1:20-cv-00600 | W.D.N.Y. | Sep 17, 2021
Case 1:20-cv-O0600-MJR Document 17
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JUSTIN H.,
Plaintiff,
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COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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20-CV-00600-MJR
DECISION AND ORDER
Pursuant to 28 U.S.C. §636(c), the parties consented to have a United States
Magistrate Judge conduct all proceedings in this case. (Dkt. No. 16)
Plaintiff Justin H.' (“Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social
Security (“Commissioner” or “defendant”) denying his application for Supplemental
Security Income (“SSI”) pursuant to the Social Security Act (the “Act”). Both parties have
moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the following reasons, Plaintiffs motion (Dkt. No. 12) is granted,
defendant’s motion (Dkt. No. 13) is denied, and the case is remanded for further
administrative proceedings.
‘In accordance with the District's November 18, 2020, Standing Order, plaintiff is identified by first name
and last initial.
Case 1:20-cv-00600-MJR Document 17 Filed 09/17/21 Page 2 of 13
BACKGROUND?
Plaintiff filed protectively for SSI on October 14, 2016, alleging a disability onset
date of December 31, 2014. (Administrative Transcript [‘Tr.”] 137-43). The application
was initially denied on March 15, 2017. (Tr. 75-81). Plaintiff timely filed a request for an
administrative hearing. (Tr. 84-101). On December 28, 2018, Administrative Law Judge
CALJ") William M. Weir held a hearing in Buffalo, New York. (Tr. 32-62). Plaintiff
appeared at the hearing with his attorney. A vocational expert also testified. The ALJ
issued a decision finding Plaintiff not disabled on March 15, 2019. (Tr. 12-31). On April
14, 2020, the Appeals Council denied Plaintiff's request for review, (Tr. 1-6). This action
followed.
DISCUSSION
I. Scope of Judicial Review
The Court's review of the Commissioner's decision is deferential. Under the Act,
the Commissioner’s factual determinations “shall be conclusive” so long as they are
“supported by subsiantial evidence,” 42 U.S.C. §405(g), that is, supported by “such
relevant evidence as a reasonable mind might accept as adequate to support [the]
conclusion,” Richardson v. Perales, 402 U.S. 389" date_filed="1971-05-03" court="SCOTUS" case_name="Richardson v. Perales">402 U.S. 389, 401 (1971) (internal quotation marks
and citation omitted). “The substantial evidence test applies not only to findings on basic
evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.
Colvin, 17 F. Supp. 3d 260" date_filed="2014-05-01" court="W.D.N.Y." case_name="Smith v. Colvin">17 F. Supp. 3d 260, 264 (W.D.NLY. 2014). “Where the Commissioner's decision
* The Court presumes the parties’ familiarity with Plaintiffs medical history, which is.summarized in the
moving papers.
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rests on adequate findings supported by evidence having rational probative force,” the
Court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart,
312 F.3d 578" date_filed="2002-12-10" court="2d Cir." case_name="Ronald E. Veino, Sr. v. Jo Anne B. Barnhart, Commissioner of Social Security">312 F.3d 578, 586 (2d Cir. 2002). Thus, the Court's task is to ask “whether the record,
read as a whole, yields such evidence as. would allow a reasonable mind to accept the
conclusions reached’ by the Commissioner.” Silvers v. Colvin, 67 F. Supp. 3d 570" date_filed="2014-11-13" court="W.D.N.Y." case_name="Silvers v. Colvin">67 F. Supp. 3d 570, 574
(W.D.N.Y. 2014) (quoting Sample v. Schweiker, 694 F.2d 639" date_filed="1982-12-14" court="9th Cir." case_name="James Sample v. Richard Schweiker , Secretary of Health and Human Services">694 F.2d 639, 642 (9th Cir. 1982)).
Two related rules follow from the Act’s standard of review. The first is that-“[iJt is
the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to
appraise the credibility of witnesses, including the claimant.” Carroll v. Sec'y of Health &
Human Servs., 705 F.2d 638" date_filed="1983-04-11" court="2d Cir." case_name="Herbert Carroll v. Secretary of Health and Human Services">705 F.2d 638, 642 (2d Cir. 1983). The second rule is that “[glenuine
conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d
at 588. While the applicable standard of review is deferential, this does not mean that the
Commissioner’s decision is presumptively correct. The Commissioner's. decision is, as
described above, subject to remand or reversal if the factual conclusions on which it is
based are not supported by substantial evidence. Further, the Commissioner's factual
conclusions must be applied to the correct legal standard. Kohler v. Astrue, 546 F.3d
260, 265 (2d Cir. 2008). Failure to apply the correct legal standard is reversible error. id.
Il. Standards for Determining “Disability” Under the Act
A “disability” is an 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 twelve (12) months.” 42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(A). The
Commissioner may find the claimant disabled “only if his physical or mental impairment
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or 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, regardless of whether
such work exists in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.” fd, §§423(d)(2)(A),
1382c(a)(3)(B). The Commissioner must make.these determinations based on “objective
medical facts, diagnoses or medical opinions based on these facts, subjective evidence
of pain or disability, and . . . [the claimant's] educational background, age, and work
experience.” Dumas v. Schweiker, 712 F.2d 1545" date_filed="1983-06-22" court="2d Cir." case_name="Paul E. Dumas v. Richard S. Schweiker, Secretary of Health and Human Services">712 F.2d 1545, 1550 (2d Cir. 1983) (first alteration. in
original) (quoting Miles v. Harris, 645 F.2d 122" date_filed="1981-03-24" court="2d Cir." case_name="Hanna Miles v. Patricia Harris, Secretary of Health and Human Services">645 F.2d 122, 124 (2d Cir. 19871)).
To guide the assessment of whether a claimant is disabled, the Commissioner has
promulgated a “five-step sequential evaluation process.” 20 C.F.R. §§404.1520(a)(4),
416.920(a)(4). First, the Commissioner determines whether the claimant is “working” and
whether that work “is substantial gainful activity.” /d. §§404.1520(b), 416.920(b). If the
claimant is engaged in substantial gainful activity, the claimant is “not disabled regardless
of [his or her] medical condition or . . . age, education, and work experience.” /d.
§§404.1520(b), 416.920(b). Second, if the claimant is not engaged in substantial gainful
activity, the Commissioner asks whether the claimant has a “severe impairment.” /d.
§§404.1520(c),416.920(c). To make this determination, the Commissioner asks whether
the claimant has “any impairment or combination of impairments which significantly limits
[the claimant's] physical or mental ability to do basic work activities.” id. §§404.1520(c),
416.920(c). As with the first step, if the claimant does not have a severe impairment, he
or she is not disabled regardless of any other factors or considerations. fd.
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§§404.1520(c), 416.920(c). Third, if the claimant does have a severe impairment, the
Commissioner asks two additional questions: first, whether that severe impairment meets
the Act's duration requirement, and second, whether the severe impairment is either listed
in Appendix 1 of the Commissioner's regulations or is “equal to” an impairment listed in
Appendix 1. /d. §§404.1520(d), 416.920(d). If the claimant satisfies both requirements
of step three, the Commissioner will find that he or she is disabled without regard to his
or her age, education, and work experience. Id. §§404.1520(d), 416.920(d).
If the claimant does not have the severe impairment required by step three, the
Commissioner's analysis proceeds to steps four and five. Before doing so, the
Commissioner must “assess and make a finding about {the claimant's] residual functional
capacity ["RFC”] based on all the relevant medical and other evidence” in the record. /d.
§§404.1520(e), 416.920(e). RFC “is the most [the claimant] can still do despite [his or
her] limitations.” fd. §§404.1545(a)(1), 416.945(a)(1). The Commissioner's assessment
of the claimant's RFC is then applied at steps four and five. At step. four, the
Commissioner “compare[s] [the] residual functional capacity assessment .. . with the
physical and mental demands of [the claimant’s] past relevant work.” Id. §§404.1520(f),
416.920(f). If, based on that comparison, the claimant is able to perform his or her past
relevant work, the Commissioner will find that the claimant is not disabled within the
meaning of the Act. fd. §§404.1520(f), 416.920(f). Finally, ifthe claimant cannot perform
his or her past relevant work or does not have any past relevant work, then at the fifth
step the Commissioner considers whether, based on the claimant's RFC, age, education,
and work experience, the claimant “can make an adjustment to other work.” /d.
§§404.1520(g)(1), 416.920(g)(1). If the claimant can adjust to other work, he or she is
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not disabled. /d. §§404.1520(g)(1), 416.920(g)(1). ff, however, the claimant cannot
adjust to other work, he or she is disabled within the meaning of the Act. /d.
§§404.1520(g)(1), 416.920(g)(1).
The burden through steps one through four described above rests on the claimant.
lf the claimant carries his burden through the first four steps, “the burden then shifts to
the [Commissioner] to show there is other gainful work in the national economy which the
claimant could perform.” Carrolf, 705 F.2d 638" date_filed="1983-04-11" court="2d Cir." case_name="Herbert Carroll v. Secretary of Health and Human Services">705 F.2d at 642.
IIE. The ALJ's Decision
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since October 14, 2016, the application date. (Tr. 17). At step two, the ALJ found
that Plaintiff had the following severe impairments: schizophrenia and a learning disorder.
(Tr. 17-18). At step three, the ALJ concluded that Plaintiff did not have an impairment or
combination of impairments. that met or medically equaled one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 18-19). Prior to proceeding to step
four, the ALJ determined that Plaintiff retained the RFC to perform:
[M]edium work . . . except the claimant can perform simple, repetitive one and
two step tasks. The claimant should perform work where language, math, and
reasoning are level 1. The claimant could have no more than fleeting public
contact; however, he could occasionally interact with coworkers and supervisors.
(Tr. 19-25). At step four, the ALJ found that Plaintiff has no past relevant work. (Tr. 25).
At step five, the ALJ found Plaintiff capable of performing jobs that exist in significant
numbers in the national economy. (Tr. 26). Accordingly, the ALJ determined that Plaintiff
has not been under a disability from October 14, 2016, the date the application was filed.
(Tr. 27).
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IV, Plaintiff's Challenge
Plaintiff argues that the ALJ failed to evaluate properly the treating opinion of his
therapist, Licensed Master Social Worker Jillian Wagner, and that the case must therefore
be remanded. The Court agrees.
On November 26, 2018, LMSW Wagner completed a mental residual functional
capacity questionnaire. (Tr. 813-25). She stated Plaintiff started care on August 18 and
continued to be seen weekly for individual therapy. (Tr. 813). His diagnosis was
schizophrenia, and his medications were Trazadone, Zoloft, and Ziprasidone. (Tr. 813,
814). During a mental status examination conducted on October 9, 2018, he had auditory
hallucinations and fair insight and judgment. (Tr. 815, 816). Plaintiffs signs and
symptoms included: impairments in impulse control; mood disturbance; pathological
dependence, passivity or aggressivity; paranoid thinking or inappropriate suspiciousness;
psychological or behavioral abnormalities associated with a dysfunction of the brain with
a specific organic factor judged to be etiologically. related to the abnormal mental state
and loss of previously acquired functional abilities; intense and unstable interpersonal
relationships and impulsive and damaging behavior; perceptual or thinking disturbances:
hallucinations or delusions; flight of ideas; inflated self-esteem; easy distractibility: and
oddities of thought, perception, speech or behavior. (Tr. 822).
LMSW Wagner opined Plaintiff was unable to meet competitive standards with his
ability to: maintain attention for two hour segment; maintain regular attendance and be
punctual within customary, usually strict tolerances; work in coordination with or proximity
to others without being unduly distracted; make simple work-related decisions; complete
a normal workday and workweek without interruptions from psychologically based
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symptoms; accept instructions and respond appropriately to criticism from supervisors;
get along with co-workers or peers without unduly distracting them or exhibiting
behavioral extremes; respond appropriately to changes in a routine work setting:
understand and remember detailed instructions; carry out detailed instructions; set
realistic goals or make plans independently of others; deal with stress of semiskilled and
skilled work; interact appropriately with the general public; and maintain socially
appropriate behavior. (Tr. 823-824). LMSW Wagner explained:
Justin would likely be unable to meet competitive standards in most areas. He is
often easily distracted in our counseling appointments. Justin struggled with mood
lability, anger + interpersonal relationships. He was placed on a behavior contract
through BFNC for not following rules + instructions. Justin struggles with
boundaries as well which would impact his ability to work. Justin doesn’t take
feedback well, mainly due to symptoms of paranoia.
(Tr. 823). She also explained Plaintiff had difficulty remembering appointment days and
times, presented with unrealistic goals, and had difficulty maintaining average stress and
implementing coping skills. (Tr. 824). She further explained:
Justin struggles with keeping healthy boundaries with others, including clients and
staff @ Horizon. His MH diagnosis impacts his ability to interact appropriately @
times. Justin utilizes public transportation however has difficulty traveling to new
places. Justin's reading skills are poor + he had difficulty understanding + retaining
information.
(Tr. 824). LMSW Wagner opined Plaintiff's impairments or treatment would cause him fo
be absent from work about four days per month. (Tr. 825). She indicated his impairments
were reasonably consistent with the symptoms and functional limitations described in the
questionnaire. (Tr. 825). She lastly opined that Plaintiff was unable to engage in full-time
competitive employment on a sustained basis. (Tr. 825).
“[O]pinions from medical sources such as Licensed Clinical Social Workers and
Nurse Practitioners are ‘important and should be evaluated on key issues such as...
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functional effects [of an impairment].’” See Matthews v. Comm’r of Soc. Sec., 2018 WL
4356495, at *5 (W.D.N.Y. Sept. 21, 2018) (quoting Anderson v. Astrue, 2009 WL
2824584, at *9 (E.D.N.Y. Aug. 28, 2009)). See also Hunt v. Comm’r of Soc. Sec., 2017
WL. 1370996, at *3 (W.D.N.Y. Apr. 17, 2017) (finding it is well settled that opinions from
“other sources” are “important” and “should be evaluated on key issues such as
impairment severity and functional effects, along with the other relevant evidence in the
file”). “Notably, this is even more relevant within the context of ‘mental disabilities, which
by their nature are best diagnosed over time.” Matthews, 2018 WL 4356495, at *5
(quoting Santiago v. Barnhart, 441 F. Supp. 2d 620" date_filed="2006-07-27" court="S.D.N.Y." case_name="Santiago v. Barnhart">441 F. Supp. 2d 620, 629 (S.D.N.Y, 2006)). An ALJ is
required to weigh opinions from “other sources” based on the five factors set out in the
Social Security regulations: (1) the frequency of examination and the length, nature, and
extent of the treatment relationship; (2) the evidence in support of the physician's opinion;
(3) the consistency of the opinion with the record as a whole; (4) whether the opinion is
from a specialist; and (5) other factors brought to the Social Security Administration’s
attention that tend to support or contradict the opinion. See 20 C.F.R. § 416.927(c).
While an “other source” opinion is not treated with the same deference as a treating
physician opinion, the assessment is still entitled to some weight, especially when there
is a treatment relationship with the claimant. See Pogozelski v. Barnhart, 2004 WL
1146059, at *12 (E.D.N.Y. May 19, 2004) (citing Mejia v. Barnhart, 261 F. Supp. 2d 142" date_filed="2003-04-16" court="E.D.N.Y" case_name="Mejia v. Barnhart">261 F.Supp.2d 142,
148 (E.D.N.Y. 2003)) (finding that “some weight should still have been accorded to [the
treating other source’s] opinion based on his familiarity and treating relationship with the
claimant’). While an ALJ may reject the opinion of a treating other source when it is
inconsistent with the claimant's treatment records, he or she is still required to consider
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the opinion and apply the same factors as used for the evaluation of the opinions from
“acceptable medical sources" set forth in 20 C.F.R. §404.1527(c). See Matthews, 2018
WL 4356495, at *5 (quotations and citations omitted).
Here, the ALJ afforded LMSW Wagner's opinion only partial weight. (Tr. 24). He
stated that he did so for three reasons: (1) LMSW Wagner had treated Plaintiff for less
than one year; (2) her mental status examinations of Plaintiff were “predominately
unremarkable;” and (3) the limitations she suggested were in excess of Plaintiff's activities
of daily living and independence. The Court finds that these reasons were not sufficient,
at least as stated, to support the ALJ’s decision. (Tr. 24).
LMSW: Wagner was the only treating provider that provided a comprehensive
evaluation of Plaintiff's work-related functional limitations during the relevant period. As
such, her opinion was generally entitled to at least some, if not more, consideration. See
Mebane v. Comm’'r of Soc. Sec., 2016 WL 519038, at *6 (W.D.N.Y. Feb. 10, 2016)
(“[H]ere, NP Aiescio’s opinion was the only opinion, from a longitudinal treating source,
regarding plaintiff's work-related functional limitations . .. Under these circumstances, NP
Alescio’s opinion is entitled to greater consideration’). The ALJ offered no reasons as to
why the time period of treatment by LMSW Wagner would be inadequate to support her
opinion.
Further, while the ALJ was permitted to consider Plaintiff's activities of daily living
when evaluating the opinion evidence of record, he was still required to explain how
performance of such activities undermined LMSW Wagner's opinion and instead
demonstrated that Plaintiff was capable of performing substantial gainful work in a
competitive work environment. See Miller v. Colvin, 122 F. Supp. 3d 23" date_filed="2015-08-17" court="W.D.N.Y." case_name="Miller v. Colvin">122 F. Supp. 3d 23, 29 (W.D.NLY,
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2015) (citations omitted) (finding the ALJ erred by failing to explain how the plaintiffs
limited activities of daily living translated into the ability to perform substantial gainful work
in a typical competitive workplace environment). Plaintiff's ability to independently live in
an apartment and take care of it, go-to a store, and use public transportation are basic
adaptive activities. id. (quoting Farina v. Colvin, 2015 WL 235858, at *9 (N.D.N.Y. Jan.
15, 2015) (“[Alctivities of daily living’, . . . generally include ‘adaptive activities such as
cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a
residence, [and] caring appropriately for your grooming and hygiene . . .”) (internal
quotation omitted). The ALJ failed to explain how these limited activities meant Plaintiff
could meet the mental demands of full-time competitive work. This was erroneous. See
Miller, 122 F. Supp. 3d 23" date_filed="2015-08-17" court="W.D.N.Y." case_name="Miller v. Colvin">122 F. Supp. 3d at 29-30.
Also, the alleged inconsistencies between LMSW Wagner's opinion and Plaintiff's
ability to live independently in an apartment and take care of it, go to a store, and use
public transportation are unclear from the ALJ’s decision. LMSW Wagner never indicated
Plaintiff was unable to perform these limited activities. (Tr. 823-24). She specifically
explained that although Plaintiff utilized public transportation, he had difficulty traveling to
new places. (Tr. 824). !n addition, the activities cited as support by the ALJ do not appear
to be probative of Plaintiff's abilities to maintain attention and concentration, maintain
regular attendance and complete a normal workday and workweek with interruptions,
interact appropriately with supervisors and coworkers, respond appropriately to changes
in a routine work setting, deal with work, and maintain socially appropriate behavior — all
of which were assessed by LMSW Wagner and accounted for a majority of her opined
limitations. (Tr. 823-24). As such, Plaintiff's “ability to perform [those] basic activities . . .
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4133
‘do not by themselves contradict” LMSW Wagner's opined limitations because, as “stated
on numerous occasions [,] .. . ‘a claimant need not be an invalid to be found disabled’
under the Social Security Act." See Miller, 122 F. Supp. 3d 23" date_filed="2015-08-17" court="W.D.N.Y." case_name="Miller v. Colvin">122 F. Supp. 3d at 29 (quoting McGregor v.
Astrue, 993 F. Supp. 2d 130" date_filed="2012-07-12" court="N.D.N.Y." case_name="McGregor v. Astrue">993 F.Supp.2d 130, 142 (N.D.N.Y. 2012); Balsamo v. Chater, 142 F.3d 75" date_filed="1998-03-06" court="2d Cir." case_name="Patrick Balsamo v. Shirley S. Chater, Commissioner of Social Security">142 F.3d 75, 81
(2d Cir. 1998)) (internal quotations omitted). See also Harsh v. Colvin, 2014 WL 4199234,
at *4 (N.D.N.Y..Aug. 22, 2014) (citing George v. Colvin, 2014 WL 652930, at *6 (N.D.NLY.
Feb. 19, 2014); Bjornson v, Astrue, 671 F.3d 640" date_filed="2012-01-31" court="7th Cir." case_name="Christine Bjornson v. Michael Astru">671 F.3d 640, 647 (7th Cir. 2012)) (finding the ALJ
erred by placing undue emphasis on of the claimant's ability to perform daily activities to
infer “an ability to handle the stress demands of competitive, remunerative employment
on a sustained basis from the ability to perform very basic activities of daily living.”).
Lastly, the ALJ’s assertion that LMSW Wagner's opinion is inconsistent with her
mental status examinations of the Plaintiff is insufficient as stated, as he failed to provide
any citations to the record in support of his assertion, which was erroneous. See Robinson
v. Berryhill, 2019 WL 2453346, at *9 (S.D.N.Y. Jan. 25, 2019) (citations omitted), report
and recommendation adopted sub nom. Robinson v. Comm'r of Soc. Sec., 2019 WL
1004140 (S.D.N.Y. Feb. 28, 2019) (finding the ALJ’s conclusory reasons for rejecting a
treating nurse practitioner's opinion, without offering an explanation or citations to the
record, was insufficient and prevented the Court's ability to conduct proper judicial
review). The ALJ should have identified the specific findings he found unremarkable and
explained why they did not support LMSW Wagner's opinion. See Sutherland v. Barnhart,
322 F. Supp. 2d 282" date_filed="2004-06-23" court="E.D.N.Y" case_name="Sutherland v. Barnhart">322 F.Supp.2d 282, 289 (E.D.N.Y. 2004) (“It is not proper for the ALJ to simply pick and
choose from the transcript only such evidence that supports his determination, without
affording consideration to evidence supporting the plaintiff's claims.”); see also Nix v.
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Astrue, 2009 WL 3429616, at “6 (W.D.N.Y. Oct. 22, 2009) (noting that “an ALJ... may
not ignore an entire line of evidence that is contrary to [his] findings”) (internal quotation
marks omitted). Failure to do so makes it difficult for this Court to conduct a meaningful
review.
CONCLUSION
For the above reasons, Plaintiff's motion for judgment on the pleadings (Dkt. No.
12) is granted, defendant's motion for judgment on the pleadings (Dkt. No. 13) is denied,
and the case is remanded for further administrative proceedings.
The Clerk of Court shall take all steps necessary to close this case.
SO ORDERED.
Dated: September 17, 2021
Buffalo, New York
United States Magistrate Judge
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