Palistrant v. Colvin
Filing
29
DECISION AND ORDER: The Commissioner's Motion for Judgment on the Pleadings 26 is GRANTED and Plaintiff's Motion for Judgement on the Pleadings 18 is DENIED. Plaintiff's Complaint 1 is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to enter judgement and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/27/2018. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEVEN PALISTRANT,
Plaintiff,
Case # 16-CV-588-FPG
v.
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff Steven Palistrant brings this action pursuant to the Social Security Act seeking
review of the final decision of the Acting Commissioner of Social Security that denied his
applications for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”)
under Titles II and XVI of the Act. ECF No. 1. The Court has jurisdiction over this action under
42 U.S.C. §§ 405(g), 1383(c)(3).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 18, 26. For the reasons that follow, the Commissioner’s motion is
GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND
On September 27, 2010, Palistrant applied for DIB and protectively applied for SSI with
the Social Security Administration (“SSA”). Tr.1 195-204. He alleged disability since March 31,
2004 due to back and neck conditions and headaches. Tr. 224. On August 24, 2012, Palistrant
appeared and testified at a hearing before Administrative Law Judge Nancy Pasiecznik. Tr. 3473. On July 28, 2014, Palistrant and a vocational expert (“VE”) appeared and testified at another
1
“Tr.” refers to the administrative record in this matter.
1
hearing before Administrative Law Judge Donald T. McDougall (“the ALJ”). Tr. 74-115. On
August 14, 2014, the ALJ issued a decision finding that Palistrant was not disabled within the
meaning of the Act. Tr. 13-26. On May 24, 2016, the Appeals Council denied Palistrant’s request
for review. Tr. 4-10. Thereafter, Palistrant commenced this action seeking review of the
Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.
District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether the
SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation marks
omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is
“conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence
means more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)
(quotation marks omitted). It is not the Court’s function to “determine de novo whether [the
claimant] is disabled.” Schaal v. Apfel, 134 F. 3d 496, 501 (2d Cir. 1998) (quotation marks
omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990)
(holding that review of the Secretary’s decision is not de novo and that the Secretary’s findings
are conclusive if supported by substantial evidence).
II.
Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is
disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful
2
work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ
proceeds to step two and determines whether the claimant has an impairment, or combination of
impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant
restrictions on the claimant’s ability to perform basic work activities. 20 C.F.R. § 404.1520(4)(c).
If the claimant does not have a severe impairment or combination of impairments that is severe,
the analysis concludes with a finding of “not disabled.” If the claimant does, the ALJ continues to
step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria of
a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is disabled.
If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which is the ability
to perform physical or mental work activities on a sustained basis, notwithstanding limitations for
the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. Id. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. 20 C.F.R. § 404.1520(g). To do so, the
Commissioner must present evidence to demonstrate that the claimant “retains a residual
functional capacity to perform alternative substantial gainful work which exists in the national
economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).
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DISCUSSION
I.
The ALJ’s Decision
The ALJ’s decision analyzed Palistrant’s claim for benefits under the process described
above. At step one, the ALJ found that Palistrant had not engaged in substantial gainful activity
since the alleged onset date. Tr. 18. At step two, the ALJ found that Palistrant has the following
severe impairments: status post motor vehicle injuries to the lower back and neck and carpal tunnel
syndrome of the bilateral upper extremities. Tr. 19-20. At step three, the ALJ found that these
impairments, alone or in combination, did not meet or medically equal any Listings impairment.
Tr. 20.
Next, the ALJ determined that Palistrant retains the RFC to perform light work2 with
additional limitations. Tr. 21-24. Specifically, the ALJ found that Palistrant must be able to
alternate between sitting and standing every half hour for a few minutes; can only occasionally
stoop; cannot bend, crouch, kneel, or balance, climb ladders, ropes, or scaffolds, or work at heights
or around dangerous machinery. Tr. 21.
At step four, the ALJ noted that Palistrant has no past relevant work. Tr. 24. At step five,
the ALJ relied on the VE’s testimony and found that Palistrant can adjust to other work that exists
in significant numbers in the national economy given his RFC, age, education, and work
experience. Tr. 24-25. Specifically, the VE testified that Palistrant could work as an office helper
and production assembler. Tr. 25. Accordingly, the ALJ concluded that Palistrant was not disabled
under the Act. Tr. 25-26.
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the
ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she
can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
2
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II.
Analysis
Palistrant argues that remand is required because (1) the ALJ violated the treating physician
rule when he evaluated Dr. Joshua Usen’s opinion; (2) the sit/stand option in the RFC
determination is not supported by substantial evidence; and (3) the ALJ relied on “stale” opinions
from two consultative examiners.3 ECF No. 18-1 at 17-29. The Court addresses each argument
below.
A.
The ALJ did not violate the treating physician rule.
Palistrant first argues that the ALJ violated the treating physician rule by failing to provide
good reasons for assigning only little weight to Dr. Usen’s opinion. ECF No. 18-1 at 17-24. The
Court disagrees.
The treating physician rule instructs the ALJ to give controlling weight to a treating
physician’s opinion when it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.”
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Green-Younger v. Barnhart, 335 F.3d 99,
106 (2d Cir. 2003). An ALJ may discount a treating physician’s opinion if it does not meet this
standard, but he must “comprehensively set forth [his] reasons for the weight assigned to a treating
physician’s opinion.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); see also 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2) (“We will always give good reasons in our notice of
determination or decision for the weight we give [the claimant’s] treating source’s opinion.”).
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Palistrant argues for the first time in his reply brief that the ALJ failed to develop the record. ECF No. 27 at 6-8.
Specifically, Palistrant asserts that the ALJ should have directed him to obtain a more detailed statement from Dr.
Usen. Id. In this Circuit, however, arguments raised for the first time in reply papers “need not be considered.” Mayer
v. Neurological Surgery, P.C., No. 15-CV-0864(DRH)(ARL), 2016 WL 347329, at *4 (E.D.N.Y. Jan. 28, 2016)
(citing EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 621, 625 n.1 (2d Cir. 2007)) (citation omitted).
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When a treating physician’s opinion is not given controlling weight, the ALJ must consider
the following factors in determining how much weight it should receive: “the length of the
treatment relationship and the frequency of examination; the nature and extent of the treatment
relationship; the relevant evidence, particularly medical signs and laboratory findings, supporting
the opinion; the consistency of the opinion with the record as a whole; and whether the physician
is a specialist in the area covering the particular medical issues.” Burgess v. Astrue, 537 F.3d 117,
129 (2d Cir. 2008) (quotation marks, alterations, and citations omitted); see also 20 C.F.R. §§
404.1527(c)(1)-(6), 416.927(c)(1)-(6).
In August 2012, Dr. Usen completed a Department of Social Services Medical Report for
Determination of Disability form. Tr. 617-18. He opined that Palistrant could not perform work
at any exertion level due to “severe deficits.” Tr. 617. Dr. Usen indicated that Palistrant has back
pain and tightness, neck issues, “debilitating” headaches, and that he cannot “walk or stand for
prolonged periods.” Id.
In May 2013, Dr. Usen completed a New York State Office of Temporary and Disability
Assistance form wherein he opined that Palistrant is moderately limited in his ability to walk, sit,
lift, carry, push, pull, bend, and use his hands, and is very limited in his ability to stand and climb.
Tr. 628-29. Dr. Usen also found Palistrant very limited in his ability to function in a work setting
at a consistent pace, but he otherwise indicated that Palistrant has unlimited mental functioning.
Tr. 629. Dr. Usen opined that Palistrant “cannot work at all now.” Id.
The ALJ’s decision summarized Dr. Usen’s treatment notes and opinions. Tr. 22-23. The
ALJ afforded “very little weight” to Dr. Usen’s assessments because he found them unsupported
by objective evidence, including his contemporaneous treatment notes and Palistrant’s treatment
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history, and because they opined on the ultimate issue of disability, which is reserved to the
Commissioner. Tr. 23.
1.
Lack of Supporting Evidence
The SSA’s regulations authorize the ALJ to reduce the weight he affords a treating
physician’s opinion if it is unsupported by relevant evidence, like medical signs and laboratory
findings. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). In accordance with those regulations,
the ALJ discounted Dr. Usen’s opinion because it was unsupported by objective evidence or
contemporaneous treatment notes. Tr. 23. Specifically, the ALJ noted that Dr. Usen’s reports
indicate that Palistrant “remained neurologically intact with no loss in muscle strength, tone, or
function in any area.” Id. (citing Tr. 617-51); see also Tr. 22 (citing Tr. 585, 587, 589, 602, 607,
612, 615) (portion of the ALJ’s decision indicating that Dr. Usen found Palistrant to have “no more
than moderate functional loss” and that he “remained physically intact”).
Review of the relevant treatment notes supports the ALJ’s conclusion. Dr. Usen’s August
2012 opinion indicates that he examined Palistrant on July 10, 2012. Tr. 617-18. Dr. Usen opined
that Palistrant was completely disabled due to back and neck pain and “debilitating headaches,”
however, his July 10, 2012 treatment notes lack objective evidence in support of this extreme
finding. Although Palistrant had back pain and decreased range of motion, tenderness, and pain
in his neck, he looked “more comfortable,” moved “a little better,” had a normal gait, and had no
neurological deficits. Tr. 614-15. Treatment notes from appointments before July 10, 2012,
contain similar findings. See, e.g., Tr. 583-84, 596-98, 601-04, 608-09, 611-12.
Dr. Usen’s May 2013 opinion indicates that he examined Palistrant on May 10, 2013. Tr.
629-28. Dr. Usen opined that Palistrant cannot work and has several physical limitations,4 but his
The opinion form that Dr. Usen used contains a space where he could have described Palistrant’s treatment history
in support of the opinion, but Dr. Usen left this section blank. Tr. 629.
4
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May 10, 2013 treatment notes contain mild findings. Although Palistrant had back and neck pain,
he did not have trouble walking, had a normal gait and posture, and normal cervical, thoracic, and
lumbosacral spine movements. Tr. 623-27. Dr. Usen also opined that Palistrant was very limited
in his ability to function in a work setting at a consistent pace, but the May 10 examination reveals
that Palistrant was alert and oriented, had normal affect, speech, thought content, perception, and
cognitive function, and felt his depression was controlled. Tr. 624, 626.
The above medical evidence supports the ALJ’s conclusion that Dr. Usen’s opinion lacked
objective support and, therefore, the Court finds that the ALJ did not err when he discounted Dr.
Usen’s opinion on this basis.
2.
Issue Reserved to the Commissioner
The ALJ also discounted Dr. Usen’s opinion that Palistrant cannot work because it is the
Commissioner’s responsibility to make the final disability determination. Tr. 23.
A medical source’s statement that a claimant is “disabled” or “unable to work” does not
mean that the Commissioner will find that claimant disabled, because the Commissioner must
determine whether a claimant meets the statutory definition of disability. Cottrell v. Colvin, 206
F. Supp. 3d 804, 809-10 (W.D.N.Y. 2016) (citing 20 C.F.R. § 404.1527(d)(1)); see also 20 C.F.R.
§ 416.927(d)(1). An opinion that the claimant is disabled, however, “must never be ignored.”
S.S.R. 96-5p, 1996 WL 374183, at *3 (S.S.A. July 2, 1996).5 Instead, the ALJ “must evaluate all
the evidence in the case record to determine the extent to which the opinion is supported by the
record.” Id; see also 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (the ALJ will give more weight
to an opinion that is consistent with the record as a whole).
5
The SSA rescinded S.S.R. 96-5p, however, the rescission only affects claims filed on or after March 27, 2017. See
Rescission of Social Security Rulings 96-2p, 96-5p, & 06-3p, 2017 WL 3928305, at *1 (S.S.A. Mar. 27, 2017).
Therefore, S.S.R. 96-5p is still relevant for the purposes of Palistrant’s claim, which he filed on September 27, 2010.
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Here, the ALJ did not ignore Dr. Usen’s opinion that Palistrant was disabled; instead, he
specifically noted that it was an issue reserved to the Commissioner after he found the opinion
unsupported by objective evidence, as discussed above. Accordingly, the ALJ did not err when
he discounted Dr. Usen’s opinion on this basis.
For all the reasons stated, the Court finds that the ALJ complied with the treating physician
rule and provided good reasons for affording little weight to Dr. Usen’s opinion.
B.
The sit/stand limitation in the RFC assessment is supported by substantial
evidence.
Palistrant also argues that the finding that he must be able to alternate between sitting and
standing every half hour for a few minutes is “highly specific” and thus unsupported by substantial
evidence. ECF No. 18-1 at 24-26. The Court disagrees.
A claimant’s RFC reflects what he or she “can still do despite his or her limitations.”
Desmond v. Astrue, No. 11-CV-0818 (VEB), 2012 WL 6648625, at *5 (N.D.N.Y. Dec. 20, 2012)
(quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). The ALJ assesses RFC “based on all
of the relevant medical and other evidence.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The
RFC assessment does not have to “perfectly correspond” with any of the medical source opinions
cited in the ALJ’s decision; rather, the ALJ is “entitled to weigh all of the evidence available to
make an RFC finding that [i]s consistent with the record as a whole.” Matta v. Astrue, 508 F.
App’x 53, 56 (2d Cir. 2013) (citation omitted) (summary order). The Court upholds an RFC
finding “when there is substantial evidence in the record to support each requirement listed in the
regulations.” Desmond, 2012 WL 6648625, at *5 (citation omitted).
Palistrant argues that the sit/stand option lacks evidentiary support. Palistrant testified,
however, that he can sit and stand for 20-30 minutes each before his back starts to feel “aggravated”
and that he left a prior job because he “couldn’t sit all day long.” Tr. 80, 87, 92, 95. Palistrant
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alternated between sitting and standing during the hearing (Tr. 72, 95), and some treatment notes
indicate that he alternated between sitting and standing after “a few minutes” during examinations
(see, e.g., Tr. 586, 589). Moreover, while consultative examiner Dr. Donna Miller did not discuss
Palistrant’s ability to sit or stand (Tr. 543), Dr. Usen opined that Palistrant had sitting and standing
limitations (Tr. 629).
It is “the ALJ’s duty to formulate the RFC after evaluating the opinion evidence, treatment
records, and the testimony of the claimant.” Davis v. Colvin, No. 15-CV-6695P, 2017 WL 745866,
at *11 (W.D.N.Y. Feb. 27, 2017) (finding that the ALJ did not err by assessing a one-hour standing
limitation even though it did not precisely correspond to any medical opinion because the
plaintiff’s daily activities, treatment history, and a consultative examiner’s evaluation supported
that limitation). Thus, based on the evidence discussed above, the Court finds that the ALJ did not
err when he determined that Palistrant must be able to alternate between sitting and standing every
half hour for a few minutes and that this finding is supported by substantial evidence.
C.
The consultative examiners’ opinions were not stale.
Finally, Palistrant argues that the opinions of consultative examiners Drs. Donna Miller
and Sandra Jensen were stale and that the ALJ erred when he relied on them. ECF No. 18-1 at 2629. The Court disagrees.
“[M]edical source opinions that are conclusory, stale, and based on an incomplete medical
record may not be substantial evidence to support an ALJ[’s] finding.” Camille v. Colvin, 104 F.
Supp. 3d 329, 343-44 (W.D.N.Y. 2015) (quotation marks and citation omitted), aff’d, 652 F. App’x
25 (2d Cir. 2016) (summary order). A medical opinion may be stale if it does not account for the
claimant’s deteriorating condition. See, e.g., Jones v. Comm’r of Soc. Sec., No. 10 CV 5831(RJD),
2012 WL 3637450, at *2 (E.D.N.Y. Aug. 22, 2012) (ALJ should not have relied on a medical
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opinion in part because it “was 1.5 years stale” as of the plaintiff’s hearing date and “did not
account for her deteriorating condition”); Girolamo v. Colvin, No. 13-CV-06309 (MAT), 2014
WL 2207993, at *7-8 (W.D.N.Y. May 28, 2014) (ALJ should not have afforded great weight to
medical opinions rendered before plaintiff’s second surgery).
On March 9, 2011, Dr. Miller examined Palistrant and rendered an opinion as to his
physical ability to work. Tr. 541-44. The ALJ gave Dr. Miller’s opinion “great weight” because
he found it consistent with Palistrant’s objective testing.6 Tr. 23. Dr. Jensen also examined
Palistrant on March 9, 2011 and rendered an opinion as to his mental ability to work. Tr. 536-40.
The ALJ gave this opinion “substantial weight” because Palistrant’s “providers have noted little
in the way of mental limitations.”7 Tr. 23.
The ALJ issued his decision on August 14, 2014, nearly three and a half years after the
consultative examinations. Tr. 16-26. Palistrant argues that Drs. Miller and Jensen’s opinions
were stale because he engaged in “significant treatment” between the examinations and the ALJ’s
decision. ECF No. 18-1 at 27. Just because the claimant continues treatment after an opinion is
rendered, however, does not mean that the opinion is stale. Although Palistrant also argues that
he experienced a “serious deterioration” of his back and neck issues after the opinions were
rendered (ECF No. 18-1 at 28), the record does not support this assertion.
A treatment note from May 27, 2011 indicates that Palistrant complained of a “slow build
of neck and back pain,” but another note from a few months later indicates that Palistrant
specifically denied any change in his pain. Tr. 591, 605. Other treatment notes from April 29,
6
See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (the ALJ is entitled to give more weight to a medical opinion that is
supported by relevant evidence, like medical signs and laboratory findings).
7
See id. at §§ 404.1527(c)(4), 416.927(c)(4) (the ALJ is entitled to give more weight to a medical opinion that is
consistent with the record as a whole).
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May 13, and October 26, 2011, November 13, 2012, and May 10 and 31, 2013, reveal that
Palistrant complained of back and neck pain and had tenderness and restricted ranges of motion,
but there is no evidence that these issues were getting worse or “seriously deteriorating” as
Palistrant claims. Tr. 579-81, 585-90, 621-27, 630-32.
Similarly, treatment notes from July 6, August 8, September 6, and November 28, 2011,
and June 7 and July 10, 2012, reveal that Palistrant had back and neck pain, however, they indicate
that he looked “more comfortable” and moved “a little better.” Tr. 596-98, 601-04, 608-09, 61112, 614-15. Treatment notes from November 25, 2013 and July 2, 2014, indicate that Palistrant
was not in acute distress and was “much better.” Tr. 636, 645.
A November 22, 2011 cervical spine MRI revealed mild degenerative disc changes at C56 and C6-7, mild canal and bilateral foraminal stenosis, and no significant spinal canal stenosis,
cord compression, or compression of exiting nerve roots. Tr. 582. This MRI does not appear to
demonstrate significant deterioration from prior cervical spine MRIs. See Tr. 392, 395-96, 489-90.
For these reasons, the Court finds that Drs. Miller and Jensen’s opinions were not stale and
that the ALJ did not err when he relied on those opinions. See Barber v. Comm’r of Soc. Sec., No.
6:15-CV-0338 (GTS/WBC), 2016 WL 4411337, at *7 (N.D.N.Y. July 22, 2016) (citations
omitted) (“It is well established that an ALJ may rely on the medical opinions provided by State
agency consultants and that those opinion[s] may constitute substantial evidence.”).
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CONCLUSION
For the reasons stated, the Commissioner’s Motion for Judgment on the Pleadings (ECF
No. 26) is GRANTED and Plaintiff’s Motion for Judgement on the Pleadings (ECF No. 18) is
DENIED. Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of
Court is directed to enter judgement and close this case.
IT IS SO ORDERED.
Dated: September 27, 2018
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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