed hyperlipidemia, noting
Plaintiff’s hypertension was better controlled but her cholesterol was poorly controlled. An ECG
was normal except for a late transition. She opined that Plaintiff had a possible right shoulder
sprain or frozen shoulder syndrome. (Tr. 477-79.)
Dr. Romeo completed a medical opinion questionnaire on August 29, 2014. She
opined that Plaintiff would sit, stand, and/or walk for less than two hours in an eight hour day,
could lift and carry less than ten pounds occasionally, required the ability to shift positions at
will, needed to take unscheduled fifteen minute breaks every two hours, and needed to elevate
her legs during prolonged sitting for up to 50% of the work day. Dr. Romeo indicated that
Plaintiff had significant limitations in reaching, handling and fingering, could bend and twist 40
% of the day, could only occasionally twist, stoop, crouch, and climb, and needed “to avoid all
environmental factors.” She opined that Plaintiff would be absent from work more than twice a
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month. (Tr. 515-17.)
2.
New York Hospital
Plaintiff went to the emergency department of New York Hospital on October 31,
2012 complaining of an acute headache with some nausea. She reported that her previous
headache had occurred two weeks earlier and rated her current pain as 3/10. Cardiovascular,
neurological, psychological and musculosketal examinations were normal, as were a brain CTscan and ECG. She was diagnosed with hypertension and migraine headaches. she received a
morphine injection while at the hospital and was prescribed Acetaminophenoxycodone upon
discharge. (Tr. at 439-64.)
3.
Denise Granda-Gilbert, Ph.D., Clinical Psychologist
Dr. Granda-Gilbert completed a medical questionnaire on August 1, 2012
indicating that she treated Plaintiff from April 4, 2012 to May 16, 2012 and Plaintiff
discontinued psychotherapy as she could not afford the co-pay and refused medication therapy.
Dr. Granda-Gilbert listed her treating diagnoses as “309.28 - Adjustment Disorder with Mixed
Emotional Features” with current symptoms consisting of anxiety, depression, insomnia,
anhedonia and feelings of hopelessness, worthlessness and helplessness. She described Plaintiff’s
attitude and behavior as “anxious depressed, [and] exhibiting panic behavior,” her speech,
thought and perception as normal and her mood and affect as depressed and anxious. She further
described Plaintiff’s attention, concentration, and memory as disrupted due to depression, her
insight as fair and her ability to perform calculations and serial sevens as average. In response to
the inquiry as to Plaintiff’s ability to function in a working setting, she wrote “P[atien]t would
love to be employed!” She opined that based on her medical findings, Plaintiff “can work if
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given a chance.” Dr. Granda-Gilbert indicated that Plaintiff had no limitations for adaption,
social interaction, understanding, and memory but her sustained concentration and persistence
were “limited due to depression.” (Tr 348-54.)
C.
Medical Evidence - Non-Treating Sources
1.
Iqbal Teli. M.D.
Dr. Iqbal Teli performed a consultative internal examination of Plaintiff on July 2,
2012. He noted that Plaintiff reported a history of headaches and hypertension of fifteen years
duration, with headaches three times per week, associated with nausea and lasting a few hours.
Plaintiff further reported that she lived alone, cooked, showered and dressed every day and that
her activities included listening to the radio, reading and taking walks. On examination her
weight was 263 and her blood pressure 160/86. Her gait was normal, she needed no help
changing for the examination or getting on and off the table, and rose from a seated position
without difficulty. Plaintiff was able to squat 70% of the way down but was unable to walk on
heels comfortably. Her heart and lungs were normal. Plaintiff had full ranges of motion of the
cervical and lumbar spines, shoulders, elbows, forearms, wrists, hips, knees and ankles; there
was full muscle strength throughout and no muscle atrophy. Deep tendon reflexes were
physiologic and equal. Hand and finger dexterity were intact and grip strength was full. Dr. Teli
diagnosed a history of hypertension and chronic headaches. He opined that Plaintiff had no
physical restrictions. (Tr. 308-11.)
2.
John Laurence Miller, Ph.D.
Dr. Miller, a psychologist, performed a consultative examination on July 2, 2012.
He noted that Plaintiff reported she drove herself to the appointment, lived alone and had
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completed her bachelor’s degree. She told Dr. Miller she had lost her last job due to headaches
and that she had been seeing a psychiatrist once a month for 23 years. She further stated that she
was a victim of domestic violence and believed her mental health symptoms - weight gain and
headaches - were due to that. Plaintiff described her depressive symptomatology as dysphoric
moods, crying spells, feelings of hopelessness (since she stopped working), diminished selfesteem and concentration difficulties. She reported experiencing flash-backs of domestic abuse
and having panic attacks, triggered by headaches, that occurred on an average of three times per
week characterized by breathing difficulties, feeling as if a pin was sticking in a nerve and a need
to lie down. She described having auditory hallucination in the past but not currently and current
short term memory deficits. Her daily activities include dressing, bathing, cooking and preparing
food, cleaning, laundry, shopping, managing money, taking public transportation as well as
driving a car, socializing with friends and family, watching television, listening to the radio,
reading and taking walks. (Tr. 313-14.)
On examination, Plaintiff appeared to be experiencing a severe headache. She was
well-groomed and her social skills were satisfactory. Gait, posture, and motor behavior were
normal. Speech was fluent and clear; thought processes coherent and goal-directed. Her affect
was dysphoric and her mood dysthymic. Plaintiff’s attention, concentration, and memory were
impaired due to emotional distress. She was unable to perform a two step problem correctly and
serial threes were completed to five. Cognitive function appeared below average for an individual
with a college degree but her insight and judgment were good. Dr. Miller diagnosed major
depressive disorder, moderate, and panic disorder without agoraphobia. He opined that Plaintiff
would have trouble learning new tasks due to memory problems and did not appear able to deal
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appropriately with stress. She could understand and follow simple directions, perform simple
and complex tasks independently, maintain concentration, maintain a regular schedule, make
appropriate decisions and relate adequately with others. (Tr 314-15.)
3.
A. Herrick, Ph.D.
Dr. Herrick, a state agency psychological consultant, reviewed the record and
competed a psychiatric review technique form and mental functional capacity assessment on July
31, 2012. He determined that Plaintiff had medically determinable impairments of an affective
disorder and an anxiety-related disorder that did not meet the criteria of the Listing. He opined
that Plaintiff had mild restrictions of activities of daily living, mild difficulties in maintaining
social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and
no extended episodes of deterioration of extended duration; further, the record did not establish
that Plaintiff satisfied the paragraph C criteria. He stated that there were no limitations in the
following areas: ability to remember locations and work-like procedures; understand, remember
and carry-out short, simple instructions; maintain attention and concentration for extended
periods of time; maintain regular attendance; sustain an ordinary routine without special
supervision; work in proximity to others; make simple work-related decisions; complete a normal
workday without interruptions from psychologically-based symptoms; interact with the general
public; ask simple questions to request assistance; get along with co-workers, use public
transportation; and set realistic goals or make plans independently of others. He indicated that
there were moderate limitations in the following areas: the ability to understand, remember and
carry out detailed instructions; work with or in proximity to others without being distracted;
accept instructions and criticism from supervisors; and respond appropriately to changes in the
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work setting. Dr. Herrick opined that while Plaintiff might have difficulty adapting to stressful
situations, she could understand and remember simple instructions, appropriately interact with
others, maintain concentration and attention, maintain a regular work schedule, make appropriate
decisions and perform complex tasks independently. (Tr. at 316-29, 336-39.)
4.
Larry Kravits, Psy. D.
Dr. Kravitz, a State agency psychological consultant reviewed the updated
medical record and completed a “Review of Psychiatric Review Technique Form” on August 23,
2012. He agreed with Dr. Herrick in the following areas: categories of disorders, rating of
functional limitation and medical disposition. He indicated disagreement with “Listing 12.02C,
12.03Cor 12.04C in Remission” and “Listing 12.06C: without explanation. He stated in his
summary, however, that “[w]hile claimant’s presentation at the disability application interview
was odd, in light of the much more comprehensive review by the CE, and the absence of any
treatment records, it would be difficult to argue against the DDS severity assessment as
unreasonable.” (TR. 355-59.)
5.
James L. Greco, M.D.
On August 20, 2012, Dr. Greco, a state agency medical consultant, reviewed the
medical record and agreed with the conclusions of the consultative doctor, Dr. Teli, regarding the
absence of exertional, postural, manipulative, visual, communicative and environmental
limitations. (Tr. 360-61.)
4.
Dr. Sharon Grant, Ph.D.
Dr. Grant, an Psychological Expert called by the ALJ, testified at both hearings.
At the July hearing she was asked her opinion, based on the record, as to the nature of Plaintiff’s
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impairments, whether she meets or equals any listing and what her residual functional capacity is
“from a mental point of view.” (Tr. 55.) Dr. Grant referenced the report of Dr. Granda-Gilbert
that indicated an adjustment disorder with mixed emotional features and “some symptoms of
anxiety and depression, including insomnia, anhedonia, some feelings of hopelessness and
worthlessness and some panic behaviors, and some memory difficulties due to depression.” (Tr.
55-56.) She also referenced a “psych consult that indicates some memory difficulties[,] some
difficulty dealing with stress [] [and] a major depressive disorder” but stated she “would tend to
give greater weight to the treating psychologist’s diagnosis.” (Tr. at 56.) Dr. Grant opined that
Plaintiff’s “impairments would not meet or equal a listing but she would be limited to work
that’s routine, no more than moderately complex, and low-stress.” (Tr. at 56.) Also, her
headaches “shouldn’t interfere with the psychiatric limitations” but “would be more of a physical
complication.” (Tr. at 65.)
At the September hearing, when Dr. Grant was asked if she still held the opinion
that Plaintiff could do routine, moderately complex, low stress work, she replied, “I just want to
take a quick look. Yeah, she – probably moderate stress work, your honor.” (Tr. at 101.) The
following colloquy then took place:
Q: Moderately?
A. Moderately stressful work, yeah.
Q. Moderately stressful, not low.
A. Yeah.
(Tr. 101.) When asked if he had any questions for Dr. Grant, Plaintiff’s counsel responded she
did not. (Tr. 101-102.)
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DISCUSSION
I.
Standard of Review
A.
Review of the ALJ's Decision
In reviewing a decision of the Commissioner, a court may "enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision
of the Commissioner of Social Security, with or without remanding the cause for a rehearing."
42 U.S.C. § 405(g). The Court may set aside a determination of the ALJ only if it is "based upon
legal error or is not supported by substantial evidence." Rosa v. Callahan, 168 F.3d 72, 77 (2d
Cir. 1999) (internal quotation marks and citation omitted). "Substantial evidence is ‘more than a
mere scintilla,' and is ‘such relevant evidence as [a] reasonable mind might accept as adequate to
support a conclusion.'" Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Furthermore, the findings of the
Commissioner as to any fact, if supported by substantial evidence, are conclusive, 42 U.S.C. §
405(g), and thus, the reviewing court does not decide the case de novo. Halloran v. Barnhart,
362 F.3d 28, 31 (2d Cir. 2004) (internal quotation marks and citation omitted). Thus the only
issue before the Court is whether the ALJ's finding that Plaintiff was not eligible for disability
benefits was "based on legal error or is not supported by substantial evidence." Rosa, 168 F.3d at
77.
B.
Eligibility for Disability Benefits
1.
The Five-Step Analysis of Disability Claims
To be eligible for disability benefits under the Social Security Act (the "SSA"), a
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claimant
must establish that she is unable "to engage in any substantial gainful activity by reason of any
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 12
months." 42 U.S.C. § 423(d)(1)(A). The SSA further states that this impairment must be "of
such severity that [the claimant] is not only unable to do [her] previous work but cannot,
considering [her] age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy . . . ." Id. § 423(d)(2)(A).
The SSA has promulgated regulations prescribing a five-step analysis for
evaluating disability claims. See 20 C.F.R. § 404.1520. This Circuit has described the procedure
as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If [s]he is not, the
[Commissioner] next considers whether the claimant has a "severe
impairment" which significantly limits [her] physical or mental
ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider [her] disabled
without considering vocational factors such as age, education, and
work experience . . . . Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant's
severe impairment, [s]he has the residual functional capacity to
perform [her] past work. Finally, if the claimant is unable to
perform [her] past work, the [Commissioner] then determines
whether there is other work which the claimant could perform.
Rosa, 168 F.3d at 77 (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam)). The claimant bears the burden of proof at steps one through four, while the burden
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shifts to the Commissioner at step five to show that the claimant is capable of working.
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
2.
The “Special Technique” for Evaluation of Mental Impairments
The SSA “has promulgated additional regulations governing the evaluation . . . of
the severity of mental impairments,” that should be applied “at the second and third steps of the
five-step framework . . . .” Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008). This “special
technique” requires “the reviewing authority to determine first whether the claimant has a
medically determinable mental impairment, [and if] there is such impairment, the reviewing
authority must rate the degree of functional limitation resulting from the impairment(s) in
accordance with paragraph C of the regulations, which specifies four broad functional areas: (1)
activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4)
episodes of decompensation.” Id. (internal citations omitted); see also 20 C.F.R. § 404.1520a(b),
(c). “[I]f the degree of limitation in each of the first three areas is rated ‘mild or better, and no
episodes of decompensation are identified . . . the reviewing authority . . . will conclude that the
claimant's mental impairment is not severe’ and will deny benefits.” Kohler, 546 F.3d at 266
(citing 20 C.F.R. § 404.1520a(d)(1)). However, if claimant's mental impairment or combination
of impairments is severe, “in order to determine whether the impairment meets or is equivalent in
severity to any listed mental disorder,” the reviewing authority must “first compare the relevant
medical findings [along with] the functional limitation rating to the criteria of listed mental
disorders.” Id. (citing § 404.1520a(d)(2)). If the mental impairment is equally severe to a listed
mental disorder, the “claimant will be found to be disabled.” Id. “If not, the reviewing authority
[must then] assess” plaintiff's RFC. Id. (citing 20 C.F.R. § 404.1520a(d)(3)).
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C.
The Treating Physician Rule
Social Security regulations require that an ALJ give "controlling weight" to the
medical opinion of an applicant's treating physician so long as that opinion is "well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see also Rosa,
168 F.3d at 78-79. The "treating physician rule" does not apply, however, when the treating
physician's opinion is inconsistent with the other substantial evidence in the record, "such as the
opinions of other medical experts." Halloran, 362 F.3d at 32; see also Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002). When the treating physician's opinion is not given controlling
weight, the ALJ "must consider various ‘factors' to determine how much weight to give to the
opinion." Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)). These factors include:
(1) the length, nature and extent of the treatment relationship; (2) the evidence in support of the
treating physician's opinion; (3) consistency of the opinion with the entirety of the record; (4)
whether the treating physician is a specialist; and (5) other factors that are brought to the
attention of the Social Security Administration that tend to support or contradict the opinion. Id.
§ 404.1527(d)(2)(I-ii) & (d)(3-6); see also Halloran, 362 F.3d at 32. Furthermore, when giving
the treating physician's opinion less than controlling weight, the ALJ must provide the claimant
with good reasons for doing so. 20 C.F.R. § 404.1527(d)(2).
In addition, it is clearly stated law in the Second Circuit that "while a treating
physician's retrospective diagnosis is not conclusive, it is entitled to controlling weight unless it
is contradicted by other medical evidence or ‘overwhelmingly compelling' non-medical
evidence." Byam v. Barnhart, 336 F.3d 172, 183 (2d Cir. 2003) (emphasis added); see also
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Rivera v. Sullivan, 923 F.2d 964 (2d Cir. 1991) (reviewing Second Circuit law on retrospective
diagnosis and reversing denial of benefits where retrospective diagnosis of treating physician not
given sufficient weight with regard to degenerative condition).
Finally, the ALJ may not reject the treating physician's conclusions based solely
on inconsistency or lack of clear findings without first attempting to fill the gaps in the
administrative record. Rosa, 168 F.3d at 79. "It is the rule in our circuit that ‘the ALJ, unlike a
judge in a trial, must . . . affirmatively develop the record' in light of ‘the essentially
non-adversarial nature of a benefits proceeding,'" even if the claimant is represented by counsel.
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Echevarria v. Secretary of HHS, 685
F.2d 751, 755 (2d Cir. 1982)); see also Butts v. Barhart, 388 F.3d 377, 386 (2d Cir. 2004) ("‘It is
the ALJ's duty to investigate and develop the facts and develop the arguments both for and
against the granting of benefits.'") (quoting Seavey v. Barnhart, 276 F.3d 1, 8 (1st Cir. 2001)),
amended on other grounds on rehearing, 416 F.3d 101 (2d Cir. 2005). Specifically, this duty
requires the Commissioner to "seek additional evidence or clarification" from the claimant's
treating sources when their reports "contain[ ] a conflict or ambiguity that must be resolved" or
their reports are "inadequate for [the Commissioner] to determine whether [claimant] is
disabled." 20 C.F.R. §§ 404.1512(e), (e)(1). The Commissioner "may do this by requesting
copies of [the claimant's] medical source's records, a new report, or a more detailed report from
[the claimant's] medical source." Id. § 404.1512(e)(1). The only exception to this requirement is
where the Commissioner "know[s] from past experience that the source either cannot or will not
provide the necessary findings." Id. § 404.1512(e)(2). If the information obtained from the
claimant's medical sources is not sufficient to make a disability determination, or the
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Commissioner is unable to seek clarification from treating sources, the Commissioner will ask
the claimant to attend one or more consultative evaluations. Id. § 404.1512(f).
II.
The ALJ's Decision
Applying the five-step analysis enumerated in 20 C.F.R. § 404.1520, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of
July 16, 2008. (Tr. 17.) Proceeding to step two, the ALJ determined that Plaintiff has the
following severe impairment: hypertension, obesity and an adjustment disorder with mixed
emotional features. Id. At step three, the ALJ concluded that Plaintiff did not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 18.) The ALJ determined that
Plaintiff retained the residual functional capacity (“RFC”) to perform light work, except that she
was limited to work that was only moderately complex, involved no more than moderate
amounts of stress, and she must avoid highly complex work or work involving high levels of
stress. (Tr. 19.) Relying on the testimony of the vocational expert, Mr. Davis, the ALJ found at
step four that Plaintiff could perform her past relevant work as a community worker as it is
“generally performed.” (Tr. 22.) Accordingly Plaintiff was found not disabled under the Act.
III.
Summary of Arguments
Plaintiff raises several arguments in support of remand. (Pl.’s Mem. at 3.) First,
the ALJ failed to resolve conflicts in the record regarding vocational and psychological
testimony. Specifically, it is asserted that he did not inquire of the vocational experts whether
their testimony was consistent with the Dictionary of Occupational Title; he did not discuss the
conflict between the testimony of the two vocational experts as to whether the RFC prevented
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past work; he did not discuss the medical expert’s change in testimony from the first hearing to
the second; and he did not discuss the conflict between his assignment of considerable weight to
the opinions of the consultative psychological examiner and Agency psychological consultants
and their assessment of Plaintiff’s work-related mental limitations. (Id. at 4-11.) Second, the
ALJ’s finding that Plaintiff can return to past work is contrary to law and not supported by
substantial evidence. (Id. at 12-14.) Third, the ALJ’s alternate step 5 finding that Plaintiff could
perform other work is contrary to law and not supported by substantial evidence. (Id. at 14-17.)
Defendant asserts that the Commissioner’s decision is supported by substantial
evidence and is based upon the correct legal standard in that the ALJ properly weighed and
evaluated the medical opinion evidence and the ALJ’s step four finding was correct and his
reliance on the testimony of the vocational expert was proper. Finally, Defendant argues that,
notwithstanding Plaintiff’s assertions to the contrary, the ALJ did not make a finding at step
five.
IV.
Application of the Governing Law to the Present Facts
After a careful review of the record in this case, the Court concludes that the
ALJ’s conclusions are supported by substantial evidence and he applied the correct legal
standards.
A.
Alleged Conflicts with the DOT
Plaintiff claims that the ALJ has an affirmative duty to inquire of a vocational
expert whether or not his testimony conflicts with information contained in the DOT and the
failure of the ALJ to make such an inquiry is an error requiring remand. Plaintiff relies upon the
following language contained in Policy Interpretation Ruling of the Social Security Regulation
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00-4P. Policy Interpretation Ruling : Titles II & XVI: Use of Vocational Expert & Vocational
Specialist Evidence, and Other Reliable Occupational Info. in Disability Decisions, SSR 00-4P
(S.S.A. Dec. 4, 2000): “At the hearing level, as part of the adjudicator’s duty to fully develop the
record, the adjudicator will inquire on the record, as to whether or not there is such consistency.”
(Pl.’s Mem. at 4 (citing SSR 00-4P).) However, Plaintiff’s argument ignores the sentence which
immediately precedes the relied upon portion of SSR 00-4P. That sentence provides: “When
there is an apparent unresolved conflict between the VE or VS evidence and the DOT, the
adjudicator must a elicit a reasonable explanation for the conflict before relying on the VE or VS
evidence to support a determination or decision about whether the claimant is disabled.” SSR
00-4P. In accordance with this language, SSR 004-P requires an ALJ to address only apparent
conflicts between a vocational expert's testimony and the DOT, not all possible conflicts. See
Daragjati v. Colvin, 2015 WL 427944, * 8 (E.D.N.Y. Jan. 31, 2015) (remanding case as ALJ did
not inquire into apparent conflict between VE’s testimony and the DOT); see generally Jasinski
v. Barnhart, 341 F.3d 182, 185 (rejecting claim that ALJ should have inquired into the conflict
between the testimony of the VE and the DOT as there is no actual conflict if the differences
between the sources reflects the difference between the "expert's description of the job that the
claimant actually performed, and the Dictionary's description of the job as it is performed in the
national economy”). Here, Plaintiff fails to identify any apparent or actual conflict between the
testimony offered by either vocational expert and the information contained in the DOT.2 In the
absence of such conflict, the duty to inquire does not arise.
2
The Court also notes that Plaintiff does not challenge the VE’s categorization or
description of Plaintiff’s jobs.
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B.
Alleged Conflicts in the Vocational Experts' Testimonies
Next, Plaintiff contends that the ALJ did not resolve the alleged inconsistency
between Mr. Mansey's testimony and Mr. Davis's testimony. Plaintiff argues that failure to
resolve such a conflict in the record amounts to a reversible error.
In fact, there is no such discrepancy. Each expert was responding to the RFC
assessment hypothetical presented. Mr. Mansey offered his opinion based on a hypothetical
individual capable of work that is routine, no more than moderately complex, and low stress. (Tr.
55-56,60-64.) But this was not the hypothetical RFC presented to Mr. Davis (and ultimately
found by the ALJ). The testimony of Mr. Davis at the second hearing was based upon an
individual who could perform moderately complex work that was moderately stressful. (Tr. 130)
Simply put, there is no unresolved conflict requiring remand.
C.
The Failure to Discuss the Medical Expert’s Change in Testimony
Without citation to any authority, Plaintiff asserts that remand is required because
the ALJ did not elicit any explanation from Dr. Grant as to the reason for the change in her
testimony from the first hearing to the second. Dr. Grant testified at the first hearing that
Plaintiff’s mental impairments would limit her to work that was routine, no more than
moderately complex and low stress. At the second hearing, after checking her notes, she testified
that the limitation should be moderate stress - not low, and later stated she did not mean to say
routine.
While it might have been preferable for the ALJ or Plaintiff’s then counsel to have
inquired of Dr. Grant to explain the change, their failure to do so does not require remand
because, as discussed infra, the ALJ’s RFC determination is supported by substantial evidence in
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the record. See Kohler v. Astrue, 546 F.3d 260, 269 (2d Cir. 2008) (stating that harmless error
may not necessitate remand to the agency); cf. Suttles v. Colvin, 654 Fed. Appx. 44, 47 (2d Cir.
2016) (failure to consider new evidence was harmless error because “there was no reasonable
possibility that the consideration of [the new evidence] would have altered the ALJ’s decision.”);
Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (explaining that ALJ's failure to consider
even a treating physician's report could be harmless error if there was “no reasonable likelihood”
that considering it would have changed the disability determination”); Tankisi v. Comm’r of Soc.
Sec. , 521 Fed. Appx. 29, 34 (2d Cir. 2013) (affirming ALJ's RFC determination based on
extensive medical record despite the fact that the record did not include formal opinions as to
claimant's RFC); 20 C.F.R. § 1527(d)(2) (“Although we consider opinions from medical sources
on issues such ... [as a claimant's] residual functional capacity ... the final responsibility for
deciding [this] issue[ ] is reserved to the Commissioner.”).
D.
Failure to Discuss the Conflict between the Assignment of Considerable Weight to
the Opinions of the Psychological Professionals and Their Assessment of Plaintiff’s
Work-Related Mental Limitations
Plaintiff asserts that the ALJ committed error when he assigned “considerable
weight” to the opinions of the consultative psychological examiner (Dr. Miller), the psychiatric
consultant (Dr. Kravitz) and Plaintiff’s treating psychologist (Dr. Granda-Gilbert) but failed to
resolve conflicts between the opinions of those medical professionals and his RFC. For example,
Plaintiff contends that the limitations identified by Dr. Kravitz suggest that Plaintiff could only
understand and remember simple instructions. Similarly, it is argued that Dr. Granda-Gilbert
stated the Plaintiff’s attention, concentration, and memory were disrupted due to depression
resulting in a limited ability to sustain concentration and persistence. By contrast, the RFC
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adopted by the ALJ would require Plaintiff to perform moderately complex work. Based on
findings such as these, Plaintiff's counsel argues that the ALJ's determination was not supported
by substantial evidence. (Pl.’s Mem. at 9-11.)
Prior to reaching his conclusion as to Plaintiff’s RFC, the ALJ carefully reviewed
the evidence before him. Addressing first Plaintiff’s physical impairments,3 the ALJ noted that
the medical records document ankle swelling only in February 2009 and July 2012, with the
exams in 2008 and May 2012 indicating no lower extremity edema. (Tr. at 19.) Further, while
the record indicates instance of shortness of breath, cardiac testing was unremarkable except for
mild to moderate regurgitation. With respect to her headaches, the record showed one visit to the
emergency room in October 2012 with the CT scan taken being unremarkable. Noting the
disparity between Dr. Romeo’s opinion that Plaintiff was limited to sitting, standing, and walking
less than two hours in an eight day hour, and that of the consultative examiner, Dr. Teli, that she
had no limitations, the ALJ found that Plaintiff’s physical ailments, including her obesity, would
“preclude heavy levels of exertion” but Plaintiff would be capable of “at least light work
activity.” As support for this conclusion, the ALJ noted the lack of support for Dr. Romeo’s
conclusions, including that Plaintiff had no lower extremity edema for most of the period at issue
and that while her hypertension was uncontrolled at times, “any associated impairment would
impose only moderate limitations.” (Tr. at 20.) The ALJ also cited Plaintiff’s own statements
concerning her ability to drive, use public transportation, visit family and perform activities of
daily living. (Tr. at 20-21.)
3
Although Plaintiff does not argue any error with respect to the ALJ’s determination of
her physical impairments, the Court reviews that determination as part of its obligation to ensure
the ALJ’s decision is based on substantial evidence.
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Addressing Plaintiff’s psychiatric impairments, the ALJ began his analysis with
Dr. Granda-Gilbert’s assessment that Plaintiff had “some limitation with respect to sustained
concentration, persistence, and pace but otherwise had no limitations” and that “given the chance
[Plaintiff] would be able to work.” (Tr. at 21.) He then discussed Dr. Miller finding, including
that Plaintiff “has trouble learning new tasks due to memory problems and that she did not
appear to deal appropriately with stress” but was “capable of following, understanding, and
performing simple and complex tasks/instructions. maintaining attention and concentration,
maintaining a regular schedule, making appropriate decision and relating adequately with
others.” (Id.) Finally, the ALJ noted Dr. Herrick’s assessment that Plaintiff that Plaintiff “had
moderate limitations with respect to maintaining concentration., persistence and pace, but
otherwise only had mild limitations.” (Id.) The ALJ found these three opinion consistent to the
extent they indicated no limitations other than in Plaintiff’s ability to maintain sustained
concentration, persistence, and pace and to deal with stress. But the ALJ “gave particular weight”
to Dr. Miller’s opinion that she cannot deal appropriately with stress. Based on these opinions
and on Plaintiff’s testimony regarding her activities, the ALJ concluded that Plaintiff “must avoid
highly stressful work or work requiring highly or complex tasks” but would be capable of
“moderately stressful and moderately complex work.” (Tr. at 21.)
Here, the ALJ appropriately considered and weighed the medical evidence in
reaching his RFC assessment. See 20 C.F.R. §§ 401.1527(d)(2) (while medical opinions on RFC
are considered, the final decision as to this issue lies in the Commissioner); Cage v. Comm’r Soc.
Sec., 692 F.3d 118, 122 (2d Cir. 2012) (“[W]e defer to the Commissioner’s resolution of
conflicting evidence.”); Matta v. Astrue, 508 Fed. Appx. 53, 56 (2d Cir. 2013) (“Although the
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ALJ’s conclusion may not perfectly correspond with any of the opinions of medical sources cited
in his decision, he was entitled to weigh all of the evidence available to make an RFC finding
consistent with the record as a whole.”) Besides the evidence discussed by the ALJ, there is other
evidence in the record that supports his RFC. For example, Dr. Granda-Gilbert described
Plaintiff’s ability to perform calculation and serial sevens as average ( tr. at 351), and Dr. Miller
opined that Plaintiff could perform complex tasks independently (tr. at 314). These opinions
support the ALJ’s conclusion that she can perform moderately complex work. (Tr. at 351.) The
ALJ’s determination that while Plaintiff must avoid highly stressful work but is capable of
moderately stressful work is a synthesis of the opinions of Drs. Herrick and Miller that Plaintiff
has difficulty with dealing with stress and Dr. Granda-Gilbert’s which noted no such limitation.
The ALJ was not required to state every reason justifying his decision, see Brauly v. Social
Security Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (“an ALJ is not required to discuss every
piece of evidence submitted [and] an ALJ’s failure to cite specific evidence does not indicate that
such evidence was not considered”) (internal quotation marks omitted) as his findings are
supported by substantial evidence.
E.
The ALJ’s Step Four Analysis
To the extent that Plaintiff’s asserts that the ALJ’s finding that she can return to
past relevant work is contrary to law, she simply a reiterates her previously rejected arguments
regarding the “conflict” between the testimony of the two vocational experts, Dr. Grand’s
“changed” testimony, and the ALJ’s “failure” to reconcile the inconsistency between his giving
“considerable weight” to the opinions of the experts and “his finding which excluded their
opinions that Plaintiff was limited to understanding, remembering, and carrying out only simple
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routine tasks. (Pl.’s Mem. 12-14.) For the reasons previously, discussed, the Court rejects these
arguments.
Plaintiff’s assertion that the Step 4 analysis is not supported by substantial
evidence, is also rejected. Because the ALJ's RFC finding is supported by substantial evidence,
and his hypothetical question to Mr. Davis precisely matched the RFC finding, this vocational
expert’s testimony provides substantial evidence for the ALJ’s step four conclusion. Ohrnberger
v. Colvin, 2016 WL 4435222, * 10 (E.D.N.Y. Aug. 19, 2016).
F.
The “Alternate Step Five Finding”
Finally, Plaintiff’s argument regarding the ALJ’s “alternate step 5 finding” (Pl.’s
Mem. at 14-17), is underwhelming. While the ALJ did elicit testimony from the vocational
expert about other jobs besides past work that a hypothetical person with certain limitations
could perform, his decision does not contain an alternate step five finding. See Tr. at 15-22.
In summary, the Court finds that the ALJ’s findings were not based on legal error
and are supported by substantial evidence.
CONCLUSION
For the reasons set forth herein, Plaintiff’s motion for judgment on the pleadings
is denied and defendant’s cross-motion for judgment on the pleadings is granted. The Clerk of
Court is directed to enter judgment accordingly and to close this case.
SO ORDERED.
Dated: Central Islip, New York
February 14, 2017
s/ Denis R. Hurley
Denis R. Hurley
United States District Judge
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