Green v. Saul

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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IVORY GREEN,

MEMORANDUM AND ORDER

Plaintiff,

19-cv-4704 (KAM)

v.

ANDREW SAUL, COMMISSIONER OF

THE SOCIAL SECURITY ADMINISTRATION,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C.§ 405(g), Ivory Green

(“Plaintiff”) appeals the final decision of the Commissioner of

Social Security (“Defendant”), which found that Plaintiff was

not eligible for disability insurance benefits (“DIB”) under

Title II of the Social Security Act (“the Act”) on the basis

that Plaintiff is not disabled within the meaning of the Act.

Plaintiff alleges that she is disabled under the Act and is thus

entitled to receive the aforementioned benefits. (ECF No. 1,

Complaint.) Plaintiff is alleging disability for the period

from August 1, 2014 through August 1, 2016. (Id.; ECF No. 15,

Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion

for Judgment on the Pleadings (“Pl. Mem.”) at 1.)

Presently before the court is Plaintiff’s motion for

judgment on the pleadings, (ECF No. 14, Notice of Motion; ECF

No. 15, Memorandum of Law in Support of Plaintiff’s Motion (“Pl.

Mem.”)), Defendant’s cross-motion for judgment on the pleadings,

(ECF No. 16, Cross-Motion; ECF No. 17 Memorandum of Law in

Support of Defendant’s Cross-Motion (“Def. Mem.”)), and

Plaintiff’s Reply (ECF No. 18, Plaintiff’s Reply Memorandum of

Law (“Pl. Reply”).) For the reasons stated below, Plaintiff’s

motion is GRANTED, Defendant’s motion is DENIED, and the case is

remanded for further proceedings consistent with this Memorandum

and Order.

BACKGROUND

The parties have submitted a joint stipulation of

facts detailing Plaintiff’s medical history and the

administrative hearing testimony, which the court incorporates

by reference. (See generally ECF No. 18-1, Joint Stipulation of

Facts (“Stip.”).) On December 21, 2015, the Plaintiff filed an

application for DIB Benefits. (Pl. Mem. at 1.) On July 21,

2014, Plaintiff inhaled dye from an explosion during an at-work

accident. (Stip. at ¶ 2.) Shortly thereafter, plaintiff sought

respiratory treatment, and was diagnosed with asthma, allergic

rhinitis, obesity, and a hernia. (Id. at ¶¶ 5, 23 60.)

On April 22, 2016, Plaintiff filed a written request

for a hearing before an Administrative Law Judge (“ALJ”). (Pl.

Mem. at 1.) On February 9, 2018, the ALJ, Paul Greenberg,

presided over Plaintiff’s video conference. (ECF No. 19,

Transcript (“Tr.) at 30.) A vocational expert (“VE”), Susanna

Roche, testified at the hearing. (Id. at 56-60.) At the

hearing, the ALJ presented Ms. Roche with numerous hypothetical

questions. (Id.) The ALJ posed hypothetical questions to Ms.

Roche as to whether Plaintiff could perform light exertional

work. (Id.) Ms. Roche provided that there were significant

limitations on Plaintiff’s ability to work, as well as

testifying to the limited types of jobs given plaintiff’s

limitations. (Id.) When the ALJ asked Ms. Roche whether those

limited jobs were available, Ms. Roche answered that no jobs

were available. (Id.) The ALJ also asked whether there were

jobs where an individual would be off task for one hour per day,

to which Ms. Roche responded in the negative. (Id.) Lastly,

the ALJ inquired whether there were jobs where an individual

would be absent from work two days per month and Ms. Roche

answered in the negative. (Id.)

In a decision dated August 29, 2018, the ALJ found

Plaintiff was not disabled. (Id. at 14.) On October 12, 2018,

Plaintiff requested a review of the ALJ’s decision. (Id. at

144-145.) On June 14, 2019, the Appeals Council denied

Plaintiff’s request for review and adopted the ALJ’s decision as

the final determination of the Commissioner of Social Security.

(Id. at 1-5)

On August 15, 2019, Plaintiff filed the instant action

in federal court. (See generally ECF No. 1, Complaint

(“Compl.”).) On November 20, 2019, this court issued a

scheduling order. (ECF No. 9, Scheduling Order.) On May 5,

2020, Plaintiff filed her notice of motion and memorandum of law

in support of Plaintiff’s motion for judgment on the pleadings.

(ECF Nos. 14 and 15.) On that same day, Defendant filed his

cross-motion and memorandum of law in support of Defendant’s

cross-motion for judgment on the pleadings and in opposition of

Plaintiff’s motion for judgment on the pleadings. (ECF Nos. 16

and 17.) Later that same day, Plaintiff filed her reply

memorandum of law. (ECF No. 18.)

LEGAL STANDARD

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Commissioner’s denial of their benefits

“within sixty days after the mailing . . . of notice of such

decision or within such further time as the Commissioner of

Social Security may allow.” 42 U.S.C. §§ 405(g), 1383(c)(3). A

district court, reviewing the final determination of the

Commissioner, must determine whether the correct legal standards

were applied and whether substantial evidence supports the

decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.

1998).

A district court may set aside the Commissioner’s

decision only if the factual findings are not supported by

substantial evidence or if the decision is based on legal error.

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

“Substantial evidence is more than a mere scintilla,” and must

be relevant evidence that a “reasonable mind might accept as

adequate to support a conclusion.” Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 420

U.S. 389, 401 (1971)) (internal quotation marks omitted). If

there is substantial evidence in the record to support the

Commissioner’s factual findings, those findings must be upheld.

42 U.S.C. § 405(g). Inquiry into legal error “requires the

court to ask whether ‘the claimant has had a full hearing under

the [Commissioner’s] regulations and in accordance with the

beneficent purposes of the [Social Security] Act.’” Moran v.

Astrue, 569 F.3d 108, 112 (2d Cir. 2009). The reviewing court

does not have the authority to conduct a de novo review, and may

not substitute its own judgment for that of the ALJ, even when

it might have justifiably reached a different result. Cage v.

Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).

To receive disability benefits, claimants must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a), (d). A claimant is disabled under the Act when she is

unable 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); Shaw v. Chater, 221 F.3d

126, 131–32 (2d Cir. 2000). The impairment must be of “such

severity” that the claimant is unable to do his previous work or

engage in any other kind of substantial gainful work. 42 U.S.C.

§ 423(d)(2)(A). “The Commissioner must consider the following

in determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999)).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s condition meets the Act’s

definition of disability. See 20 C.F.R. § 404.1520. This

process is essentially as follows:

[I]f the Commissioner determines (1) that the claimant

is not working, (2) that he has a ‘severe impairment,’

(3) that the impairment is not one [listed in Appendix

1 of the regulations] that conclusively requires a

determination of disability, and (4) that the claimant

is not capable of continuing in his prior type of work,

the Commissioner must find him disabled if (5) there is

not another type of work the claimant can do.

Burgess, 537 F.3d at 120 (internal quotation marks and citation

omitted); see also 20 C.F.R. § 404.152(a)(4).

During this five-step process, the Commissioner must

consider whether “the combined effect of any such impairment . .

. would be of sufficient severity to establish eligibility for

Social Security benefits.” 20 C.F.R. § 404.1523. Further, if

the Commissioner does find a combination of impairments, the

combined impact of the impairments, including those that are not

severe (as defined by the regulations), will be considered in

the determination process. 20 C.F.R. § 416.945(a)(2). At steps

one through four of the sequential five-step framework, the

claimant bears the “general burden of proving . . . disability.”

Burgess, 537 F.3d at 128. At step five, the burden shifts from

the claimant to the Commissioner, requiring that the

Commissioner show that, in light of the claimant’s RFC, age,

education, and work experience, the claimant is “able to engage

in gainful employment within the national economy.” Sobolewski

v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).

Lastly, federal regulations explicitly authorize a

court, when reviewing decisions of the SSA, to order further

proceedings when appropriate. “The court shall have power to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g). Remand is

warranted where “there are gaps in the administrative record or

the ALJ has applied an improper legal standard.” Rosa v.

Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v.

Chater, 94 F.3d 34, 39 (2d Cir. 1996) (internal quotation marks

omitted). Remand is particularly appropriate where further

findings or explanation will clarify the rationale for the ALJ’s

decision. Pratts, 94 F.3d at 39. However, if the record before

the court provides “persuasive proof of disability and a remand

for further evidentiary proceedings would serve no purpose,” the

court may reverse and remand solely for the calculation and

payment of benefits. See, e.g., Parker v. Harris, 626 F.2d 225,

235 (2d Cir. 1980); Kane v. Astrue, 942 F. Supp. 2d 301, 314

(E.D.N.Y. 2013).

DISCUSSION

I. The ALJ’s Disability Determination

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by 20 C.F.R. §

416.971, at step one, the ALJ determined that Plaintiff had not

engaged in substantial gainful activity from August 1, 2014 to

August 1, 2016. (Tr. at 19; Def. Mem. at 5.) At step two, the

ALJ determined that Plaintiff’s vision disturbance, joint pains,

and gastrointestinal complications were not sufficiently severe

impairments. (Tr. at 19–20.) The Plaintiff asserts that the

ALJ found that the impairments “were not severe,” the Defendant

asserts that the ALJ found that the impairments “were severe,”

but in the end the ALJ found that the impairments “were not

expected to last at a ‘severe’ level for a continuous period,”

to warrant benefits. (Pl. Mem. at 10; Def. Mem. at 5; Tr. at

21.) At step three, the ALJ found that the Plaintiff’s

impairments did not meet the requirements of any listed

impairment to warrant a determination of disability. (Tr. at

21.) At step four, the ALJ assessed Plaintiff’s residual

function capacity (“RFC”) and found that Plaintiff retained RFC

to perform light work. (Id.) At step five, the ALJ determined

that Plaintiff retained the ability to continue her prior work.

(Id. at 21-23.) Specifically, the ALJ found that Plaintiff

could work as a cashier supervisor, bank teller, and operations

supervisor. (Id. at 22–25.) As a result, the ALJ concluded

that Plaintiff was not disabled, from August 1, 2014 to August

1, 2016, within the meaning of 20 C.F.R. § 404.1520(f).

II. Treating Physician Rule

Under the treating physician rule1, a “treating

source’s opinion on the issue of the nature and severity of a

[claimant’s] impairment(s) will be given ‘controlling weight’ if

the opinion is ‘well-supported by medically acceptable clinical

1 Because plaintiff’s application for disability and disability insurance

benefits was filed before March 27, 2017, the recent changes reflected in

C.F.R. § 404.1520c do not apply, and under C.F.R. § 404.1527(a)(2)(c), the

treating source’s opinion is generally assigned added or possibly controlling

weight.

and laboratory diagnostic techniques and is not inconsistent

with the other substantial evidence in the case record.’”

Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting

Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)); 20 C.F.R.

§§ 404.1527(c)(2). See Molina v. Colvin, No. 13-CV-4701, 2014 WL

3925303, at *2 (S.D.N.Y. Aug. 7, 2014) (finding the opinion of a

treating physician “need not be given controlling weight where

[it is] contradicted by other substantial evidence in the

record.”).

An ALJ who does not accord controlling weight to the

treating physician’s medical opinion must consider various

factors to determine how much weight to give to the opinion,

including: “(i) the frequency of examination and the length,

nature and extent of the treatment relationship; (ii) the amount

of medical evidence in support of the treating physician's

opinion; (iii) the consistency of the opinion with the record as

a whole; and (iv) whether the opinion is from a specialist.”

Estrella v. Berryhill, 925 F.3d 90, 95 (2d. Cir. 2019)

(quoting Burgess, 537 F.3d at 128); see 20 C.F.R. §

404.1527(c)(2); see also Adukpo v. Berryhill, 19-cv-2709 (BMC)

2020 WL 3410333, at *1 (E.D.N.Y. Jun. 22, 2020).

“The ALJ must then ‘comprehensively set forth his

reasons for the weight assigned to a treating physician’s

opinion.’” Cichocki v. Astrue, 534 F. Appx. 71, 74 (2d Cir.

2013) (quoting Burgess, 537 F.3d at 129). The regulations also

require that the ALJ set forth “good reasons” for not crediting

the opinion of the treating provider. Cervini v. Saul, 17-CV-

2128 (JMA) 2020 WL 2615929 at *5 (E.D.N.Y. May 21, 2020) (citing

Schaal, 134 F.3d 496, 503 (2d Cir. 1998)). Good reasons

“reflect in substance the factors as set forth in [Section]

404.1527(d)(2), even though the ALJ declines to examine the

factors with explicit reference to the regulation.” Abate v.

Comm’r, 18-CV-2040 (JS), 2020 WL 2113322, at *4 (E.D.N.Y. May 4,

2020); Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013)

(“We require no such slavish recitation of each and every factor

where the ALJ's reasoning and adherence to the regulation are

clear.”). Further, “[t]he failure to provide ‘good reasons for

not crediting the opinion of a claimant's treating physician is

a ground for remand.’” Greek, 802 F.3d 802 F.3d at 375

(quoting Burgess, 537 F.3d at 129-30).

Here, the ALJ gave only “little weight to the opinion”

of treating physician, pulmonologist, Dr. Wilfredo Talavera.

(Tr. at 24.). The ALJ reasoned that Dr. Talavera’s opinion

required only little weight because it was provided in a

“checklist-type form” and failed to provide a narrative. (Id.)

For this reason, the ALJ deemed the assessments of the other

physicians “more persuasive.” (Id.) It is true that a

checklist-type form does not provide a great deal of medical

evidence and may warrant giving the opinion less weight. See

Halloran v. Barnhart, 362 F.3d 28, 31 n. 2 (2d Cir.

2004)(finding the standardized form only “marginally useful” for

assessing the record). However, along with the standardized

form, Dr. Talavera also included some handwritten notes. (Tr.

at 344-347.) The ALJ did not comment on the inclusion of these

handwritten notes. (Id. 24.)

The ALJ acknowledged that Dr. Talavera has “expertise

in the relevant medical specialty.” (Id.) Plaintiff had been

treated by Dr Talavera multiple times in the past and Dr.

Talavera was familiar with plaintiff’s ailments. (Id. at 23.)

Despite plaintiff’s long-standing relationship with Dr. Talavera

as a treating physician, the ALJ provided “great weight” to the

opinions of other physicians who had evaluated the Plaintiff

less frequently and were significantly less familiar with her

ailments. (Id.)

The ALJ failed to consider the Burgess factors, such as

the length, frequency, nature or extent of Dr. Talavera’s

relationship with the plaintiff, or provide a persuasive

rationale supporting the weight given. See Burgess v. Astrue,

537 F.3d 117, 128 (2d Cir. 2008); Greek v. Colvin, 802 F.3d 370,

375 (2d Cir. 2015); Balodis v. Leavitt, 704 F. Supp. 2d 255, 268

(E.D.N.Y. 2010) (citing Risitano v. Comm'r of Soc. Sec., No. 06–

CV–2206(FB), 2007 WL 2319793, at *5 (E.D.N.Y. Aug. 9, 2007)

(remanding the case and directing the ALJ to “identify the

evidence [the ALJ] did decide to rely on and thoroughly explain

... the reasons for his decision” if the ALJ did not intend to

rely on the opinions of plaintiff’s treating physicians);

Torregrosa v. Barnhart, No. CV–03–5275(FB), 2004 WL 1905371, at

*6 (E.D.N.Y. Aug. 27, 2004) (remanding because “(1) there is a

reasonable basis to doubt whether the ALJ applied the correct

legal standard in weighing the opinions of [the treating

physicians], and (2) the ALJ failed to give good reasons for the

weight, or lack thereof, given to those opinions”).)

Accordingly, remand is warranted because the ALJ did

not any provide “good reasons” for giving the treating

physician’s opinions less weight. Instead, the ALJ solely

relied on the format in which the treating physician’s opinion

was rendered. At the very least, ALJ should provide reasons why

Dr. Talavera’s opinion, in whichever format, should not be given

controlling weight. On remand, Plaintiff is entitled to express

consideration of Dr. Talavera's opinions on the form and in his

notes and other records, a statement of the weight given to

those opinions, and good reasons for the ALJ's decision.

III. Credibility Determinations

A claimant’s statements of pain or other subjective

symptoms cannot alone serve as conclusive evidence of

disability. Felix v. Astrue, No. 11-CV-3697, 2012 WL 3043203,

at *8 (E.D.N.Y. July 24, 2012) (citing Genier v. Astrue, 606

F.3d 46, 49 (2d. Cir. 2010) (citing 20 C.F.R. § 1529(a)); see

Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010). If the

plaintiff offers statements about pain or other symptoms not

substantiated by the objective medical evidence, the ALJ is

required to engage in a credibility inquiry. Felix, 2012 WL

3043203, at *8 (citing Meadors v. Astue, 370 F. App’x 179, 183

(2d Cir. 2010) (summary order)).

The Commissioner has established a two-step process

that an ALJ must follow in evaluating a claimant’s credibility

with regard to her assertions about pain and other symptoms and

their impact on claimant’s ability to work. Felix, 2012 WL

3043203, at *8 (citing Genier, 606 F.3d at 49); Cabassa, 2012 WL

2202951, at *13; Williams, 2010 WL 5126208, at *13 (internal

citation omitted). First, the ALJ must determine if the

plaintiff has a medical impairment that could reasonably be

expected to produce the alleged symptoms. 20 C.F.R. §

404.1529(b); Felix, 2012 WL 3043203, at *8 (internal citations

omitted); Williams, 2010 WL 5126208 at *13 (citing Genier, 606

F.3d at 49 (2d Cir. 2010)). Second, if the claimant does suffer

from an impairment that could reasonably be expected to produce

the pain and symptoms alleged, the ALJ “must then evaluate the

intensity and persistence of [the claimant’s] symptoms so that

[the ALJ] can determine if [the claimant’s] symptoms limit [her]

capacity for work.” 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1);

see Cabassa, 2012 WL 2202951, at *13; William, 2010 WL 5126208,

at *13 (internal citation omitted). If the claimant’s

statements are not substantiated by the objective medical

evidence, the ALJ must engage in a credibility inquiry.

Meadors, 370 F. App’x at 183 (citing 20 C.F.R. § 404.1529(c)(3).

Plaintiff’s credibility will be given considerable

weight if her statement about pain is consistent with objective

clinical evidence. See 20 C.F.R. § 404.1529(c)(4); Kane v.

Astrue, 942 F. Supp. 2d 301, 313 (E.D.N.Y. 2013). When the

plaintiff’s symptoms are at a greater severity than indicated by

the objective medicine alone, the ALJ should consider the

following factors: (1) plaintiff’s daily activities; (2)

location, duration, frequency, and intensity of the symptoms;

(3) precipitating and aggravating factors; (4) type, dosage,

effectiveness, and side effects of any medication taken; (5)

other treatments; (6) other measures taken to relieve symptoms;

and (7) any other factors concerning the plaintiff’s functional

limitations due to pain or other symptoms. 20 C.F.R. §

404.1529(c)(3)(i)-(vii); see Kane, 942 F. Supp. 2d at 314;

Williams, 2010 WL 5126208 at *14 (internal citation omitted).

The ALJ, however, is not required to discuss all seven

factors as long as the decision “includes precise reasoning, is

supported by evidence in the case record, and clearly indicates

the weight the ALJ gave to the claimant’s statements and the

reasons for that weight.” Felix, 2012 WL 3043203 at *8 (citing

Snyder v. Barnhart, 323 F. Supp. 2d at 546-47 & n.5 (S.D.N.Y.

2004)). The ALJ’s rationale must be sufficiently specific for a

reviewing court to determine that the ALJ’s decision was based

on substantial evidence. Cabassa, 2012 WL 2202951, at *13

(citing Morrison v. Astrue, No. 08-CV-2048, 2010 U.S. Dist.

LEXIS 115190, at *12 (E.D.N.Y. 2010)); Williams, 2010 WL

5126208, at *20 (citing Alcantara, 667 F. Supp. 2d at 278);

Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d

Cir. 1998)).

Here, the ALJ found that “the claimant’s statements

concerning the intensity, persistence and limiting effects of

these symptoms are not entirely consistent with the medical

evidence and other evidence in the record for the reasons

explained in this decision.” (Tr. at 22.) Plaintiff’s

statements included her inability to work because of respiratory

issues, her inability to sleep because of the burning in her

chest and throat, and details about her consistent

breathlessness. (Id.) The ALJ’s decision, however, does not

assess, directly or indirectly, the medical evidence and the

symptoms and complaints by applying any of the factors described

above. Consequently, the decision does not properly assess

plaintiff’s symptoms and complaints. Specifically, the ALJ

failed to state which of plaintiff’s symptoms and complaints, if

any, she found to be credible, in light of the medical evidence,

the weight given to plaintiff’s statements, and the reasons for

affording such weight. Villani v. Barnhart, No. 05-CV-5503

(DRH), 2008 WL 2001879, at *1 (E.D.N.Y. May 8, 2008)(remanding

for determination of plaintiff’s credibility, which must contain

specific findings based upon substantial evidence in a manner

that enables effective review). The ALJ’s abbreviated

credibility analysis did not clearly evaluate the Plaintiff’s

credibility according to the factors, nor did it set forth the

ALJ's findings with sufficient specificity under Williams ex re.

Williams. See Williams ex. rel Williams v. Bowen, 859 F.2d 255,

261 (2d Cir. 1988). On remand, the ALJ must thoroughly evaluate

Plaintiff's credibility, and specifically apply the seven

factors.

CONCLUSION

Federal regulations explicitly authorize a court, when

reviewing decisions of the SSA, to order further proceedings

when appropriate. “The court shall have power to enter, upon

the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g). Remand is

warranted where “there are gaps in the administrative record or

the ALJ has applied an improper legal standard.” Rosa v.

Callahan, 168 F.3d 72, 82–83 (2d Cir. 1999) (quoting Pratts, 94

F.3d 34, 39) (internal quotation marks omitted). Remand is

particularly appropriate where further findings or explanation

will clarify the rationale for the ALJ’s decision. Pratts, 94

F.3d at 39. However, if the record before the court provides

“persuasive proof of disability and a remand for further

evidentiary proceedings would serve no purpose,” the court may

reverse and remand solely for the calculation and payment of

benefits. See, e.g., Parker v. Harris, 626 F.2d 225, 235 (2d

Cir. 1980); Kane v. Astrue, 942 F. Supp. 2d 301, 314 (E.D.N.Y.

2013).

For the reasons previously set forth, the court grants

Plaintiff’s motion for judgment on the pleadings; denies

Defendant’s cross-motion for judgment on the pleadings; and

remands this case for further proceedings consistent with this

Memorandum and Order. The Clerk of Court is respectfully

directed to enter judgment in favor of plaintiff and close this

case.

SO ORDERED.

DATED: April 8, 2021

Brooklyn, New York

________//s//________________

HON. KIYO A. MATSUMOTO

United States District Judge