Griffin v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DOLORES A. GRIFFIN,

Plaintiff,

-vs- DECISION AND ORDER

ANDREW M. SAUL, Commissioner of Social 18-CV-209-CJS

Security,1

Defendant.

APPEARANCES

For Plaintiff: Anthony John Rooney, Esq.

Kenneth R. Hiller, Esq.

Law Offices of Kenneth Hiller, PPLC

6000 N. Bailey Avenue, Suite 1A

Amherst, NY 14226

(716) 564-3288

For the Commissioner: Laura Ridgell Boltz, Esq.

Office of the General Counsel

Social Security Administration

1961 Stout Street, Suite 4169

Denver, CO 80294

(303) 844-1190

Lorie Ellen Lupkin, Esq.

Social Security Administration

Office of General Counsel

26 Federal Plaza, Room 3904

New York, NY 10278

(212) 264-0768

INTRODUCTION

Siragusa, J. This Social Security disability case is before the Court for review pursuant to 42

U.S.C. § 405(g) from the Commissioner’s decision denying disability benefits for the period

from February 6, 2013 until May 26, 2016. Plaintiff has moved for judgment on the pleadings,

filed on August 8, 2018, ECF No. 10, and the Commissioner has cross-moved for judgment on

1 The president nominated Andrew M. Saul to be Commissioner of Social Security and the

Senate confirmed his appointment on June 4, 2019. He is substituted pursuant to Fed. R. Civ. P. 25(d).

The Clerk is directed to amend the caption to comply with this substitution.

the pleadings, filed on October 9, 2018, ECF No. 12. For the reasons stated below, the Court

grants Plaintiff’s motion and remands the matter to the Commissioner.

BACKGROUND

Plaintiff filed an application for disability benefits under Title II of the Social Security

Act on December 17, 2013, alleging that her disability, back and neck2 pain, began on

February 6, 2013. R. 152.3 The Social Security Administration denied her claim initially on

January 30, 2014, and she requested and was granted a hearing before an Administrative

Law Judge (“ALJ”). The hearing was held on April 15, 2016, in Buffalo, New York. Plaintiff was

represented by an attorney at the hearing. The ALJ issued a decision on September 22, 2016,

finding that from February 6, 2013, until May 26, 2016, Plaintiff was not disabled, and that

after May 26, 2016, she was disabled (because her age category changed). Plaintiff appealed

to the Social Security Administration’s Appeals Council and provided additional evidence. The

Appeals Council denied her appeal on December 8, 2017, making the ALJ’s decision the

Commissioner’s final decision. Plaintiff filed her complaint in this Court through counsel on

February 6, 2018. ECF No. 1.

STANDARD OF REVIEW

Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based on

the denial of Social Security benefits. Section 405(g) provides that the District Court “shall

have the 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) (2007). The section directs that

when considering such a claim, the Court must accept the findings of fact made by the

Commissioner, provided that such findings are supported by substantial evidence in the

record. Substantial evidence is defined as “‘more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’”

2 She testified to the ALJ that her neck pain was the “number reason preventing her from

working.” R. 47.

3 “R.” refers to pages in the entire record of proceedings before the Social Security

Administration, filed on June 8, 2018, ECF No. 7.

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149

(1997).

When determining whether substantial evidence supports the Commissioner’s

findings, the Court’s task is “‘to examine the entire record, including contradictory evidence

and evidence from which conflicting inferences can be drawn.’” Brown v. Apfel, 174 F.3d 59,

62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per

curiam)). Section 405(g) limits the scope of the Court’s review to two inquiries: determining

whether the Commissioner’s findings are supported by substantial evidence in the record as

a whole, and whether the Commissioner’s conclusions are based upon an erroneous legal

standard. Green-Younger v. Barnhart, 335 F.3d 99, 105–06 (2d Cir. 2003); see also Mongeur,

722 F.2d at 1038 (finding a reviewing court does not try a benefits case de novo ).

Under Federal Rule of Civil Procedure 12(c), the Court may grant judgment on the

pleadings where the material facts are undisputed and where judgment on the merits is

possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters,

Inc., 842 F.2d 639, 642 (2d Cir. 1988). The certified copy of the transcript of the record,

including the evidence upon which the ALJ relied, is part of the pleadings. 42 U.S.C. § 405(g).

THE ALJ’S DECISION

The ALJ found that Plaintiff has the following severe impairments: degenerative disc

disease status post motor vehicle accident and reading disorder. R. 28. He also determined

that Plaintiff had the following non-severe impairment: obesity, which he found did not have

“a significant effect on the claimant's ability to perform routine movement or necessary

physical activity within the work environment or any other effects on the claimant’s ability to

work.” R. 29. Further, the ALJ determined that she retained the residual functional capacity to

perform light work, except for work that requires reading. Id.

DISCUSSION

Plaintiff raises the following as errors committed by the Commissioner: (1) the ALJ

erred in his evaluation of Plaintiff’s treating physicians; and (2) the ALJ erred by giving

significant weight to Dr. Miller and some weight to Dr. Cardamone.

Chiropractor Keith V. Cardimone,4 D.C., examined Plaintiff on August 12, 2013. His

treatment notes from August and September 2013 show several visits, but are practically

illegible. R. 281–86. The entry for October 8, 2013, reads: “Chiro Care Cut off as of 7/18/13

for IME done on 6/21/13.” R. 286. In a letter notarized on July 2, 2013, Dr. Cardimone wrote,

inter alia, the following:

The claimant does not require household help, transportation assistance,

durable medical equipment or additional diagnostic testing . . . . She can

perform her normal activities of daily living. She is capable of returning to a work

environment with a restriction of lifting no more than 20 lbs., and no excessive

bending and twisting at the waist.

R. 478.

David Holmes, M.D., was Plaintiff’s primary care doctor. Plaintiff first saw him on

September 30, 2013, for a routine follow-up and medicine renewal, a “no fault” visit regarding

chronic pain in her neck and back following a car accident on February 6, 2013, as well as to

obtain surgical clearance for “lap band”5 surgery. R. 315. Dr. Holmes cleared Plaintiff for

surgery, but did not make any assessment concerning her neck and back pain. R. 317. In

another visit, on October 25, 2013, Dr. Holmes noted that Plaintiff had successfully undergone

gastric surgery, and that she had hypertension, insomnia, and suffered from obesity. R. 312.

He made no assessment concerning her neck and back pain. R. 312. Plaintiff’s next visit with

Dr. Holmes took place on November 15, 2013. Plaintiff reported she still had neck and

shoulder pain, but wanted to return to work. R. 307. He examined her and noted she had “mild,

4 Dr. Cardamone’s report is at page 478 in the record, but is strangely preceded by a page from

Kenneth Hiller’s office listing the treating source as “Keith Conover DC.” R. 477.

5 “Lap-Band is a medical device that is implanted in order to reduce stomach size.” Dixon v.

Allergan USA, Inc., No. 14-61091-CIV, 2015 WL 12915672, at *1 (S.D. Fla. July 16, 2015), aff'd, 645

F. App’x 930 (11th Cir. 2016).

diffuse upper back/shoulder tenderness,” and assessed Plaintiff with cervical radiculopathy,6

cervical spine stenosis,7 and cervicalgia.8 R. 309. He continued her medications and set a

follow-up visit for three months later. R. 309. Dr. Holmes amended his report on November

16, 2013, striking through cervical radiculopathy, cervical spine stenosis, and cervicalgia in

the section titled “Active Problems.” R. 304. In his revised report, he assessed Plaintiff with

adnominal pain and constipation. R. 306.

David H. Joslyn, RPA-C, and Cameron B. Huckell, M.D., saw Plaintiff on November 6,

2013. R. 288–92. Their report shows that Plaintiff was examined and was tolerating her

symptoms of back and neck pain “with activity modification, massage therapy, and pain

management.” R. 291. Dr. Huckell stated Plaintiff was going to continue with “that approach,”

and he would reevaluate her in three or four months. Id. He wrote: “It is my opinion that Dolores

is considered to be temporarily disabled at this time as a result of the motor vehicle accident

dated 2/6/13.” Id.

Donna Miller, D.O., performed a consultative examination of Plaintiff on January 23,

2014. R. 328–31. She wrote in her “medical source statement” that Plaintiff “has a mild

limitation with lifting, bending, carrying, pushing and pulling.” R. 331.

Dr. Holmes saw Plaintiff again on February 11, 2014. R. 432. He noted she was

complaining of neck pain that radiated bilaterally to her arms and chest, and tingling hands.

He further noted that Plaintiff saw Dr. Williams9 for pain management, and saw an orthopedic

surgeon, but had not seen a neurosurgeon. R. 432. Among her “Active Problems,” Dr. Holmes

6 The dictionary defines radiculopathy as “irritation of or injury to a nerve root (as from being

compressed) that typically causes pain, numbness, or weakness in the part of the body which is

supplied with nerves from that root.” “radiculopathy.” Merriam-Webster Dictionary (2019),

https://www.merriam-webster.com/dictionary/radiculopathy #medicalDictionary.

7 Stenosis is defined as “a narrowing or constriction of the diameter of a bodily passage or

orifice.” “stenosis.” Merriam-Webster Dictionary (2019), https://www.merriam-

webster.com/dictionary/radiculopathy #medicalDictionary.

8 “Cervicalgia means, quite simply, neck pain.” Greenaway v. Berryhill, No. 3:17-CV-30156-

KAR, 2019 WL 1383592, at *7 (D. Mass. Mar. 27, 2019).

9 The doctor’s first name is not included.

noted she had cervical radiculopathy, cervical spine stenosis, and cervicalgia. Upon

examination, he noted the following: “Digits and nails: Abnormal. Mild-mod tenderness post

neck, upper back, lower back and upper chest bilat. Back flex –45 deg. ext ~3–5 deg.” R. 433.

His assessment was that Plaintiff suffered from cervical radiculopathy, and lumbago. He

continued her medications, set a follow-up visit in three months, and referred her for a

neurosurgical evaluation. R. 434.

In a report dated February 12, 2014, Dr. Huckell examined Plaintiff and wrote that she

had undergone two independent medical examinations and that “[t]he second IME was on

7/9/13 by Dr. Lau who stated that ‘I don’t think that she can return to work at this time’ and

deferred the need for any further diagnostic testing to us.” R. 334. The Court did not find Dr.

Lau’s report in the Record.

On April 11, 2014, Plaintiff underwent an anterior cervical discectomy and fusion C5–

C6, C6–C7. R. 589, performed by neurosurgeon Elad Levy, M.D., MBA, FACS, FAHA, FAANS,

assisted by Gursant S. Atwal, M.D. The operative report showed no complications. Id.

Dr. Huckell examined Plaintiff on April 16, 2013, and determined that she “is

considered to be temporarily disabled at this time as a result of the motor vehicle accident

dated 2/6/13.” R. 301.

Plaintiff saw Dr. Holmes on April 29, 2014, “presenting for follow up s/p cervical fusion

April 11th. Doing well after surgery.” R. 435. He reviewed her medications and assessed her

with a family history of hypertension, and with constipation. R. 437.

On May 14, 2014, Plaintiff saw Dr. Levy for her first postoperative visit. R. 595. In his

report, Dr. Levy wrote: “She states she is about 60–65% improved. She has no arm pain. She

has slight numbness in her left upper extremity. Neck pain can sometimes can be a 5–6/10.”

He wanted her to start physical therapy in three weeks and restricted her to no lifting. R. 596.

Dr. Holmes saw Plaintiff on July 22, 2014, for a follow-up on her medications and a

blood test. R. 439. The doctor noted the following: “Has been having constant dull aching pain

rates it as a 7/10. States that she takes Tylenol helps very little. States her pain management

doctor’s office is now closing and requires 2 new refills that he prescribed. Pt is also concerned

because she lethargic and wants labs done.” R. 439. Fahad Jawald (Family Medicine)10

assessed Plaintiff as suffering from cervical radiculopathy, cervicalgia, chronic pain,

hypertension, and hyperlipidemia, in a report signed by Dr. Holmes. R. 445, 447. He referred

Plaintiff for pain management. R. 565.

Dr. Levy saw Plaintiff again on August 20, 2014. R. 598. He stated that she reported

she was still in a lot of pain, and he asked her to do physical therapy since the pain was

primarily muscular and physical therapy should improve her condition. Id.

Dr. Holmes saw Plaintiff on August 25, 2014, and in his report section entitled

“Message,” he wrote the following: “ECMC No Fault Return to Work: She is F/U with Nerosurg

to determine specific level of disability. Work restrictions: no lifting more than 10 lbs no

pushing/pulling more than lbs [sic] and no repetitive bending or twisting.” R. 450.

Plaintiff went for a follow-up visit to Dr. Holmes on September 2, 2014. R. 568. He

assessed her with wheezing and a cough. R. 570. She saw Dr. Holmes again on October 14,

2014, for a pain medication refill. R. 573. Her symptoms included the following:

“Musculoskeletal: diffuse Joint pain, back pain. Joint stiffness, pain in other joints and neck

pain + LBP, but no joint swelling and no back muscle spasm.” Id. Dr. Holmes’ physical exam

revealed: “Musculoskeletal: Gait and station: Abnormal. Slow. Digits and nails: Normal without

clubbing or cyanosis. Inspection/palpation of joints, bones, and muscles: Abnormal. Reduced

ROM on flexion/extension of the back.” R. 575. Enaame Farrell, M.D., who also signed the

October report, assessed facet arthropathy,11 lumbosacral, lower back pain, and cervical

10 The Record does not identify whether Fahad Jawald is a medical doctor.

11 A search for “facet arthropathy” on the Mayo Clinic’s website produced an article on “facet

arthritis,” and explained that the “facet joints are joints in the spine located in the back (posterior)

aspect of the spine…at each vertebral level, one on each side of the spine.… Facet arthritis happens

when the cartilage that covers the ends of the joints wears out and becomes thin. This can contribute

to the growth of osteophytes (bone spurs) and hypertrophy (enlargement) of the joints.” Facet arthritis.

Mayo Clinic, https://sportsmedicine.mayoclinic.org/condition/facet-arthritis/ (last visited Sept. 19,

2019).

radiculopathy. R. 575. Plaintiff was recommended to receive joint injections for pain control,

and physical therapy referral and treatment. R. 576.

Plaintiff started physical therapy on September 25, 2014. R. 600. She told the

therapist she wanted “this stiffness gone” and wanted to increase her strength to lift, push,

and pull. Id.

On November 10, 2014, Plaintiff visited Dr. Holmes for a follow-up regarding cervical

pain. R. 578. In the history section of his report, Dr. Holmes wrote the following concerning

her chronic pain:

Chronic Pain (Brief): The patient is being seen for a routine clinic follow-up of

chronic pain. Symptoms: neck pain and back pain, but no headache, no

abdominal pain, no pelvic pain and no pain [sic]. The patient is currently

experiencing symptoms. Associated symptoms: depression, anxiety and sleep

disturbance, but no irritability, no difficulty concentrating and no decreased

appetite. Current treatment includes physical therapy, nonsteroidal anti-

inflammatory drugs. opioid analgesics, muscle relaxants and mental health

care. Pertinent medical history: chronic low back pain, depression and anxiety.

She was previously evaluated by a primary care provider. Previous presentation

included back pain and neck pain. Past evaluation has included [X]-ray(s) and

MRI.

R. 578. Dr. Holmes’ musculosketal examination revealed the following: “Gait and station:

Normal. Digits and nails: Normal without clubbing or cyanosis. Inspection/palpation of Joints,

bones, and muscles: Abnormal. Tenderness upon palpation of cervical spine, decreased

passive ROM lower back.” R. 580. He reviewed her medications, but the report contains no

specific treatments. R. 582.

On February 10, 2015, Plaintiff was discharged from physical therapy “due to lack of

attendance from [sic] PT since 11/18/14.” R. 583. She achieved five short term goals, none

of which dealt with lifting. Id.

On February 20, 2015, Dr. Levy ordered Plaintiff to remain out of work from that day

until March 20, 2015. R. 610. He later extended the order to April 23, 2015, R. 611, and then

May 27, 2015, R. 613.

According to Anthony R. Mangano, M.D., an MRI taken on April 17, 2015, showed the

following: Anterior cervical disc fusion plate from C5-C7 appears well seated. Extensive

spondylosis shown. [L]ung apices are clear.” R. 612.

On April 27, 2015, Plaintiff was seen by Simon Morr, M.D. R. 614–15. His examination

disclosed she was “full strength in bilateral upper and lower extremities.” Id. His plan was to

obtain electromyelographic12 studies of the lower extremities. We are also going

to obtain a new MRI. These are important to identify a specific localization of

any neural damage, as well as to identify any possible anatomical lesions in the

lumbar spine, which may be contributing to the development of her radicular

complaints and progression of her back pain. The last MRI was done over two

years ago and a new MRI is warranted. We will see her back in clinic once those

studies are obtained. We shall have her continue with physical therapy at this

time.

R. 615. In an addendum to Dr. Morr’s report, Dr. Levy wrote: “She is now 70% better from

surgery. She still has neck pain 6/10 and occasional left arm pain. She has no right arm pain.

She is now concerned about her back pain. She tried physical therapy and massage.” R. 615.

His plan was to “update her MRI of the lumbar spine and get an EMO given the fact that she

has a bilateral lower extremity radiculopathy.” R. 616.

On May 14, 2015, the results of Plaintiff’s NCV13 and EMG were as follows:

Impression:

1. There is electrophysiologic evidence of a bilateral LS/S1 radiculopathy with

greatest [sic]

2. Patient has right-sided sensory polyneuropathy

3. Absent left tibial H reflex

4. Absent F waves throughout the lower extremity

R. 617.

12 An electromyograph (“EMG”) is “an instrument that converts the electrical activity associated

with functioning skeletal muscle into a visual record or into sound and is used to diagnose

neuromuscular disorders and in biofeedback training.” “electromyograph.” Merriam-Webster

dictionary, https://www.merriam-webster.com/dictionary/electromyographic.

13 Nerve Conduction Velocity test

On June 22, 2015, Plaintiff underwent an MRI, the results of which were reported by

Uzma Alam, M.D., who wrote:

Impression: interval appearance of a central to right paracentral annular bulge

and endplate spur complex at L5–S1 which contacts the right S1 nerve root

and also results in moderate right neural foraminal narrowing with contact of

the right exiting nerve. The rest of the canal and neural foramina maintain their

caliber and are unchanged from the prior study.

R. 622.

On July 6, 2015, Dr. Levy saw Plaintiff and concluded:

She does have low back pain that radiates down her bilateral lower extremities

in the S1 distribution, left greater than right. Her EMG and imaging are

compatible with one another; however, she will initiate physical therapy in the

next day and we will see her back in the office. Pending the results a decision

will be made as to how to proceed. I did offer her an epidural injection and, if

after four weeks of physical therapy there is no improvement, we can do the

injection.

R. 623.

Dr. Levy saw Plaintiff again on September 2, 2015. R. 625. She reported to him that

physical therapy was helping, but that she still had about 70% back pain and 30% leg pain.

Id. He concluded that:

Dolores Griffin is a 54-year-old female who has low back pain radiating down

her bilateral lower extremities and seems to be responsive to physical therapy.

We will continue with physical therapy and add strengthening to the therapy. If

she should plateau, we can provide her with aquatherapy or she will contact her

pain management doctor for epidural injections. We will see her as needed.

R. 625–26.

The ALJ assigned little weight to Dr. Huckell’s November 2013 opinion that Plaintiff was

temporarily disabled, stating that it was conclusory, and that the disability determination is

reserved to the Commissioner, citing 20 C.F.R. 404.1527(d) and SSR 96-5p. Dr. Huckell found

that Plaintiff was “temporarily” disabled as late as November 6, 2013. R. 291. He did not

explain what he meant by “temporarily,” but his earlier reports in April and August contained

the same language, implying that the disability might last for longer than the intervals between

visits. In February 2015, Dr. Huckell concluded that Plaintiff had a permanent and partial

disability and stated that in order to determine “specific limitations, we recommend an FCE14

if needed.” R. 341. The Court finds that the ALJ provided a good explanation for discounting

Dr. Huckell’s opinion regarding Plaintiff’s disability, a question reserved to the Commissioner.

The ALJ assigned some weight to Dr. Cardamone’s opinion that Plaintiff could lift no

more than 20 pounds and should not do any excessive bending and twisting at the waist. R.

32, 478. The ALJ explained that the restrictions were based on the doctor’s physical

examination. However, the ALJ discounted Dr. Cardamone’s and Dr. Lau’s opinions that

Plaintiff was unable to return to work “because it is an opinion regarding the claimant’s ability

to return to her past work and not any work, which is an issue reserved to the Commissioner.”

R. 32. Plaintiff concedes that Dr. Huckell did not state what limitations she had. Pl.’s Mem. of

Law 6, Aug. 7, 2018, ECF No. 10-1.The Court finds that the ALJ provided a good explanation

for his rejection of the doctors’ disability opinions. 20 C.F.R. § 404.1527(d).

The ALJ assigned significant weight to Dr. Miller’s opinion that Plaintiff “had mild

limitations with lifting, bending, carrying, pushing, and pulling.” R. 32. He found her opinion

was “supported by the record as a whole and consistent with the physical limitations in the

claimant’s residual functional capacity.” Id. Plaintiff faults Dr. Miller for not reviewing imaging

studies of Plaintiff’s back or neck, and the Commissioner argues that “even if this was a

mistake, it does not merit remand because Dr. Miller’s opinion was otherwise consistent with

the rest of the record.” Comm’r’s Mem. of Law 12, Oct. 9, 2018, ECF No. 12-1. In Alessi v.

Colvin, No. 14-CV-7220 (WFK), 2015 WL 8481883 (E.D.N.Y. Dec. 9, 2015), the district court

found an insufficient basis for the ALJ’s decision there to find the plaintiff had the residual

functional capacity for light work “especially because Dr. Govindaraj, the sole medical source

whose functional assessment the ALJ gave ‘great weight’ to did not review the lumbar and

cervical MRIs, which showed some abnormalities.” Alessi, 2015 WL 8481883, at *5. The

14 Perhaps “functional capacity evaluation." See Mowers v. Paul Revere Life Ins. Co., 204 F.3d

372, 374 (2d Cir. 2000) (“FCEs are used to examine injuries suffered by insurance claimants who have

already seen a doctor and have been found to have a disabling condition. An FCE includes the

claimant's performance of a series of tasks to estimate physical limitations. See Michael A. Riccardi,

Battle Brewing Over Insurers’ Test for Disabilities, N.Y.L.J., Sept. 21, 1999, at 1.).

Court agrees with the reasoning in Alessi and finds that the ALJ erred by giving Dr. Miller’s

opinion significant weight.

The ALJ assigned little weight to Dr. Holmes’ opinion, writing that it pertained to “the

claimant’s ability to return to her past work and not any work, which is an issue reserved to

the Commissioner and the claimant’s lifting restrictions appear to be a temporary opinion and

are not supported by the record as a whole or the claimant’s self-reports of function.” R. 32.

Dr. Holmes restricted Plaintiff to lifting no more than ten pounds, limited her pushing and

pulling ability, and directed she should not perform any repetitive bending or twisting. He also

noted she would be following up with a neurosurgeon to determine the specific level of her

disability. As a treating physician, Dr. Holmes’ opinion on Plaintiff’s ability to perform lifting, if

“well-supported by medically acceptable clinical and laboratory diagnostic techniques and is

not inconsistent with the other substantial evidence in [Plaintiff’s] case record,” should be

given controlling weight. 20 C.F.R. § 404.1527. The ALJ’s conclusion that Dr. Holmes’ lifting

restriction is speculative, and, thus, his rejection of Dr. Holmes’ opinion on her ability to lift is

not supported by substantial evidence.

CONCLUSION

The ALJ’s determination that Plaintiff has the residual functional capacity to perform

light work is not supported by this record. Therefore, the Court grants Plaintiff’s motion for

judgment on the pleadings, ECF No. 10, and remands this matter to the Commissioner

pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Court denies the Commissioner’s

cross-motion, ECF No. 12.

DATED: September 30, 2019

Rochester, New York

/s/ Charles J. Siragusa

CHARLES J. SIRAGUSA

United States District Judge