Baker v. Colvin

Filing 17

DECISION AND ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting 14 Commissioner's Motion for Judgment on the Pleadings; and dismissing Plaintiff's complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/6/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL BAKER, o/b/o Shannon Constance
Baker,
Plaintiff,

1:15-cv-00943-MAT
DECISION AND
ORDER

-vsNANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
I.

INTRODUCTION
Represented

by

counsel,

Michael

Baker

(“Plaintiff”)

has

brought this action on behalf of his deceased mother, Shannon
Constance Baker (“Claimant”), pursuant to Title XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security1 (“Defendant” or “the
Commissioner”) denying Claimant’s application for supplemental
security income (“SSI”).

This Court has jurisdiction over the

matter pursuant to 42 U.S.C. § 405(g).

Presently before the Court

are the parties’ competing motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
For the reasons set forth below, Plaintiff’s motion is denied and
Defendant’s motion is granted.

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

II.

PROCEDURAL BACKGROUND
On August 29, 2012, Claimant protectively filed an application

for SSI, alleging disability beginning December 10, 1998 due to
depression, anxiety, arthritis with spinal stenosis, bulging discs,
herniated

discs,

Administrative
application

was

fibromyalgia,

Transcript
initially

(“T.”)
denied

and

carpal

88,

154-59,

and

she

tunnel
170.

timely

syndrome.
Claimant’s

requested

a

hearing, which was held before administrative law judge (“ALJ”)
Donald T. McDougall on March 10, 2014.

T. 26-53, 99-100.

22, 2014, the ALJ issued an unfavorable decision.

On May

T. 13-22.

Claimant timely requested review by the Appeals Council. T. 7-9.
Claimant passed away on December 20, 2014, prior to any decision by
the Appeals Council.

Docket No. 1 at ¶ 5.

Claimant’s request for

review was denied by the Appeals Council on September 2, 2015,
making the ALJ’s decision the final decision of the Commissioner.
T. 1-5. Plaintiff then timely commenced this action on behalf of
Claimant.
III. THE ALJ’S DECISION
The

ALJ

applied

the

five-step

sequential

evaluation

promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 404.1520(a). At step one, the ALJ found that
Claimant had not engaged in substantial gainful activity from
August 29, 2012, the application date.

T. 15.

At step two, the ALJ determined that Claimant had the severe
impairments of adjustment disorder with mixed anxiety and depressed

-2-

mood, status

post-lumbar

discectomy

carpal tunnel syndrome, and asthma.

and
Id.

fusion,

fibromyalgia,

At step three, the ALJ

considered Claimant’s impairments and found that, singly or in
combination, they did not meet or medically equal the severity of
a listed impairment.

Id.

In particular, the ALJ considered

sections 1.00 (musculoskeletal system), 3.00 (respiratory system),
11.00 (neurological), and Listings 12.04, 12.06, and 12.09 in
reaching this determination.

T. 15-16.

Prior to proceeding to step four, the ALJ determined that
Claimant had the residual functional capacity (“RFC”) to perform “a
wide

range

of

light

work,”

with

the

following

additional

limitations: can lift, carry, push, and pull up to 10 pounds
frequently and up to 20 pounds occasionally; can sit for up to six
hours in an eight-hour workday; can stand or walk for up to six
hours in an eight-hour workday; must be allowed to change positions
every half-hour from sitting to standing or vice-versa; must be
able to use a cane for any walking required; can have no exposure
to extremes of fumes, dusts, gases, or other respiratory irritants;
can perform no overhead lifting; can perform no work around heights
or dangerous moving machinery; cannot kneel, crouch, or crawl; can
climb stairs and ramps and occasionally stoop; can perform no fastpaced or assembly line work; can have no more than occasional
contact with the general public; can have no more than frequent
contact with supervisors or coworkers.

-3-

T. 17.

At step four, the ALJ determined that Claimant had no past
relevant work.

T. 21.

At step five, the ALJ relied on a

vocational expert’s testimony to find that there are other jobs
that exist in significant numbers in the national economy that
Claimant could perform, including mail clerk and office helper.
T. 21-22.

The ALJ accordingly found that Plaintiff was not

disabled as defined in the Act.
IV.

T. 22.

DISCUSSION
A.

Scope of Review

When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
Although the reviewing court must scrutinize the whole record and
examine evidence that supports or detracts from both sides, Tejada
v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation omitted),
“[i]f there is substantial evidence to support the [Commissioner’s]
determination, it must be upheld.” Selian v. Astrue, 708 F.3d 409,
417 (2d

Cir.

substantial

2013).

evidence

conclusions of law.”

“The
does

deferential
not

apply

standard
to

the

of

review

for

Commissioner’s

Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.

2003).

-4-

In this case, Plaintiff contends that the ALJ’s RFC finding
was not supported by substantial evidence, because (1) the ALJ
failed to rely on a medical opinion in making the determination
that Claimant required a sit/stand option, (2) the ALJ relied on
his own lay opinion to determine that Claimant could perform light
work, (3) the ALJ relied on his own lay opinion to determine that
Claimant could tolerate frequent interaction with co-workers and
supervisors, and (3) the ALJ found Claimant not wholly credible for
“improper and factually inaccurate reasons” (Docket No.
24).

11-1 at

For the reasons set forth below, the Court finds these

arguments without merit.
B.

Inclusion of Sit/Stand Option

Plaintiff’s first argument is that the ALJ’s finding that
Claimant required a sit/stand option every 30 minutes was not
supported by the medical evidence of record.

In particular,

Plaintiff points to the fact that no medical source opined that
Claimant required such an option.

This argument is misplaced.

An ALJ assessing a disability claim is required to “weigh all
of

the

evidence

available

to

make

an

consistent with the record as a whole.”
App’x 53, 56 (2d Cir. 2013).

RFC

finding

that

[is]

Matta v. Astrue, 508 F.

The ALJ’s RFC finding need not “not

perfectly correspond with any of the opinions of medical sources.”
Id.; see also Rosa v. Callahan, 168 F.3d 72, 29 (2d Cir. 1999)
(“the ALJ’s RFC finding need not track any one medical opinion”);

-5-

Breinin v. Colvin, No. 514CV01166LEKTWD, 2015 WL 7749318, at *3
(N.D.N.Y. Oct. 15, 2015), report and recommendation adopted, 2015
WL 7738047 (N.D.N.Y. Dec. 1, 2015) (“It is the ALJ’s job to
determine

a

claimant’s

physician’s opinion.”).

RFC,

and

not

to

simply

agree

with

a

Where an ALJ makes an RFC assessment that

is more restrictive than the medical opinions of record, it is
generally

not

a

basis

for

remand.

See

Castle

v.

Colvin,

No. 1:15-CV-00113(MAT), 2017 WL 3939362, at *3 (W.D.N.Y. Sept. 8,
2017) (“the fact that the ALJ’s RFC assessment did not perfectly
match Dr. Balderman’s opinion, and was in fact more restrictive
than that opinion, is not grounds for remand”); Savage v. Comm’r of
Soc. Sec., No. 2:13-CV-85, 2014 WL 690250, at *7 (D. Vt. Feb. 24,
2014) (finding no harm to claimant where ALJ adopted an RFC
determination that was more restrictive than medical source’s
opinion).
In this case, the sole medical opinion of record regarding
Claimant’s physical capabilities was the opinion of consultative
examining physician Dr. Hongbiao Liu. T. 273-277. Dr. Liu opined,
in relevant part, that Claimant had a “mild to moderate limitation
for prolonged walking, bending, kneeling, and overhead reaching.”
T. 276. Notably, Dr. Liu did not opine that Claimant had any
restrictions in her ability to sit or stand.

As the ALJ discussed

in detail in his decision, Dr. Liu’s assessment was consistent with
the

medical

evidence

of

record,

which

showed

largely

normal

physical examinations both before and after Claimant’s minimally

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invasive back surgery.

See T. 18-19 (referencing T. 260-61, 263-

64). However, Claimant testified at the hearing that she could not
sit or stand for “long periods of time” and specifically that she
could sit for half an hour before she would have to get up and move
around.

T. 35.

In essence, then, Plaintiff faults the ALJ for having accepted
Claimant’s testimony that she was required to change positions
after half an hour of sitting because no medical source opined that
she required a sit/stand option.

The Court does not find that this

constitutes reversible error. A claimant’s testimony is acceptable
evidence to support the inclusion of a sit/stand option in an RFC
determination.

See Crosby v. Berryhill, 2017 WL 3065271, at *3

(W.D.N.Y. July 18, 2017) (plaintiff’s testimony that he could
maintain the same position for up to 30 minutes supported ALJ’s
finding regarding sit/stand option); Hammond v. Colvin, 2013 WL
4542701, at *6 (N.D.N.Y. Aug. 26, 2013) (plaintiff’s testimony
regarding her daily activities supported ALJ’s conclusion that she
could sit for 45 minutes before changing position).
This Court’s decision in Crosby rejected an argument similar
to the one made in this case.

There, the ALJ had found that the

plaintiff was capable of “sitting for four hours, standing for four
hours, and walking for four hours so long as he had the ability to
change positions every 45 minutes without leaving his workstation.”
Id, 2017 WL 3065271 at *3.
was unsupported

by

the

The plaintiff argued that this finding
medical
-7-

evidence,

because

it

did

not

correspond with any medical source opinion.

Id.

The Court found

that “although no medical source opined precisely that plaintiff
needed to change positions every 45 minutes, the ALJ’s RFC finding
[was] supported by substantial evidence,” in large part because the
consultative examiner “opined that plaintiff had only a ‘moderate
limitation’ in walking and standing and found no limitations in
sitting.”

Id.

Here, as in Crosby, the ALJ’s inclusion of a sit/stand option
in the RFC finding was supported by the opinion of the consultative
examiner and by Claimant’s own testimony.

Accordingly, the Court

rejects Plaintiff’s argument that this aspect of the RFC was not
supported by substantial evidence.
C.

Capacity to Perform Light Work

Plaintiff next argues that the ALJ’s finding that Claimant was
capable of performing light work was based on his lay opinion.
particular,

Plaintiff

contends

that

Dr.

Liu’s

opinion

In
was

impermissibly vague with respect to Claimant’s physical limitations
and that it therefore cannot constitute substantial evidence in
support of the ALJ’s RFC determination. This argument lacks merit.
As discussed above, Dr. Liu examined Claimant and opined that
Claimant had a mild to moderate limitation in her ability to engage
in prolonged walking.

Plaintiff argues that this opinion was too

vague to support the ALJ’s conclusion that Claimant was capable of
walking

for

30 minutes.

up

to

six

hours,

with

a

sit/stand

option

every

However, courts in this Circuit “have upheld an ALJ’s
-8-

decision that the claimant could perform light or sedentary work
even

when

there

is

evidence

that

the

claimant

had

moderate

difficulties in prolonged sitting or standing.” Carroll v. Colvin,
No. 13-CV-456S, 2014 WL 2945797, at *4 (W.D.N.Y. June 30, 2014).
To the extent that Plaintiff is arguing that Dr. Liu’s use of
the terms “mild” and “moderate” was impermissibly vague, this Court
had previously explained that it is not the case that “a medical
source opinion which uses terms like ‘mild’ or ‘moderate’ is always
too vague to constitute substantial evidence.” O’Bara v. Colvin,
2017 WL 2618096, at *2 (W.D.N.Y. June 16, 2017) (internal quotation
omitted).
terms

To the contrary, a medical source statement that uses

like

“mild”

and

“moderate”

may

constitute

substantial

evidence “if the examiner conducts a thorough examination and
explains the basis for the opinion.” Richardson v. Colvin, 2016 WL
3179902, at *7 (W.D.N.Y. June 8, 2016).
In this case, the Court concludes that “Dr. Liu's medical
source statement was not so vague that it could not serve as an
adequate

basis

for

determining

[Claimant’s

RFC].”

Boltz

v.

Berryhill, 2017 WL 999204, at *5 (W.D.N.Y. Mar. 15, 2017). Dr. Liu
performed a thorough examination of Claimant, with only modest
abnormalities noted, and his conclusions were consistent with the
medical evidence of record, including the physical examinations
performed by Claimant’s treating physicians both before and after
her surgery.

Moreover, the ALJ’s RFC finding that Claimant was

capable of performing light work with additional non-exertional
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limitationsm including a sit/stand option, is fully consistent with
Dr. Liu’s examination results and medical source opinion. It is
well-established that the opinion of a consultative examiner may
serve as substantial evidence in support of an ALJ decision. See,
e.g., Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011). As
such, the Court finds that remand is not warranted on this basis.
D.

Mental RFC Finding

Plaintiff’s next argument is that the ALJ’s determination that
Claimant could tolerate frequent interaction with co-workers and
supervisors was arbitrary and unsupported by substantial evidence.
Plaintiff notes that the ALJ determined that Claimant could have
only occasional interaction with the general public, and contends
that the ALJ’s distinction between these various groups was based
only on his lay opinion.

Again, the Court finds that this argument

lacks merit.
Consultative psychologist Dr. Renee Baskin examined Claimant
on December 4, 2012.

T. 278-82. Dr. Baskin observed that Claimant

was pleasant, polite, and easily engaged.

T. 280.

Dr. Baskin

opined in relevant part that Claimant would have mild to no
limitation in relating adequately with others.

T. 281.

State

agency reviewing physician Dr. J. Echevarria similarly opined that
Claimant had only mild impairments in social functioning.

T. 97.

However, a review of Claimant’s mental health records shows that
she reported having difficulty in social settings and around large

-10-

numbers of people.

See T. 329 (Claimant reported having a panic

attack at a store due to “all the people”).
Similarly to the ALJ’s inclusion of a sit/stand option in the
RFC determination, the ALJ’s finding that Plaintiff could have only
occasional contact with the general public is more restrictive than
the limitations set forth in the medical source opinions of record.
Dr.

Baskin’s

and

Dr.

Echevarria’s

opinions

both

support

the

conclusion that Claimant was generally capable of appropriate
interaction with others.

However, the ALJ restricted Claimant to

only occasional interaction with the public, thereby accounting for
her self-reported difficulties with large numbers of people.

As

discussed in detail above, remand is generally not warranted where
the ALJ’s RFC finding is more restrictive than the limitations set
forth in the medical opinions of record, inasmuch as any alleged
error in this regard inures to the claimant’s benefit.

In short,

an ALJ’s decision to extend the benefit of the doubt to a claimant
and to include additional limitations in an RFC to account for
self-reported symptoms is not generally a reversible error, and the
Court finds that it does not warrant remand in this case.
To the extent Plaintiff argues that Dr. Baskin’s finding that
Claimant

had

moderate

limitations

in

dealing

with

stress

is

inconsistent with the ALJ’s RFC determination, this argument lacks
merit.

Nothing in Dr. Baskin’s opinion suggests that Claimant’s

stress-related limitations arise from any difficulty in interacting
with others.

To the contrary, and as discussed above, Dr. Baskin

-11-

expressly

opined that

Claimant had

adequately relating to others.
incorporated

Dr.

Baskin’s

mild

to

no

limitation in

Moreover, the ALJ’s RFC assessment

opinion

that

Claimant

had

moderate

limitations in dealing with stress by finding that Claimant could
not engage in fast-paced or assembly line work.

T. 17.

The Court

therefore finds that the ALJ’s finding with respect to Claimant’s
mental RFC was supported by substantial evidence.
E.

Credibility Assessment

Plaintiff’s final argument is that the ALJ erred in assessing
Claimant’s credibility. Plaintiff claims that the ALJ’s stated
reasons

for

finding

Claimant

less

than

wholly

credible

“improper and factually inaccurate.” Docket No. 11-1 at 24.

were
The

Court disagrees.
“Because the ALJ has the benefit of directly observing a
claimant’s demeanor and other indicia of credibility, his decision
to discredit subjective testimony is entitled to deference and may
not be disturbed on review if his disability determination is
supported by substantial evidence.”
3572427,

at

omitted).

*5

(W.D.N.Y.

July

Hargrave v. Colvin, 2014 WL

21,

2014)

(internal

quotation

In this case, the ALJ found that Claimant was less than

wholly credible

because

(1)

her

care

and

treatment

had been

relatively conservative and her symptoms were well-managed by her
medication,

(2)

no

opinion

evidence

of

record

supported

the

conclusion that Claimant was disabled, (3) Claimant’s work history
was

poor,

and

(4)

Claimant’s

behavior

-12-

at

the

hearing

was

inconsistent with her allegation of totally debilitating symptoms.
T. 20-21.

The ALJ also noted that Claimant had ceased taking her

depression and anxiety medications against medical advice and had
frequently cancelled or no-showed for her mental health counseling
appointments. T. 19. Contrary to Plaintiff’s arguments, the ALJ’s
conclusions about Claimant’s credibility were proper and adequately
supported by the record.
First, with respect to Claimant’s care, as the ALJ noted,
although

Claimant

did

undergo

back

surgery,

the

surgery

was

minimally invasive, and her physical examinations were normal both
before

and

after

the

surgery.

Claimant

also

reported

to

Dr. P. Jeffrey Lewis, her neurosurgeon, that the pain medication
she was taking was “work[ing] for her.”

T. 256.

Moreover,

Claimant did not follow up with a pain management specialist,
against medical advice, which supports the ALJ’s conclusion that
her pain was adequately managed by her medication.

See T. 260.

As

such, Plaintiff’s contention that the ALJ “mischaracterized” the
nature of Claimant’s treatment (see Docket No. 11-1 at 26) is
without merit.
Turning to the ALJ’s discussion of the opinion record of
evidence, Plaintiff makes much of the fact that the ALJ noted that
no treating physician had opined that Claimant was disabled,
arguing that the ALJ was required to obtain a treating source
statement and that his failure to do so constituted legal error.
Plaintiff is incorrect that the ALJ was required to obtain a

-13-

treating source statement.

“[W]here there are no obvious gaps in

the administrative record, and where the ALJ already possesses a
complete medical history, the ALJ is under no obligation to seek
additional information in advance of rejecting a benefits claim.”
Rosa v. Callahan, 168 F.3d 72, 79 n. 5 (2d Cir. 1999) (internal
quotation marks omitted).
recontact

a

treating

With respect to an ALJ’s obligation to

physician

and

request

a

specific

RFC

assessment, “there is no duty to re-contact a treating physician to
obtain a function-by-function analysis of [p]laintiff’s impairments
where consultative

physicians

assess

a

plaintiff’s

limitations and provide an opinion on them.”

functional

Sink v. Colvin,

No. 1:12-CV-00239 JJM, 2015 WL 3604655, at *17 (W.D.N.Y. June 8,
2015) (internal quotation omitted).

“Additionally, even where a

treating physician does not provide a specific function-by-function
assessment, where the record is extensive enough to support an
informed residual functional capacity finding by the ALJ, remand is
not appropriate.” Id. (internal quotation omitted). Here, the ALJ
had Claimant’s complete medical record, and Dr. Liu had examined
Claimant and opined on her functional limitations.

As discussed

above, the record evidence was sufficient to permit the ALJ to make
an informed RFC finding.

As such, the ALJ did not err in failing

to request an RFC assessment from a treating physician.
Moreover, it was not improper for the ALJ to note that
Claimant’s allegations were inconsistent with the medical evidence
of record, including the opinions of the consultative examiners.

-14-

In assessing a claimant’s credibility, an ALJ is instructed to
consider whether his subjective claims of pain are “consistent with
the medical and other objective evidence,”
Supp. 3d 421, 431 (W.D.N.Y. 2015).

Wells v. Colvin, 87 F.

The ALJ did so in this case,

noting that no physician had opined that Claimant’s symptoms were
totally debilitating, as she claimed.
The ALJ also did not err in noting that Claimant had a poor
work history.

See Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir.

1998) (“There is no suggestion in SSA regulations that an ALJ may
only consider favorable work history in weighing the credibility of
claimant testimony. Just as a good work history may be deemed
probative of credibility, poor work history may prove probative as
well.”).

Here, the record showed that Claimant had not worked for

15 years prior to her application.

When the ALJ questioned

Claimant, she claimed that she had been unable to work since 1998
due to carpal tunnel syndrome.

T. 31.

However, and as the ALJ

noted, the medical evidence of record did not show any significant
treatment for carpal tunnel syndrome.

Additionally, Dr. Liu noted

that Claimant had a full range of motion in her forearms and wrists
bilaterally, that her hand and finger dexterity were intact, and
that she had 5/5 grip strength bilaterally.

T. 275-76.

Under

these circumstances, the Court finds that the ALJ’s conclusion that
Claimant’s poor work history detracted from her credibility was
reasonable.

See Woodside v. Comm’r of Soc. Sec., 2016 WL 796075,

at *6 (N.D.N.Y. Feb. 23, 2016) (it was reasonable for ALJ to find

-15-

that plaintiff’s poor work history detracted from his credibility
where

his

explanation

for

his

prior

failure

to

work

was

inconsistent with the record).
With

respect

to

the

ALJ’s

discussion

of

his

personal

observations of Claimant, while it is true that use of a so-called
“sit and squirm” test by an ALJ is disfavored, courts in this
Circuit “have allowed ALJs to give ‘limited weight’ to a claimant’s
behavior at the administrative hearing.”

Bradley v. Berryhill,

2017 WL 3314000, at *7 (D. Conn. Aug. 3, 2017); see also Nix v.
Colvin, No. 15-CV-0328-FPG, 2016 WL 3681463, at *7 (W.D.N.Y. July
6, 2016) (“Although the Second Circuit has held that there is no
per se legal error where the ALJ considers physical demeanor as one
of several factors in evaluating credibility such observations
should be assigned only limited weight.”) (internal quotations
omitted).

Here, the ALJ expressly stated that he had given his own

observations only “slight weight,” acknowledging that “the hearing
was short-lived and cannot be considered a conclusive indicator of
the claimant’s overall level of functioning on a day-to-day basis.”
T.

21.

The

ALJ

was

permitted

to

observe

that

Claimant’s

allegations that she was totally debilitated by her symptoms was
inconsistent with her behavior at the administrative hearing.

The

Court finds no error in his consideration of his own observations.
Finally, the Court notes that it was appropriate for the ALJ
to

observe

treatment.

that
An

Claimant
ALJ

is

had

not

“permitted

-16-

complied
to

with

recommended

consider

plaintiff’s

noncompliance with treatment as a factor weighing against [her]
credibility.”

Lasalle v. Colvin, No. 14-CV-872-JTC, 2016 WL

420589,

(W.D.N.Y.

at

*6

Feb.

4,

2016);

see

also

20

C.F.R.

§ 416.930(b) (“[i]f you do not follow the prescribed treatment
without a good reason, we will not find you disabled”).

Here,

Claimant failed to take prescribed medication, failed to attend
scheduled

appointments, and

management specialist.

failed

to

follow up

with

a

pain

The ALJ appropriately considered these

facts in assessing Claimant’s credibility.
For the foregoing reasons, the Court concludes that the ALJ’s
credibility
evidence.

finding

was

appropriate

and

based

on

substantial

As such, the Court further finds that remand is not

warranted.
V.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on

the pleadings (Docket No. 11) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 14) is granted.
Plaintiff’s complaint is dismissed in its entirety with prejudice.
The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
____________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 6, 2018
Rochester, New York

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