Webster v. Commissioner of Social Security
Filing
16
DECISION AND ORDER granting 10 Commissioner's Motion for Judgment on the Pleadings and dismissing the Complaint. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/22/17.Copy of Decision and Order sent by first class mail to Debra Webster. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEBRA LYNN WEBSTER,
Plaintiff,
DECISION and ORDER
No. 1:15-cv-00981(MAT)
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Proceeding pro se, Debra Lynn Webster (“Plaintiff”) brings
this action pursuant to Title II of the Social Security Act (“the
Act”),
seeking
Commissioner
review
of
of
Social
the
final
Security
decision
of
(“Defendant”
the
or
Acting
“the
Commissioner”), denying his application for Disability Insurance
Benefits (“DIB”).
PROCEDURAL STATUS
Plaintiff filed for DIB on April 27, 2012, alleging disability
beginning on April 1, 2007, due to depression, anxiety, high blood
pressure, sleep problems, a degenerative knee condition, foot and
ankle swelling, an umbilical hernia, panic attacks, and a thyroid
condition. (T.109, 212).1 After the claim was denied at the initial
level (T.107-23), Plaintiff requested a hearing, which was held
before administrative law judge William M. Manico (“the ALJ”) on
July 15, 2014. Plaintiff appeared with counsel and testified, as
1
Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.
did an impartial vocational expert (“the VE”). (T.57-100). On
August 4, 2014, the ALJ issued an unfavorable decision. (T.28-53).
The Appeals Council denied Plaintiff’s request for review on
September 10, 2015 (T.1-7), making the ALJ’s decision the final
decision of the Commissioner. Plaintiff, acting pro se, timely
commenced this action.
The Commissioner has moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure
(“Rule 12(c)”). Plaintiff did not file a cross-motion; nor did
Plaintiff file any opposition papers to the Commissioner’s motion.
For the reasons discussed below, the Commissioner’s decision is
affirmed.
THE ALJ’S DECISION
The ALJ followed the five-step sequential evaluation process,
see 20 C.F.R. 404.1520(a), in adjudicating Plaintiff’s DIB claim.
At step one, the ALJ found that Plaintiff last met the insured
status requirements of the Act on December 31, 2012 (date last
insured), and did not engage in substantial gainful activity
between the alleged onset date (April 1, 2007) and the date last
insured.
At
step
two,
the
ALJ
determined
that
Plaintiff
had
the
following “severe” impairments: obesity, degenerative joint disease
of the knees, depression, anxiety, and borderline personality
disorder. (T.33). The ALJ found that “claimant’s post-traumatic
stress disorder (“PTSD”) was not medically determinable [and thus
not “severe”] because, “[a]lthough diagnosed by both consultative
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examiners, treatment notes offering a more significant longitudinal
history of several years, from Dr. [Tulio] Ortega, her treating
psychiatrist, and Paula Callahan, her counsel [sic], do not reflect
such diagnosis.” (T.34). The ALJ “assign[ed] greater weight to
Dr. Ortega and Mrs. [sic] Callahan and finds that claimant does not
experience [PTSD]. Although questioned at great length about her
conditions, claimant made no mention of [PTSD] or [PTSD] related
symptoms.” (Id.). The ALJ found that Plaintiff’s hypertension,
hyperlipidimia, hypothyroidism, and diabetes were not “severe”
because the “evidence does not reflect any vocational limitations
arising
from
[these]
conditions[,]”
her
hypertension
and
hyperlipidimia were well controlled with medication, she was not
prescribed or taking any medication for hypothyroidism, and there
was only one diagnosis of diabetes in the record and no treatment
for that condition. (T.34). The ALJ also found that Plaintiff’s
umbilical hernia was not severe since the treatment notes reflect
no discomfort caused by the condition. (Id.).
At step three, the ALJ found that through the date last
insured, Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526) (T.35). The ALJ
gave particular consideration to Listings 1.02 (Major dysfunction
of a joint(s) (due to any cause)); 12.04 (Affective disorders);
12.06
(Anxiety
related
disorders);
and
12.08
(Personality
disorders) and found that Plaintiff did not fulfill the criteria
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for these listings.
The ALJ further noted that although “obesity”
has been deleted from the Listing of Impairments, when obesity is
found to
be
a medically
determinable
impairment,
such
as
in
Plaintiff’s case, it must considered in fashioning an RFC. The ALJ
stated that he considered the effects of Plaintiff’s obesity in
reducing her residual functional capacity (“RFC”) pursuant to
Social Security Ruling (“SSR”) 02-0lp. (T.35).
Before proceeding to step four, the ALJ determined that
Plaintiff has the RFC to perform sedentary work as defined in 20
C.F.R. § 404.1567(a) with the following exceptions: she “may only
walk
continuously
for
approximately
5
minutes”;
she
“may
occasionally climb ramps and stairs, balance, or stoop”; she “needs
to have a hand rail when climbing ramps or stairs”; she is limited
to stooping to approximately 90 degrees; she should avoid jobs that
involve repetitive stooping; she “should be allowed to alternate
sitting and standing consistently with the standing, walking, and
sitting limitations of sedentary work”; she “may never kneel,
crouch
or
crawl
and
should
never
climb
ladders,
ropes,
or
scaffolds”; she “retains the mental [RFC] to perform unskilled work
with
simple
instructions
where
interactions
with
others
are
routine, superficial, and related to the work performed”; her
“[i]nteractions with others are limited to approximately one third
of the work day”; and she “needs a regular work break approximately
every 2 hours and should not do fast paced assembly work.” (T.37
(footnotes and citations to record omitted); see also T.40-47).
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At step four, the ALJ found that Plaintiff had past relevant
work as an accounts payable clerk and senior bookkeeper, but that
she is unable to return to that work because these are skilled
occupations, and her RFC limits her to unskilled work. (T.47). The
ALJ
found
that
considering
Plaintiff’s
age,
education,
work
experience, and RFC, there are jobs that exist in significant
numbers in the national economy that she can perform. Specifically,
the ALJ relied on the VE’s testimony that a person with Plaintiff’s
RFC and vocational profile could perform the requirements of
representative occupations such as surveillance system monitor
(Dictionary
of
Occupational
Titles
(“DOT”)
379.367-010)
and
assembler (representative job: lens inserter, DOT 713.287-026),
which
exist
(T.48).2
in
significant
numbers
nationally
and
statewide.
Accordingly, the ALJ entered a finding of “not disabled.”
(T.48).
STANDARDS OF REVIEW
I. Judgment On the Pleadings
A Rule 12(c) motion for judgment on the pleadings is evaluated
under the same standard as a Rule 12(b)(6) motion to dismiss. Bank
2
However, the VE did not actually testify that assembler (lens inserter) was
a job that a hypothetical person with Plaintiff’s RFC and vocational profile
could perform. Instead, the VE testified that if the hypothetical individual
could not perform fast-paced assembly work, “[t]he only jobs that [she] can come
up with would the job of surveillance system monitor. That’s basically we lose
the, the elemental manual work because of the issue with fast-paced assembly, and
we lose (INAUDIBLE) because of contact rarely solely day to day. It, it really
just, realistically, this gives us the surveillance system monitor.” (T.96). This
error does not affect the ultimate finding of “not disabled.” Bavaro v. Astrue,
413 F. App’x 382, 384 (2d Cir. 2011) (unpublished opn.) (“The Commissioner need
show only one job existing in the national economy that [a claimant] can
perform.”) (citing 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1566(b) (“Work
exists in the national economy when there is a significant number of jobs (in one
or more occupations) having requirements which you are able to meet with your
physical or mental abilities and vocational qualifications.”).
-5-
of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir.
2010). Thus, “[t]o survive a Rule 12(c) motion [for judgment on the
pleadings], the complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.” Id. (internal quotation marks and citation omitted). A
pro se litigant’s submissions must be construed liberally “to raise
the strongest arguments that they suggest.” Triestman v. Federal
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). In the context
of an appeal of a denial of Social Security benefits, the Court may
not grant an unopposed Rule 12© motion based merely upon the
party’s failure to respond; rather, the Court “must review the
record and determine whether the moving party has established that
the undisputed facts entitle it to judgment as a matter of law.”
Martell v. Astrue, No. 09 Civ. 1701, 2010 WL 4159383, at *2 n.4
(S.D.N.Y. Oct. 20, 2010) (“[I]n light of the similarity between a
motion for summary judgment and a motion on the pleadings in the
present context, where there is a fulsome record of the underlying
administrative decision, we look to the summary judgment context
for guidance.”); accord, e.g., Petrovic v. Comm’r of Soc. Sec.,
No. 15CIV2194KMKPED, 2016 WL 6084069, at *8 (S.D.N.Y. Aug. 25,
2016), rep. and rec. adopted, No. 15CV2194KMKPED, 2016 WL 6082038
(S.D.N.Y. Oct. 14, 2016) (citations omitted).
II.
Review of the ALJ’s Decision
A decision that a claimant is not disabled must be affirmed if
it is supported by substantial evidence, and if the ALJ applied the
correct
legal
standards.
42
U.S.C.
-6-
§
405(g).
“Where
the
Commissioner’s decision rests on adequate findings supported by
evidence having rational probative force, [the district court] will
not substitute [its] judgment for that of the Commissioner.” Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). This deferential
standard is not applied to the Commissioner’s application of the
law, and the district court must independently determine whether
the Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984). Failure to apply the correct
legal standards is grounds for reversal. Id. Therefore, this Court
first reviews whether the applicable legal standards were correctly
applied, and, if so, then considers the substantiality of the
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The
Commissioner’s determination will not be upheld if it is based on
an
erroneous
view
of
the
law
that
fails
to
consider
highly
probative evidence. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.
1999). In such cases, the reviewing court has the authority to
reverse with or without remand. See 42 U.S.C. § 405(g).
DISCUSSION
I.
Further Consideration of Listing 1.02 Is Required
Section 1.02 outlines the conditions required to establish
disorders of the joint. See 20 C.F.R., Pt. 404, Subpt. P, App. 1,
§ 1.02. To qualify as a “[m]ajor dysfunction of a joint(s)” for
purposes of Listing 1.02,
Plaintiff’s bilateral knee pain must be
characterized by:
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gross
anatomical
deformity
(e.g.,
subluxation,
contracture, bony or fibrous ankylosis, instability) and
chronic joint pain and stiffness with signs of limitation
of motion or other abnormal motion of the affected
joint(s),
and
findings
on
appropriate
medically
acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral
weight-bearing joint (i.e., hip, knee, or
ankle), resulting in inability to ambulate
effectively, as defined in 1.00132b.
. . . .
20
C.F.R.,
Pt.
404,
Subpt.
P,
App.
1,
§
1.02.
Section
1.00(13)(2)(b)(1) defines “[i]nability [t]o ambulate effectively”
as
an extreme limitation of the ability to walk; i.e., an
impairment(s) that interferes very seriously with the
individual’s ability to independently initiate, sustain,
or complete activities. Ineffective ambulation is defined
generally as having insufficient lower extremity
functioning (see 1.00J) to permit independent ambulation
without the use of a hand-held assistive device(s) that
limits the functioning of both upper extremities.
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00(13)(2)(b)(1).
From
the
beginning
of
time-period
covered
by
the
administrative transcript, Plaintiff repeatedly sought treatment
from her medical providers for pain, swelling, and limited range of
motion in both knees. In addition, diagnostic imaging studies, over
time, indicate a worsening of Plaintiff’s osteoarthritis in both
knees.
On May 5, 2008, Plaintiff saw her primary care physician
Pankaj Garg, M.D. who observed decreased range of motion in left
knee with tenderness and crepitus. (T.319).
Left knee x-rays on
July 22, 2008, showed marked osteoarthritis, small joint effusion
and moderate patellofemoral arthritis. (T.240). On August 15, 2008,
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Plaintiff underwent radiological studies of her knees due to right
knee pain and pressure, primarily in the posterior region. The exam
findings were “moderate osteoarthritis involving all three joint
space compartments. No joint effusion is seen. No fractures are
noted.”
The
diagnostic
impression
was
“moderate
to
severe
osteoarthritis.” (T.243). On October 14, 2008, Plaintiff underwent
further radiological studies of her knees. The findings from this
exam were “[s]evere medial compartment degenerative change is seen
bilaterally
with
mild
genu
varus
deformity
bilaterally.”
The
diagnostic impression was “severe degenerative change [in] both
medial compartments” of the knees. (T.246). Orthopedic surgeon
Dr. Alan Larimer reviewed Plaintiff’s recent bilateral standing
x-rays which demonstrated a dramatic varus alignment of both knees
with no medial joint space, signifying complete destruction of the
articular cartridge. (T.246, 296-97). However, there does not
appear to be gross anatomical deformity, as Dr. Larimer noted on
October 14, 2008, that Plaintiff “stands erect without pronounced
varus or valgus alignment of either knee joint.” (T.296). Neither
of the consultative physicians found gross deformities during their
examinations of Plaintiff.
The ALJ determined that Listing 1.02 was not met because the
medical evidence did “not show gross anatomical deformity and
chronic joint pain and stiffness with signs of limitation of motion
or other abnormal motion of the affected joint(s), and findings on
appropriate medically acceptable imaging of joint space narrowing,
bony destruction, or ankylosis of the affected joint(s) with
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either: A) involvement of one major peripheral weight-bearing
joint, resulting in inability to ambulate effectively, as defined
in l.00B(2)(b)[.]” The ALJ relied on report of Dr. Toor, the
consultative examiner, who found that Plaintiff’s bilateral knee
flexion and extension was reduced by only 5 degrees (145 degrees
out of 150). The ALJ also stated that “[t]hough the [consultative]
examiner noted swelling in the knees and ankles, there was no
cyanosis, clubbing, or edema.” (T.35) (citing T.537 (Tenderness,
slight swelling in the knees. . . . No evident subluxations,
contractures, ankylosis, or thickening.”); T.538 (“swelling in the
knees and ankles bilaterally. No cyanosis, clubbing, or edema.”)).
The ALJ also relied on Dr. Toor’s comment that Plaintiff does not
need an assistive device to ambulate.
(Id.) (citing T.536 (“She
does not use [an] assistive device.”)). While the ALJ’s discussion
of the medical evidence could have been more complete, the Court
finds
that
substantial
evidence
supports
the
decision
that
Plaintiff does not meet Listing 1.02, inasmuch as her reported
physical activities, and failure to use an assistive device, are
inconsistent
with
the
definition
of
“inability
to
ambulate
effectively.” In addition, although there is a varus deformity in
Plaintiff’s knees noticeable on x-rays, the record does not reflect
findings by any physicians that Plaintiff has gross anatomical
deformities in her knees.
II.
The Physical RFC is Supported by Substantial Evidence
As noted above, the ALJ determined that Plaintiff has the
physical RFC to perform sedentary work as defined in 20 C.F.R.
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404.1567(a). The regulations define sedentary work as work that
“involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small
tools,” and requires “walking and standing” only “occasionally.”
20 C.F.R. § 416.967(a). The ALJ also assigned several additional
limitations,
specifically,
that
Plaintiff
“may
only
walk
continuously for approximately 5 minutes”; and she “should be
allowed to alternate sitting and standing consistently with the
standing, walking, and sitting limitations of sedentary work”; and
she “may never kneel, crouch or crawl and should never climb
ladders, ropes, or scaffolds.”
In support of his determination that Plaintiff can perform
sedentary work, the ALJ cited to the June 23, 2009, and 2012
reports prepared by consultative physicians Dr. George A. Sirotenko
and Dr. Harbinder Toor, respectively. The ALJ also relied on
Plaintiff’s hearing testimony regarding her physical capabilities.
(See
T.37
(citing
Ex.
6F
(Dr.
Sirotenko’s
report);
Ex.
16F
(Dr. Toor’s report); “claimant’s hearing testimony”).
For his medical source statement, Dr. Sirotenko diagnosed
Plaintiff with end stage degenerative joint disease of both knees,
and opined that she has “[m]oderate limitations regarding prolonged
standing, walking, stairs, inclines or ladders. She should avoid
repetitive kneeling, squatting or bending. She would benefit from
activities of a sedentary nature only with the opportunity to
alternate between sitting, standing or walking throughout an eight
hour day.” (T.334).
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Three years later, on October 1, 2012, Dr. Toor issued a
consultative
report
assigning
more
restrictive
limitations.
Dr. Toor stated that she has “moderate to severe limitation[s]
standing,
walking,
squatting,
and
lifting.
Pain
and
obesity
interfere with her physical routine and sometimes with the [sic]
balance. She has moderate limitation sitting a long time.”
At the hearing, the ALJ asked Plaintiff if she could do a job
where she is on her feet most of the day. Plaintiff replied, no,
due to pain in the legs and knees.
She estimated she can walk
continuously for about 5 minutes at a time. The ALJ asked Plaintiff
if she could you do a job where she is sitting for most of the day.
Again, Plaintiff replied no, because her legs would get stiff, and
her back would not “hold out” unless she could get up and move
around. The Court notes that Plaintiff did not attribute her
inability to do a sedentary job due to her knee problems. In
addition, back problems were not included as a severe impairment at
step two, which is not inconsistent with the radiological studies
of Plaintiff’s lumbar spine on September 26, 2008, which showed a
degenerative
disc
disease
at
L5-S1,
and
degenerative
facet
arthropathy from L4 through S1, but no acute abnormality. (T.305).
The ALJ’s restriction of Plaintiff to only walking continuously for
about 5 minutes, with the option to alternate between sitting and
standing “may only walk continuously for approximately 5 minutes”
adequately accounted for Plaintiff’s self-stated limitations, and
Drs. Toor’s and Sirotenko’s opinions.
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III. The Mental RFC is Supported by Substantial Evidence
As noted above, based on Plaintiff’s mental impairments and
the limitations that flowed from them, the ALJ limited Plaintiff to
unskilled, simple work, that did not involve fast-paced assembly
tasks, that allowed for regular breaks about every two hours, and
which only required interactions with others that were routine,
superficial,
related
to
the
work
performed
and
limited
to
approximately one-third of the work day. (T.37). The reports the
consultative psychologists, Dr. Maureen McAndrews and Dr. Christine
Ransom, are not inconsistent with the mental RFC assessment. When
she examined Plaintiff on June 23, 2009, Dr. McAndrews opined that
“[v]ocationally,
the
claimant
would
be
able
to
follow
and
understand simple directions and perform simple tasks, provided
these tasks fall within the limits of her physical capabilities.
She can maintain attention and concentration. . . . She can learn
new tasks and perform complex tasks, provided these tasks fall
within the limits of her physical capabilities. She can make
appropriate decisions, relate adequately with others, and deal
appropriately with stress.” (T.328). On October 1, 2012, Dr. Ransom
conducted a psychological evaluation and opined that Plaintiff
could follow and understand simple directions and instructions,
perform
simple
tasks
independently,
maintain
attention
and
concentration for simple tasks, maintain a simple regular schedule,
and learn simple new tasks, although she has moderate difficulty
performing complex tasks, relating adequately with others and
appropriately dealing with stress.
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Thus, Dr. McAndrews and Dr. Ransom provided similar medical
source statements regarding the limitations caused by Plaintiff’s
mental
impairments.
The
main
point
of
disparity
between
Dr. McAndrews and Dr. Ransom is that Dr. McAndrews opined that
Plaintiff cannot currently maintain a regular schedule, given that
she has a sleep disorder with inverted sleep cycle. (T.328).
Dr. McAndrews noted that Plaintiff’s asserted reason that she
“cannot work” is that she “cannot sleep, but then [Plaintiff]
acknowledges she does not take the medications prescribed for sleep
because they would make her too sleepy . . . .” (T.324). The
treatment notes in the record indicate that it was one prescription
(Seroquel) that caused a problem with Plaintiff oversleeping.
Subsequently to Dr. McAndrews’ consultation, Plaintiff agreed to
try an alternative sleep aid, Trazodone, which was prescribed by
her psychiatrist, Dr. Tullio Ortega. (See, e.g., T.479) (note dated
March 17, 2010; Dr. Ortega noted, “She continues to have Trazodone
which she can take for sleeping which she needed even though she
doesn’t take this medication quite often. She came today a little
late for her appointment but does appear to be brighter and
definitely 100% improved from the way she was a
couple years ago
when I met her.”). In Dr. Ransom’s report, she notes that Plaintiff
indicates she he is having difficulty falling asleep and staying
asleep, but there is no mention of an inverted sleep cycle.
The
Court
notes
that
Plaintiff’s
attorney
submitted
a
disability questionnaire (Ex. 23F) to Plaintiff’s social worker,
Paula Callahan (“SW Callahan”), who had been counseling Plaintiff
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since 2010 at Dr. Ortega’s office.
SW Callahan did not answer any
of the questions or provide any specifics regarding Plaintiff’s
limitations, but instead referred to the enclosed progress notes.
In February 2009, Dr. Ortega and SW Callahan completed a Medical
Examination for Employability Assessment, Disability Screening, and
Alcoholism/Drug Addiction Determination (T.621-24), and opined that
there
was
no
limitations3
evidence
as
a
of
result
Plaintiff
of
having
Plaintiff’s
mental
major
functional
depression.
Subsequent such reports, although some of them reflect no greater
than
“moderate[
]”
limitations
in
certain
areas
of
mental
functioning. Dr. Ortega’s later treatment notes reflect that while
Plaintiff continued to have psychological stressors in her life,
she experienced a significant improvement over time with medication
and therapy (T.424, 478-79, 526, 658). On November 2, 2011, and
August 1, 2012, Plaintiff denied any problems with depression,
anxiety, and worries or panic attacks. (T.526, 658). On December 4,
2013, Dr. Ortega noted Plaintiff had experienced “good results”
from Pristiq and Remeron over the years, “though she has not been
completely symptom free.” (T.667). Dr. Ortega wrote that Plaintiff
seemed to be at her baseline; she was logical and engaged well oneto-one. (Id.). The treatment notes and assessments from Plaintiff’s
mental health treatment providers thus are congruent with the
mental RFC assessment formulated by the ALJ.
3
In the part of the form assessment labeled, Functional Limitations, Dr.
Ortega/SW Callahan checked the box “No Evidence of Limitations” with regard to
all areas of Mental Functioning listed on the form. (T.621).
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CONCLUSION
For the reasons discussed above, the Court finds that the
decision denying benefits was not the product of legal error and is
supported by substantial evidence in the record. Accordingly, the
decision is affirmed. The Commissioner’s motion for judgment on the
pleadings is granted, and the Complaint is dismissed. The Clerk of
Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
February 22, 2017
Rochester, New York.
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