Saenz vs Colvin

Filing 20

OPINION re: 17 MOTION for Judgment on the Pleadings . filed by Carolyn W. Colvin, 14 FIRST MOTION for Judgment on the Pleadings . filed by Mario Saenz: Plaintiff Mario Saenz ("Saenz" or the "Plaintiff" ;) brings this action pursuant to Section 205 (g) of the Social Security Act, 42 U.S.C. § 402, et seq. (the "Act"), challenging the determination of Defendant Nancy Berryhill1, Acting Commissioner of Social Security ("Berryhill,&q uot; the "Defendant," or the "Commissioner"), to deny his application to the Social Security Administration ("SSA") for monthly disability insurance benefits ("DIB") and Supplemental Security Income ("SSI& quot;) benefits. Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the foregoing reasons, Defendant's motion is granted and Plaintiff's motion is denied. (Signed by Judge Robert W. Sweet on 5/10/2017) (jwh) Modified on 5/10/2017 (jwh).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------------x
MAR I O SAEN Z,
Plai ntiff ,
16 Civ. 574
- against OP INI ON
NANCY A. BERRYHILL,
Acting Corrunis sioner of Social Security ,
Defendant.

-------------------------------------------x
A P P E A R A N C E S:

Attorney for Plaintiff
OUIMETTE, GOLDSTEIN & ANDREWS , LLP
100 Crysta l Run Road , Su it e 112
Middletown , NY 10941
By: Scott Goldstein, Esq.

Attorney for Defendant
JOON H. KIM
Acting United States Attorney
U. S. Attorney 's Off i ce , SONY
86 Chambers Street
New York, NY 10007
By: Leslie A. Ramirez-Fisher, Esq.

(RWS)

Sweet, D.J.

Plaintiff Mario Saenz ("Saenz" or the "Plaintiff") b rings
this action pursuant t o Section 205 (g) of the Social Se c urity
Ac t, 42 U.S.C. § 40 2 , et seq.

(the "Act" ) , ,challenging the

determinati o n o f Defendant Nancy Berryhill 1 , Acting Commissioner
of Social Se c urity ("Berryhill," the "Defendant," o r the
"C ommissi oner"), to deny his applicati o n to t he Soc ial Se c urit y
Administrati o n ("SSA") for monthly disability insuran c e benefits
("DIB") and Supplemental Security Income ("SSI") benefits. Both
parties hav e moved for judgment o n the pleadings pursuant t o
Rule 12(c) of the Fede ral Rules of Civil Pro c edure. As set forth
below, the Plaintiff's motion is denied, and the Commissioner's
mo ti o n is granted.

Prior Proceedings

Plaintiff applied f o r DIB and SSI o n June 14, 2012,
alleging a disability that began on January 1, 2010.

(S oc ial

Se c urity Administrative Rec o rd (the "R") at 133-4 2 , 153, Dkt.

1

Nancy A . Ber r yh i ll is n ow the Act i ng Commissioner of Soci a l Security .
Pursuant to Rule 25(d) o f the Federa l Rules of Ci v il Pr ocedure , Berryhil l is
hereby subs t ituted fo r fo r me r Acting Commi ssioner Carol yn W. Colvin as the
defendant in this action .

1

13.) On November 8, 2012, the Social Security Administration
denied Saenz both requests.

(R. at 65-69, 76-81.)

On December 6, 2012, Plaintiff requested a hearing before
an administrative law judge ("ALJ"). ALJ Robert Gonzalez heard
Plaintiff's case and testimony on October 8, 2013.

(R. at 33-

64.) On April 9, 2014, the ALJ issued a decision finding
Plaintiff not disabled.

(R. at 10-26.) Plaintiff filed an appeal

of that decision to the Appeals Council on May 8, 2014, which
denied Plaintiff's request for review on December 21, 2015.

(R.

at 1-9.)

On January 26, 2016, Plaintiff timely commenced the present
action pursuant to 42 U.S.C. § 405(g).

(Dkt. 1.) Plaintiff moved

for judgment on the pleadings on September 9, 2016,

(Dkt. 14),

and on November 8, 2016, the Commissioner cross-moved for the
same,

(Dkt. 17). Both motions were taken on submission and

marked fully submitted on December 15, 2016.

The Administrative Record

The Social Security Administrative Record,

( Dkt. No. 13) ,

filed as part of the Commissioner's answer, sets forth the
following history.
2

Saenz was born in May 1974 and has completed high school.
(R. at 42, 133.) Prior to his current alleged disability,
Plaintiff worked a variety of jobs, including as a warehouse
worker, stockperson, machine operator, roofing lab orer ,

janitor,

forklift operator, handyman, and parking lot attendant.

(R. at

158, 197.) Since adolescence, Plaintiff has had substance abuse
problems, and for many years sold drugs to support himself.

(R.

at 262-63, 766, 783.) Plaintiff maintains regular visitation
with his young daughter, with whom he does activities such as
bicycling, swimming, watching movies, and going to the librar y .
(R . at 52, 167, 171.)

a. 2010 Records

On May 20 10, Saenz was hospitalized at Arden Hill
Behavioral Health Unit of Orange Regional Medical Center for
depression and anxiety.

(R. at 859-63.) Upon admission, Saenz

tested positive for cannabis, and later acknowledged that he had
relapsed into using cocaine and alcohol.

(R. at 766, 783, 861.)

He was admitted with a diagnosis of bipolar disorder and
polysubstance dependence.

(R. at 859.) While there, Saenz

received substance abuse counseling and medication management
from Catholic Charities; with therapy and medication, Saenz's
3

condition improved, and he was discharged.

(R . at 853 , 861 - 62 ,

917 - 20 , 1077' 1079 , 1082 . )

Starting in June 2010 , while continu in g his therapy at
Catholic Charities , Saenz was admitted into an individual and
group counseling program ca ll ed Personalized Recovery Orientated
Services (" PROS " ) , a part of Occupations , Inc.

(" Occupations " )

(R . at 262 - 267.) Through PROS , Saenz received counseling from
Jennifer Candela, a licensed clinical social worker.

( I d.)

In August 2010 , Cathol i c Charit i es discharged Saenz for
repeated l y missing or arriving late to appointments , in addition
to their suspicion that Saenz was not following his prescription
regimen .

(R . at 918 . ) That same month, Saenz was also

incarcerated for several days f or vio la t in g an order of
protection .

(R. at 835 . ) While in carcerated , Saenz did not have

access to medication, which exacerbated his anxiety and required
another hospitalization at Orange Regional Medica l Center after
his release fr om prison .

(R . at 738-86, 853 . )

On September 13, 2010 , at the request of the SSA , Dr.
Leslie Helprin conducted a consultative psychiatric eva l uation
of Saenz . While there , Saenz reported that he was able to dress ,
bathe , groom h i mse lf, cook , c lean, do la undry , sh op, drive , use
4

public transportation, and socialize with friends and family.
(R . at 789. ) Dr . Helprin observed that Saenz had adequate social
skills and motor behavior, was appropriately dressed, made eye
contact, and was we ll-gr oomed .

(R . at 788.) Saenz was " fluent

and clear with word-finding" and had "coherent and goal
directed" thought processes "with no evidence of hallucinations,
delusions, or paranoia." (Id.) His mood was dysthymic and affect
dysphoric.

(Id.) Saenz's intellectual skills were "below average

range," his insight was "limited," and his attention and
concentration capacity was present but "impair ed ." (Id.) Dr .
Helprin believed that Saenz would have "diffi cu lt y dealing
appropriately with stress of an independent job in a competitive
workplace due to depression."

(R. at 789.) Nevertheless, Dr.

Helprin concluded that Saenz's judgment was "fair," he could
"maintain a regular schedule," and that he "wou l d be able to
maintain attention and concentration for a simple rote task in a
supported work setting." (Id.)

On October 6, 2010 , State agency medical expert Dr. L.
Meade reviewed Dr. Helprin's report and other contemporary
treating sources.

(R. at 837 -40.)

Dr. Meade noted that Saenz

suffered from moderate limitations on his ability to complete a
normal workday and respond appropriately to changes in the
workplace.

(R . at 838 . ) However , Dr. Meade conc luded that Saenz
5

was able to "understand, execute and remember simple
instructions and work like procedures." (R . at 839 . ) Similarly ,
Saenz could "sustain attention , concentration and pace for a
normal work day and work week," "relate adequately to
supervisors and coworkers ," and "use judgment to make simple
work related decisions ." (Id . )

Despite his discharge from Catholic Charities, Saenz
continued at PROS under the counseling care of Ms . Candela and
medication management care of Dr. Muhammad Malik.

(R . at 262 - 67 ,

793-802.) Saenz's medication was adjusted during this time,
principally due to Saenz 's leukopenia, but by October was
stabilized, and Saenz 's mental status and judgment were
evaluated as normal , though Saenz remained depressed and
anxious .

(R . at 637 , 794, 807.) Towards the end of 2010 , Saenz's

attendance at PROS dropped and then stopped altogether; only
after Ms. Candela sent Saenz a letter warning of potential
discharge from PROS did Saenz resume regular attendance,
treatment, and medication.

(R . at 940 -4 5.)

b. 2011 Records

Treatment at PROS continued throughout 2011.

(R. at 429-33,

435-541, 949-1028, 1030-36, 1038-48.) For the first half of
6

2011, Ms. Candela noted that Saenz regularly attended his
counseling sessions and successfully managed his depressive
symptoms, even when periodically taken off medication due to his
leukopenia.

(R . at 95 1, 955, 975.) Saenz regularly visited his

daughter and volunteered at church twice a week.

(R. at 954,

958, 960, 968 , 972, 982, 1000.)

By mid-2011, both Ms. Candela and Dr. Malik encouraged
Saenz to search for full-time employment.

(R. at 982, 1000.) In

response to the suggestions, Saenz stated that he was not ready
to return to work,

(R. at 983), and that he was unwilling to

work for "that hard f or $10.00 an hour" when he had gotten use
to "making 'mad money' when he was dealing drugs."

(R. at 10 00 .)

In July 2011, after a period of renewed drug abuse,
in cluding cannab i s and coca ine, and heightened depression, Saenz
was admitted back to Orange Regional Medical Center at the
recommendation of Ms. Candela.

(R. at 866, 868, 871, 1004.) Upon

admission, Saenz reported feeling overwhelmed, anxious, and
hearing voices.

(R. at 87 6.) Saenz resumed medication and

therapy, after which his condition impr oved and stabilized.

(R.

at 876.) He was discharged about a week later with a diagnoses
of schizoaffective disorder-depressed.

7

(Id.)

In September 2011 , because of Saenz's increased reports of
depression, PROS doctors recommended Saenz transfer to
Occupations' partial hospitalization program, where he received
more intensi ve , daily support.

(R . at 1019, 1021. ) Saenz

remained there for about two months.

(See R. at 1034.) While

there, Saenz minimally participated or attended programming,
though he continued to attend and vo lunteer at church and was
focused on an upcoming visi tati on rights hearing regarding his
daughter.

(R. at 10 21 -22, 1025, 1027-28.)

Through the end of 2011 , Saenz continued to meet with Dr.
Mal ik and other PROS medical professionals t o manage his
medication.

(R . 497-508,

506~

511, 516-20, 522-27 530-31, 536 -

39 .) The doctors reported that Saenz occasionally experienced
auditory hallucinations but that he was able to ignore them and
that his thought process continued to be goal directed.

(R . at

499, 506, 511, 518, 524, 530, 536.) While Saenz reported
anxiety, lack of motivation, and feelings of being overwhelmed ,
(R. at 506, 519, 524 , 530-31, 536), the doctors observed that he
was alert and oriented , with fair concentration, fair attention
span, and intact memory.

(R. at 499, 518, 524, 530, 536,

606 .)

Dr. Malik again recommended t o Saenz that Saenz should return to
work.

(R. at 506.)

8

In October 2011, after not following his medication
prescriptions and returning to drug abuse , Saenz was readmitted
to Orange Regional Medical Center for depression and reports of
hallucinations and paranoia.

(R . at 884 - 900.) After resuming his

medication regimen, Saenz's condition improved and stabilized.
(R. at 893.) After being discharged , Saenz was transferred back
to PROS for continued therapy and medication management.

(R . at

462-75, 478-84 , 1029, 1034.)

In December 2010 , Dr. Salil Kathpalia took over
responsibility for Saenz ' s psychiatric treatment and medication
management.

(R. at 429 - 32 , 440-54.)

Dr. Kathpalia observed that

Saenz was cooperative , with normal speech, though process, and
thought content.

(R. at 431, 442 , 448.) Saenz ' s judgment and

memory were intact and his attention span and concentration were
good .

(R . at 431 , 442 , 448.) He only reported having auditory

hallucinations once .

(R . at 443.) Saenz also continued to see

Ms . Candela for counseling . Saenz expressed to Ms. Candela his
desire for mo ney to provide better for his daughter and observed
that he "'might not be able to continue to wait around for SS I
to be approved [,]' and might [,] therefore [,]

' have to get a

job." (R. at 1038 . ) However, he stated that he did not want to
do "dirty work for slave wages ," which included work like
"labor, cleaning ,

[or] retail." (Id . )
9

c . 2012 Records

During January and February 2012, Ms. Candela's session
notes for Saenz noted his depressive mood and l ow self-esteem ,
which Saenz tied to his lack of finances and poor quality of
life.

(R . at 1050 , 1052 - 53 . ) Ms. Candela repeatedly suggested

that Saenz seek employment , which Saenz stated he was able, but
unwilling, to do .

(See R. at 1049-50, 1052-53 , 1056 , 1063 , 1065,

1068.) Saenz expressed irritation that Dr . Kathpalia would not
provide him a letter stating that Saenz could not work so he
would not be required to pay child support.

(R . at 1065 . ) Saenz

reported that he continued to see his family, provide child care
to his nephew, assist his mother with house repairs, and attend
and volunteer at church regularly.
also returned to using marijuana.

(R . at 1044 , 1056.) Saenz had
(R . at 1055.) Ms. Candela

reported that she believed Saenz was using the PROS program to
avoid working .

(R. at 1056 . )

In March 2012, at Ms . Candela and Dr. Kathpalia's
suggestion , Saenz was transferred out of the PROS program to
Occupations ' clinical program .

(R . at 1065, 1068.) Saenz then

began counseling sessions with Jenna Fitzpatrick, another
licensed clinical social worker .
10

(R . at 1344-68, 1370, 1375 - 79,

1381-82.) Ms. Fitzpatrick reported that Saenz often stated he
was depressed and anxious, but that his cond i tions improved with
medication and activity .

(R . at 1345, 1347, 1350-51 , 1358, 1365 ,

1 367 , 1370, 1 377 . ) Saenz a l so cont inued to meet with Dr.
Kat hp al ia, with whom he exhi bited depressed or anxious moods,
but possessed a cooperative attitude, normal speech , normal
thought process, normal thought content, and lacked perceptual
disturbances .

(See R. at 27 1, 277 , 285 , 292, 298 , 306 , 3 1 3 , 320 ,

327 , 334 , 343 , 350 , 357 , 371 , 378 , 383 , 389 , 395 , 401 , 407 , 413,
419 , 426, 1095 , 1126, 11 43 , 1155, 11 60 , 11 67 , 1173, 1179, 1185,
1204, 1210, 1 216 , 1222.) Dr. Kathpalia's notes consistently
indicate that Saenz 's memory and judgment were intact and his
attention span and concent r at i on were good.

(Id . )

On August 31 , 2012 , Dr. Helprin conduc t ed another
evaluation of Saenz .

(R . a t 7 11-1 5 . ) Dr. He lprin n oted that

Saenz exhibited norma l motor behavior, adequate social skills,
and coherent , goal directed thought processes without evidence
of hallucinations.

(R . at 7 1 2 -1 3 . ) Saenz ' s attention,

concent r at i on , and memory were imp a ired , and his intel le ctua l
skills were below average.

(R . at 7 1 3 . ) Saenz stated his da il y

activities were sometimes impe ded by his depression , though he
also stated he cont inu ed to perform da il y chores like bathing ,
grooming , dressing , cooking , cleaning , shopping , laundry,
11

driving, and reading.

(Id . ) Dr. Helprin concluded that Saenz

could perform " simple rote tasks and some complex tasks
independently," "maintain attention and concentration for simple
tasks wi th difficulty, " and was "able to make appropriate
decisions now without his substance abuse." (R . at 714 . )
However, Dr. Helprin noted that depression "may sign ifi cant l y
interfere with [Saenz's] ability to function on a daily basis"
and was impacting his ability to maintain a "regular schedule."
(Id . )

On November 2 , 2012 , State agency medical expert Dr. J.
Dambrocia reviewed Saenz ' s record.

(R . at 716-35 . ) Dr. Dambrocia

noted that Saenz had moderate limitations on maintaining social
functioning and concentration, which might result in Saenz
having difficulties relating with others , adapting to change, or
dealing with coworkers .

(R . at 726 , 733.)

Dr. Dambrocia also

concluded that Saenz wou l d be able "to understand and remember
instructions and sustain attention and concentration for tasks,"
and his ability to tolerate and respond appropriately to
supervision would be "adequate to handle ordinary levels of
supervision in the customary work setting." (R . at 733.)

12

d. 2013 Records

Saenz remained under Dr . Kathpalia's care through September
2013. Meeting almost every other week , Dr. Kathpalia observed
that Saenz would generally be depressed or anxious , but
otherwise possessed normal speech , thought processes , and
thought control , and exhibited intact judgment , good attention
span , and good concentration .

(R . at 11 1 5 , 1189 , 1196 , 1246 ,

1252, 1260 , 1266, 1274, 1281, 1292 , 1300 , 1306 , 1314 , 1320 . )
Medication and counseling continued through mid - 2013 , and Dr .
Kathpalia and Ms . Fitzpatrick reported Saenz showed signs of
ov erall improvement, aside from occasional conflicts with family
members or failure to take medication , each which resulted in
periods of increased depression.

(R . at 1 323 , 1329 , 1331, 1334 ,

1335 , 1339 . )

On July 20, 2013, Ms . Fitzpatrick completed a psychiatric
assessment of Saenz for the Orange County Department of Social
Services .

(R. at 910-11.) Ms . Fitzpatrick noted that Saenz had

limitations with regard to understanding and remembering complex
instructions , maintaining attention and concentration, and
performing low stress , simple tasks.

(R . at 911.) Ms.

Fitzpatrick noted no limitation on Saenz's ability to maintain
socially appropriate behavior , basic standards of personal
13

hygiene or grooming, or the ability to use public
transportation.

(R. at 911.) Ms. Fitzpatrick stated that Saenz

had improved with treatment, but it was undetermined when he may
return to work "due to chronic bipolar disorder."

(R. at 910-

11.)

On September 26, 2013,

Dr. Kathapalia completed a mental

residual functional capacity assessment of Saenz. Dr. Kathpalia
observed that Saenz had moderate limitations with regard to
maintaining attention and concentration for periods of greater
than two hours, performing activities within a schedule,
maintaining regular attendance, working in coordination with
others without distraction, completing a normal work week
without interruption, responding appropriately to change in the
work place, and accepting instruction and responding
appropriately to criticism from supervisors.

(R. at 1388-90.)

Saenz was found not significantly limited in his ability to:
remember, understand, and carry out short and simple
instructions; remember locations and work procedures; get along
with co-workers without distracting them; maintain socially
appropriate behavior; and adhere to standards of neatness and
cleanliness.

(Id.)

Dr. Kathpalia stated that Saenz would need "a

supportive environment to be successfully employed" and would

14

need to be absent from work about two times per month.

(R . at

1391-92.)

e. Saenz ' s Hearing Testimony

On October 8 , 20 13 , Saenz , accompanied by co unsel,
testified before the ALJ. Saenz testified about his feelings of
depression, paranoia, and of being overwhe lme d .

(R . at 46 , 50 ,

60 . ) He discussed his feelings of low self-worth and how his
depression made him feel "stuck," preventing him from engaging
in activities outside the house.

(R. at 59, 61 .) He described

his difficult relationship with his daughter .

(R. at 50 . ) He

testified that he heard voices and had suicidal thoughts , for
which he ha d been hospitalized.

(R . at 61-62 .)

f. Post - Hearing Record

Following the hearing , the ALJ wrote to Dr . Kathpalia to
clarify and understand better the basis of the doctor's
September 2013 evaluation .

(R . at 237 -42. ) Dr. Kathapa lia's

answers, as well as correspondence with Plaintiff's counsel
regarding these additions to the regard , were entered into the
record without object ion and prior to the ALJ ' s cons ideration
and decision.

(R . at 13, 243 - 48, 1393 - 99 . )
15

Applicable Standard

a. Review of the Commissioner ' s Decision

" In reviewing a final decision of the SSA, this Court is
limited to determining whether the SSA ' s conclusions were
supported by substantia l evidence in the record and were based
on a correct legal standard. " Ta l avera v . Astrue , 697 F.3d 145 ,
15 1 (2d Cir . 2012)

(internal quotation marks and citation

omitted) ; see also 42 U. S.C .

§

405(g) . "Substantial evidence "

must be " more than a mere scintil l a . It means such relevant
information as a reasonable mind might accept as adequate to
support a conclusion ." Talavera , 697 F . 3d at 151 (quoting
Richardso n v . Perales , 402 U. S . 389 , 401

(1971)). When

determining whether the agency ' s findings were supported by
substantial evidence , " the reviewing court is required to
examine the ent i re record , i ncluding contradic t ory evidence and
evidence from which conflicting inferences can be drawn ." Id .
(interna l quotat i on marks omitted)

(quoting Mongeur v . Heckler ,

722 F . 3d 1033 , 1038 (2d Ci r . 1983)

(per curiam)) .

"Substantial evidence " is a " very deferential standard of
review- even more so than the ' clear l y erroneous '

standard ."

Brault v . Soc . Sec . Admin ., Comm ' r , 683 F . 3d 443 , 448
16

(2d Cir .

2012)

(citation omitted) . While the ALJ ' s decision needs to

contain enough information to "glean [the ALJ's] rationale," it
is not required to "have mentioned every item of testimony
presented to him or have explained why he considered particular
evidence unpersuasive or insufficient to lead him to a
conclusion of disability . " Mongeur , 722 F.2d at 1040 (citations
omitted). "[O]nce an ALJ finds facts , " this Court can "reject
those facts only if a reasonable factf inder would have to
conclude otherwise . " Id .
omitted)

(internal quotation marks and citation

(emphasis in original). It is not for this Court to

" substitute its own judgment for that of the [Corrunissioner] , "
even if it might justifiably have reached a different result
upon de novo review ." Jones v . Sullivan , 949 F . 2d 57 , 59 (2d
Cir. 1991)

(quoting Valente v. Sec'y of Health

&

Human Servs .,

733 F . 2d 1037, 1041 (2d Cir. 1984)).

b . Standard Of Disability

In order to establish a disability within the meaning of
the Act , a claimant must demonstrate the inability 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
17

U. S . C.

§

423(d) (1) (A) . Under the Act , it is not sufficient that

the claimant establish the mere presence of a disease or
impairment . Rather , he must show that the disease or impairment
has caused functional limitations that preclude him from
engaging in any substantial gainful activity. Rivera v . Harris ,
623 F . 2d 212 , 215 - 16 (2d Cir . 1980) ; Coleman v. Sha l ala , 895 F .
Supp. 50 , 53 (S . D.N.Y . 1995) .

Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by def i ning a
physical or mental impairment as "an impairment that results
from anatomical , physiological , or psychological abnormalities
which are demonstrable by med i cally acceptable clinical and
laboratory diagnostic techniques . " 42 U.S.C .

§

423(d) (3). The

statute further provides that an individual will be determined
to have a disability " only if his physical or mental impairment
or i mpairments are of such severity that he is not only unable
to do his previous work but cannot , considering his age ,
education , and work experience , engage in any other kind of
substantial gainful work which exists in the national economy ."
42 U. S . C .

§

423 (d) (2) (A).

To determine disability , the Commissioner uses a five - step
sequential evaluation process . 20 C . F.R .
18

§

404.1520 . If a

finding of disability or non - disability can be made at any point
in the sequential analysis , the Commissioner will not review the
claim further. 20 C.F. R.

§

404 . 1520(a) ; Williams v . Apfel, 204

F.3d 48 , 48-49 (2d Cir . 1999).

At step o ne , the Commissioner considers whether the
claimant i s currently engaged in substantial gainful activity .
20 C. F . R.

§

404.1520(b ) . If the claimant is not engaged in

substantial gainful activity , the analysis moves to step two
where the Commissioner considers whether the c l aimant has a
"s evere " impairment or combination of impairments that
significantly limit his physical or mental ability to do basic
work activities . 20 C .F. R.

§§

404.1520(c), 404.1521; Bowen v.

Yuckert , 482 U. S . 137 (1987).

If a severe impairment or combination of impairments is
present, at step three the Commissioner considers whether the
claimant ' s impairment meets or equals the criteria in Appendix 1
to 20 C .F.R. Part 404 , Subpart P. See 20 C .F.R.

§

404 .1 520(d)

If the claimant does not have a listed impairment, the
Commissioner will make a finding regarding the claimant ' s
residual functional capacity , i.e ., what a claimant can do
despite his impairments and related symptoms. 20
C .F. R.

§§

404.1520(e) , 404 .1 545 .
19

The Commissioner then uses the residual functional capacity
finding at the f o urth and fifth steps of the sequential
evaluation . Id . At the fourth step , the Commissioner determines
whether the claimant has the residual functional capacity to
perform his past relevant work . 20 C.F . R .

§

404.15 20( f). The

claimant bears the burden of proving that he cannot return to
his former type of work . See Melville v. Apfel , 19 8 F.3d 45 , 51
(2d Cir. 19 99) . If the claimant is unable to perform any work he
has done in the past , the Commissioner considers his residual
functiona l capacity along with his age, education , and past work
experience to determine if he can do other substantial gainful
activity in the national economy . 20 C . F.R.

§

404 . 1520(g ) . If a

claimant can do ot her work , the claim will be denied . Id.

The Commissioner's Motion For Judgement On The Pleadings Is
Granted

a . The ALJ Did Not Err In The Weight Given To Plaintiff ' s
Treating Physician

Pl aintiff contends that the ALJ committed legal error when
he gave insufficient weight to the evaluations of Dr . Kathpalia
and Ms. Fitzpatrick , whom Plaintiff terms his treating
physicians . After reviewing the record , the ALJ gave the
evaluations of Dr. Kathpalia and Ms . Fitzpatrick "very little
20

weight"

(R. at 22-23 . ) These weight determinations were not

legal error .

The treating physicians rule "generally requires deference
to the medical opinion of a claimant ' s treating physician ."
Halloran v. Barnhart, 362 F.3d 28 , 32

(2d Cir . 2004) . However, a

treating physician ' s opinion is only entitled to "controlling
weight" if it is "well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in [the] case
record." Burges v. Astrue , 537 F . 3d 117, 128
(internal quotation marks omitted)
(quoting 20 C . F.R.

§

(2d Cir. 2008)

(alternation in original)

404 .1 527(d) (2 )); see also Snell v . Apfel ,

177 F.3d 128, 133 (2d Cir. 1999)

("When other substantial

evidence in the record conflicts with the treating physician ' s
opinion,

. that opinion will not be deemed controlling. And

the less consistent that opinion is with the record as a whole,
the less weight it will be given ." ). Licensed physicians are
statutorily acceptable medical sources; licensed clinical social
workers are not, though qualify as "other sources" that may be
used as evidence to show a claimant ' s severity of impairment and
ability to function. See Diaz v . Shalala, 59 F . 3d 307 , 313 (2d
Cir . 1995)

(citing 20 C . F . R.

§

404.1527); 20

21

C . F.R . § 404 . 1513(a)-(d); Social Security Ruling ("SSR " ) 06-03p ,
2 0 0 6 WL 2 3 2 9 9 3 9 , at * 2- 3 (Aug . 9 , 2 0 0 6 ) .

If a treating physician ' s opinion is not to be given
"c ontro lling weight , the regulations require the ALJ to cons ider
several fa ctors .

. inter alia , the [l]ength of the treatme nt

relationship and the frequency of examin ation ; the [n]ature and
extent o f the treatment relationship ; the relevant evidence
., particularly medical signs and laboratory findings,
supporting the opinion ; the consistency of the opinion with the
re co rd as a whole; and whether the physician is a specialist in
the area covering the particular medical i ssues." Burges , 537
F.3d at 129 (internal q u otat i on marks omi tted)
C . F . R. § 404 .15 27 (d) (2) (i) - (ii) ,

(quoting 20

(3)- (5)) . In setting forth an

opinion , the ALJ must provide "good r easons " for the different
weight given to the treating source , without which the opinion
shou l d be remanded. Halloran , 362 F.3d at 32 - 33 (citation
omitted).

Pl aintiff argues th a t the ALJ did not give proper weight t o
Dr. Kathpa li a ' s September 2013 opin i on . In 2013 , Dr. Kathpalia
o bserved that the Plaintiff had moderate limitati ons with regard
to maintaining action for two hours periods of time , performing
regularly scheduled act ivities, punctuality , accepting
22

instruction , performing cons ist ent ly without an unreas onab le
number of rests, completing normal work week without
interrupti on , and working in coordination with or near others
without being distracted .

(R . 1388-90 . ) Plaintiff claims that

the ALJ ign ored the consistency of these observations with other
treating source opinions in the record. According to the
Plaintiff , the ALJ ' s weight determinations "virtually ign o red"
Plaintiff ' s repeated hospitalizations over the years and
Plaintiff ' s cont inu ed need for multiple weekly treatment
sessions .

(Pl .' s Memo of Law in Supp . at 21 . )

W th respect to Dr. Kathpalia ' s work , the ALJ considered
i
Dr . Kathpalia ' s evaluat i ons of the Plaintiff from 2011 through
2013 , Dr. Kathpalia ' s 2014 clarification letter that the ALJ had
sought , and observations and comments Dr . Kathpalia had made
that were noted in other treating sources '

records.

(R . at 22 -

23 . ) The ALJ acknowledged that Dr . Kathpa lia had a "l engthy
treating relationship " with the Plaintiff .

(R . at 23.) However ,

the ALJ ultimately found that Dr. Kathpalia ' s September 2013
conclusions merited " very little weight " because it was
inconsistent with the record as a whole .

The ALJ examined reports made over the years by different
treating sources , particularly Dr . Helprin and Ms . Candela ,
23

wh i c h conflicted with Dr . Kathpalia ' s f i n dings .

(R . at 19 - 21 ,

23 . ) Th e ALJ d i scussed Dr . He l pr i n ' s reports from 2010 and 2012 ,
which concluded that Plai n tiff was able " to f ol l ow and
understand simple directions and instructions , perform s i mp l e
rote tasks and some comp l ex tasks independent l y , maintain
attent i on and concentration for simp l e tasks , and make
approp r iate decisions ." (R. at 21 ; see R. at 714 , 789 . ) " Some
we i ght " was assigned to Dr. Helprin ' s assessments of Plaint i ff ' s
functional abilities , since they were more recent and based on
persona l observation .

(R . at 21 . ) However , in 2010 , Dr. He l prin

s t ated t h at Plaintiff was " able to maintain a regular schedule ,"
(R . at 789) , but in 2012 stated that Plaintiff had " d i fficultly
maintaining a regular schedule ." (R . at 714 . ) Given
i nco n s i stenc i es in her reports , incongru i ty with the record , and
ev i dence o f Plaintiff regular l y attending program appointments ,
the ALJ gave the port i ons of Dr . Helprin ' s report that discussed
Plaintif f' s ability to maintain a schedule "less weight ." (R . at
2 1. )

The ALJ looked at Dr . Candela ' s numerous reports f r om 20 11
and 20 1 2 , which contained variations on the Plaintiff stating
that "' probably nothing , really '" prevented him from working ,
other than it was " not one h i s goa l s ." (R . at 1049 . ) Ms .
Cande l a ' s reports recount Plaintiff observing that he
24

"eventuall y plan[ned] to get a job ," but that he could not "wo rk
all day for pennies" after making "'mad money ' when he was
dealing drugs ," (R . at 1 000) , that Plaintiff " did n ot want to do
'dirty work for slave wages '" and "j obs he might qualify for
(labor , cleaning , retail)" were "boring and beneath him,"

(R. at

1038), and that he was concerned about transferring to a clinic
because he needed to know how "to convince the doctor in the
clinic to certify him as unable to work so that he doesn ' t have
to pay child support, "

(R . at 1063). Dr . Candela concluded that,

despite Plaintiff stating that he was " able to voluntee r or work
full time," he did not want to be employed and used sessions at
PROS "t o avoid going to work ." (R . at 1055 - 56 . ) Given the length
o f time spent with the Plaintiff and the amount of detail
provided in each report , the ALJ gave "great weight" to Ms .
Candela ' s opinion , wh i ch was within his discretion .

(R . at 20 . )

As part of his analysis , the ALJ also noted inconsistencies
and infirmitie s in Dr . Kathpalia ' s own record . In 2012 , Ms .
Candela ' s report indicated Plaintiff ' s d i spleasure at Dr .
Kathpalia after Dr . Kathpalia declined to sign a letter stating
that Pl aintiff was "not able to work at all." (R . at 106 5 ; see
R. at 20.) The ALJ highlighted how this accorded with Dr .
Kathpalia ' s other 2013 reports , which consistently indicated
that Plaintiff ' s attention span and concentration skills were
25

good a n d which " revealed no abnorma li ties i n [Pla i ntiff ' s ]
men t al hea l th ." (R . at 19 ; see , e . g ., R . at 1189 , 1196 , 1246 ,
1 2 6 0 , 1 2 6 6 , 12 7 4 , 12 8 1 , 12 9 2 , 13 0 0 , 1 3 0 4 , 1 3 1 4 , 13 2 0 . ) The AL J ' s
post - hearing clarification from Dr . Kathpalia revealed that Dr.
Kathpalia had no expertise in evaluating an i ndividua l' s
f un c ti onal limitations .

(R . at 23 , 1395 . )

When analyzing the record , the ALJ did consider Plaintiff ' s
mu l tiple hospitalizat i ons .

(R . at 19 , 23 . ) The ALJ observed

that , while hospitalized , Plaintiff " generally presented with
racing thoughts , i ncreased anx i ety or depression , psychomotor
agitat i on , difficulty focusing , paranoia , and pressured speech ."
(R. at 19 ; see also R . at 747 , 752 , 755 , 758 , 859 - 61 . ) However ,
Pl aintif f' s progress and treatment reports indicated that
Plaintiff ' s hosp i tal v i sits often coincided with " periods of
non - compliance with medications or relapses into dr u g and
alcoho l use ." (R . at 19 ; see R . at 853 , 868 , 887 , 890 - 91 . ) The
ALJ noted that when Plaintiff was active and engaged in therapy
and medication , it led to " effective control" over Plaintiff ' s
mental state .

(R . at 23 ; see a l so R . a t

263 , 924 ,

927 , 1370 ,

1373 , 1378 . ) Given the short periods of time Pl aintiff spent
hospital i zed , the noted positive responses to treatment , and the
evi dence that Plaintiff was us i ng therapy sessions to avoid
working , the record could support the ALJ ' s conclus i on that
26

Plaint iff' s treatments were "essentially routine and/or
conservative in nature ." (R . at 23 . )

The ALJ also considered Dr. Kathpalia ' s opinions in the
context of Ms . Fitzpatrick ' s evidence , wh i ch the ALJ decided
merited " very little weight ." (R . at 22 . ) Ms . Fitzpatrick, a
licensed social worker , is not an " acceptab l e medical source ,"
and was not entitled to the presumption of controlling weight
under the treating physicians rule. Diaz, 59 F.3d at 313 -14;

(R .

at 22 . ) Independent of her treating history with the Plaintiff,
it was in the ALJ ' s discretion to give her opinion " the
appropriate weight .

. based on all the evidence before him."

Diaz, 59 F.3d at 314 ; see also SSR 06-03p , 2006 WL 2329939 , at
*2 . Ms . Fitzpatrick indicated in July 2013 that she believed the
Pla intiff had limited functioning and would be unable to return
to work for an "undetermined [period of time] due to chronic
b i polar disorder." (R . at 911 . ) The ALJ found Ms . Fitzpatrick's
report to be inconsistent with other treatment notes also in the
record , such as those already discussed from Ms . Candela and Dr .
Kathpa li a .

(R . at 22 . ) He also noted that Ms. Fitzpatrick's

conclusions were inconsistent with other of her own
observations. In the same July 2013 report, Ms. Fitzpatrick
noted t hat Plaintiff had "no obvious limitations maintaining
socially appropriate behavior, using public transportation , and
27

maintaining hygiene and grooming ." (R. at 22; see also R. at
911 . ) And in reports written shortly after July 2013 , Ms.
Fitzpatrick noted that Plaintiff was "focused and engaged in
[the] session" and "reported doing okay overall." (R. at 1323;
see R . at 22.) A reasonable factfinder could find the record did
not support Ms. Fitzpatrick ' s opinion , and the ALJ ' s weighing
was not legal error .

(R.

at 22 . )

In sum, when weighing Dr. Kathpalia's opinion , the ALJ
expressly addressed each o f the points now raised by Plaintiff :
the reports by Dr . Helprin and Ms . Fitzpatrick, Plaintiff ' s
hospitalization, and Plaintiff ' s continued attendance at
meetings with therapists and psychiatrists .

(Pl. ' Memo of Law in

Supp . 19-21. ) As discussed , the ALJ ' s opinion contained
throughout it "other substantial evidence in the record"
inconsistent with the treating physician ' s opinion. Halloran,
362 F.3d at 32. In doing so , the ALJ "applied the substance of
the treating physician rule " and provided well - supported "good
reasons " that properly allowed him to discount Dr . Kathpalia's
report . Id.

(citation omitted) ; see also Botta v. Barnhart , 475

F. Supp . 2d 174, 18 8 (E . D.N.Y. 2007 )
' comprehensively '

("Although the ALJ should

set forth the reasons for the weight assigned

to a treating physician ' s opinion , the failure to do so does not
require remand if it can be ascertained from the entire record
28

and the ALJ ' s op ini o n t hat the ALJ ' applied the substan c e '
the treating p h y sic i an ru l e."

of

(citing Hall o ran , 362 F . 3 d at 3 2 -

33 ) ) .

b. The ALJ's Determination Was Properly Weighed And
Supported By Substantial Evidence

Th e ALJ f o und that Plaintiff poss e ssed the residual
functional c apa c ity "t o perf o rm a full o f range o f wo rk at all
e x ertional l e ve ls" and cou ld "understand, remember , and c arryo ut
simple , routine,

repetitive work , commensurate with unskilled

work , and deal with changes in a r o utine wo rk s e tting" as we ll
as " o ccasi o nal intera c t with sup e r v isors , c o wo rkers, and the
public."

(R . at 18 . ) Plaintiff challenges this finding as not

supported b y sub s tanti a l eviden ce in th e r e c o rd and r e a c hed by
an impr o p e r as s es s me nt o f th e cre d ibility of o pini o ns in the
record, including the Pl a intiff ' s testimony.

2

In rea c hing his co n c lu s i o n , b ot h with r e gard to Plaintiff ' s
credibility and th e ALJ's d e termination , the ALJ p o inted t o
years' worth o f e xamination notes in the record indicating that
while the Plaintiff was a t time s depressed and anxi o us and
In addition to his own testimony , Plaintiff argues that the ALJ improper l y
applied little weight to the opinions of Dr . Kathpalia , Dr . Helprin , and Ms .
Fitzpatrick . As the ALJ ' s evaluation of and weight given to those three
individuals has already been discussed , supra at 24 - 28 , those discussions are
incorporated here and need not be repeated .

2

29

occas i onally exhibited poor judgment , he overa ll was found
consistently to possess good attent i on span and concentration
skills , a coopera ti ve temperament , and normal speech ,
and thought processes .

judgment ,

(R . at 19 , 23 ; see , e . g ., R. at 271 , 277 ,

285 , 292 , 298 , 306 , 313 , 794 , 798 , 801 , 817 - 19 , 1155 , 1160 ,
11 67 , 1173 , 1179 , 1185 , 1189 , 11 96 , 12 04 , 1210 , 1246 , 1260 ,
1 266 , 1274, 1281 , 1292, 1 300 . ) Two different psychiatrists in
the record had to ld the Plaintiff that he was capable of
engaging in some form o f work .

(R . at 23 , 982 , 1065.) The ALJ

relied on these assessments in concluding that Plaintiff cou l d
" at least engage in simple , routine unskilled work ." (R . at 19 . )

The ALJ examined evidence in the record that demonstrated
Plaintiff's actions and behavior . The ALJ identified numerous
comments Plaintiff had made over the years during therapy
sessions, discussed supra at 24 - 25 , that indicated Plaint if f ' s
d i sability was " crafted in order to support his claim for
disability and is not an accurate depiction of his true , current
functioning."

(R . at 23 ; see also R. at 19-20 , 103 8 , 1044 , 1049 ,

1055-56, 1 063 . ) The ALJ noted instances of Plaintiff engaging in
daily activities that would not have occurred were Plaintiff ' s
symptoms as severe as he claimed , including " child care ,
trips out of town , refusing to work

. preparing his own

meals , cleaning , shopping, managing money ,
30

. using public

transportation " and " visitation[s] with his minor daughter on a
regular basis ." (R . at 23 ; see also R . at 713 . )

The ALJ considered the reviews conducted by State agency
psychological consultants Ors. Meade and Dambrocia .

(R . a t

2 1. )

I n October 2010 , Dr . Meade found t h at the Pla i ntiff had moderate
d i ff i cu l ty in ma i ntaining concentrat i on ,

(R . at 833) , but that

he was ab l e to "understand , execute and remember simp l e
instructions and work like procedure " and could "sustain
attention , concentration and pace for a normal work day and work
week ."

(R . at 839 . ) In November 2012 , Dr . Dambrocia made similar

findings,

noting that while Plaintiff had might have

" d i fficulties relating to others" and that his " ability to deal
with co - workers and the public wou l d be somewhat reduced ,"
Pl aint i ff could " hand l e ordinary levels of supervision in the
customary work setting . "
doctors '

(R . at 733 . ) Based on the consulting

expertise as to SSA disability program requirements ,

along with a record that supported their conclusions , it was not
lega l error for the ALJ to give these doctors '
" great we i ght ."
29

assessments

(R . at 21) ; Micheli v . Astrue , 501 Fed App ' x 26 ,

(2d Cir . 2012)

(upholding an ALJ ' s decision to give greater

weight to a state agency physician over a treating source when
" other evidence in the record provide [d]
[in]

support " ) .
31

substantial evidence

W th regard to Plaintiff ' s credibility , the ALJ observed
i
" no evidence of debilitating symptoms" during Pl aintiff ' s
t estimony , though the ALJ acknowledged the hearing was only
" short - lived and cannot be considered a conclus i ve i ndicator " of
overall functioning .

(R . at 24 . ) However , those observations ,

which were given " some s l ight weight ," in comb i nation with
Plaint i ff ' s statements about how he wished to avoid work to
contin u e to receive SSI , his noted improvements following
med i ca ti on regimens , and evidence of his active day -t o - day
activi t ies , led the ALJ to conclude that Plaintiff ' s allegations
and testimony were "not wholly credible . "

(R. at 23.)

Plaintiff argues that it was improper for the ALJ to assign
more weight to the State consultants who did not themselves
examine him while weighing less the opinions of those in the
record who did or his own opinion . SSA regulat i ons " permit the
opinions of nonexamining sources to override treating sources '
opinions provided they are supported by evidence in the record ."
Diaz , 59 F . 3d at 313 n . 5 (quoting Schisler v . Shalala , 3 F . 3d
563 , 568

(2d Cir . 1993)) . As for Plaintiff ' s credibility , the

ALJ , " after weighing objective medical evidence , the claimant ' s
demeanor , and other indicia of credibility .

may decide to

discredit the claimant ' s subjective estimation of the degree of
32

impairment." Tejada v . Apfel , 167 F . 3d 770 , 776 (2d Cir . 1999) .
" If t h e

[C ommiss ioner's] findings are supported by substantive

evidence , the [C]ourt must uphold the ALJ ' s decis i on to d i scount
a c laiman t ' s subject complaints of pain ." Gates v . Astrue , 338
F. App ' x 46,

48

(2d Cir . 2009)

(quoting Aponte v . Sec ' y , Dep ' t

of Hea l th & Human Servs ., 728 F . 2d 588 , 591

(2d Cir. 1984)) .

In the record before the ALJ was substantial evidence th at
Plaintiff possessed the mental , social, and phys i cal capacity to
engage in unski l led labor with occasiona l interaction with
others . Th e ALJ analyzed a volumi nous record that covered years
of psychiatric evaluations , medical evaluations , and Plaint i ff ' s
statements from written rep o rts and li ve testimony . The record
provided adequa t e evidence f or the ALJ ' s we ll- supported
determin ation that Pla i ntiff , when adher in g to a medi ca tion and
th erapy regimen, could control hi s bipolar disorder symptoms to
the point where he could find a job , and that Plain t i ff ' s
continued reliance on PROS and similar counse li ng was a tactic
to keep rec eiving disabil i ty benef i ts .

(R . at 23 - 25) ; see

Cichoc ki v . Astrue , 534 Fed . App ' x 71 , 73 , 77
(c itati o n and quotati on marks omitt ed)

(2d Cir. 2013)

(rejecting bipolar

d i sorde r disability claim supported by treating physician ' s
opi ni on wh en substantial evidence in the rec o rd indicated
diffe r ent l y) .
33

W thin the almost 1 , 400 record pages , Plaintiff is right
i
that t h ere was evidence that could also have supported his
disab i lity claim . However , that decision is not for this Court
to make . " Where there is substantial evidence to support either
position , the determination is one to be made by the
factf i nder ." Alston v . Sullivan , 904 F . 2d 122 , 126 (2d Cir .
1990) . The ALJ ' s conclusion that Plaintiff was not disab l ed was
adequa t ely supported by substantial evidence , not legal error ,
and must be upheld . See Talavera , 697 F . 3d at 153 .

c . The Plaintiff Received A Full And Fair Hearing

Pla i ntiff contends that because the ALJ had neither a
vocat i onal expert nor a medical expert testify at Plaintiff ' s
hearing , that Plaintiff was denied a fu ll and fair hearing .
However , on this record , neither was required.

I nstead of consulting a vocational expert , the ALJ applied
the Commi ssioner ' s Medical - Vocational Guidelines (the " Gr i d " ) to
determi ne whether Plaintiff ' s residua l functiona l capacity
permi ts him substantia l gainful employment in the national
economy given his age , education , experience , and training . The
result listed in the Grid is usually dispositive on the issue of
34

disability. See Heckler v . Campbell , 461 U.S . 458 , 467

(1983)

An ALJ cannot rely solely on the Grid "if a non - exertional
impairment has any more than a ' negligible '

impact on a

claimant ' s ability to perform the full range of work ."
v . Astrue , 708 F . 3d 409, 421 (2d Cir . 2013)

Selian

(quoting Zabala v .

Astrue , 595 F.3d 402 , 411 (2d Cir. 20 10 )) . "A nonexertional
impairment is non - negligible ' when it .

. so narrows a

claimant ' s possible range of work as to deprive him of a
meaningful employment opportunity ." Id.

(quoting Zabala , 595

F.3d at 411).

The ALJ found that Plaintiff's "condition did not limit
[his ] ability to perform unskilled work , including carrying o ut
simple instr uctions , dealing with work changes , and responding
to supervision ." Zabala , 595 F. 3d at 411. This finding was
supported by substantial evidence in the record, and so so l e
"use of the Medical-Vocational Guidelines was permissible." Id .;
see Zedanovich v . Astrue , 361 Fed . App'x 245 , 246 (2d Ci r. 2010)
(finding that in the absence of "significant limitation " in the
range of unskilled sedentary work performable by plaintiff,
testimony from a vocational expert was unnecessary) ;
25-26).

35

(R . at 18 ,

As to the medical expert , there is no requ i rement that an
ALJ call one . See 20 C . F . R .

§

404 . 1527(e) (2) ( iii )

("Administrati ve law judges may also ask for and cons ider
opinions fr om medical experts on the nature and severity of your
impairment(s)

.")

(emphasis added) . Courts have considered

it advisable , however , for an ALJ to call a medical expert "to
resolve conflicts in the medical evidence of record or determine
the significance of clin i cal or laboratory findings. " Cole v.
Astrue, No . 06 Civ . 769 (RJS) (GAY) , 2013 WL 4398974 , at *4
(S . D.N. Y. Aug . 7 , 2013)

(internal quotation marks om itted)

(quoting Social Security Hearings , Appeals, and Litigation Law
Manual , I-3-7-12 , 1993 WL 643165

(Sept . 8, 2005)) . In light of

the substantial evidence in support of the ALJ ' s conclusions ,
which did not require resolving conflicts or outstanding
questions of medical significance , the decision not to ca ll a
medical expert was not legal error and did not deprive Plaintiff
of a full and fair hear in g .

36

Conclusion

For the foregoing reasons , Defendant ' s motion is granted
and Plaintiff ' s motion is denied .

It is so ordered.

New York, NY
May /(),

2017

U.S.D.J.

37