Fletcher v. Commissioner of Social Security
Filing
12
ORDER that deft's motion for judgment on the pleading is GRANTED; the Acting Commissioner's determination that the pltf was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED; the Clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING pltf's complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 12/20/2016. (see)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
DALE WILLIAM FLETCHER,
Plaintiff,
v.
Civil Action No.
1:16-CV-129 (DEP)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF
OFFICE OF PETER M. MARGOLIUS
7 Howard St.
Catskill, NY 12414
PETER M. MARGOLIUS, ESQ.
FOR DEFENDANT
HON. RICHARD S. HARTUNIAN
United States Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
PRASHANT TAMASKAR, ESQ.
DAVID L. BROWN, ESQ.
Special Assistant U.S. Attorneys
ORDER
Currently pending before the court in this action, in which plaintiff
seeks judicial review of an adverse administrative determination by the
Acting Commissioner of Social Security, pursuant to 42 U.S.C. ยง' 405(g)
and 1383(c)(3) are cross-motions for judgment on the pleadings. 1 Oral
argument was heard in connection with those motions on December 19,
2016, during a telephone conference conducted on the record. At the close
of argument, I issued a bench decision in which, after applying the requisite
deferential review standard, I found that the Acting Commissioner=s
determination resulted from the application of proper legal principles and is
supported by substantial evidence, providing further detail regarding my
reasoning and addressing the specific issues raised by the plaintiff in this
appeal.
After due deliberation, and based upon the court=s oral bench
decision, which has been transcribed, is attached to this order, and is
incorporated herein by reference, it is hereby
ORDERED, as follows:
1
This matter, which is before me on consent of the parties pursuant to 28
U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General
Order No. 18. Under that General Order once issue has been joined, an action such as
this is considered procedurally, as if cross-motions for judgment on the pleadings had
been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
2
1)
Defendant=s motion for judgment on the pleadings is
GRANTED.
2)
The Acting Commissioner=s determination that the plaintiff was
not disabled at the relevant times, and thus is not entitled to benefits under
the Social Security Act, is AFFIRMED.
3)
The clerk is respectfully directed to enter judgment, based upon
this determination, DISMISSING plaintiff=s complaint in its entirety.
Dated:
December 20, 2016
Syracuse, NY
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
DALE WILLIAM FLETCHER,
Plaintiff,
vs.
1:16-CV-129
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
--------------------------------------------x
Transcript of a Decision held on December 19,
2016, at the James Hanley Federal Building,
100 South Clinton Street, Syracuse, New York, the
HONORABLE DAVID E. PEEBLES, United States Magistrate
Judge, Presiding.
A P P E A R A N C E S
(By Telephone)
For Plaintiff:
OFFICE OF PETER M. MARGOLIUS
Attorneys at Law
7 Howard Street
Catskill, New York 12414
BY: PETER M. MARGOLIUS, ESQ.
JANICE CAMMARATO
For Defendant:
SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
BY: PRASHANT TAMASKAR, ESQ.
Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
(315) 234-8547
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(In Chambers, Counsel present by telephone.)
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THE COURT:
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All right, thank you both for excellent
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presentations.
I have before me a request for judicial
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review of an adverse determination by the Commissioner
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pursuant to 42 United States Code Sections 405(g) and
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1383(c)(3).
The background is as follows:
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Plaintiff was born
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in March of 1956 and is currently 60 years old, was 58 years
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old at the time of the hearing in this matter, and 56 years
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old at the time of the alleged onset of his disability.
The
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plaintiff is divorced, lives alone in Red Hook, New York.
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has -- there is equivocal testimony as to whether or not he
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has an associate's degree in agriculture engineering.
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told Dr. Cohen no, at 361, he testified yes at page 34 of the
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administrative transcript.
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2012.
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working on a farm operating and repairing heavy equipment and
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also picking up milk with a truck and testing milk.
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served in several other positions, they're listed at page 203
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of the administrative transcript.
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similar categories of past relevant work.
He
He
He last worked in September of
He left that position due to a seizure.
He was
He has
They generally fall into
Medically, plaintiff suffered a traumatic brain
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injury in 2007 when he fell while under the influence of
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alcohol in a creek and hit his head on some rocks.
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page 427.
That's at
He received disability for a closed period from
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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May 2007 to April 30th, 2009.
That's at page 59 through 65
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of the administrative transcript.
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of 2009, and worked until 2012 as I indicated.
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second fall in July of 2012 and suffered a suspected
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concussion.
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intracranial injury although it did show evidence of a prior
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injury.
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although evidence of a lytic lesion.
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showed no thoracic injury.
He resumed working in May
He suffered a
The CT scan of his head showed no acute
CT scan of the cervical spine showed no fracture,
CT scan of the chest
Plaintiff was in the hospital at
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that time for four days and he was discharged to alcohol
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rehabilitation.
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any seizures since that time.
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K-e-p-p-r-a, to control his seizures.
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According to the notes, he's not undergone
He's been on Keppra,
Plaintiff suffers from a history of alcohol abuse.
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He lost his driver's license due to a driving while
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intoxicated conviction.
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as to whether he still consumes alcohol.
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page 43 that he consumed one beer at a Superbowl party but he
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has not otherwise consumed alcohol since 2007.
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however -- in April of 2013 he told Dr. Cohen that he drinks
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beer four times per week, that's at page 362.
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not undergone any medical health treatment, and as
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defendant's counsel noted, plaintiff testified at page 37 and
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also told Dr. Cohen at page 361 that the reason he is
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currently unemployed is lack of transportation.
Testimony and evidence is equivocal
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
He testified at
On April 13,
Plaintiff has
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1
Historically, as I indicated, plaintiff had a prior
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period of -- closed period of disability benefits.
Insofar
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as this matter is concerned, plaintiff applied on January 31,
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2013, for Title II and Title XVI benefits, alleging an onset
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date of July 20, 2012.
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2014, by Administrative Law Judge Vincent Cascio.
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issued a decision on June 26, 2014, in which he found that
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the defendant -- the plaintiff, I'm sorry, was not disabled
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at the relevant times.
A hearing was conducted on April 15,
ALJ Cascio
That became a final determination of
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the agency on December 9, 2015, when the Social Security
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Administration Appeals Council denied plaintiff's application
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for review.
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In his decision, ALJ Cascio applied the five-step
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sequential well-known test for determining disability; at
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step one, concluded plaintiff is not engaged in substantial
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gainful activity since his alleged onset date.
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At step two, he found that the plaintiff suffers
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from severe impairments, including traumatic brain injury and
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a seizure disorder.
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At step three, however, ALJ Cascio concluded that
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plaintiff did not meet or medically equal any of the listed
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presumptively disabling conditions set forth in the
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regulations.
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At step four, applying an RFC finding as follows:
The -- plaintiff retains the functional capacity to perform a
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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full range of work, except -- at all exertional levels except
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claimant can have no exposure to unprotected heights or
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hazardous machines, cannot operate motor vehicles.
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he can understand, remember, and carry out simple unskilled
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work and can frequently interact with supervisors, coworkers,
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and the general public.
Further,
Applying that RFC at step four, ALJ Cascio
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concluded that plaintiff cannot perform his past relevant
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work as a farmworker, or as a farm equipment mechanic, both
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of which are skilled positions.
At step five, ALJ Cascio concluded that the job
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base on which the grids or Medical Vocational Guidelines are
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predicated were compromised by plaintiff's nonexertional
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limitations, and after receiving testimony from a vocational
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expert, concluded that the grids could be used as a framework
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for finding disability and concluded that the defendant --
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sorry, the plaintiff, was not disabled.
The vocational expert testified that the plaintiff
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would be able to perform several jobs that are available in
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the national, regional economy including as a packer, hand,
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as an assembler, small products, and a final assembler, and
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concluded that plaintiff was not disabled at the relevant
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times.
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As you know, my task is limited, the scope of
review is extremely deferential.
I must determine whether
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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correct legal principles were applied and the decision is
2
supported by substantial evidence.
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In my view, the residual functional capacity is
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supported.
I agree with the Acting Commissioner's counsel
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that the fact that the administrative law judge has given
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great weight to opinions by the examining consultative
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psychologist Dr. Cohen and also the nonexamining expert
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Dr. Tatar does not mean that he accepts all of the opinions
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that they've rendered verbatim.
He has looked at, obviously,
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and stated in his decision the totality of the available
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medical evidence.
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supports the RFC finding as does Dr. Tatar's, and as does --
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do the opinions of the Department of Health through the
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Belvedere Health Services at 419 to 420 and 438.
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Dr. Cohen's medical source statement
The one area of concern, of course, is Dr. Tatar's
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statement that plaintiff's condition has not been the subject
17
of medical improvement, and I think that that alone is not
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sufficient to dictate a different result because it really
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doesn't provide context.
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doesn't flesh out what type of medical improvement has
21
occurred and what limitations remain.
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I know that that's at page 374.
It
Again, I think that the RFC finding is well
23
supported by Dr. Cohen's opinions.
I understand what counsel
24
is arguing about the fact that the opinions might not be
25
supported by the results of the examination but essentially
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
15
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I'm being asked to make a medical opinion to override the
2
opinion of the expert, and I'm not prepared to do that.
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So, I also conclude that the ALJ properly rejected
4
plaintiff's statements concerning his limitations, and
5
explained that rejection thoroughly at -- in his opinion at
6
pages 19 and 20.
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So for these reasons, I will grant judgment on the
8
pleadings to the defendant, and order dismissal of
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plaintiff's complaint.
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Thank you for excellent presentations, hope
everyone has a happy holiday, and new year.
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MS. CAMMARATO:
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MR. TAMASKAR:
14
Thank you.
Thank you, your Honor.
Thank you, your Honor.
(Proceedings Adjourned, 2:24 p.m.)
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JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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CERTIFICATE OF OFFICIAL REPORTER
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I, JODI L. HIBBARD, RPR, CRR, CSR, Federal
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Official Realtime Court Reporter, in and for the
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United States District Court for the Northern
7
District of New York, DO HEREBY CERTIFY that
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pursuant to Section 753, Title 28, United States
9
Code, that the foregoing is a true and correct
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transcript of the stenographically reported
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proceedings held in the above-entitled matter and
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that the transcript page format is in conformance
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with the regulations of the Judicial Conference of
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the United States.
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Dated this 19th day of December, 2016.
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/S/ JODI L. HIBBARD
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JODI L. HIBBARD, RPR, CRR, CSR
Official U.S. Court Reporter
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JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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