Rodriguez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Madelyn Rodriguez,

MEMORANDUM AND ORDER

Plaintiff,

21-cv-5936(KAM)

-against-

Commissioner of Social Security,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Madelyn Rodriguez (“Plaintiff”) appeals the final

decision of the Commissioner of the Social Security Administration

(“Defendant”), which found that the Plaintiff was not disabled and

thus not entitled to disability benefits under Title II of the

Social Security Act (the “Act”) or Supplemental Security Income

(“SSI”) under Title XVI of the Act. Presently before the Court

are Plaintiff’s motion for judgment on the pleadings and the

Commissioner’s cross-motion for judgment on the pleadings. For

the reasons set forth below, Plaintiff’s motion is GRANTED, the

Defendant’s motion is DENIED, and the case is REMANDED for further

proceedings based on this Memorandum and Order.

Background

The parties have filed a joint statement of stipulated facts

detailing Plaintiff’s medical history and administrative hearing

testimony, which the Court has reviewed and incorporates by

reference. The Court briefly recounts the facts relevant to the

instant motions. (See generally ECF No. 15, Joint Stipulation of

Facts.)

On January 29, 2019, Plaintiff filed an application for

disability benefits and SSI, alleging disability since August 1,

2017. (ECF No. 16, Administrative Transcript (“Tr.”), at 16.)

Plaintiff claimed that she was disabled due to a back condition,

sciatica, a left knee and left foot condition, and plantar

fasciitis. (Id. at 62.) Her application was denied on March 18,

2019. (Id. at 69-70.)

On July 24, 2019, Plaintiff filed a written request for a

hearing before an administrative law judge. (Id. at 170.)

Administrative Law Judge M. Reeves (the “ALJ”) held a hearing on

February 24, 2020, during which Plaintiff appeared and testified.

(Id. at 30.) By a decision dated May 29, 2020, the ALJ determined

that Plaintiff was not disabled. (Id. at 13.) Plaintiff appealed

the ALJ’s decision to the Appeals Council. (Id. at 201.) On July

9, 2021, the Appeals Council denied review of the ALJ’s decision,

rendering it the final decision of the Commissioner. (Id. at 4.)

This appeal followed. (ECF No. 1, Complaint; ECF Nos. 13, Motion

for Judgment on the Pleadings; 13-1, Memorandum in Support, (“Pl.

Mem.”); ECF Nos. 17, Cross Motion for Judgment on the Pleadings;

17-1, Memorandum in Support, (“Def. Mem.”).)

Legal Standard

I. Standard of Review

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 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). “A district court may set aside the

Commissioner’s determination that a claimant is not disabled 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) (internal quotation marks and

citation omitted); see also 42 U.S.C. § 405(g). “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

purpose of the [Social Security] Act.” Moran v. Astrue, 569 F.3d

108, 112 (2d Cir. 2009) (citation omitted). 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. See Cage v.

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

Lastly, federal regulations explicitly authorize a court,

upon reviewing decisions of the Commissioner, 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. Moreover, 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).

II. Determination of Disability

To receive disability benefits, a claimant must be “disabled”

within the meaning of the Act. See 42 U.S.C. §§ 423(a), (d). A

claimant qualifies as disabled under the Act when he or 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.” Id. at § 423(d)(1)(A). 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 which exists

in the national economy. Id. at § 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) (alterations in original)).

Pursuant to the regulations promulgated by the Commissioner,

a five-step sequential evaluation 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. § 404.1520(a)(4).

During this five-step process, the Commissioner must consider

whether the combined effect of all the claimant’s impairments,

including those that are not severe (as defined by the

regulations), would be of sufficient severity to establish

eligibility for Social Security benefits. 20 C.F.R. §§ 404.1523,

404.1545(a)(2). At steps one through four of the sequential five-

step framework, the claimant bears the “general burden of proving

. . . disability.” Burgess, 537 F3.d 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

residual functional capacity (“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).

Discussion

I. The ALJ’s Disability Determination

Using the five-step sequential process, the ALJ determined at

step one that Plaintiff had not engaged in substantial gainful

activity since the alleged onset date of August 1, 2017. (Tr. at

19.) At step two, the ALJ determined that Plaintiff suffered from

sciatica, arthritis of the left knee, obesity, and left foot

plantar fasciitis. (Id.)

At step three, the ALJ determined that Plaintiff did not have

an impairment or combination of impairments that equaled the

severity of one of the listed impairments in 20 C.F.R. § 404,

Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,

404.1526, 416.920(d), 416.925, and 416.926). (Id.) Specifically,

the ALJ found that the record did not establish that Plaintiff had

a “gross anatomical deformity” because there was no imaging of

joint space narrowing, bony destruction, or ankylosis of the

affected joints under Listing 1.02; the record also did not show

nerve root compression, spinal arachnoiditis, or lumbar spinal

stenosis resulting in pseudoclaudication under Listing 1.04.

(Id.)

Regarding Plaintiff’s RFC, the ALJ found that Plaintiff had the

RFC to perform sedentary work as defined by 20 C.F.R § 404.1567(a),

except with the limitation that Plaintiff must be able to sit and

stand at will. (Id. at 20.) In determining that Plaintiff had

the RFC to perform sedentary work with a sit/stand limitation, the

ALJ relied on Plaintiff’s hearing testimony and medical records,

which included hospital records, the consultative examination

report of Dr. Chaim Shtock, and the records of Dr. Mancuso,

Plaintiff’s treating orthopedic surgeon, Dr. Lora Slabodkina,

Plaintiff’s treating internist, Dr. Vellore Padmanabhan,

Plaintiff’s treating cardiologist, and Dr. Leon Stepensky,

Plaintiff’s treating podiatrist. (Id. at 21-22.)

Finally, at steps four and five, the ALJ found, based on

Plaintiff’s RFC, that she could perform her past sedentary work as

an administrative clerk and that jobs existed in the national

economy that Plaintiff could perform. (Id. at 23.) In arriving

at this conclusion, the ALJ relied on the testimony of a vocational

expert (“VE”); the VE testified that Plaintiff retained the RFC to

perform the sedentary functional demands and job duties of a

telephone solicitor, food checker, and a cutter and paster of press

clipping. (Id. at 24.) Accordingly, the ALJ found that Plaintiff

was not “disabled” within the meaning of the Act and thus not

entitled to disability benefits.

II. Plaintiff’s Ability to Perform Relevant Work

Plaintiff argues that the ALJ’s finding that Plaintiff can

return to past work or perform other jobs in the national economy

is not supported by substantial evidence.1

1 Plaintiff frames her appeal as based on alleged violations of SSR 00-4p, rather

than as a challenge to substantial evidence. (Pl. Mem. at 8-10.) Courts,

however, have found that arguments based on alleged SSR 00-4p violations

challenge whether an ALJ’s decision at the fifth step was based on substantial

evidence. See Lockwood v. Comm’r of Soc. Sec. Admin., 914 F.3d 87, 91 (2d Cir.

SSR 00-4p creates an “affirmative responsibility” for an ALJ

to ask the VE about “any possible conflict” between the VE’s

testimony and the Dictionary of Occupational Titles (“DOT”) before

relying on VE testimony about possible jobs that fit a claimant’s

RFC determination. SSR 00-4p, 2000 WL 1898704, at *4 (2000);

Daragjati v. Colvin, No. 14-cv-2727 (BMC), 2015 WL 427944, at *10

(E.D.N.Y. Jan. 31, 2015) (“SSR 00–4p is written in mandatory

language, and the majority of decisions in this Circuit apply it

according to the way it is written.” (citations omitted)). If the

ALJ discovers that there is an “apparent unresolved conflict”

between the VE’s testimony and the DOT, the ALJ must “elicit a

reasonable explanation for the conflict” and “resolve the conflict

by determining if the explanation given by the VE . . . is

reasonable and provides a basis for relying on the VE . . .

testimony rather than on the DOT information.” SSR 00-4p, 2000 WL

1898704, at *2. Violations of SSR 00-4p occur when the ALJ fails

to ask the VE whether his or her testimony conflicts with the DOT;

courts, however, apply a “harmless error” standard where there is

no apparent conflict or if the conflict was adequately resolved.

See Massachi v. Astrue, 486 F.3d 1149, 1154 n.19 (9th Cir. 2007)

(noting that the ALJ’s failure to follow the procedural

2019); Diaz v. Astrue, No. 3:11-cv-317 (VLB), 2012 WL 3854958, at *4 (D. Conn.

Sept. 5, 2012) (“Reviewing courts have applied SSR 00–4p and held that the

Commissioner did not produce substantial evidence that there are jobs in the

national economy when the ALJ fails to inquire about an ‘apparent unresolved

conflict’ between the VE's testimony and the DOT.” (citations omitted)).

requirements of SSR 00-4p “could have been harmless, were there no

conflict, or if the vocational expert had provided sufficient

support for her conclusion so as to justify any potential

conflicts[.]”); Coleman v. Astrue, 269 F. App’x 596, 602 (7th Cir.

2008) (summary order) (finding harmless error where sufficient

occupations remained available to claimant even after subtracting

an identified occupation described by the VE in a manner that

conflicted with the DOT); Renfrow v. Astrue, 496 F.3d 918, 921

(8th Cir. 2007) (finding harmless error where there was no actual

conflict between identified occupations and the claimant’s RFC);

Diaz v. Astrue, No. 3:11-cv-317 (VLB), 2012 WL 3854958, at *5 (D.

Conn. Sept. 5, 2012).

Plaintiff contends that the ALJ violated SSR 00-4p because

the ALJ failed to ask about, identify, or resolve an apparent

conflict between (1) the testimony of the VE that certain

identified sedentary occupations could accommodate a sit/stand

option, and (2) the requirements of sedentary work as defined by

DOT, which Plaintiff asserts does not allow for a sit/stand

limitation. (Pl. Mem. at 10.) As a result of the ALJ’s alleged

failure to follow the SSR 00-4p’s requirements, Plaintiff argues

that the ALJ did not properly resolve whether the occupations

identified by the VE support the sit/stand option required by

Plaintiff’s RFC.2 (Id.)

Here, the ALJ did not ask the VE whether there was a conflict

with the DOT. (Tr. at 56-59.) Accordingly, the ALJ violated SSR

00-4p. See Lockwood v. Comm’r of Soc. Sec. Admin., 914 F.3d 87,

91 (2d Cir. 2019) (“[SSR 00-4p] tasks the Commissioner with an

affirmative responsibility to ask about any possible conflict[.]”

(internal citation, quotation omitted)). As noted above, however,

violations of SSR 00-4p may amount to “harmless error” if there is

no apparent conflict or if the conflict is resolved. See, e.g.,

Massachi, 486 F.3d at 1154 n.19; Coleman, 269 F. App’x at 602.

Plaintiff asserts that there was an apparent conflict – that DOT’s

definition of “sedentary” work conflicts with the VE’s testimony

2 Plaintiff also argues that other regulations, SSR 96-9 and SSR 83-12, support

her contention that the DOT’s definition of sedentary work does not allow for

a sit/stand option. SSR 96-9 and SSR 83-12 both note that sit/stand limitations

may affect which unskilled sedentary jobs claimants can perform, and instruct

ALJs to consult a VE if the claimant’s RFC requires a sit/stand option. SSR

96-9p, 1996 WL 374185, at *6-7 (1996); SSR 83-12, 1983-1991 Soc.Sec.Rep.Serv.

36, 1983 WL 31253, at *4 (1983). This Court finds that SSR 96-9 and SSR 83-12

do not necessarily preclude an RFC finding of sedentary work for those who

require a sit/stand option, as long as the ALJ consults with a VE concerning

the specific sit/stand limitation. See McIntyre v. Colvin, 758 F.3d 146, 152

(2d Cir. 2014) (“[T]he category of sedentary jobs is large, and the general

definition allows of exceptions. Accordingly, ‘[i]n more complex cases’ a

vocational expert may be consulted to determine whether there is other work in

the national economy that an individual with the ability to do less than the

full range of sedentary work may perform.”) (quoting SSR 96-9p, 1996 WL 374185,

at *9); see also Moore v. Apfel, 216 F.3d 864, 871 (9th Cir. 2000) (“SSR 83–12

does not mandate a finding of ‘disabled.’ Instead, [SSR 83—12] mandates the

use of a VE . . . .” (emphasis added)). SSR 96-9 and SSR 83-12 direct an ALJ

to speak with a VE if a claimant requires a sit/stand option, which the ALJ did

here. Nevertheless, the ALJ’s consultation with a VE regarding the sit/stand

option generally does not satisfy the ALJ’s obligation under SSR 00-4P to ask

about, identify, or resolve apparent conflicts between the VE’s testimony and

the DOT.

that the identified jobs could be performed with a sit/stand

option. (See Pl. Mem. at 6, 9.) Defendant counters that VE

testimony regarding a sit/stand option cannot create an apparent

conflict with the DOT because the DOT is silent about a sit/stand

option. (Def. Mem. at 4.)

The DOT’s definition of sedentary work does not explicitly

mention whether sedentary work allows claimants to sit and stand

at times of their own choosing (i.e., whether sedentary work

accommodates a sit/stand option). Instead, the DOT defines

“sedentary” work as jobs in which “walking and standing are

required only occasionally.” U.S. Dep’t of Labor, Dictionary of

Occupational Titles, App. C (4th ed. 1991). It defines the word

“occasionally” as a condition that exists up to one-third of the

time. Id.

The Second Circuit has not yet decided whether the DOT’s

silence on a sit/stand option within the definition of sedentary

work creates an apparent conflict with VE testimony concerning

sedentary occupations.3 There is a split among the circuit courts

that have addressed this issue.

3 Defendant cites two cases in which the Second Circuit affirmed an ALJ’s

decision to deny benefits based on the ALJ’s finding that the claimant’s RFC

allowed sedentary work with an exception for a sit/stand option. (Def. Mem. at

5.); Tricarico v. Colvin, 681 F. App’x 98 (2d Cir. 2017) (summary order); Pellam

v. Astrue, 508 F. App'x 87 (2d Cir. 2013) (summary order). In neither case,

however, did the district court or the Second Circuit evaluate whether the ALJ

failed to resolve an apparent conflict with the DOT, as relevant here.

The Seventh Circuit has held that “[b]ecause the DOT does not

address the subject of sit/stand options, it is not apparent that

the testimony conflicts with the DOT.” Zblewski v. Astrue, 302 F.

App’x 488, 494 (7th Cir. 2008). District courts within the Second

Circuit have reached the same conclusion. Wellington v. Astrue,

No. 12-cv-3523, 2013 WL 1944472, at *4 (S.D.N.Y. May 9, 2013)

(“Because the DOT does not address the availability of a sit/stand

option, it cannot contradict the vocational expert’s testimony

which endorsed such an option.”); see also Moslow v. Berryhill,

No. 1:16-cv-00198 (MAT), 2019 WL 1508045, at *5 (W.D.N.Y. Apr. 4,

2019); Pitts v. Colvin, No. 14-cv-317S, 2015 WL 3823781, at *6

(W.D.N.Y. June 19, 2015); Pahl v. Colvin, No. 12-cv-3168, 2013 WL

3761545, at *6 (W.D.N.Y. July 16, 2013)).

By contrast, the Ninth Circuit and Third Circuit have found

that a VE’s testimony about a sit/stand option can present an

apparent conflict with the DOT. In Coleman v. Astrue, the Ninth

Circuit decided that many “sedentary” jobs could not accommodate

a sit/stand option, and that the VE’s testimony was too brief and

uninformed to reconcile the conflict. 423 F. App’x 754, 756 (9th

Cir. 2011). In Boone v. Barnhart, the Third Circuit remanded an

ALJ’s decision to give a claimant who could perform “light work”

a sit/stand option. 353 F.3d 203, 211 (3d Cir. 2003). There, the

Third Circuit found that the jobs that the VE identified as being

available to a claimant who could perform “light work” required

standing or walking “throughout the shift,” rather than providing

claimants with the opportunity to sit or stand at will. Id. at

207-08. Some courts within the Second Circuit have held similarly.

See Gallegos v. Colvin, No. 3:13-cv-393 (JBA), 2014 WL 4635418, at

*5 (D. Conn. Sept. 11, 2014) (holding that sit/stand options are

inconsistent with the DOT’s definition of sedentary work and that

the ALJ must therefore provide a “reasonable explanation” for the

conflict before deviating from the DOT).

This Court finds that including the sit/stand limitation in

Plaintiff’s RFC presented an apparent conflict with the DOT’s

definition of sedentary work. The Second Circuit has noted that

the definition of an “apparent conflict” encompasses conflicts

which “seem[] real or true, but are not necessarily so.” Lockwood,

914 F.3d at 93 (quoting Pearson v. Colvin, 810 F.3d 204, 209 (4th

Cir. 2015)). “[SSR 00-4p] mandates that whenever the Commissioner

intends to rely on a vocational expert’s testimony, she must

identify and inquire into all those areas where the expert’s

testimony seems to conflict with the [DOT].” Id. at 92 (emphasis

in original) (alterations, internal quotation and citation

omitted).

The sit/stand option “seems to” conflict with the DOT’s

definition of sedentary work. The DOT defines sedentary work as

including the possibility of standing or walking for up to one

third of the workday. A sit/stand option in an RFC, however, means

that a claimant must be able to choose when to sit and when to

stand, at will. (Pl. Mem. at 10.) Therefore, Plaintiff must be

able to choose any time she needs to sit, stand, or walk, even if

the total time spent in any of those positions is different than

the DOT’s fractional breakdown into thirds, in which claimants

performing sedentary work must be able to sit for two-thirds of

the workday, and stand or walk for one-third of the workday. For

example, there may be days when Plaintiff’s pain only allows her

to stand or walk for a total of one hour per day, even though her

“sedentary” job requires her to stand or walk for two hours per

day (which is less than one-third of the workday). A sit/stand

option would permit Plaintiff to stand or walk for just one hour

per day; it is not clear, however, that all “sedentary work” (or

the three specific sedentary occupations identified by the VE)

would allow Plaintiff to choose to stand or walk for one hour per

day.4 Accordingly, an apparent conflict exists with the sit/stand

option.

The VE’s testimony did not resolve this apparent conflict.

When the ALJ asked if a claimant could sit/stand at will in the

occupations identified by the VE, the VE answered “yes,” but

4 Defendant points out that Plaintiff testified that she could sit for two hours

before needing to stand up and could subsequently sit again (though not without

discomfort). (Def. Mem. at 6, n.2.) But when evaluating how long a claimant

can stand or walk for, “we are hardly dealing with precise numbers.” See

Daragjati, 2015 WL 427944, at *10. The ALJ here determined that Plaintiff

required a sit/stand option, and this Court does not review that determination.

provided no further explanation. (Tr. at 58-59.) This cursory

and nonspecific testimony does not satisfy this Court that the ALJ

resolved the apparent conflict. See Pearson v. Colvin, 810 F.3d

204, 208 (4th Cir. 2015) (“[A]n ALJ has not fulfilled his

affirmative duty ‘merely because the [vocational expert] responds

‘yes’ when asked if her testimony is consistent with the

[Dictionary].’” (citations omitted)). SSR 00-4p provides that

“reasonable explanations” for conflicts can include the use of

information from “reliable publications, information obtained

directly from employers, or from a VE’s . . . experience in job

placement or career counseling.” SSR 00-4p, 2000 WL 1898704, at

*2-3; see also Murray, 2016 WL 5335545, at *13 (explaining that

where the VE acknowledges the inconsistency between the sit/stand

option and the DOT, but nevertheless testifies based on their

knowledge and experience that an occupation would permit the

claimant to alternate between sitting and standing, any potential

conflict is resolved). The VE here did not acknowledge the fact

that the DOT is silent on a sit/stand option, nor did the VE

provide any explanations for the inconsistency.

As a result of the ALJ’s failure to inquire about, identify,

and resolve the apparent conflict, this Court is now left to

speculate as to whether the occupational base identified by the VE

truly accommodates a sit/stand option. Lockwood, 914 F.3d at 93

(2d Cir. 2019) (“But while this Court could guess what the three

jobs .. . identified require in reality . . . [,] [t]he importance

of . . . such details is precisely why the Commissioner bears an

affirmative responsibility to ask about any possibile conflict

between vocational expert evidence and information provided in the

Dictionary.” (citations and internal quotations omitted)). The

Commissioner bears the burden of proof at the fifth step of the

evaluation process. See Daragjati, 2015 WL 427944, at *11.

Accordingly, the ALJ’s failure to abide by the procedural

requirements of SSR 00-4p - by failing to fulfill its affirmative

duty to identify and resolve the apparent conflict - leaves the

Court unable to determine whether the ALJ’s findings at step five

were supported by substantial evidence, and the Court must remand

for further proceedings.

CONCLUSION

For the forgoing reasons, the Plaintiff’s motion is GRANTED,

the Defendant’s motion is DENIED, and this case is REMANDED for

further proceedings consistent with this Memorandum and Order.

SO ORDERED

Dated: August 7, 2023

Brooklyn, New York

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HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

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