Vargas v. Commissioner of Social Security
Filing
31
OPINION AND ORDER for 25 Report and Recommendations. For the foregoing reasons, I reject the Report as to its conclusions regarding Dr. McKnight's October 2014 report. Plaintiff's and Defendant's motions for judgment on the pleadings, (Docs. 19, 21), are DENIED, and this case is remanded pursuant to sixth sentence of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion & Order. The Clerk of Court is respectfully directed to terminate the open motions at Documents 12 and 14 and close this case. The parties may apply to reopen the case upon the filing of additional or modified findings of fact and a decision vacating, modifying, or affirming the Commissioner's prior decision in this case. SO ORDERED. (Signed by Judge Vernon S. Broderick on 3/20/2019) (ks) Transmission to Docket Assistant Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
YANET VARGAS,
:
:
Plaintiff,
:
:
-v:
:
NANCY A. BERRYHILL, ACTING
:
COMMISSIONER OF SOCIAL SECURITY, :
:
Defendant. :
:
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3/20/2019
16-CV-3385 (VSB) (SN)
OPINION AND ORDER
Appearances:
Christopher J. Bowes
Center for Disability Advocacy Rights, Inc.
Shoreham, New York
Counsel for Plaintiff
Leslie A. Ramirez-Fisher
United States Attorney’s Office
New York, New York
Counsel for Defendant
VERNON S. BRODERICK, United States District Judge:
Plaintiff Yanet Vargas brings this action pursuant to § 205(g) of the Social Security Act
(the “SSA”), 42 U.S.C. § 405(g), seeking judicial review of a determination by the
Commissioner of Social Security (the “Commissioner”) that she is not entitled to Supplemental
Security Income (“SSI”). Plaintiff and Defendant cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. On May 25, 2017, Magistrate
Judge Sarah Netburn issued a detailed and thorough Report and Recommendation (“Report” or
“R&R”) recommending that Plaintiff’s motion for judgment on the pleadings be denied and the
Commissioner’s cross-motion for judgment on the pleadings be granted. (Doc. 25.) Before me
are Plaintiff’s objections to the R&R. Because the Appeals Council failed to consider certain
new evidence in making its determination to deny review of the ALJ’s decision, I find that
remand to the Commissioner for further proceedings to consider this new evidence is appropriate
pursuant to § 405(g), and therefore reject the Report in part.
Factual Background and Procedural History
I assume the parties’ familiarity with the facts and record of prior proceedings, and
restate briefly only the information necessary to explain my decision. 1
Plaintiff has an extensive medical history, only portions of which I recount here. On
October 30, 2012, Plaintiff was admitted to New York Presbyterian Hospital (“NYPH”) due to
complaints of lightheadedness and a rapid onset of right-sided numbness. (R&R 3.) 2 She was
evaluated for a stroke, but a CT scan revealed no evidence of one. (Id. at 4.) She was ultimately
determined to have a non-ST segment elevation myocardial infarction (“NSTEMI”), a type of
heart attack. (Id.) Plaintiff was discharged on November 8, 2012 with a diagnosis of
pneumonia, asthma exacerbation, and demand ischemia. (Id.)
Plaintiff visited physicians at NYPH, as well as the emergency room, many times over
the next several months. She complained of migraine headaches, sinusitis, gastritis, a pinched
nerve in her back, blurry vision, pain in her right shoulder, arm, and mid-back, intermittent chest
pain, shortness of breath, and she displayed poor understanding of the results of the tests
performed during her hospitalization. (Id. at 4–5.) On November 11, 2013, Plaintiff underwent
an MRI ordered by her treating neurologist Dr. Casilda Balmaceda. (Id. at 6.) Based on the MRI
and her physical exam, Dr. Balmaceda assessed that Plaintiff had vestibular issues and paresis in
1
A more detailed description of the underlying facts and procedural history is contained in Judge Netburn’s Report
and Recommendation, dated May 25, 2017. (Doc. 25.)
2
“R&R” refers to Judge Netburn’s Report and Recommendation, dated May 25, 2017. (Doc. 25.)
2
the right arm. (Id.) She visited Dr. Balmaceda again several more occasions, and Dr. Balmaceda
wrote a letter on behalf of Plaintiff stating that Plaintiff suffered from migraine headaches,
cervicalgia with multiple herniated discs, severe depression, sinusistis, and severe dizziness. (Id.
at 6–7.) Dr. Balmaceda noted that Plaintiff had “severe vestibular dysfunction,” a permanent
condition that was severe enough “to prevent her from any gainful employment.” (Id.)
Plaintiff also visited several psychiatric specialists. On March 1, 2013, Plaintiff began
seeing Dr. James McKnight. (Id. at 7.) Dr. McKnight noted that Plaintiff was dwelling on the
“stroke” she allegedly had in October 2012, that she reported difficulty walking and moving her
arms, and that much of Plaintiff’s depression stemmed from the trauma of the “stroke.” (Id.) He
also noted that Plaintiff appeared alert and oriented, with a logical thought process and intact
memory, but diagnosed Plaintiff with a mood disorder and adjustment disorder with depressed
mood. (Id.) He assigned Plaintiff a GAF score of 65. (Id.) Plaintiff continued to visit Dr.
McKnight, as well as a licensed social worker named Selena Jacobson, who submitted a letter on
Plaintiff’s behalf stating that Plaintiff needed disability benefits due to her health problems and
depression. (Id. at 7–8.)
On February 19, 2013, Plaintiff visited a consulting physician named Dr. Angela
Fairweather. (Id. at 8.) Dr. Fairweather performed certain cognitive tests of Plaintiff and
determined that her intellectual functioning was estimated to be “in the borderline range” due to
her cognitive defects. (Id.) However, Dr. Fairweather concluded that Plaintiff could follow and
understand simple directions, perform simple tasks independently, and make appropriate
decisions. (Id.) She noted that Plaintiff had moderate difficulty maintaining a regular schedule
and moderate to significant difficulty dealing appropriately with stress. (Id. at 9.) Dr.
Fairweather concluded that Plaintiff may be moderately impaired in her ability to function on a
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daily basis. (Id.) She diagnosed Plaintiff with major depressive disorder and borderline
intellectual functioning. (Id.)
Plaintiff filed an application for SSI on January 14, 2013, claiming disability as of
October 30, 2012 due to a NSTEMI, asthma, headaches, cervical degenerative disease, an
alleged stroke, and mental health conditions. (R&R 1.) After a hearing before Administrative
Law Judge (“ALJ”) Mark Solomon on May 13, 2014, where Plaintiff appeared pro se, the ALJ
denied Plaintiff’s claim for benefits on September 19, 2014. (Id.) The ALJ found that while she
had severe impairments, Plaintiff maintained a functional capacity to perform light work, except
that she could not climb ropes, ladders, or scaffolds, work at unprotected heights or with
hazardous machinery, or be in areas with concentrated exposure to respiratory irritants. (Id.)
Plaintiff obtained counsel and submitted exceptions and additional medical evidence,
including an October 2014 mental impairment questionnaire completed by Dr. McKnight, to the
Appeals Council. (Id. at 2–3.) The questionnaire indicated that Plaintiff was “unable to meet
competitive standards” in all areas of skilled and unskilled work and had “marked” difficulties in
activities of daily living, social functioning, and concentration, persistence, and pace. (Id. at 14–
15.) The questionnaire also noted that Plaintiff would miss more than four days of work monthly
due to her impairments. (Id. at 15.) The Appeals Council declined to consider the questionnaire
because it determined that the information in it was “about a later time.” (Id.) The Appeals
Council denied review of the ALJ’s decision. (Id. at 2–3.)
Plaintiff filed this action on May 6, 2016. (Doc. 1.) I referred the case to Judge Netburn
on August 22, 2016. (Doc. 10.) Plaintiff filed her motion for judgment on the pleadings on
November 8, 2016, (Docs. 19–20), and Defendant cross-moved for judgment on the pleadings on
January 9, 2017, (Docs. 21–22). Plaintiff filed a reply on January 9, 2017, (Doc. 23), and
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Defendant filed a reply on February 21, 2017, (Doc. 24). Judge Netburn issued her Report and
Recommendation on May 25, 2017. (Doc. 25.) Plaintiff filed her objections on June 22, 2017,
(Doc. 28), and Defendant filed her response on July 6, 2017, (Doc. 29).
Legal Standards
A.
Review of the Magistrate Judge’s Report
A district court reviewing a magistrate judge’s report and recommendation “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). A party may make objections to a report and recommendation
“[w]ithin 14 days after being served with a copy of the recommended disposition.” Fed. R. Civ.
P. 72(b)(2); 28 U.S.C. § 636(b)(1). The district court “may adopt those portions of the report to
which no ‘specific, written objection’ is made, as long as the factual and legal bases supporting
the findings and conclusions set forth in those sections are not clearly erroneous or contrary to
law.” Adams v. N.Y. State Dep’t of Educ., 855 F. Supp. 2d 205, 206 (S.D.N.Y. 2012) (quoting
Fed. R. Civ. P. 72(b)). “If a party timely objects to any portion of a magistrate judge’s report and
recommendation, the district court must ‘make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.’” Bush v.
Colvin, No. 15 Civ. 2062 (LGS) (DF), 2017 WL 1493689, at *4 (S.D.N.Y. Apr. 26, 2017)
(quoting United States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015)).
A party’s objection “must be specific and clearly aimed at particular findings in the
R&R.” Bussey v. Rock, No. 12-CV-8267 (NSR) (JCM), 2016 WL 7189847, at *2 (S.D.N.Y.
Dec. 8, 2016) (internal quotation marks omitted). “[T]he court will review the R&R strictly for
clear error when a party makes only conclusory or general objections, or simply reiterates the
original arguments.” Id. (internal quotation marks omitted); see also Ortiz v. Barkley, 558 F.
5
Supp. 2d 444, 451 (S.D.N.Y. 2008) (noting that reviewing court “is only obliged to review the
Report for clear error” where “objections largely reiterate the arguments made to, and rejected
by” the magistrate judge); Vega v. Artuz, No. 97 Civ. 3775, 2002 WL 31174466, at *1 (S.D.N.Y.
Sept. 30, 2002) (“[O]bjections that are merely perfunctory responses argued in an attempt to
engage the district court in a rehashing of the same arguments set forth in the original petition
will not suffice to invoke de novo review of the magistrate’s recommendations.”).
B.
Review of the Commissioner’s Decision
In reviewing a social security claim, “it is not [the court’s] function to determine de novo
whether plaintiff is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Pratts
v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)); see also Riordan v. Barnhart, No. 06 CIV 4773 AKH,
2007 WL 1406649, at *4 (S.D.N.Y. May 8, 2007). Instead, a reviewing court considers merely
whether the correct legal standards were applied and whether substantial evidence supports the
decision. Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008); see also 42 U.S.C. § 405(g) (on
judicial review, “[t]he findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive”). “Substantial evidence” means “more
than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Burgess, 537 F.3d at 127 (quoting Halloran v. Barnhart, 362
F.3d 28, 31 (2d Cir. 2004)). It is “a very deferential standard of review—even more so than the
‘clearly erroneous’ standard.” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir.
2012) (citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)). “The substantial evidence standard
means once an ALJ finds facts, [a reviewing court] can reject those facts only if a reasonable
factfinder would have to conclude otherwise.” Id. (internal quotation marks omitted).
C.
Disability Standard
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To be considered disabled under the SSA, a claimant must show an inability “to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment,” which has lasted or can be expected to last for at least 12 months, that is “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.” 42
U.S.C. §§ 423(d)(1)(A), (2)(A). The Commissioner has established a five-step evaluation
process to determine whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920.
The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the [Commissioner] next considers whether
the claimant has a “severe impairment” which significantly limits his 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 him disabled
without considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the fourth inquiry is whether, despite
the claimant’s severe impairment, he has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work which the claimant
could perform. . . . [T]he claimant bears the burden of proof as to the first four
steps, while the [Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). “The Social Security regulations define
residual functional capacity as the most the claimant can still do in a work setting despite the
limitations imposed by his impairments.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013).
Discussion
Plaintiff objects to Judge Netburn’s Report on two grounds: (1) Dr. McKnight’s October
2014 report substantially supports Plaintiff’s claim of disability and were the factfinder to
consider the report, there is a reasonable possibility that it would have reached a different
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conclusion; and (2) it was not harmless error for the ALJ to reject the assessment that Plaintiff
had moderate to significant difficulty dealing with stress. (Pl.’s Obj. 3–9.) 3 Because I find that
remand is appropriate under Plaintiff’s first argument, I do not address the second.
Judge Netburn concluded that although it was error for the ALJ not to request a treating
source opinion from Dr. McKnight, that error has been rectified by the fact that Dr. McKnight’s
October 2014 report is now part of the record before the court. (R&R 19–21.) She went on to
consider whether substantial evidence in the record, including Dr. McKnight’s report, supported
the ALJ’s determination. (See id. at 21.) Plaintiff takes issue with the standard applied by Judge
Netburn and argues that the appropriate inquiry is whether Dr. McKnight’s report presents a
“reasonable possibility” that, had the ALJ considered the report, the ALJ would have reached a
different result. (Pl.’s Obj. 4.)
After the ALJ decision, Plaintiff retained counsel and submitted McKnight’s October
2014 report to the Appeals Council. (R&R 14–15.) However, the Appeals Council incorrectly
determined that the information in the report was “about a later time” and therefore it did not
“affect the decision about whether [Plaintiff] was disabled beginning on or before [the date of the
ALJ’s decision].” (Id. at 15.) Judge Netburn correctly explained that the Appeals Council was
incorrect in making that determination because the information clearly related to the period prior
to the ALJ’s determination. (Id. at 20 n.1.) Judge Netburn proceeded to analyze Dr. McKnight’s
report as part of the record as a whole and determined that there was nevertheless substantial
evidence supporting the ALJ’s decision.
3
“Pl.’s Obj.” refers to Plaintiff’s Objections to the Magistrate Judge’s May 25, 2017 Report and Recommendation,
filed on June 22, 2017. (Doc. 28.)
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Defendant contends this was the correct approach pursuant to settled Second Circuit case
law. (Def.’s Resp. 3–4.) 4 The Second Circuit has held that “new evidence submitted to the
Appeals Council following the ALJ’s decision becomes part of the administrative record for
judicial review when the Appeals Council denies review of the ALJ’s decision.” Perez v.
Chater, 77 F.3d 41, 45 (2d Cir. 1996). In particular, “[w]hen the Appeals Council denies review
after considering new evidence, we simply review the entire administrative record, which
includes the new evidence, and determine, as in every case, whether there is substantial evidence
to support the decision of the [Commissioner].” Id. at 46. The Second Circuit’s reasoning was
based on the fact that “even when the Appeals Council declines to review a decision of the ALJ,
it reaches its decision only after examining the entire record, including the new evidence
submitted after the ALJ’s decision.” Id. at 45.
However, the Appeals Council here did not consider the substance of Dr. McKnight’s
report in making its determination not to review the ALJ’s decision. Rather, the Appeals
Council declined to consider the report because it determined that the information in the report
did not relate to the relevant time period. (See R&R 20 n.1; see also 20 C.F.R. § 416.1470(a)
(stating that Appeals Council shall consider additional evidence only if it “relates to the period
on or before the date of the [ALJ] hearing decision”); see also Lesterhuis v. Colvin, 805 F.3d 83,
87 (2d Cir. 2015) (only limitations on district court review of new evidence submitted to Appeals
Council is that it be “new and material and that it must relate to the period on or before the ALJ’s
decision.”).) As Judge Netburn pointed out, the report does in fact relate to the relevant time
period, and it was a mistake for the Appeals Council to find that it was “new information about a
later time.” (Id.) Since the Appeals Council declined to consider Dr. McKnight’s report—
4
“Def.’s Resp.” refers to Defendant’s Responses to Plaintiff’s Objections, dated July 6, 2017. (Doc. 29.)
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contrary to Judge Netburn’s determination—the report did not become part of the record.
The question, then, is what is the appropriate standard under which to consider Dr.
McKnight’s report where the Appeals Council did not consider the substance of the new
evidence. Under similar circumstances, a court in the Eastern District of New York applied the
standard articulated in the sixth sentence of 42 U.S.C. § 405(g), and remanded the case to the
Commissioner for further administrative proceedings. See Jehn v. Barnhart, 408 F. Supp. 2d
127, 135–36 (E.D.N.Y. 2006) (remanding case where it was “unclear from the record” whether
the Appeals Council considered certain new evidence in determining not to review plaintiff’s
application) . 5 This provision states that “[t]he court . . . may at any time order additional
evidence to be taken before the Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g); see also Jehn, 408 F.
Supp. 2d at 136. Because the Appeals Council failed to consider the substance of Dr.
McKnight’s report in making the determination to deny review of the ALJ’s decision, I find that
the standard articulated in the sixth sentence of § 405(g) is the appropriate standard to apply in
these circumstances. The Second Circuit has held that, under § 405(g), remand for the
consideration of new evidence is appropriate upon a three-part showing:
An appellant must show that the proffered evidence is (1) new and not merely
cumulative of what is already in the record, and that it is (2) material, that is, both
relevant to the claimant’s condition during the time period for which benefits were
denied and probative. The concept of materiality requires, in addition, a reasonable
5
It appears that the Second Circuit has not been presented with a case in which evidence was improperly ignored by
the Appeals Council, but other circuit courts that have considered these circumstances have taken a similar approach
to that of the Jehn court. See, e.g., Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1321& n.5 (11th Cir.
2015) (distinguishing cases in which the Appeals Council accepts additional evidence, considers it, and denies
review, and finding that “when the Appeals Council erroneously refuses to consider evidence, it commits legal error
and remand is appropriate”); Farrell v. Astrue, 692 F.3d 767, 772 (7th Cir. 2012) (reversing a district court judgment
and remanding to the Commissioner where “the Appeals Council committed legal error by ignoring” a medical
opinion); Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003) (“If the Appeals Council fails to consider
qualifying new evidence, the case should be remanded for further proceedings.”).
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possibility that the new evidence would have influenced the Secretary to decide
claimant’s application differently. Finally, claimant must show (3) good cause for
her failure to present the evidence earlier.
Lisa v. Sec’y of Health and Human Servs., 940 F.2d 40, 43 (2d Cir. 1991) (internal citations and
quotation marks omitted).
First, Dr. McKnight’s October 2014 report is new and not merely cumulative of what is
already in the record. As Judge Netburn explained, Dr. McKnight’s initial January 3, 2013
assessment and March 3, 2013 follow up—both of which were considered by the ALJ in his
September 2014 denial of Plaintiff’s claim for benefits—do not provide a sufficient basis to infer
Dr. McKnight’s opinions as to Plaintiff’s mental impairments, particularly on the question of
whether she would have moderate difficulties keeping a schedule or moderate to significant
difficulties dealing appropriately with stress. (R&R 19.)
Second, Dr. McKnight’s report is material. There is no question that it is relevant to
Plaintiff’s condition during the time period for which benefits were denied. (See id. at 20 n.1.)
Moreover, as a treating physician of Plaintiff, Dr. McKnight’s report is certainly probative of the
extent of Plaintiff’s mental impairment. I also find that there is a reasonable possibility that the
report would have influenced the ALJ to decide Plaintiff’s application differently. Dr.
McKnight’s report states that Plaintiff is unable to meet competitive standards in understanding,
remembering, carrying out very short and simple instructions, making simple work-related
decisions, asking simple questions or requesting assistance, maintaining socially appropriate
behavior, using public transportation, and adhering to basic standards of neatness and
cleanliness. (Id. at 25.) The report also noted that Plaintiff would miss more than four days of
work per month due to her impairments. (Id. at 15.) As one of Plaintiff’s treating physicians,
those conclusions could reasonably influence the ALJ to decide Plaintiff’s application
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differently. Although Judge Netburn points out several inconsistencies between Dr. McKnight’s
report and other evidence in the record, (id.), a treating physician’s opinion should still be
entitled to “some extra weight” because “the treating source is inherently more familiar with a
claimant’s medical condition than are other sources.” Schisler v. Bowen, 851 F.2d 43, 47 (2d
Cir. 1988). Indeed, “a finding that a treating source medical opinion is . . . inconsistent with the
other substantial evidence in the case record means only that the opinion is not entitled to
‘controlling weight,’ not that the opinion should be rejected. Treating source medical opinions
are still entitled to deference . . . .” Social Security Ruling 96-2p, 61 Fed. Reg. 34490–92 (July 2,
1996).
Finally, since the ALJ did not fulfill his responsibility to develop the record by obtaining
the report, see 20 CFR § 404.1512(b) (ALJ has a responsibility to develop Plaintiff’s “complete
medical history for the 12-month period” prior to the last month of disability insurance); 20 CFR
§ 416.912(b) (ALJ has a responsibility to develop Plaintiff’s “complete medical history for at
least the 12 months preceding the month in which” Plaintiff files application), I find that there
was good cause for Plaintiff’s “failure to present the evidence earlier.” See Lisa, 940 F.2d at 43.
Therefore, I find that remand to the Commissioner is appropriate in order to consider new
evidence that was not considered initially, namely the October 2014 report of Dr. McKnight.
Conclusion
For the foregoing reasons, I reject the Report as to its conclusions regarding Dr.
McKnight’s October 2014 report. Plaintiff’s and Defendant’s motions for judgment on the
pleadings, (Docs. 19, 21), are DENIED, and this case is remanded pursuant to sixth sentence of
42 U.S.C. § 405(g) for further proceedings consistent with this Opinion & Order.
The Clerk of Court is respectfully directed to terminate the open motions at Documents
12 and 14 and close this case. The parties may apply to reopen the case upon the filing of
12
additional or modified findings of fact and a decision vacating, modifying, or affirming the
Commissioner’s prior decision in this case.
SO ORDERED.
Dated: March 20, 2019
New York, New York
______________________
Vernon S. Broderick
United States District Judge
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