Mejia v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER. The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the reasons explained above, the plaintiff� 39;s cross-motion for judgment on the pleadings is granted in part and denied in part, and the defendant's cross-motion is granted in part and denied in part. The Commissioner's decision is affirmed in part and vacated in part and the ca se is remanded to the Commissioner for further proceedings in accordance with this opinion. The Clerk is directed to enter judgment and to close this case. The Clerk is also directed to close all pending motions. SO ORDERED. (Signed by Judge John G. Koeltl on 7/28/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------MARIA C. MEJIA,
Plaintiff,

16-cv-6513 (JGK)

- v.-

MEMORANDUM OPINION
AND ORDER

NANCY BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
-----------------------------------JOHN G. KOELTL, District Judge:
The plaintiff, Maria Cleofe Mejia, has brought this action
to seek review of a final decision of the defendant, the
Commissioner of Social Security (the “Commissioner”), that the
plaintiff was not entitled to Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”). The plaintiff
filed applications for DIB and SSI on September 4 and 11, 2013,
respectively, alleging that she became unable to work on April
1, 2009. The plaintiff alleged the following impairments: lumbar
degenerative disc disease and spondylosis; left knee meniscus
tear; fibromyalgia; depressive disorder; anxiety disorder;
ulcerative colitis; and other impairments. (Tr. 18-20). Her
claims were initially denied on December 13, 2013. She filed a
written request for a hearing on January 16, 2014, and the
Administrative Law Judge (“ALJ”) denied the plaintiff’s claims
on April 16, 2015. After the Appeals Council declined review on

1

July 29, 2016, the decision of the ALJ became the final decision
of the Commissioner.
The parties have filed cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure.
On appeal, the plaintiff concedes that the Commissioner
properly denied her applications for the period before September
4, 2012. The final decision is accordingly affirmed as to that
period. However, the petitioner maintains that the Commissioner
erred in failing to grant her applications as of the amended
onset date of September 4, 2012. See Dkt. 9.
I.
The administrative record contains the following facts.
The plaintiff was born on August 9, 1964, and attended
school through the ninth grade in the Dominican Republic. (Tr.
56, 150). From 2002 through 2009, she worked as a home health
aide. (Tr. 56, 186). The record indicates that the plaintiff did
not earn income between 2009 and 2013. (Tr. 167). For eight
months in 2013, the plaintiff was paid to care for children for
four hours per day. (Tr. 56-57). The plaintiff lives with her
daughter. (Tr. 61, 158).
On October 13, 2011, the F.E.G.S. WeCare program
interviewed and physically examined the plaintiff. (Tr. 211-36).
F.E.G.S. physician Dr. Zobidatte Moussa found that the plaintiff
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was 61 inches tall, weighed 198 pounds, and had a body mass
index of 37.41. (Tr. 224). Dr. Moussa found that the plaintiff
had “slight right foot sole tenderness,” but concluded that the
examination was otherwise normal. (Tr. 24, 229-30).
On September 4, 2012, the plaintiff underwent a lumbar MRI
that revealed degenerative disc disease and left lateral disc
herniation. (Tr. 266-67).
Dr. Sangita Shah treated the plaintiff from at least 2010
through April 1, 2013. (Tr. 275, 836-39, 864). On October 12,
2012, Dr. Shah opined that the plaintiff was unable to work
because of her medical conditions (back pain, neck pain,
shoulder pain, ankle pain, and diabetes, the last of which was
diagnosed in August 2012). (Tr. 275). Dr. Shah noted that the
plaintiff complained of “constant body aches, weakness, fatigue
and swelling.” Dr. Shaw also opined that the plaintiff’s
conditions “inhibit ability to work and work may exacerbate her
conditions.” (Tr. 275). He noted that the plaintiff was under
the care of many specialists. (Tr. 275).
On April 23, 2013, the plaintiff began seeing Dr. Mihail
Medvedovsky. (Tr. 434). Dr. Medvedovsky referred the plaintiff
to Dr. Latha Thanneer, a cardiologist. (Tr. 439). On May 16,
2013, the plaintiff underwent an MRI on her left knee, which
revealed a tear of the anterior horn of the lateral meniscus and
advanced lateral patellofemoral arthropathy. (Tr. 424). On June
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24, 2013, Dr. Thanneer found that the plaintiff had “no cardiac
limitations for physical activity and was encouraged to do
exercise.” (Tr. 401).
On September 10, 2013, Dr. Medvedovsky submitted a Multiple
Impairment Questionnaire in which he opined that, in an eighthour day, the plaintiff can sit for 5 hours and stand/walk for 3
hours. (Tr. 524, 526). Furthermore, Dr. Medvedovsky noted the
plaintiff’s complaints about her left knee and lumbosacral area
as a source of daily pain, and that the plaintiff can never lift
or carry more than 10 pounds. (Tr. 525, 527).
On November 5, 2013, Dr. Thukral conducted an internal
medical examination of the plaintiff at the request of the
Social Security Administration (the “SSA”). (Tr. 871-875). The
plaintiff self-reported her symptoms and diagnoses, which
included bilateral knee pain, lower backache, hypertension,
asthma, and other impairments. (Tr. 874). Dr. Thukral opined
that the plaintiff had “no limitations for sitting, pulling, or
pushing, but has mild limitations for standing (for a long
time), bending, lifting, carrying...due to bilateral knee pain
and lower backache.” (Tr. 874). Moreover, he opined that the
plaintiff needed to avoid smoke, dust, and other respiratory
irritants. (Tr. 874).
On September 4, 2013, the plaintiff filed an application
with the SSA seeking DIB and on September 11, 2013, the
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plaintiff filed another application seeking SSI. (Tr. 15). The
plaintiff claimed that her alleged disability began on April 1,
2009. (Tr. 15). The plaintiff’s claims were initially denied on
December 13, 2013. (Tr. 98). On January 16, 2014, the plaintiff
filed a written request for a hearing before an ALJ. (Tr. 15).
On August 21, 2014, the plaintiff began receiving
psychiatric services at the Jewish Board for Family and
Children’s Services. (Tr. 911). On December 3, 2014, the
plaintiff underwent a psychiatric evaluation, where she selfreported that her ulcerative colitis made it difficult for her
to eat many things. (Tr. 914). On February 3, 2015, in an
Evaluation and Management Assessment, the plaintiff selfreported that she had undergone an endoscopy and colonoscopy six
months before, and that she was diagnosed with ulcerative
colitis and gastritis. (Tr. 936).
On September 3, 2014, the plaintiff underwent a
colonoscopy. (Tr. 908). Aside from medium-sized non-bleeding
internal hemorrhoids, the digital rectal exam was normal,
although the presence of stool prevented visualization. (Tr.
908). Dr. Medvedovsky recommended a repeat colonoscopy in six
weeks for screening purposes. (Tr. 908).
The hearing before the ALJ occurred on March 4, 2015. (Tr.
53). The plaintiff appeared with an attorney and spoke through
an interpreter. (Tr. 53). The plaintiff testified that she had
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problems with her digestion, and that she had lost twenty pounds
in under a year. (Tr. 57-58). She testified about her
depression, and the pain in her back, knee, hip, neck, arm, and
leg. (Tr. 58).
On April 16, 2015, the ALJ issued his decision denying the
plaintiff benefits. (Tr. 15-29). The ALJ evaluated the
plaintiff’s claims for SSI and DIB pursuant to the five-step
sequential evaluation process set forth in 20 C.F.R. §§ 404.1520
and 416.920. (Tr. 16). First, the ALJ found that the plaintiff
had not engaged in substantial gainful activity since the date
of her alleged disability, April 1, 2009. (Tr. 17).
Second, the ALJ found that the plaintiff had the following
severe impairments: lumbar degenerative disc disease and
spondylosis; left knee meniscus tear; fibromyalgia; depressive
disorder; and anxiety disorder. (Tr. 18). However, the ALJ found
that the plaintiff’s colitis was not a severe impairment based
on the benign colonoscopy results and the absence of any
gastroenterologist treatment records in the record. (Tr. 20).
Third, the ALJ found that the plaintiff did not have an
impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments entitling
the plaintiff to benefits in 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925, and 416.926. (Tr. 20).

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Fourth, the ALJ assessed the plaintiff’s residual
functional capacity (“RFC”) and found that the plaintiff
retained the capacity to perform medium work, meaning that she
is able to “lift no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds.” (Tr.
22). The ALJ however found that the plaintiff was limited to
work with little or no judgment. (Tr. 22). Although the ALJ
noted that there was medical evidence of the plaintiff’s lumbar
spine impairment and knee impairment, he accorded the opinions
of Dr. Shah and Dr. Medvedovsky regarding the plaintiff’s
limitations “little weight” because the doctors made a
determination of the plaintiff’s disability, which is a finding
reserved to the Commissioner. The ALJ also discounted the
opinions of Dr. Shah because they were not supported by
documentation as to how the plaintiff’s conditions affected her
functioning. The ALJ also accorded little weight to Dr.
Medvedovsky’s opinions with respect to the limitations on the
plaintiff’s functioning because they were “quite conclusory.”
(Tr. 25). Nevertheless, the ALJ found that the plaintiff could
not perform her past relevant work as a home health aide. (Tr.
27).
Fifth, the ALJ considered the plaintiff's vocational
factors and her RFC, and applied the Commissioner’s medicalvocational guidelines (“the grids”). (Tr. 28). The ALJ
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ultimately concluded that the plaintiff was not disabled within
the meaning of the Social Security Act and denied the claims for
DIB and SSI benefits. (Tr. 28).
The plaintiff appealed to the Appeals Council. (Tr. 24).
The Appeals Council found no reason for review, which it
declined. (Tr. 1). The Appeals Council considered new evidence
that was not before the ALJ: Dr. Edward Brown, Jr.’s medical
records, dated from July 29, 2015 to October 9, 2015, and a
medical source statement from Dr. Rupa Natarajan dated June 30,
2016. (Tr. 2). The Appeals Council determined that the newly
submitted evidence was not germane to the ALJ’s decision because
it concerned matters relevant to the period after the date of
the ALJ’s decision. (Tr. 2). The ALJ's determination became the
final decision of the Commissioner. This appeal followed.
II.
A court may set aside a determination by the Commissioner
only if it is based on legal error or is not supported by
substantial evidence in the record. See 42 U.S.C. §§ 405(g),
1383(c)(3); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(per curiam) (citations omitted); see also Burton-Mann v.
Colvin, No. 15-CV-7392 (JGK), 2016 WL 4367973, at *3 (S.D.N.Y.
Aug. 13, 2016). Substantial evidence is “more than a mere
scintilla”; it is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v.
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Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)); see also Karle v. Colvin, No.
12-CV-3933 (JGK)(AJP), 2013 WL 4779037, at *1 (S.D.N.Y. Sept. 6,
2013).
The definition of “disabled” is the same for DIB and SSI.
See Barnhart v. Walton, 535 U.S. 212, 214 (2002); see also
Mitchell v. Colvin, No. 14-CV-04154 (JGK), 2015 WL 5306208, at
*4 (S.D.N.Y. Sept. 10, 2015). A claimant seeking DIB or SSI is
considered disabled if the claimant is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42
U.S.C § 423(d)(1)(A); accord 42 U.S.C. § 1382(c)(3)(A). Remand
is particularly appropriate where an ALJ has failed to develop
the record sufficiently and where a remand for further findings
would help to assure the proper disposition of a claim. See
Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004); see also
Burton-Mann, 2016 WL 4367973, at *3.
There is a five-step framework to evaluate disability
claims set out in 20 C.F.R. §§ 404.1520 and 416.920. In essence,
“if the Commissioner determines (1) that the claimant is not
working, (2) that [s]he has a ‘severe impairment,’ (3) that the
impairment is not one [listed in Appendix 1 of the regulations]
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that conclusively requires a determination of disability, and
(4) that the claimant is not capable of continuing in [her]
prior type of work, the Commissioner must find [her] disabled if
there is not another type of work the claimant can do.” Burgess
v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (citations omitted);
see also, e.g., Selian v. Astrue, 708 F.3d 409, 417–18 (2d Cir.
2013); Burton-Mann, 2016 WL 4367973, at *4.
The claimant must first establish a disability under the
Act (the framework’s first four steps). See Burgess, 537 F.3d at
120. If the claimant satisfies those steps, the Commissioner
must establish that, given the claimant's RFC, there is still
work the claimant could perform in the national economy (the
framework’s fifth step). See id. If a claimant cannot perform
work in the national economy, then the claimant’s condition
meets the Act's definition of disability. See id.; see also
Burton-Mann, 2016 WL 4367973, at *4.

III.
A.
“[T]he ‘treating physician rule’ directs the ALJ to give
controlling weight to the opinion of the treating physician so
long as it is consistent with the other substantial evidence.”
Morgan v. Colvin, 592 F. App'x 49, 50 (2d Cir. 2015) (summary
order) (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.

10

2004) (per curiam)). “When other substantial evidence in the
record conflicts with the treating physician's opinion, however,
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.” Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999). Even if a treating physician's opinion is not
afforded controlling weight, the Commissioner applies various
factors in determining the weight to give the opinion. 20 C.F.R.
§§ 404.1527(c), 416.927(c). Moreover, the Commissioner is
required to explain the weight it gives to the opinion of a
treating physician. See id. §§ 404.1527(c)(2), 416.927(c)(2).
“In many cases, a treating source's medical opinion will be
entitled to the greatest weight and should be adopted, even if
it does not meet the test for controlling weight.” Dyson v.
Astrue, No. 2:09-CV-3846, 2010 WL 2640143, at *5 (E.D. Pa. June
30, 2010) (quoting Social Security Ruling (“SSR”) 96-2p, 1996 WL
374188, at *4 (July 2, 1996)); see also Burton-Mann, 2016 WL
4367973, at *5. A district court may remand without hesitation
“when the Commissioner has not provided good reasons for the
weight given to a treating physician's opinion.” Morgan, 592 F.
App'x at 50; see also Mitchell, 2015 WL 5306208, at *11.
Here, the ALJ accorded “little weight” to the plaintiff’s
treating sources for lumbar spine and knee impairments. This was
legal error.
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The ALJ discounted Dr. Shah’s treating physician’s medical
report because the ALJ found that the report pertained to the
determination of disability, and because there was no
documentation of how the claimant’s conditions affected her
functioning. Moreover, the ALJ found that there was no medical
evidence to support the statement in the report that the
claimant was seeking treatment from a rheumatologist. (Tr. 25).
The ALJ discounted Dr. Medvedovsky’s treating physician
opinions because they pertained to the issue of disability and
were “quite conclusory,” and because there was no evidence that
the plaintiff had received treatment for her left knee, although
the plaintiff testified to receiving injections and physical
therapy for her knees. (Tr. 23, 25).
Although the determination of disability is an issue
reserved to the Commissioner, 20 C.F.R. §§ 404.1527(d)(1),
416.927(d)(1), the medical opinions of Dr. Shah and Dr.
Medvedovsky with respect to the plaintiff’s lumbar spine and
knee impairments were more than simple conclusory statements of
disabilities. They were opinions as to impairments that were
supported by objective findings. MRIs from September 2012 and
May 2013, respectively, revealed that the plaintiff had
degenerative disc disease, left lateral disc herniation, a
lateral meniscus tear and advanced patellofemoral arthropathy.
(Tr. 266-67, 424). The ALJ admitted that “a review of the
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medical records [revealed] evidence of lumbar spine impairment”
and that “objective medical imaging exists in regard to the left
knee.” (Tr. 23, 25). In view of the demonstrated objective
conditions of a torn meniscus and degenerative discs leading to
back pain, the ALJ did not have “good reasons” to accord “little
weight” to the findings of the treating physicians with respect
to the lumbar spine and knee impairments. Dr. Shah found that
the plaintiff’s conditions, including back pain, inhibited her
ability to work and that work may have exacerbated her
condition. Dr. Medvedovsky opined that the plaintiff could never
lift or carry more than ten pounds. The findings of the treating
doctors were inconsistent with the ALJ’s finding that the
plaintiff had the RFC to do medium work and the ALJ did not give
good reasons for rejecting their opinions. Indeed, the
Commissioner conceded at argument on the current motion that the
ALJ’s finding that the plaintiff had the RFC to do medium work
was inconsistent with the finding of Dr. Thukral, the
consultative examiner, that the plaintiff had mild limitations
for standing (for a long time), bending, lifting and carrying
due to bilateral knee pain and lower backache. (Tr. 874). Remand
is appropriate in this case for the ALJ to reconsider the
plaintiff’s RFC determination.

13

B.
In a proceeding to determine whether a claimant is
disabled, the ALJ has an affirmative duty to develop the
administrative record. See Echevarria v. Sec'y of Health & Human
Servs., 685 F.2d 751, 755 (2d Cir. 1982) (citations omitted);
see also Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)
(“[W]here there are deficiencies in the record, an ALJ is under
an affirmative obligation to develop a claimant's medical
history.”). “This duty arises from the Commissioner's regulatory
obligations to develop a complete medical record before making a
disability determination, and exists even when . . . the
claimant is represented by counsel.” See Avila v. Astrue, 933 F.
Supp. 2d 640, 653 (S.D.N.Y. 2013) (quoting Pratts v. Chater, 94
F.3d 34, 37 (2d Cir. 1996)); see also Burton-Mann, 2016 WL
4367973, at *4.
In particular, with respect to treating physician records,
the governing statute provides that the Commissioner “shall make
every reasonable effort to obtain from the individual's treating
physician (or other treating health care provider) all medical
evidence . . . necessary in order to properly make” the
disability determination before evaluating medical evidence
obtained from any other source on a consultative basis. 42
U.S.C. § 423(d)(5)(B); accord 42 U.S.C. § 1382c(3)(H)(i); see
also Rosa, 168 F.3d at 79–80 (holding in a DIB case that the ALJ
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erred in failing to satisfy his duty to develop the record where
he did not obtain further treatment records from a treating
physician and other treatment sources including a physical
therapist and orthopedist, before relying on the opinion of
consulting physicians); Clark v. Comm'r of Soc. Sec., 143 F.3d
115, 118 (2d Cir. 1998) (concluding that there was a serious
question as to whether the ALJ satisfied his duty to develop the
record in an SSI case); Torres v. Comm'r of Soc. Sec., No. 13CV-730 (KBF), 2014 WL 406933, at *4–5 (S.D.N.Y. Feb. 3, 2014)
(holding that the ALJ failed to develop the record where he
failed to follow up after asking for treatment notes and
functional analysis from an identified primary treating
physician); see also Burton-Mann, 2016 WL 4367973, at *4.
The plaintiff contends that the ALJ committed legal error
by failing to develop the record as required. Specifically, the
plaintiff argues that the ALJ did not obtain records and reports
from the plaintiff’s treating physician regarding the severity
of her ulcerative colitis, and how it affected her RFC.
The plaintiff self-reported that she was diagnosed with
ulcerative colitis and gastritis after a colonoscopy and
endoscopy. (Tr. 911, 914, 936, 939). The plaintiff complained
about uncontrolled diarrhea as a result. (Tr. 914, 939).
However, the plaintiff underwent a colonoscopy in December 2014
that returned negative results. (Tr. 908). The ALJ did not make
15

further inquiries or contact the treating physician to ascertain
the treating physician’s opinions and analyses with respect to
the apparent inconsistencies in the records and to obtain the
treating physician’s diagnosis. Instead of satisfying the ALJ’s
affirmative duty to develop the record, the ALJ focused on the
absence of a gastroenterologist’s treatment records in the
record and the apparently normal colonoscopy. (Tr. 20). The
ALJ's failure to make at least reasonable efforts to obtain
those records and reconcile any ambiguities was legal error. See
Rosa, 168 F.3d at 80 (holding that failure to close the gaps in
the record constituted legal error); see also Moreira v. Colvin,
No. 13-CV-4850 (JGK), 2014 WL 4634296, at *7 (S.D.N.Y. Sept. 15,
2014).
The ALJ’s failure to satisfy his affirmative duty to
develop the record with respect to the allegations of colitis
and gastritis is an additional reason for remand to develop the
record. See Johnson v. Bowen, 817 F.2d 983, 987 (2d Cir. 1987);
Taveras v. Apfel, No. 97-CV-5369 (JGK), 1998 WL 557587, at *4-5
(S.D.N.Y. Sept. 2, 1998); see also Burton-Mann, 2016 WL 4367973,
at *5. 1

1

It is unnecessary to reach the plaintiff’s argument that the
ALJ erred by failing to obtain the testimony of a vocational
expert in view of the non-exertional limitations on the
plaintiff’s RFC. It is unclear what RFC will be found after the
record is properly developed on remand. The Commissioner should
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C.
The Appeals Council is obligated to consider “new and
material” evidence that “relates to the period on or before the
date of the administrative law judge hearing decision.” 20
C.F.R. §§ 404.970(b), 416.1470(b); Perez v. Chater, 77 F.3d 41,
45 (2d Cir. 1996); Patterson v. Colvin, 24 F. Supp. 3d 356, 372
(S.D.N.Y. 2014). The Court may remand to the Commissioner to
consider new evidence “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 Patterson, 24 F. Supp. 3d
at 372. The Court of Appeals for the Second Circuit has
summarized the three-part showing required by this provision as
follows:
[A]n 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 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.
Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (internal
citations and quotation marks omitted).

assure that any further hearing on remand complies with all
legal requirements.
17

In this case, Dr. Brown’s July 29, 2015 letter is neither
material nor relevant to the ALJ’s assessment of the plaintiff’s
applications. 2 Dr. Brown found that the plaintiff’s
cardiovascular examination was “normal,” and recommended that
the plaintiff exercise to relieve her complaints of chest
discomfort. (Tr. 35-37). That recommendation was consistent with
Dr. Thanneer’s cardiovascular findings from June 2013 that the
plaintiff had “no cardiac limitations for physical activity and
was encouraged to do exercise.” (Tr. 401). There is no
reasonable probability that Dr. Brown’s letter could have
affected the ALJ’s assessment of the plaintiff’s applications.
At best, the matters discussed may implicate a new claim for
disability. The Appeals Council did not err in rejecting the
purported new evidence.
CONCLUSION
The Court has considered all of the arguments of the
parties. To the extent not specifically addressed above, the
remaining arguments are either moot or without merit. For the
reasons explained above, the plaintiff's cross-motion for
judgment on the pleadings is granted in part and denied in part,
and the defendant's cross-motion is granted in part and denied
in part. The Commissioner's decision is affirmed in part and
2

On appeal, the plaintiff does not argue that the medical source
statement by Dr. Rupa Natarajan constitutes new evidence that
warrants remand.
18

vacated in part and the case is remanded to the Commissioner for
further proceedings in accordance with this opinion.
The Clerk is directed to enter judgment and to close this
case. The Clerk is also directed to close all pending motions.
SO ORDERED.
Dated:

New York, New York
July 28, 2017

___________/s/________________
John G. Koeltl
United States District Judge

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