Maggiore v. Colvin
Filing
12
-CLERK TO FOLLOW UP---DECISION AND ORDER DENYING Plaintiff's 8 MOTION for Judgment on the Pleadings and GRANTING the Commissioner's 10 MOTION for Judgment on the Pleadings. The Clerk is directed to enter judgment in favor of the Commissioner and to close this case. Signed by Hon. John T. Curtin on 2/4/2016. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEBORAH MAGGIORE,
Plaintiff,
-vs-
14-CV-879-JTC
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
APPEARANCES:
MELISSA PEZZINO, ESQ., Williamsville, New York, for Plaintiff
WILLIAM J. HOCHUL, JR., United States Attorney (SIXTINA
FERNANDEZ, Special Assistant United States Attorney, of Counsel),
Buffalo, New York, for Defendant.
This matter has been transferred to the undersigned for all further proceedings, by
order of Chief United States District Judge William M. Skretny dated October 8, 2015 (Item
11).
Plaintiff Deborah Maggiore initiated this action on October 21, 2014, pursuant to the
Social Security Act, 42 U.S.C. § 405(g) (“the Act”), for judicial review of the final
determination of the Commissioner of Social Security (“Commissioner”) denying plaintiff’s
application for Social Security Disability Insurance (“SSDI”) and Supplemental Security
Income (“SSI”) benefits under Title II and Title XVI of the Act, respectively. Both parties
have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure (see Items 8, 10). For the following reasons, plaintiff’s motion is denied,
and the Commissioner’s motion is granted.
BACKGROUND
Plaintiff was born on July 29, 1969 (Tr. 175).1 She completed the 12th grade, and
has prior work experience as a customer service insurance worker, collection clerk, and
telephone solicitor (Tr. 204).
Plaintiff filed an application for SSDI benefits in November 2010 (Tr. 175-76), and
for SSI benefits in December 2010 (Tr. 177-82), alleging disability due to depression, with
an onset date of July 1, 2010 (Tr. 203). The applications were denied administratively on
March 28, 2011 (Tr. 127-34). Plaintiff requested a hearing, which was held on September
19, 2012, before ALJ William M. Weir (Tr. 104-26). Plaintiff appeared and testified at the
hearing, and was represented by counsel. Ms. Boranza, a vocational expert, also provided
testimony.
On June 27, 2013, the ALJ issued a decision finding that plaintiff was not disabled
under the Act (Tr. 84-99). Following the sequential evaluation process outlined in the
Social Security Administration regulations governing claims for benefits under Titles II and
XVI (see 20 C.F.R. §§ 404.1520, 416.920), the ALJ found at step one that plaintiff had not
engaged in substantial gainful activity since the alleged onset date, and at steps two and
three, that plaintiff’s “severe” impairments (identified as a panic disorder, post-traumatic
stress disorder, and major depressive disorder, considered alone or in combination, did not
meet or equal the severity of any impairment listed at 20 C.F.R. Part 404, Subpart P,
Appendix 1 (the “Listings”), specifically considering the criteria of Listings 12.04 (Affective
Disorders) and 12.06 (Anxiety Related Disorders) (Tr. 90-92). The ALJ then discussed the
1
Parenthetical numeric references preceded by “Tr.” are to pages of the administrative transcript
filed by the Commissioner at the time of entry of notice of appearance in this action (Item 6).
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evidence in the record regarding the functional limitations caused by plaintiff’s impairments,
including plaintiff’s testimony about her symptoms; the objective medical evidence; and
reports and opinions from treating and consultative medical sources (see Tr. 92-97).
Based on this record, the ALJ determined that plaintiff had the residual functional capacity
(“RFC”) to perform a full range of work at all exertional levels, provided the work involves
no more than occasional contact with co-workers, supervisors, or the public; following and
understanding simple and complex directions and instructions; maintaining attention,
concentration, and a regular work schedule; and making appropriate work-place decisions
(Tr. 92).
With regard to the medical source opinion evidence, the ALJ gave “great weight” to
the opinion of Gregory A. Fabiano, Ph.D., who conducted a consultative psychiatric
evaluation of plaintiff on March 15, 1011 (Tr. 311-15), and reported results consistent with
psychiatric problems, but not “significant enough to interfere with [plaintiff]’s ability to
function on a daily basis” (Tr. 314). The ALJ also gave great weight to the opinion of state
agency review psychiatrist Daniel S. Mangold, who completed a Psychiatric Review
Technique (“PRT”) Form and a Mental Residual Functional Capacity Assessment (“MRFC”)
Form on March 24, 2011 (Tr. 316-29, 330-33), and concluded that plaintiff “appears to be
mentally capable of performing simple competitive work in a low contact work setting” (Tr.
328). The ALJ also considered, but rejected, the medical statement form dated August 27,
2012, submitted by Dr. Ramon Tan, plaintiff’s treating psychiatrist at Horizon Health
Services (Tr. 367-78), which indicated that plaintiff was “markedly” or “extremely” impaired
in several areas of work-related functioning due to her psychiatric condition (see Tr. 96).
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Relying on the VE’s testimony, the ALJ found at step four of the sequential
evaluation process that although plaintiff could not perform her past relevant work as a
customer service insurance worker, collection clerk, or telephone solicitor, there were other
jobs that exist in significant numbers in the national economy that plaintiff could perform,
considering her age, education, work experience and RFC (Tr. 97-99). Accordingly, at step
five, the ALJ found that plaintiff was not disabled within the meaning of the Act, and not
entitled to SSDI or SSI benefits (Tr. 99). This decision became the final determination of
the Commissioner on September 2, 2014, when the Appeals Council denied plaintiff’s
request for review (Tr. 1-4), and this action followed. In her motion for judgment on the
pleadings, plaintiff contends that the Commissioner’s determination should be reversed
because the ALJ failed to properly assess plaintiff’s RFC, and failed to properly evaluate
the treating psychiatrist’s opinion regarding plaintiff’s work-related functional limitations.
See Item 8-1. The government contends that the Commissioner’s determination should
be affirmed because the ALJ fully complied with the Appeals Council’s order, and the
determination was otherwise made in accordance with the pertinent legal standards and
based on substantial evidence. See Item 10-1.
DISCUSSION
I.
Scope of Judicial Review
The Social Security Act provides that, upon district court review of the
Commissioner‘s decision, “[t]he findings of the Commissioner . . . as to any fact, if
supported by substantial evidence, shall be conclusive ….”
42 U.S.C. § 405(g).
Substantial evidence is defined as evidence which “a reasonable mind might accept as
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adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938), quoted in Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tejada v.
Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999). The substantial evidence test applies not only
to findings on basic evidentiary facts, but also to inferences and conclusions drawn from
the facts. Giannasca v. Astrue, 2011 WL 4445141, at *3 (S.D.N.Y. Sept. 26, 2011) (citing
Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977)).
Under these standards, the scope of judicial review of the Commissioner’s decision
is limited, and the reviewing court may not try the case de novo or substitute its findings
for those of the Commissioner. Richardson, 402 U.S. at 401; see also Cage v. Comm'r of
Soc. Servs., 692 F.3d 118, 122 (2d Cir. 2012). The court’s inquiry is “whether the record,
read as a whole, yields such evidence as would allow a reasonable mind to accept the
conclusions reached” by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982), quoted in Hart v. Colvin, 2014 WL 916747, at *2 (W.D.N.Y. Mar. 10, 2014).
However, “[b]efore the insulation of the substantial evidence test comes into play,
it must first be determined that the facts of a particular case have been evaluated in the
light of correct legal standards.” Klofta v. Mathews, 418 F. Supp. 1139, 1411 (E.D.Wis.
1976), quoted in Sharbaugh v. Apfel, 2000 WL 575632, at *2 (W.D.N.Y. Mar. 20, 2000);
Nunez v. Astrue, 2013 WL 3753421, at *6 (S.D.N.Y. July 17, 2013) (citing Tejada, 167 F.3d
at 773). “Failure to apply the correct legal standard constitutes reversible error, including,
in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue,
546 F.3d 260, 265 (2d Cir. 2008) (citations omitted).
Thus, the Commissioner’s
determination cannot be upheld when it is based on an erroneous view of the law, or
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misapplication of the regulations, that disregards highly probative evidence. See Grey v.
Heckler, 721 F.2d 41, 44 (2d Cir. 1983); see also Johnson v. Bowen, 817 F.2d 983, 985
(2d Cir. 1987) (“Failure to apply the correct legal standards is grounds for reversal.”),
quoted in McKinzie v. Astrue, 2010 WL 276740, at *6 (W.D.N.Y. Jan. 20, 2010).
If the Commissioner's findings are free of legal error and supported by substantial
evidence, the court must uphold the decision. 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive, and where a claim has been denied ... the court shall review only the
question of conformity with [the] regulations….”); see Kohler, 546 F.3d at 265. “Where the
Commissioner's decision rests on adequate findings supported by evidence having rational
probative force, [the court] will not substitute [its] judgment for that of the Commissioner.”
Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). Even where there is substantial
evidence in the record weighing against the Commissioner's findings, the determination will
not be disturbed so long as substantial evidence also supports it. See Marquez v. Colvin,
2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013) (citing DeChirico v. Callahan, 134 F.3d
1177, 1182 (2d Cir. 1998) (upholding the Commissioner's decision where there was
substantial evidence for both sides)).
In addition, it is the function of the Commissioner, not the reviewing court, “to
resolve evidentiary conflicts and to appraise the credibility of witnesses, including claimant.”
Carroll v. Sec'y of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983); cf.
Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. Sept. 5, 2013). “Genuine conflicts in the
medical evidence are for the Commissioner to resolve,” Veino, 312 F.3d at 588, and the
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court “must show special deference” to credibility determinations made by the ALJ, “who
had the opportunity to observe the witnesses’ demeanor” while testifying. Yellow Freight
Sys. Inc. v. Reich, 38 F.3d 76, 81 (2d Cir. 1994).
II.
Standards for Determining Eligibility for Disability Benefits
To be eligible for SSDI or SSI benefits under the Social Security Act, plaintiff must
present proof sufficient to show that she suffers from a 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), and 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 which exists in the national economy ….”
42 U.S.C.
§ 423(d)(2)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). As indicated above, the
regulations set forth a five-step process to be followed when a disability claim comes
before an ALJ for evaluation of the claimant's eligibility for benefits.
See 20
C.F.R.§§ 404.1520, 416.920. First, the ALJ must determine whether the claimant is
presently engaged in substantial gainful activity. If the claimant is not, the ALJ must decide
if the claimant has a “severe” impairment, which is an impairment or combination of
impairments that has lasted (or may be expected to last) for a continuous period of at least
12 months which “significantly limits [the claimant's] physical or mental ability to do basic
work activities ….” 20 C.F.R. §§ 404.1520(c), 416.920(c); see also §§ 404.1509, 416.909
(duration requirement). If the claimant's impairment is severe and of qualifying duration,
the ALJ then determines whether it meets or equals the criteria of an impairment found in
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the Listings. If the impairment meets or equals a listed impairment, the claimant will be
found to be disabled. If the claimant does not have a listed impairment, the fourth step
requires the ALJ to determine if, notwithstanding the impairment, the claimant has the
residual functional capacity to perform his or her past relevant work. If the claimant has
the RFC to perform his or her past relevant work, the claimant will be found to be not
disabled, and the sequential evaluation process comes to an end. Finally, if the claimant
is not capable of performing the past relevant work, the fifth step requires that the ALJ
determine whether the claimant is capable of performing any work which exists in the
national economy, considering the claimant's age, education, past work experience, and
RFC. See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Lynch v. Astrue, 2008 WL
3413899, at *2 (W.D.N.Y. Aug. 8, 2008).
The claimant bears the burden of proof with respect to the first four steps of the
analysis. If the claimant meets this burden, the burden shifts to the Commissioner to show
that there exists work in the national economy that the claimant can perform. Lynch, 2008
WL 3413899, at *3 (citing Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)). “In the
ordinary case, the Commissioner meets h[er] burden at the fifth step by resorting to the
applicable medical vocational guidelines (the grids), … [which] take into account the
claimant's residual functional capacity in conjunction with the claimant's age, education,
and work experience.” Rosa, 168 F.3d at 78 (internal quotation marks, alterations and
citations omitted). If, however, a claimant has non-exertional limitations (which are not
accounted for in the grids) that “significantly limit the range of work permitted by his
exertional limitations then the grids obviously will not accurately determine disability
status ….” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (internal quotation marks and
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citation omitted). In such cases, “the Commissioner must ‘introduce the testimony of a
vocational expert (or other similar evidence) that jobs exist in the national economy which
claimant can obtain and perform.’ ” Rosa, 168 F.3d at 78 (quoting Bapp, 802 F.2d at 603).
III.
Plaintiff’s Motion
Plaintiff’s primary contention in support of her request for reversal of the
Commissioner’s final determination is that the ALJ committed legal error because his RFC
assessment is based on a selective adoption of only those portions of the reports and
opinions of consultative and reviewing medical sources that supported the ALJ’s findings,
while disregarding substantial evidence – including the treating psychiatrist’s findings and
opinions – favorable to plaintiff’s application for benefits. According to plaintiff, had the ALJ
properly considered the entire record, the ALJ would have found that plaintiff’s marked
and/or extreme functional limitations related to her mental impairments prevent her from
performing the assessed full range of work at all exertional levels, with no more than
occasional contact with others.
An individual's RFC is his or her “maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel,
198 F.3d 45, 52 (2d Cir. 1999) (quoting Social Security Ruling (“SSR”) 96–8p, 1996 WL
374184, at *2 (July 2, 1996)). In making an RFC assessment, the ALJ should consider “a
claimant's physical abilities, mental abilities, symptomology, including pain and other
limitations which could interfere with work activities on a regular and continuing basis.”
Pardee v. Astrue, 631 F. Supp. 2d 200, 221 (N.D.N.Y. 2009) (citing 20 C.F.R.
§ 404.1545(a)). “To determine RFC, the ALJ must consider all the relevant evidence,
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including medical opinions and facts, physical and mental abilities, non-severe
impairments, and [p]laintiff's subjective evidence of symptoms.” Stanton v. Astrue, 2009
WL 1940539, *9 (N.D.N.Y. July 6, 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff'd, 370
F. App'x 231 (2d Cir. 2010); see also O'Neil v. Colvin, 2014 WL 5500662, at *5 (W.D.N.Y.
Oct. 30, 2014).
The Second Circuit has repeatedly cautioned that, in making the RFC determination,
“ ‘the ALJ cannot arbitrarily substitute his own judgment for a competent medical opinion
…. [W]hile an [ALJ] is free to resolve issues of credibility as to lay testimony or to choose
between properly submitted medical opinions, he is not free to set his own expertise
against that of a physician who [submitted an opinion to or] testified before him.’ ” Balsamo
v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (quoting McBrayer v. Secretary of Health and
Human Servs., 712 F.2d 795, 799 (2d Cir. 1983); see also Rosa, 168 F.3d at 79. Thus,
while the ALJ is not obligated to “reconcile explicitly every conflicting shred of medical
testimony, … he cannot simply selectively choose evidence in the record that supports his
conclusions.” Moss v. Colvin, 2014 WL 4631884, at *32 (S.D.N.Y. Sept. 16, 2014) (citing
Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 123
(2d Cir. 1981); Andino v. Bowen, 665 F. Supp. 186, 190 (S.D.N.Y. 1987)).
In addition, in evaluating the medical opinion evidence, whether obtained from
treating or consultative sources, the ALJ should consider the following factors: (1) the
frequency of examination and length, nature, and extent of the treatment relationship; (2)
the evidence in support of the physician's opinion; (3) the consistency of the opinion with
the record as a whole; (4) whether the opinion is from a specialist; and (5) whatever other
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factors tend to support or contradict the opinion. Gunter v. Comm'r of Soc. Sec., 361 F.
App'x 197, 199 (2d Cir. 2010); see 20 C.F.R. § 404.1527(c); Speilberg v. Barnhart, 367 F.
Supp. 2d 276, 281 (E.D.N.Y. 2005) (“These factors are also to be considered with regard
to non-treating sources, state agency consultants, and medical experts”). The Social
Security regulations also recognize a “ ‘treating physician’ rule of deference to the views
of the physician who has engaged in the primary treatment of the claimant.”
Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); see also Cichocki, 534 F.
App'x at 74. Indeed, the regulations provide that “a treating source's opinion on the
issue(s) of the nature and severity of [a claimant's] impairment(s)” will be given “controlling
weight” if the opinion is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the
claimant's] case record.” 20 C.F.R. § 404.1527(c)(2); see also Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008) (noting that it is the Commissioner's role to resolve “genuine
conflicts in the medical evidence,” and that a treating physician's opinion is generally “not
afforded controlling weight where the treating physician issued opinions that are not
consistent with the opinions of other medical experts”).
When the ALJ does not accord controlling weight to the medical opinion of a treating
physician, the regulations require that the ALJ's written determination must reflect his
consideration of the § 404.1527(c) factors, and must then “comprehensively set forth his
reasons for the weight assigned to a treating physician's opinion.” Burgess, 537 F.3d at
129 (internal alteration and citation omitted). The notice of determination must “always
give good reasons” for the weight given to a treating source's opinion.
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20 C.F.R.
§ 404.1527(c)(2); see Schaal v. Apfel, 134 F.3d 496, 503–04 (2d Cir. 1998) (stating that
the Commissioner must provide a claimant with “good reasons” for the lack of weight
attributed to a treating physician's opinion); Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d
Cir. 2004) (“This requirement greatly assists our review of the Commissioner's decision and
‘let[s] claimants understand the disposition of their cases.’ ”) (quoting Snell v. Apfel, 177
F.3d 128, 134 (2d Cir. 1999)).
In this case, the court is persuaded upon review of the record as a whole that the
ALJ’s RFC assessment reflects substantial compliance with these requirements. The ALJ
provided a thorough discussion of the medical evidence, including Dr. Tan’s treatment
notes from plaintiff’s regular office visits during the relevant period which consistently
reported that plaintiff suffered only “mild to moderate” symptoms of anxiety and depression
(Tr. 93-96; see Tr. 343-63). As indicated above, the ALJ relied heavily on the report and
opinion of Dr. Fabiano, the consultative examining physician, who found plaintiff capable
of following and understanding simple instructions; performing simple tasks independently;
maintaining attention and concentration; maintaining a regular schedule; learning new
tasks; performing complex tasks independently; making appropriate decisions; relating
adequately with others; and appropriately dealing with stress (see Tr. 314). The ALJ also
placed strong reliance on the findings and opinion of Dr. Mangold, rendered upon review
of the medical evidence (including Dr. Fabiano’s assessment), indicating that plaintiff was
mentally capable of performing simple, routine work-related tasks in a low contact setting
(see Tr. 328). According to the ALJ, Dr. Fabiano is a “well-qualified license[d] psychologist”
who provided a thorough and impartial evaluation of plaintiff’s upon examination and
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review of the medical evidence of record, and Dr. Mangold (on is “an unbiased state
agency mental health professional, who is a psychiatrist[,] … credentials [that] warrant
great weight given their expertise in mental health” (Tr. 96).
The ALJ also adequately explained his reasons for rejecting Dr. Tan’s “pre-printed
mental assessments” (Tr. 96) set forth on the medical source statement form dated August
27, 2012.2 As the ALJ pointed out in his written determination, the restrictive limitations
indicated by Dr. Tan on the form are inconsistent not only with the findings of the
consultative and reviewing physicians, but also with Dr. Tan’s own findings throughout the
course of his treatment of plaintiff. This is confirmed by the court’s review of Dr. Tan’s
treatment notes which report that on virtually every follow-up visit To Horizon Health during
the relevant period, plaintiff was alert; her symptoms of depression and anxiety were “mild
to moderate;” there were no delusions or hallucinations; she exhibited no signs of selfdestructive or aggressive behavior; there were no gross cognitive deficits; and she did not
appear to be at risk to herself or others (see, e.g., Tr. 343, 344, 346, 350, 353, 357, 358,
359, 362, 363). In this court’s view, the ALJ’s discussion of his consideration of the
objective medical evidence (or lack thereof) to support the limitations indicated by Dr. Tan
on the pre-printed medical source statement form, and his explanation of the inconsistency
of these limitations with the well-supported findings of the examining and reviewing
consultative physicians, demonstrates application of “the substance of the treating
2
The same completed form (full title: “Medical statement concerning depression with anxiety,
OCD, PTSD, or panic disorder for Social Security disability claim”), dated August 27, 2012, was
resubmitted to the record on September 26, 2012 (see Tr. 370-73), and again on October 10, 2012 (see
Tr. 374-78), as “additional information concerning the time period to which [Dr. Mangold’s findings]
applied” (Tr. 374).
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physician rule” in a manner that allows the claimant, and the reviewing courts, to
understand the disposition of the claim. Halloran, 362 F.3d at 32, 33.
Accordingly, upon careful consideration of the entire record and the ALJ’s opinion,
the court concludes that the ALJ’s RFC assessment in this case was made upon proper
application of appropriate legal standards, and is supported by substantial evidence.
Therefore, the Commissioner’s final determination must be upheld.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for judgment on the pleadings (Item 8)
is denied, and the Commissioner’s motion for judgment on the pleadings (Item 10) is
granted. The Clerk of the Court is directed to enter judgment in favor of the Commissioner,
and to close the case.
So ordered.
\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated: February 3, 2016
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