Moulton v. Commissioner of Social Security
Filing
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OPINION AND ORDER: Plaintiff's 12 MOTION for Order Reversing the Decision of the Commissioner is GRANTED and Defendant's 13 MOTION for Order Affirming the Decision of the Commissioner is DENIED. Signed by Judge John M. Conroy on 10/3/2018. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Evaline M.,
Plaintiff,
v.
Civil Action No. 2:18–cv–33
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 12, 13)
Plaintiff Evaline M. brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and remand of the decision of the
Commissioner of Social Security denying her application for Disability Insurance
Benefits (DIB) and Supplemental Security Income (SSI). Pending before the Court
are Plaintiff’s motion to reverse the Commissioner’s decision (Doc. 12), and the
Commissioner’s motion to affirm the same (Doc. 13). For the reasons stated below,
Plaintiff’s motion is GRANTED, the Commissioner’s motion is DENIED, and the
matter is REMANDED for further proceedings and a new decision.
Background
Plaintiff was 51 years old on her alleged disability onset date of December 2,
2011. She has a GED and a bachelor’s degree, and experience working as a
secretary and a retail sales associate. She is single, and lives with her adult son.
Plaintiff suffers from back pain, leg pain, right shoulder pain, carpal tunnel
syndrome (CTS), cardiopulmonary obstructive disorder (COPD), incontinence,
depression, and anxiety. She has had surgery on her shoulder and multiple
surgeries on her hands. She uses a prescribed cane every day because she feels
unstable when standing or walking. Her daily activities consist of cooking simple
meals, watching movies, and reading. She spends more than half of each day laying
down due to pain and fatigue resulting from prescribed medications.
In December 2011, Plaintiff filed her first claim for SSI and DIB, alleging
disability beginning on April 30, 2008. (AR 81.) The claim was denied initially and
upon reconsideration; and on June 26, 2013, Administrative Law Judge (ALJ)
Matthew Levin issued an unfavorable decision, finding that Plaintiff “has not been
under a disability . . . from April 30, 2008, through the date of this decision.” (Id.;
AR 89.) In August 2014, the Appeals Council denied Plaintiff’s request for review of
ALJ Levin’s decision, making the decision final. (AR 95–97.) Plaintiff did not
appeal the decision.
Approximately six months later, in February and March 2015, Plaintiff filed
her second claim for SSI and DIB, this time alleging disability beginning on
December 2, 2011. (AR 250–60.) In this more recent claim—which is the subject of
the instant lawsuit––Plaintiff asserts that she stopped working on April 5, 2008,
and has been unable to work since then, due to degenerative disc disease, arthritis,
gastroesophageal reflux disease, CTS, sleep apnea, and COPD. (AR 270.) Like her
first claim, this one was denied initially and upon reconsideration. On July 7, 2016,
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ALJ Joshua Menard conducted a hearing on the claim. (AR 36–77.) Plaintiff
appeared and testified, as did a vocational expert (VE). At the hearing, Plaintiff’s
counsel: (a) requested that ALJ Levin’s June 2013 decision be reopened under
20 C.F.R. §§ 404.988(c)(8) and 416.1489(a)(3) due to error on its face,1 and
(b) objected to four exhibits containing Disability Determination Explanations
prepared by agency medical consultants on the grounds that they were based on
records not in evidence. (AR 40–41.)
On August 15, 2016, ALJ Menard issued a decision denying Plaintiff’s request
to reopen the 2013 decision (AR 20), overruling Plaintiff’s objection to the four
Disability Determination Explanations (id.), and finding that Plaintiff “has not been
under a disability . . . from December 2, 2011, through the date of this decision”
(AR 21, 29). Thereafter, the Appeals Council denied Plaintiff’s request for review,
rendering the ALJ’s decision the final decision of the Commissioner. (AR 1–3.)
Having exhausted her administrative remedies, Plaintiff filed the Complaint in this
action on February 20, 2018. (Doc. 3.)
Plaintiff’s counsel argued that none of the jobs relied on by ALJ Levin to deny Plaintiff’s
prior claim at step five could be performed by an individual with the RFC that the ALJ assigned to
Plaintiff. (AR 40–41.) More specifically, the argument is that ALJ Levin’s determination that
Plaintiff could only occasionally reach overhead, forward, and laterally with her right upper
extremity, and could only occasionally grasp with her dominant right hand (see AR 85), precluded
Plaintiff from performing the jobs that the ALJ found she could perform––bottle label inspector,
laundry sorter, and order caller (see AR 88)––because each of these jobs requires more than
occasional reaching or handling according to the Dictionary of Occupational Titles (DOT), see
Dictionary of Occupational Titles (4th rev. ed. 1991), DOT no. 920.687-042, 1991 WL 687971
(bottling-line attendant); DOT no. 361.687-014, 1991 WL 672991 (laundry sorter); DOT no. 209.667014, 1991 WL 671807 (order caller). (AR 40–41.)
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ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380–81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in
“substantial gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant
is not so engaged, step two requires the ALJ to determine whether the claimant has
a “severe impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that
the claimant has a severe impairment, the third step requires the ALJ to make a
determination as to whether that impairment “meets or equals” an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the Listings). 20 C.F.R. §§
404.1520(d), 416.920(d). The claimant is presumptively disabled if his or her
impairment meets or equals a listed impairment. Ferraris v. Heckler, 728 F.2d 582,
584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ is required to
determine the claimant’s residual functional capacity (RFC), which means the most
the claimant can still do despite his or her mental and physical limitations based on
all the relevant medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e),
404.1545(a)(1), 416.920(e), 416.945(a)(1). The fourth step requires the ALJ to
consider whether the claimant’s RFC precludes the performance of his or her past
relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). Finally, at the fifth step, the
ALJ determines whether the claimant can do “any other work.” 20 C.F.R. §§
404.1520(g), 416.920(g). The claimant bears the burden of proving his or her case at
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steps one through four, Butts, 388 F.3d at 383; and at step five, there is a “limited
burden shift to the Commissioner” to “show that there is work in the national
economy that the claimant can do,” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.
2009) (clarifying that the burden shift to the Commissioner at step five is limited,
and the Commissioner “need not provide additional evidence of the claimant’s
[RFC]”).
Employing this sequential analysis, in his August 2016 decision, ALJ Menard
first determined that Plaintiff had not engaged in substantial gainful activity since
her alleged disability onset date of December 2, 2011. (AR 23.) At step two, the ALJ
found that Plaintiff had the severe impairments of degenerative disc disease,
obesity, and COPD.2 (Id.) Conversely, the ALJ found that Plaintiff’s CTS, sleep
apnea, disorder of the gastrointestinal system, anxiety, depression, and incontinence
were nonsevere. (Id.) At step three, the ALJ determined that none of Plaintiff’s
impairments, alone or in combination, met or medically equaled a listed
impairment. (AR 24.) Next, the ALJ determined that Plaintiff had the RFC to
perform “light work,” as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), except as
follows: “[Plaintiff] can frequently climb ramps and stairs, occasionally climb
ladders, ropes, and scaffolds, frequently stoop, occasionally crouch, and occasionally
crawl. She can have frequent exposure to dusts, odors, fumes, and pulmonary
In contrast, in the earlier June 2013 decision, ALJ Levin found that Plaintiff had the severe
impairments of degenerative disc disease, degenerative joint disease of the right shoulder, right CTS,
and bilateral thumb degenerative joint disease. (AR 83.)
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irritants.”3 (AR 24.) Given this RFC, ALJ Menard found at step four that Plaintiff
was capable of performing her past relevant work as a secretary.4 (AR 29.) The ALJ
thus concluded that Plaintiff had not been under a disability from her alleged onset
date of December 2, 2011 through the date of the decision, August 15, 2016.5 (Id.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A). A person will be found disabled only if it is
determined that his “impairments are of such severity that he is not only unable to
do his previous work[,] but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. § 423(d)(2)(A).
ALJ Levin assigned a different RFC to Plaintiff in his 2013 decision, finding that Plaintiff
could perform “light” work, except as follows: “[Plaintiff] can frequently balance, crawl, stoop, crouch,
and kneel . . . . She can occasionally climb ladders, ropes[,] and scaffolds[,] and occasionally perform
overhead, forward[,] and lateral reaching with her right upper extremity. She can occasionally grasp
with the dominant right hand.” (AR 85.)
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ALJ Levin, on the other hand, found in his decision that Plaintiff was unable to perform her
past relevant work. (AR 87.) He nonetheless determined that Plaintiff could perform other work
existing in significant numbers in the national economy, including the jobs of bottle label inspector,
laundry sorter, and order caller. (AR 88–89.)
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ALJ Levin concluded in his decision that Plaintiff had not been under a disability from
April 30, 2008 through June 26, 2013, the date of the decision. (AR 89.) Therefore, the disability
period adjudicated in the two ALJ decisions overlaps for the period from December 2, 2011 through
June 26, 2013.
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In considering the Commissioner’s disability decision, the court “review[s] the
administrative record [de novo] to determine whether there is substantial evidence
supporting the . . . decision and whether the Commissioner applied the correct legal
standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court’s factual
review of the Commissioner’s decision is thus limited to determining whether
“substantial evidence” exists in the record to support such decision. 42 U.S.C.
§ 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan,
904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support
either position, the determination is one to be made by the factfinder.”).
“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.
Richardson v. Perales, 402 U.S. 389, 401 (1971); Poupore, 566 F.3d at 305. In its
deliberations, the court should bear in mind that the Social Security Act is “a
remedial statute to be broadly construed and liberally applied.” Dousewicz v.
Harris, 646 F.2d 771, 773 (2d Cir. 1981).
Analysis
Plaintiff argues that remand is required because ALJ Menard’s decision is
ambiguous regarding whether Plaintiff’s prior claim was reopened. According to
Plaintiff, if the ALJ constructively reopened the prior claim, he erred by failing to
address whether Plaintiff’s shoulder impairment improved after the initial ALJ
decision; and if the ALJ did not reopen the prior claim, he erred by relying on the
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agency consultant opinions because the record does not contain the medical evidence
on which these consultants relied in making their opinions. The Court agrees on all
points, as discussed below.
Where a claimant seeks to reopen a claim after a final decision has been
rendered on that claim, the Commissioner may refuse under the doctrine of res
judicata. Saxon v. Astrue, 781 F. Supp. 2d 92, 99 (N.D.N.Y. 2011) (citing Dunn v.
Astrue, No. 08–CV–0704–C, 2010 WL 376390, at *3 (W.D.N.Y. Jan. 27, 2010)). The
Commissioner’s refusal to reopen the prior claim is not a final decision for the
purposes of 42 U.S.C. § 405(g), and thus federal courts lack jurisdiction to review it.
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Califano v. Sanders,
430 U.S. 99, 107–09 (1977)). There are two circumstances, however, in which the
federal courts may review the Commissioner’s decision not to reopen a disability
application: (1) where the Commissioner has constructively reopened the case; and
(2) where the claimant has been denied due process. Byam, 336 F.3d at 179. The
ALJ “constructively reopens” a decision if he reviews the entire record and renders a
decision on the merits. Id. at 180 (“If the Commissioner reviews the entire record
and renders a decision on the merits, the earlier decision will be deemed to have
been reopened, and any claim of administrative res judicata to have been waived
and thus, the claim is . . . subject to judicial review.” (alteration in original) (internal
quotation marks omitted)). In contrast, a matter is not constructively reopened
when the ALJ merely discusses prior proceedings and evidence to describe a
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claimant’s background. Grant v. Shalala, No. 93-CV-0124E(F), 1995 WL 322589,
at *7 (W.D.N.Y. Mar. 13, 1995).
Here, it is unclear whether ALJ Menard constructively reopened Plaintiff’s
prior claim: although the ALJ explicitly adjudicated a period that overlapped with
the period adjudicated in the prior claim, he does not appear to have reviewed the
records relevant to that claim. Specifically, ALJ Levin’s 2013 decision adjudicates
the period from April 30, 2008 through June 26, 2013 (AR 81–89); and ALJ Menard’s
2016 decision adjudicates the period from December 2, 2011 through August 15,
2016 (AR 20–30). Therefore, the decisions overlap for the period from December 2,
2011 through June 26, 2013. The Commissioner argues that ALJ Menard did not
adjudicate this period, but rather, adjudicated the period from June 27, 2013
through the date of his decision, August 15, 2016. (Doc. 13 at 6.) But that is not
what ALJ Menard’s decision states: the decision explicitly states––twice—that the
period under review is “December 2, 2011, through the date of this decision.”
(AR 21, 29.) The Commissioner apparently expects the Court to accept her assertion
that the ALJ made a “clerical error” (Doc. 13 at 5)––in two different sections/pages of
his decision (AR 21, 29)––in stating that the period under review began on
December 2, 2011 instead of on June 27, 2013. This would be a glaring “clerical
error,” and overlooking it would require the Court to abandon the longstanding
principal that the Social Security Act is “a remedial statute, to be broadly construed
and liberally applied in favor of beneficiaries,” Gutierrez v. Bowen, 898 F.2d 307, 310
n.3 (2d Cir. 1990) (quoting McCuin v. Sec’y of Health & Human Servs., 817 F.2d 161,
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174 (1st Cir. 1987) and citing Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir.
1975)), and the more general canon that “deference is to be paid to the plain
meaning of the language of a [decision] and the normal usage of the terms selected,”
Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985). The Court is unwilling to do
so.
If ALJ Menard constructively reopened the prior claim, he erred by failing to
address whether Plaintiff’s shoulder impairment improved between the 2013
decision and the 2016 decision. As noted above, the two decisions differ greatly
regarding their treatment of Plaintiff’s shoulder impairment: in the 2016 decision,
ALJ Menard does not find the impairment to be severe and includes no functional
limitations due to the impairment (AR 23–24); while in the 2013 decision, ALJ Levin
finds the impairment to be severe and limits Plaintiff to only occasional overhead,
forward, and lateral reaching with her right upper extremity as a result of the
impairment (AR 83–85).6 Given that the 2013 and 2016 decisions adjudicated a
portion of the same period (from December 2, 2011 through June 26, 2013), both
cannot be correct. Remand for clarification of this issue is required. See Pratts v.
Chater, 94 F.3d 34, 39 (2d Cir. 1996) (“Remand is particularly appropriate where . . .
we are unable to fathom the ALJ’s rationale in relation to the evidence in the record
without further findings or clearer explanation for the decision.” (internal quotation
marks omitted)); Butts, 388 F.3d at 385 (“[W]here the administrative record contains
The 2013 decision also finds as follows regarding Plaintiff’s shoulder impairment: “In 2008,
images of [her] right shoulder revealed chronic inflammation and irritation of the acromioclavicular
joint. By May of 2010, she had been diagnosed with bursitis of the right shoulder.” (AR 83.)
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gaps, remand to the Commissioner for further development of the evidence is
appropriate. That is, when further findings would so plainly help to assure the
proper disposition of [the] claim, we believe that remand is particularly
appropriate.” (second alteration in original) (citation and internal quotation marks
omitted)); Pronti v. Barnhart, 339 F. Supp. 2d 480, 491 (W.D.N.Y. 2004) (ALJ erred
in failing to reconcile “confusing and ambiguous” VE testimony).
Generally, in a situation like this, principles of collateral estoppel and res
judicata7 would dictate that the later decision be bound by the earlier one, unless
there is evidence that the impairment improved. See Drummond v. Comm’r of Soc.
Sec., 126 F.3d 837, 842 (6th Cir. 1997) (“Absent evidence of an improvement in a
claimant’s condition, a subsequent ALJ is bound by the findings of a previous ALJ.”);
Lively v. Sec’y of Health & Human Servs., 820 F.2d 1391, 1392 (4th Cir. 1987) (“It is
by now well[] established that fundamental and familiar principles of [res judicata]
apply in Social Security disability cases.” (citing Benko v. Schweiker, 551 F. Supp.
698, 701 (D. N.H. 1982)); Sanville v. Comm’r of Soc. Sec., Civil Action No. 2:16–cv–
251, 2017 WL 4174783, at *3 (D. Vt. Sept. 20, 2017) (“Congress has clearly provided
by statute that [res judicata] prevents reappraisal of both the [Commissioner’s]
findings and h[er] decision in Social Security cases that have become final[.]”
(alterations in original) (internal quotation marks omitted)); Wessel v. Colvin, Civil
No. 3:14CV00184 (AVC), 2015 WL 12712297, at *4 (D. Conn. Dec. 30, 2015) (“[Res
“Res judicata bars the relitigation of the same claim or cause of action while collateral
estoppel bars the relitigation of the same issue.” Singletary v. Astrue, No. 07-CV-6025-CJS, 2008 WL
1323892, at *3 (W.D.N.Y. Jan. 22, 2008).
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judicata] has been applied to bind a subsequent ALJ to the findings of a previous
ALJ.”); cf., Wessel, 2015 WL 12712297, at *5 (“When a plaintiff’s claim involves a
different unadjudicated time period, an ALJ is not bound by a prior ALJ’s findings.”
(citing Gonzales v. Colvin, 515 F. App’x 716, 721 (10th Cir. 2013))). But the 2016
decision neither adopts the findings of the 2013 decision regarding Plaintiff’s
shoulder impairment, nor explains why they no longer apply given an improvement
in the impairment.8 Instead, the 2016 decision assigns “partial weight” to the 2013
decision (AR 29), improperly treating it like a medical opinion or other evidence to
be weighed on the evidentiary scale, rather than as a prior administrative decision
on the same claim. The error is not harmless because, had ALJ Menard adopted
ALJ Levin’s findings regarding Plaintiff’s manipulative limitations due to her
shoulder impairment (AR 85), ALJ Menard’s finding that Plaintiff could do her past
relevant work as a secretary would be unsupported (AR 29).
Given the ambiguity regarding the ALJ’s constructive reopening of the prior
claim––and the fact that the ALJ explicitly considered Plaintiff’s impairments
dating back to December 2011, which time period was included in the prior claim––
the ALJ should have admitted into evidence the records from the prior claim,
especially since he relied on agency consultant opinions that relied on those records.
See HALLEX I-2-6-58, 1993 WL 643036 (last update 5/1/17) (an ALJ “will generally
admit into the record any evidence that he or she determines is material to the
Plaintiff testified at the July 2016 administrative hearing that her shoulder impairment
had worsened since the first administrative hearing, and that her ability to reach had lessened
between the dates of the hearings. (AR 63–64.)
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issues in the case,” including “[e]vidence dated within a time[] period covered by a
prior application that may be subject to reopening”). The prior claim contained
29 exhibits in the medical records section, covering the period from June 2007 to
April 2013. (AR 92–94.) The current claim, on the other hand, contains only
nine exhibits in the medical records section, covering the period from April 2013 to
June 2016. (AR 33–34, 321–452.) Although the ALJ adjudicated the period
beginning in December 2011, there are no records from before April 2013 in the
current file. This was discussed at the administrative hearing (AR 40–42), but the
ALJ did not assure that the relevant records were added to this file. The ALJ thus
failed to properly develop the record. See Klemens v. Berryhill, 703 F. App’x 35, 36
(2d Cir. 2017) (“Because a hearing on disability benefits is a non-adversarial
proceeding, the ALJ generally has an affirmative obligation to develop the
administrative record.” (internal quotation marks omitted)).
ALJ Menard gave “great weight” to the opinions of nonexamining agency
consultants Geoffrey Knisely, MD and Carl Runge, MD (AR 28, 29), despite the fact
that both physicians had reviewed medical records that were not included in the
record before the ALJ. At the July 2016 hearing, Plaintiff’s counsel objected to the
ALJ’s consideration of these opinions on this ground, explaining that Drs. Knisely
and Runge “looked at a whole pile of records that are just not in [the current
record].” (AR 41; see also AR 40 (Plaintiff’s attorney advising ALJ Menard at the
hearing that the consultants had reviewed exhibits listed on a seven-page document,
and that most of those exhibits are “not in the record”).) Also noteworthy, it appears
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that the opinions of Drs. Knisely and Runge relate to the period beginning on
June 27, 2013 rather than on December 2, 2011, which period the ALJ adjudicated.
(See AR 111, 127, 143.) Considering these deficiencies, it is impossible to determine
whether the opinions of Drs. Knisely and Runge are consistent with the record as a
whole and thus whether they constitute substantial evidence to support the ALJ’s
decision for the adjudicated period. See Babcock v. Barnhart, 412 F. Supp. 2d 274,
280 (W.D.N.Y. 2006) (agency consultant opinions “may constitute substantial
evidence if they are consistent with the record as a whole” (internal quotation marks
omitted)); Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (“it is erroneous to
rely on items not in the record”).
Conclusion
For these reasons, the Court GRANTS Plaintiff’s motion (Doc. 12), DENIES
the Commissioner’s motion (Doc. 13), and REMANDS for further proceedings and a
new decision in accordance with this ruling. On remand, the ALJ shall clarify the
dates of the adjudicated disability period, properly develop the record for the
relevant period, consider the precedential effect of the prior (2013) ALJ decision,
consider Plaintiff’s right shoulder impairment during the relevant period, and
reassess the medical evidence and opinions in light of the above.
Dated at Burlington, in the District of Vermont, this 3rd day of October 2018.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
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