Hopson v. Commissioner of Social Security
Filing
16
DECISION and ORDER: GRANTING 9 Plaintiff's Motion for Judgment on the Pleadings; DENYING 14 Defendant's Motion for Judgment on the Pleadings. The matter is remanded to the Commissioner for further proceedings consistent with this Decision and Order. The Clerk of Court is directed to close the file. Signed by Hon. Leslie G. Foschio on 5/23/2019. (TAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
RICKY HOPSON,
v.
DECISION
and
ORDER
NANCY A. BERRYHILL, 1 Commissioner of
Social Security,
17-CV-1191F
(consent)
Plaintiff,
Defendant.
______________________________________
APPEARANCES:
LAW OFFICES OF KENNETH HILLER, PLLC
Attorneys for Plaintiff
KENNETH R. HILLER and
BRANDI CHRISTINE SMITH, of Counsel
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
SERGEI ARDEN
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza – Room 3904
New York, New York 10278
and
LAURA RIDGELL BOLTZ
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
1961 Stout Street, Suite 4169
Denver, Colorado 80294
1
Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23,
2017. Pursuant to Fed.R.Civ.P. 25(d), Berryhill is substituted for Carolyn W. Colvin as Defendant in this
case. No further action is required to continue this suit by reason of sentence one of 42 U.S.C. § 405(g).
JURISDICTION
On June 19, 2018, the parties to this action, consented pursuant to 28 U.S.C.
§ 636(c) to proceed before the undersigned. (Dkt. 10). The matter is presently before
the court on motions for judgment on the pleadings filed by Plaintiff on June 18, 2018
(Dkt. 9), and by Defendant on September 17, 2018 (Dkt. 14).
BACKGROUND
Plaintiff Ricky Hopson (“Plaintiff”), brings this action under the Social Security Act
(“the Act”), 42 U.S.C. § 405(g), seeking judicial review of the Commissioner of Social
Security’s final decision denying Plaintiff’s application filed with the Social Security
Administration (“SSA”), on October 16, 2008, for Social Security Disability Benefits
under Title II of the Act (“SSDI”), and for Supplemental Security Income under Title XVI
of the Act (“SSI”) (together, “disability benefits”), alleging he became disabled on
September 1, 2007, by depression, thyroid surgery, numbness in left fingers, shoulder
problems, learning disability, blind in left eye, inability to stand for very long, inability to
lift anything, and memory problems (“initial application”). AR 2 at 117-20, 130, 134. On
March 16, 2009, Plaintiff’s initial application was denied, AR at 78-89, and on March 25,
2009, Plaintiff requested a hearing before an administrative law judge. AR at 61-77.
Because Plaintiff continued to engage in substantial gainful activity (“SGA”), Plaintiff
later amended the disability onset date to July 24, 2009, the last date in which Plaintiff
was engaged in SGA. AR at 33, 122. On October 21, 2010, a hearing (“the first
administrative hearing”), was held in Buffalo, New York before administrative law judge
2
References to “AR” are to the page of the Administrative Record electronically filed by Defendant on
April 19, 2018, in 14 separate exhibits (Dkts. 7-1 through 7-14).
2
Timothy McGuan (“ALJ McGuan”). AR at 27-57. Appearing and testifying at the
hearing were Plaintiff, with legal counsel Amanda Jordan, Esq., and vocational expert
(“VE”) Jay Steinbrenner (“VE Steinbrenner”). Id. On December 7, 2010, ALJ McGuan
rendered his decision (“first ALJ decision”), denying the initial application. AR at 8-24.
On February 7, 2011, Plaintiff requested review of the first ALJ decision by the Appeals
Council. AR at 7. On June 4, 2012, the Appeals Council issued a decision denying
Plaintiff’s request for review. AR at 1-6.
On August 2, 2012, Plaintiff commenced an action in this court seeking review of
the Commissioner’s decision with the parties stipulating to remand the issue to the
Commissioner for further administrative proceedings pursuant to the fourth sentence of
42 U.S.C. § 405(g). See Hopson v. Colvin, No. 12-CV-00731A(S), Stipulation (Dkt. 12)
(W.D.N.Y. Apr. 15, 2013); AR at 718-27. On July 23, 2013, the Commissioner
remanded the matter to ALJ McGuan with instructions to obtain additional evidence
regarding Plaintiff’s impairments, further evaluate Plaintiff’s subjective complaints, give
further consideration to the non-treating source opinions and to Plaintiff’s maximum
residual functional capacity (“RFC”), and to obtain supplemental evidence from a VE
clarifying the effect of the assessed limitations on Plaintiff’s occupational base. AR at
740-45. On January 15, 2014, another administrative hearing (“the second
administrative hearing”), was held before ALJ McGuan, AR at 670-93, who, on May 8,
2014, rendered another unfavorable decision (“second ALJ decision”). AR at 746-66.
Following administrative appeal the Appeals Council, on October 5, 2015, determined
the second ALJ decision did not comply with the earlier remand order, vacated the
second ALJ decision and remanded the matter to the ALJ with further instructions to
3
obtain further medical evidence clarifying the nature and severity of Plaintiff’s
impairments, evaluate Plaintiff’s mental impairments, further consider Plaintiff’s
maximum RFC, and obtain additional evidence from the VE, and further instructions that
the case be assigned to another administrative law judge. AR at 767-72.
Meanwhile, on May 16, 2011, Plaintiff filed a subsequent application for disability
benefits (“the subsequent application”), asserting a disability onset date of January 1,
2011. AR at 899-911. Although the subsequent application was initially denied, Plaintiff
pursued the application through another administrative hearing held June 18, 2013,
following which the subsequent application was granted on June 25, 2013, AR at 72839, with Plaintiff found disabled as of January 1, 2011. AR at 739, 746-66.
On August 11, 2016, a further administrative hearing (“the third administrative
hearing”), was held on the initial application before ALJ Stephen Cordovani (“ALJ
Cordovani”), in Buffalo, New York, at which Plaintiff did not appear, with Plaintiff’s legal
counsel Kelly Laga, Esq., and vocational expert Kenneth Browdie (“VE Browdie”),
appearing and testifying on Plaintiff’s behalf. AR at 649-67. On November 16, 2016,
ALJ Cordovani rendered his decision with Plaintiff’s initial application again denied
(“third ALJ decision”). AR at 625-48. Because Plaintiff, in connection with the
subsequent application, was found disabled as of January 1, 2011, ALJ Cordovani
limited his consideration of Plaintiff’s initial application to the closed period from July 24,
2009, Plaintiff’s amended disability onset date asserted with regard to his initial
application, through December 31, 2010, the final date before Plaintiff was found
disabled under the subsequent application. AR at 640. ALJ Cordovani nevertheless
found Plaintiff failed to establish he was disabled during the relevant closed period July
4
24, 2009 through December 31, 2010, which is now the subject period for purposes of
this court’s review. On December 21, 2016, Plaintiff filed with the Appeals Council
exceptions to the third ALJ decision, AR at 898, but on September 27, 2017, the
Appeals Council denied further review, rendering the third ALJ’s decision the
Commissioner’s final decision. AR at 615-19. On November 8, 2017, Plaintiff
commenced the instant action seeking judicial review of the third ALJ decision.
On June 18, 2018, Plaintiff filed a motion for judgment on the pleadings (Dkt. 9)
(“Plaintiff’s Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (Dkt. 9-1) (“Plaintiff’s Memorandum”). On September
17, 2018, Defendant filed a motion for judgment on the pleadings (Dkt. 14)
(“Defendant’s Motion”), attaching Defendant’s Brief in Support of the Defendant’s
Motion for Judgment on the Pleadings Pursuant to Local Standing Order on Social
Security Cases (Dkt. 14-1) (“Defendant’s Memorandum”). On October 9, 2018, Plaintiff
filed Plaintiff’s Response to Commissioner’s Brief in Support and in Further Support for
Plaintiff’s Motion for Judgment on the Pleadings (Dkt. 15) (“Plaintiff’s Reply”). Oral
argument was deemed unnecessary.
Based on the following, Plaintiff’s Motion is GRANTED; Defendant’s Motion is
DENIED.
FACTS 3
Plaintiff Ricky Hopson (“Plaintiff”), born June 19, 1965, was 51 years old as of the
administrative hearing before ALJ Cordovani on August 11, 2016. AR at 130. Plaintiff
3
In the interest of judicial economy, recitation of the Facts is limited to only those facts necessary for
determining the pending motions for judgment on the pleadings.
5
has a ninth grade education and did not graduate high school, AR at 141, and has past
relevant work experience loading machines and as a janitor. AR at 135, 655, 688.
Plaintiff never married and lives with four of his five minor children. AR at 37-38.
DISCUSSION
1.
Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability
benefits when he is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled if the factual findings are not supported by
substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district 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) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
6
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary, 4 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
2.
Disability Determination
The applicable regulations set forth a five-step analysis the Commissioner must
follow in determining eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and
416.920. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker,
675 F.2d 464 (2d Cir. 1982). If the claimant meets the criteria at any of the five steps,
the inquiry ceases and the claimant is not eligible for disability benefits. 20 C.F.R. §§
404.1520 and 416.920. The first step is to determine whether the applicant is engaged
in substantial gainful activity (“SGA”) during the period for which the benefits are
claimed. 20 C.F.R. §§ 404.1520(b) and 416.920(b). The second step is whether the
applicant has a severe impairment which significantly limits the physical or mental ability
to do basic work activities, as defined in the relevant regulations. 20 C.F.R. §§
404.1520(c) and 416.920(c). Third, if there is an impairment and the impairment, or its
equivalent, is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the regulations
(“Appendix 1” or “the Listings”), and meets the duration requirement, 5 there is a
presumption of inability to perform SGA and the claimant is deemed disabled regardless
of age, education, or work experience. 42 U.S.C. §§ 423(d)(1)(A) and 1382a(c)(3)(A);
20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth step, however, if the impairment
4 Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
5 The duration requirement mandates the impairment must last or be expected to last for at least a
continuous twelve-month period. 20 C.F.R. §§ 404.1509 and 416.909.
7
or its equivalent is not listed in Appendix 1, the Commissioner must then consider the
applicant’s “residual functional capacity” (“RFC”), which is the ability to perform physical
or mental work activities on a sustained basis, notwithstanding the limitations posed by
the applicant’s collective impairments, see 20 C.F.R. 404.1520(e)-(f), and 416.920(e)(f), and the demands of any past relevant work (“PRW”). 20 C.F.R. §§ 404.1520(e) and
416.920(e). If the applicant remains capable of performing PRW, disability benefits will
be denied, id., but if the applicant is unable to perform PRW relevant work, the
Commissioner, at the fifth step, must consider whether, given the applicant’s age,
education, and past work experience, the applicant “retains a residual functional
capacity to perform alternative substantial gainful work which exists in the national
economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks and
citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of proof is on
the applicant for the first four steps, with the Commissioner bearing the burden of proof
on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008). In the instant case, Plaintiff challenges only that at
step four ALJ Cordovani improperly evaluated Plaintiff’s right shoulder problem in
assessing Plaintiff’s RFC and identifying, at step five, jobs Plaintiff could perform, such
that Plaintiff was not disabled as defined under the Act between the closed period July
24, 2009 and December 31, 2010, and the undersigned accordingly limits review.
The ALJ found Plaintiff with the severe impairments of asthma, allergies, left eye
blindness, right shoulder impairment, depressive disorder, mild mental retardation,
headaches, and obesity. AR at 631-32. Despite these impairments, the ALJ
8
determined Plaintiff retained the RFC to perform light work 6 with the additional
restrictions of occasional overhead work, pushing and pulling with the right arm,
frequent handling/fingering with the right hand, as well as nonexertional limitations of no
work requiring depth perception, occasionally engaging in tasks requiring near acuity,
no work around hazards such as unprotected heights or dangerous moving mechanical
parts, avoiding concentrated exposure to fumes, odors, dusts, gases, poor ventilation,
and other respiratory irritants, ability to understand, remember, and carry out only
simple instructions and tasks, no supervisory duties or independent decision-making,
minimal changes in work routine and processes, frequent interaction with supervisors
and co-workers, and occasional interaction with the public. AR at 633-34. Based upon
a hypothetical posed by the ALJ, the VE testified an individual of Plaintiff’s age,
education, work experience, and RFC as determined by the ALJ, would be able to
perform the jobs of cleaner/housekeeper, photocopy machine operator, and car wash
attendant, all jobs of light exertion and existing in significant number in the national
economy such that the ALJ found Plaintiff is not disabled. AR at 639-40. This is
consistent with the SSA’s Medical-Vocational Guidelines (“the Grids”), that a person of
Plaintiff’s age, 44 as of July 24, 2009, the alleged disability onset date, was a younger
individual, with less than a high school education yet able to communicate in English,
6
Per the relevant regulation,
Light work involves lifting no more than 20 points 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, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or she can 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).
9
and with no transferable skills, with RFC for light work, would not be disabled. 20
C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.17.
The ALJ’s inclusion in the hypothetical posed to the VE that Plaintiff can, with his
right arm, occasionally work overhead, push and pull, and frequently handle and finger
is consistent with the performance of work of a “light” exertion, and all three jobs the VE
identified are of “light” exertion. AR at 659. An inability to push and pull, however,
would leave Plaintiff only capable of work at the exertional level of “sedentary” 7 such
that whether the ALJ properly evaluated Plaintiff’s shoulder impairment is of paramount
importance. For the following reasons, this determination is not supported by
substantial evidence in the record.
Specifically, although it is undisputed that Plaintiff has a right shoulder
impairment, AR at 631, in reaching the determination that the shoulder impairment did
not result in the inability to perform fine or gross movements effectively and, as such,
was not a severe impairment as defined under the Act, AR at 632, the ALJ considered
Plaintiff’s medical history of right shoulder pain commencing in 2008, yet an August 14,
2008 X-ray of Plaintiff’s right shoulder was normal. AR at 353. On October 27, 2008,
Plaintiff’s treating physician, Bidappa G. Maneyapanda, M.D. (“Dr. Maneyapanda”),
reported Plaintiff complained his right shoulder had been painful for a few months, AR at
317, and upon examination, found Plaintiff with tenderness in his AC joint and with weak
According to the relevant regulation,
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.
20 C.F.R. § 404.1567(a).
7
10
grip, and assessed possible AC joint arthritis. AR at 318. Upon examination by Dr.
Maneyapanda on December 4, 2008, Plaintiff’s right shoulder was unchanged, Plaintiff
was unable to elevate his right arm beyond 90 degrees, and passive range of motion of
the right arm was to 180 degrees with tenderness, there was tenderness with adduction,
and Dr. Maneyapanda assessed a possible rotator cuff tear for which he prescribed
Lortab, referred Plaintiff for physical therapy, and counseled Plaintiff on stretching. AR
at 315-16. On January 5, 2009, Dr. Maneyapanda reported Plaintiff continued to
complain of right shoulder pain and requested referral to a specialist. AR at 341. Dr.
Maneyapanda instructed Plaintiff to restrict heavy lifting, heat and any other activities
involving his right shoulder for six weeks. AR at 342.
On January 23, 2009, upon undergoing a consultative internal medical
examination by Jacob Piazza, M.D. (“Dr. Piazza”), Plaintiff’s primary complaint was right
shoulder pain, which reportedly made it difficult for Plaintiff to use his right upper
extremity to lift and carry, or to perform any activity requiring lifting his right arm above
shoulder level, including putting his shirt on and off. AR at 332. Plaintiff reported his
inability to lift heavy objects caused him to stop working four months earlier, describing
his right shoulder pain as “aching,” occurring with any type of range of motion (“ROM”),
and Plaintiff was unable to raise his right arm above shoulder level. Id. Although
Plaintiff did not need assistance changing for the examination, Plaintiff was “noted to
have difficulty putting his shirt on and off and had to use his left hand for the entire
thing.” AR at 333. Upon examination, Plaintiff was unable to abduct on the right
beyond 60 degrees and forward elevation was limited to 30 degrees. Id. at 334. Grip
strength on the right was 3/5, Plaintiff was able to tie a shoe string “awkwardly and it did
11
not come out correctly,” and could button with his left hand but not his right. Id. at 33435. Dr. Piazza diagnosed Plaintiff with a right shoulder rotator cuff tear for which the
prognosis was fair, attributing Plaintiff’s right shoulder problem to “a moderate to
marked limitation for use of his right upper extremity for pushing, pulling and any activity
where he has to raise it above shoulder level.” Id. at 335. On a Physical Residual
Functional Capacity Assessment completed on March 9, 2009, by one “M. Rock,” a
Single Decision Maker, Plaintiff was assessed with limitations to reaching in all
directions, handling (gross manipulation), and fingering (fine manipulation), with regard
to his right upper extremity. AR at 365-70. Dr. Maneyapanda reported Plaintiff with
right shoulder pain on July 9, 2010, AR at 610, and “moderate tenderness” with
movement of his right shoulder on September 20, 2010, AR at 611. Plaintiff cried
during the September 20, 2010 examination and did not want to see a specialist. AR at
612. Significantly, absent from the medical records is any indication that Plaintiff ever
regained full use of his right upper extremity. 8
Defendant’s argument, Defendant’s Memorandum at 4, that on January 15,
2010, Dr. Maneyapanda cleared Plaintiff to return to work without any restrictions, AR at
592, is not supported by substantial evidence for two reasons including (1) the doctor
note referenced by Defendant in support of this assertion is illegible, and (2) even if the
doctor note does permit Plaintiff to return to work, it was issued in connection with an
ankle injury which Plaintiff does not include in his numerous impairments on which he
seeks disability benefits. See AR at 591 (Dr. Maneyapanda progress note dated
8
Among the impairments included in assessing Plaintiff’s RFC in connection with his subsequent
application, which was granted with a disability onset date of January 1, 2011, were restricted use of his
upper extremities, including restricted ROM of his right shoulder, and limitations to pushing, pulling and
reaching with his right shoulder due to pain. AR at 734-35.
12
January 15, 2010 indicating Plaintiff was treated for ankle pain after Plaintiff slipped on
ice). 9 Insofar as Defendant further argues, Defendant’s Memorandum at 4, Plaintiff did
not receive any other treatment for his shoulder during the relevant period, Plaintiff
testified at the initial administrative hearing on October 21, 2010, that his doctor advised
there was a surgical procedure that could be performed, but that it did not always work,
and other patients reported the surgery made the situation worse. AR at 51. Plaintiff
further explained that three years earlier he underwent unsuccessful surgery on his
thyroid. AR at 51-52.
Accordingly, substantial evidence in the record supports a determination that
Plaintiff is able to perform, at most, only sedentary work which, based on the Grids,
given Plaintiff’s age, education, and work history, generally dictates Plaintiff is not
disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 2 Rule 201.24. Accordingly, the ALJ’s
determination that Plaintiff can perform the three jobs identified by the VE, each of
which is categorized as “light,” is not supported by substantial evidence in the record
and requires remand for further consideration at step five as to what, if any, employment
Plaintiff can perform given his current RFC. Further, where, as here, Plaintiff, because
of nonexertional limitations, is unable to perform the full range of sedentary work, a VE’s
testimony is required to assess the extent to which such additional work restrictions
erodes the occupational base. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.00(h)(3). As
such, on remand, the ALJ is directed to obtain further testimony from a VE regarding the
impact on the occupational base of sedentary jobs posed by Plaintiff’s inability to work
overhead, reach, push, pull, handle or finger with his right upper extremity.
9
The court notes this note is given “little weight” in the third ALJ decision because it pertains to an ankle
injury. AR at 636.
13
Moreover, mindful of the often painfully slow process by which disability
determination are made, the Second Circuit instructs that some evaluation of relative
hardship to a claimant of further delay should be considered, Butts v. Barnhart, 388
F.3d 377, 387 (2d Cir. 2004), and district courts may therefore “set a time limit for action
by the administrative tribunal, and this is often done.” Zambrano v. Califano, 651 F.2d
842, 844 (2d Cir. 1981). In the instant case, Plaintiff filed his initial application for
disability benefits on October 16, 2008, following which there have been three
administrative hearings, with the most recent ALJ decision affirmed by the Appeals
Council on September 27, 2017. As it has been more than ten years since Plaintiff first
filed his initial disability benefits application, further delay for remand is a hardship
Plaintiff should not bear. Accordingly, upon remand, the Commissioner is required to
complete the additional proceedings related to Plaintiff’s claim within 120 days of the
filing of this Decision and Order. See Dambrowski v. Astrue, 590 F.Supp.2d 579, 588
(S.D.N.Y. 2008) (imposing 120-day time limit for subsequent proceedings where five
years had elapsed since the plaintiff filed his application).
14
CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 9) is GRANTED; Defendant’s
Motion (Dkt. 14) is DENIED; the matter is remanded to the Commissioner for further
proceedings consistent with this Decision and Order. The Clerk of Court is directed to
close the file.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
May 23rd, 2019
Buffalo, New York
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