Latham v. Colvin

Filing 13

DECISION AND ORDER GRANTING Defendant's 10 Motion for Judgment on the Pleadings; DENYING Plaintiff's 9 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 10/16/2016. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CRYSTAL M. LATHAM,
Plaintiff,
v.

DECISION AND ORDER
15-CV-131S

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

1.

Plaintiff Crystal M. Latham challenges an Administrative Law Judge’s

(“ALJ”) determination that she is not disabled within the meaning of the Social Security
Act (“the Act”). Plaintiff alleges that she has been disabled since October 29, 2011, due
to gastritis/irritable bowel syndrome (“IBS”) and a depressive disorder with anxiety.
Plaintiff argues that her impairments have rendered her unable to work. She therefore
asserts that she is entitled to payment of disability and disability insurance benefits
(“DDIB”) as well as supplemental security income (“SSI”) payments under the Act.
2.

Plaintiff filed an application for DDIB and SSI benefits on June 19, 2012.

The Commissioner denied both applications, after which Plaintiff timely filed a request
for a hearing. Pursuant to Plaintiff’s request, ALJ Robert C. Dorf held an administrative
hearing on June 17, 2013, at which Plaintiff appeared with counsel and testified, as did
Andrew Pasternak, an impartial vocational expert. The ALJ considered the case de
novo, and on July 10, 2013, issued a decision denying Plaintiff’s application for benefits.
On December 17, 2014, the Appeals Council denied Plaintiff’s request for review.

1

3.

Plaintiff filed the current civil action on February 13, 2015, challenging

Defendant’s final decision. 1 On July 23, 2015, Plaintiff filed a Motion for Judgment on
the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket
No. 9). Defendant filed a Motion for Judgment on the Pleadings on July 29, 2015.
(Docket No. 10).

After full briefing, this Court deemed the motions submitted and

reserved decision.

For the following reasons, Defendant’s motion is granted and

Plaintiff’s is denied.
4.

A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990).

Rather, the

Commissioner’s determination will be reversed only if it is not supported by substantial
evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.
1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that
which amounts to “more than a mere scintilla,” and it has been defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.
2d 842 (1971).

Where evidence is deemed susceptible to more than one rational

interpretation, the Commissioner’s conclusion must be upheld.

See Rutherford v.

Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
5.

“To determine on appeal whether the ALJ's findings are supported by

substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence

1

The ALJ’s decision became the Commissioner’s final decision in this case when the Appeals Council
denied Plaintiff’s request for review.
2

must also include that which detracts from its weight.” Williams on Behalf of Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the
Commissioner's finding must be sustained “even where substantial evidence may
support the plaintiff's position and despite that the court's independent analysis of the
evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147,
153 (S.D.N.Y. 1992).

In other words, this Court must afford the Commissioner's

determination considerable deference, and will not substitute “its own judgment for that
of the [Commissioner], even if it might justifiably have reached a different result upon a
de novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d
Cir. 1984).
6.

The Commissioner has established a five-step sequential evaluation

process to determine whether an individual is disabled as defined under the Act. See
20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the
validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287,
2291, 96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing
whether a claimant is disabled.
7.

This five-step process is detailed below:

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.
3

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.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in
original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. §
404.1520.
8.

While the claimant has the burden of proof as to the first four steps, the

Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this
inquiry is, in turn, divided into two parts. First, the Commissioner must assess the
claimant's job qualifications by considering his physical ability, age, education, and work
experience.

Second, the Commissioner must determine whether jobs exist in the

national economy that a person having the claimant's qualifications could perform. See
42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458,
460, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
9.

In this case, the ALJ made the following findings with regard to the five-

step process, set forth above: (1) Plaintiff has not engaged in substantial gainful activity
(“SGA”) since the alleged onset of her disability (R. at 13); 2 (2) Plaintiff’s severe
impairments include gastritis/IBS and a depressive disorder with anxiety 3 (Id.); (3)
Plaintiff does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926 (R. at 14); (4)
2
3

Citations to the underlying administrative record are designated as “R.”
Plaintiff’s challenge to the ALJ’s decision is limited to the handling of her mental impairments.
4

Plaintiff retains the residual functional capacity (“RFC”) to perform light work, as defined
in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except for occasional postural activities
(Plaintiff is limited to simple, repetitive work, at low stress, defined as no decision
making required; no judgment required; no numerical production quota work; occasional
contact with public, co-employees, and supervisors; and, the job location should have a
toilet accessible/available) (R. at 18); (5) Plaintiff is unable to perform any past relevant
work (R. at 27); and, (6) considering Plaintiff’s age, education, work experience, and
RFC, there are jobs that exist in significant numbers in the national economy that
Plaintiff can perform. (Id.) Ultimately, the ALJ concluded that Plaintiff was not disabled,
as defined by the Act, at any time through the date of his decision. (R. at 29).
10.

Plaintiff challenges three elements of the ALJ’s decision. First, Plaintiff

argues that the ALJ failed to give any weight to her nurse practitioner’s opinion. Next,
she contends that the ALJ erred by failing to account for her treating psychologist’s
opinion (Dr. Baskin).

Finally, Plaintiff argues that the ALJ erred in his RFC

determination by failing to account for her limitations in maintaining a regular schedule.
11.

Plaintiff’s first two arguments concern the ALJ’s ultimate finding that

Plaintiff is capable of making a successful adjustment to other work that exists in
significant numbers in the national economy.

(R. at 27).

Plaintiff argues that this

determination, which chiefly relied on the ALJ’s RFC determination, is erroneous,
because the ALJ rejected two examining opinions in favor of Dr. Mangold’s 4 internally
inconsistent opinion. In particular, Plaintiff contends that the ALJ failed to properly
4

Dr. Mangold, a non-examining psychiatrist, who reviewed the medical evidence, opined that Plaintiff
appeared to be “mentally capable of performing simple, competitive work in a low contact work setting.”
(R. at 394). Dr. Mangold memorialized his RFC assessment in a Psychiatric Review Technique Form.
Plaintiff asserts that this ultimate RFC determination is inconsistent with Dr. Mangold’s previous findings
found within a Mental Residual Functional Capacity form. (R. at 394, 396-97).
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weigh the medical opinions offered by her nurse practitioner, Nurse Pfalzer, and her
treating psychologist, Dr. Baskin.
Nurse Pfalzer opined that Plaintiff was “extremely” impaired with regards to the
following:
“ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary
tolerances,” and her “ability to complete a normal workday
and work week without interruptions from psychologically
based symptoms and to perform at a consistent pace without
an unreasonable number of and length of rest periods.” (R.
at 370).
Plaintiff argues that, despite this debilitative prognosis, the ALJ disregarded
Nurse Pfalzer’s opinion without explaining his reasons for doing so. While recognizing
that a nurse practitioner is not an acceptable medical source, Plaintiff argues that the
position is included among “other sources” whose opinions may be considered as to the
severity of a claimant’s impairment and ability to work. 20 C.F.R. § 416.913(d)(1).
While an “other source” opinion is not treated with the same deference as a treating
physician’s opinion, the assessment is still entitled to some weight, particularly when
there is a treatment relationship with the claimant. See White v. Comm’r of Soc. Serv.,
302 F. Supp. 2d 170, 176 (W.D.N.Y. 2004) (holding that the ALJ erred in failing to give
appropriate weight to the plaintiff’s social worker, who had a regular treatment
relationship with the plaintiff and whose diagnosis was consistent with the treating
psychiatrist’s).
Plaintiff also argues that the ALJ, by failing to afford some weight and recognition
to Nurse Pfalzer’s use of “check-box” forms, substantially frustrated her ability to
produce favorable evidence and caused a gap in the record, which the ALJ was then

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obligated to more fully develop.

In sum, Plaintiff argues that the ALJ’s failure to

incorporate Nurse Pfalzer’s opinion results in a RFC determination unsupported by
substantial evidence.
Next, Plaintiff claims error in the ALJ’s consideration of Dr. Baskin’s opinion as it
pertains to Plaintiff’s ultimate RFC. The ALJ concluded that the inconsistencies found
within Dr. Baskin’s evaluations of Plaintiff supported his decision to afford little weight to
this particular evidence. Dr. Baskin noted that Plaintiff, after a preliminary psychiatric
test on her present condition, was “mildly” impaired in her attention, concentration,
recent memory, and remote memory. (R. at 375). Yet Dr. Baskin, in his medical source
statement of Plaintiff, prospectively opined that Plaintiff was “moderately” impaired in
regards to the following: maintain attention and concentration, maintain a regular
schedule, learn new tasks, perform complex tasks, make appropriate decisions, relate
adequately with others and appropriately deal with stress. (R. at 376). Dr. Baskin
further opined, in this medical source statement, that Plaintiff could not perform serial
subtractions, forgot one out of three items after a five minute delay, and could only
recite two digits backwards. (R. at 375). According to the ALJ, Dr. Baskin’s findings are
inconsistent and therefore not entitled to much weight. (R. at 25). Plaintiff argues that
this is error.

She maintains that the deficiencies expressed by Dr. Baskin indicate

serious degrees of impairment.
Having considered the parties’ first two arguments and reviewed the record
evidence, this Court finds no error in the ALJ’s RFC determination, which primarily
relied upon the opinion of Dr. Mangold. In regards to Plaintiff’s first argument, the ALJ
correctly stated that Nurse Pfalzer, as a nurse practitioner, is not considered an

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“acceptable medical source.” See Selinsky v. Comm’r of Soc. Sec., No. 08–cv–1363
(GLS/VEB), 2010 WL 2671502 at *4 (N.D.N.Y. June 14, 2010) (citing Gillies v. Astrue,
No. 07-cv-517, 2009 WL 116150, at *6 (W.D.N.Y. Apr. 29, 2009) (“nurse practitioners
are not necessarily considered to be acceptable sources of medical evidence”)). Social
Security Regulation 06-3p (“treating physician rule”) specifically states that the ALJ, in
evaluating the opinion of “other sources,” evaluates how well the source explains the
opinion and whether the source presents evidence to support the opinion. Banks v.
Astrue, 955 F. Supp. 2d 178, 189-90 (W.D.N.Y. 2013). Furthermore, the Second Circuit
has consistently held that opinions rendered on “check-box” forms are often the ones
entitled to little meaningful insight into the basis for the clinician’s findings.

See

Klodzinski v. Astrue, 274 F. App’x 72, 73 (2d Cir. 2008) (holding that a standardized
multiple-choice form completed by a treating physician was only marginally helpful);
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (stating that the standardized form
was only marginally helpful). Thus, the ALJ did not err when he disregarded Nurse
Pfalzer’s “check-box” form, which included no supplementary explanation or supporting
evidence to corroborate her findings. (R. at 369-72).
Furthermore, Plaintiff incorrectly argues the extent of the ALJ’s duty to develop
the administrative record.

The ALJ is under no duty to develop the administrative

record where the available evidence is sufficient to establish a conclusion on a disability
determination or the record is consistent regarding the various medical and non-medical
opinions. Cichocki v. Astrue, 534 F. App’x 71, 77 (2d Cir. 2013); see also HeagneyO'Hara v. Comm’r of Soc. Sec., No. 14–CV–6083–CJS, 2015 WL 860849, at *3
(W.D.N.Y. Feb. 27, 2015). Here, as in Cichocki and Heagney-O’Hara, the ALJ was only

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obligated to re-contact a medical provider, such as Nurse Pfalzer, if the record was
inconsistent or insufficient to make a disability determination.
Here, the record is not inconsistent. Treatment counseling notes from Spectrum
Health Services, 5 Plaintiff’s assessed Global Assessment Functioning (“GAF”) score of
60, 6 portions of Dr. Baskin’s medical opinion, 7 and Plaintiff’s own testimony regarding
her daily living habits, 8 collectively corroborate and are consistent with Dr. Mangold’s
opinions. (R. at 17, 23, 26, 265, 274, 275, 284, 287, 297, 394, 469, 475, 479).
Moreover, these medical opinions, other source opinions, and personal testimony
provide sufficient evidence to reach a disability determination. The ALJ therefore is
under no duty to further develop the administrative record, as Plaintiff’s whole medical
history supports the ALJ’s RFC decision. The RFC decision primarily relies on the
opinion of Dr. Mangold, who states that Plaintiff is mentally capable of performing
simple, competitive work in a low contact work setting. Nonetheless, sole reliance on Dr.
Mangold’s medical opinion is extensively supported by the aforementioned sources,
who collectively opine that Plaintiff is only “mildly” limited with regards to her cognitive
functioning. Thus, these sources, in conjunction with Dr. Mangold’s opinion, constitute
substantial evidence supporting the ALJ’s decision.

Furthermore, Plaintiff fails to

recognize that Dr. Mangold is an expert in the evaluation of mental limitations in
disability claims under the Act. 20 C.F.R. §§ 404.1527(e). Therefore, Dr. Mangold’s

5

Psychiatric Progress Notes of September 2012 and December 2012 noted that Plaintiff’s memory and
concentration were good; judgment remained intact; and, there were no homicidal or suicidal ideations,
hallucinations, or delusions. Further, the Individualized Action Plan of March 18, 2013 noted that Plaintiff
would continue to take prescribed medication and successfully employ effective coping measures to
handle everyday stress. (R. at 465-94).
6
A GAF score of 60 indicates a nearly-mild mental impairment.
7
Dr. Baskin noted that Plaintiff, after a preliminary psychiatric test on her present condition, was “mildly”
impaired in her attention, concentration, recent memory, and remote memory. (R. at 375).
8
See infra p. 14.
9

expertise constitutes evidence which can be given greater weight, if his opinion is
consistently supported by medical evidence of record. (Id.) Therefore, consistent with
the statutory rulings, the ALJ did not err by according greater weight to Dr. Mangold’s
expert opinion, which was extensively supported by evidence in the record.
Consequently, this Court finds Plaintiff’s first two arguments unpersuasive. Substantial
evidence supports the ALJ’s RFC finding.
12.

Plaintiff’s final argument is that the ALJ erred by failing to consider the

medical opinion evidence regarding Plaintiff’s inability to maintain a regular schedule. In
support of this contention, Plaintiff, unlike the ALJ, attributes significant weight to Dr.
Mangold’s Mental Residual Functional Capacity (“MRFC”) form. Dr. Mangold opined in
the MRFC form that Plaintiff had “moderate” limitations in her ability to maintain a
regular schedule. (R. at 396-97). Despite these noted limitations in the MRFC form, Dr.
Mangold did not list the same degree of limitations in a subsequent Psychiatric Review
Technique (“PRT”) form, the document upon which the ALJ ultimately relied on to
formulate Plaintiff’s RFC. (R. at 27-28).
Despite the inconsistency between the forms, Plaintiff maintains that the opinion
encapsulated within the MRFC form must be considered when determining Plaintiff’s
ultimate RFC determination. Plaintiff further argues that the opinions of Nurse Pfalzer
and Dr. Baskin complement the opinion expressed in the MRFC form, thus establishing
Plaintiff’s inability to maintain a regular work schedule because of her mental
impairments. Plaintiff also contends that her domestic life is also compromised by her
debilitating depressive disorder, effectively disrupting her ability to maintain a regular
schedule. (R. at 45-46, 55-56). Likewise, counseling notes consistently document that

10

Plaintiff struggled to cope with social stressors, exhibited an agitated mood, and had
trouble sleeping. (R. at 469-79). Collectively, Plaintiff stresses that it is reasonable to
expect that these debilitating factors frustrate one’s ability to maintain a regular
schedule.
Plaintiff contends that her inability to maintain a regular schedule would
precipitate expected absenteeism from work. See Gannett v. Colvin, No. 3:13–CV–717,
2014 WL 7345694, at *8 (N.D.N.Y. Dec. 23, 2014) (quoting Beck v. Colvin, No. 6:12–
CV–06495(MAT), 2013 WL 5533571, at *6 (W.D.N.Y. Oct. 7, 2013) (noting that
vocational experts consistently attest to the fact that “missing three or more days of
work per month renders a claimant unemployable, as that level of absenteeism is
beyond the bounds of reasonable employer tolerance.”)
Plaintiff contends that the ALJ erred by failing to recognize this limitation or
explain why it was not included in her RFC. Alternatively, Plaintiff argues that if the ALJ
openly rejected the unanimous medical opinion evidence regarding this particular
“moderate” limitation, he was required to provide an “overwhelmingly compelling”
justification. See Giddings v. Astrue, 333 F. App’x 649, 652 (2d Cir. 2009) (holding that
a

critique

of

uncontradicted

medical

evidence

by

non-physicians

must

be

overwhelmingly compelling to be valid).
Having considered the parties’ arguments and reviewed the record evidence, this
Court finds no merit in Plaintiff’s argument that the ALJ rejected unanimous medical
opinion evidence suggesting at least a “moderate” limitation in Plaintiff’s ability to
maintain a regular schedule. Although there may be some evidence that Plaintiff is
disabled under the Act, there is substantial evidence to support the ALJ’s determination

11

that she is not. Therefore, “the Commissioner’s findings must be upheld.” McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014).
First, social security regulations provide that the MRFC form is merely a guideline
to assist a physician in deciding the presence and degree of a claimant’s functional
limitations; most importantly, this form does not constitute a RFC determination. See
SSR 96-8p (stating that the opinions noted on the MRFC form are not a RFC
assessment). Therefore, Dr. Mangold’s medical opinions expressed on the MRFC form
are not dispositive of Plaintiff’s RFC determination. As a result, this Court affirms the
ALJ’s use of the PRT form, which contained Dr. Mangold’s ultimate RFC conclusion that
Plaintiff is capable of performing simple, competitive work in a low-contact setting.
Furthermore, the ALJ was within his province to bifurcate portions of Dr. Baskin’s
medical evidence, accepting opinions that were consistent with the record and rejecting
other portions that were exaggerated and inconsistent when compared to the medical
record as a whole. Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Pines v.
Comm’r of Soc. Sec., No. 13-cv-6850-AJN-FM, 2015 WL 872105, at *3 (S.D.N.Y. Mar.
2, 2015); Crossman v. Comm’r of Soc. Sec., No. 3:14–CV–1294 (ATB), 2015 WL
5943506, at *11-13 (N.D.N.Y. Oct. 13, 2015). Dr. Baskin opined, consistent with the
complete medical record, that Plaintiff would have minimal to no limitations in being able
to follow and understand simple directions and instructions and perform simple tasks
independently, characteristics common to performing simple, competitive work in a lowcontact setting. (R. at 376). The ALJ may afford great weight to this particular portion
of Dr. Baskin’s testimony, which is consistent with the entire record. Veino, 312 F.3d at
588; Pines, 2015 WL 872105, at *3; Crossman, 2015 WL 5943506, at *11-13.

12

On the other hand, Dr. Baskin subsequently opined that Plaintiff would have the
following “moderate” limitations: maintaining attention and concentration; maintaining a
regular schedule; learning new tasks; performing complex tasks; making appropriate
decisions; relating adequately with others; and appropriately dealing with dress. (R. at
376). This Court notes that not only are these findings inconsistent with Dr. Baskin’s
previous medical opinions, but this evidence is inconsistent with the other medical and
non-medical opinions regarding Plaintiff’s alleged mental limitations. (R. at 25, 376). As
previously stated, due to these inconsistencies, the ALJ was within his discretion to
separate portions of Dr. Baskin’s medical evidence and only accept opinions that were
consistent with the record as a whole.
Furthermore, there is no error in the ALJ’s decision to afford little weight to
Plaintiff’s testimony.

Her testimony is markedly inconsistent, as exhibited through

counseling notes as well as Plaintiff’s own contradictory statements.

For example,

Plaintiff’s treatment at Spectrum Human Services consistently revealed that Plaintiff had
minimal deficits in attention and concentration. This evidence undermines Plaintiff’s
testimony that she was plagued by “moderate” limitations in maintaining attention and
concentration. (R. at 25, 469, 475, 475).
This Court also finds Plaintiff’s allegations of disabling limitations not fully
credible. Plaintiff testified to the following: she is able to do all activities of daily living by
herself (R. at 376); she is the sole caretaker of her 8-year-old daughter (R. at 211); she
assists her roommate in taking care of her roommate’s 3-year-old daughter (R. at 53);
she drives, shops, and handles money (R. at 214); she travels alone (R. at 213); she
cooks (R. at 212); and she plays video games and watches television (R. at 214). Thus,

13

Plaintiff’s lifestyle, characterized by diverse activities that she consistently performs on a
daily basis, is incongruous with her claim that she has a significant “moderate”
impairment in her ability to maintain a regular schedule.
13.

After carefully examining the administrative record, this Court finds that

substantial evidence supports the ALJ’s decision in this case, including the objective
medical evidence, medical opinions, and testimony contained therein. This Court is
satisfied that the ALJ thoroughly examined the record and afforded appropriate weight
to all of the medical evidence in rendering his decision that Plaintiff is not disabled within
the meaning of the Act. Finding no reversible error, this Court will grant Defendant’s
Motion for Judgment on the Pleadings and deny Plaintiff’s motion seeking similar relief.

IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the
Pleadings (Docket No. 10) is GRANTED.
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No. 9)
is DENIED.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.

Dated: October 16, 2016
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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