UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael David Hulen

v. Civil No. 15-cv-035-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Michael Hulen moves to

reverse the Acting Commissioner’s decision to deny his

applications for Social Security disability insurance benefits,

or DIB, under Title II of the Social Security Act,

, and for supplemental security income, or SSI, under Title

XVI,

. The Acting Commissioner, in turn, moves

for an order affirming her decision. For the reasons that

follow, this matter is remanded to the Acting Commissioner for

further proceedings consistent with this order.

I. Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] 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. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

(g) (setting out the standard of review for DIB

decisions); see also

(c)(3) (establishing §

405(g) as the standard of review for SSI decisions). However,

the court “must uphold a denial of social security . . .

benefits unless ‘the [Acting Commissioner] has committed a legal

or factual error in evaluating a particular claim.’” Manso-

Pizarro v. Sec’y of HHS,

(1st Cir. 1996) (per

curiam) (quoting Sullivan v. Hudson,

(1989)).

As for the statutory requirement that the Acting

Commissioner’s findings of fact be supported by substantial

evidence, “[t]he substantial evidence test applies not only to

findings of basic evidentiary facts, but also to inferences and

conclusions drawn from such facts.” Alexandrou v. Sullivan,

(S.D.N.Y. 1991) (citing Levine v. Gardner,

(2d Cir. 1966)). In turn, “[s]ubstantial

evidence is ‘more than [a] mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Currier v. Sec’y of HEW,

(1st Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the

[Acting Commissioner] to determine issues of credibility and to

2 draw inferences from the record evidence. Indeed, the

resolution of conflicts in the evidence is for the [Acting

Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,

(1st Cir. 1991) (per curiam) (citations

omitted). Moreover, the court “must uphold the [Acting

Commissioner’s] conclusion, even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence.” Tsarelka v. Sec’y of HHS,

(1st Cir. 1988) (per curiam). Finally, when determining

whether a decision of the Acting Commissioner is supported by

substantial evidence, the court must “review[] the evidence in

the record as a whole.” Irlanda Ortiz,

(quoting

Rodriguez v. Sec’y of HHS,

(1st Cir. 1981)).

II. Background

The parties have submitted a Joint Statement of Material

Facts, document no. 18. That statement is part of the court’s

record and will be summarized here, rather than repeated in

full.

Hulen was incarcerated in the New Hampshire State Prison

(“NHSP”) from December of 2003 until September of 2009. He was

on parole for approximately three and one half years, but went

back to prison in 2013 as a result of a parole violation.

3 In January of 2010, Hulen applied for SSI and DIB. In a

Function Report that Hulen submitted in conjunction with his

application, he stated that he could walk 300 to 500 feet before

needing to stop and rest for three to five minutes. He also

stated that he did not do yard work because it was “just too

painful and hard to do on crutches.” Tr. 155. Finally, he

stated that he had received a prescription for crutches in

December of 2009 and always used them.

After performing a consultative examination at the request

of the Social Security Administration, Dr. Ralph Wolf diagnosed

Hulen with bilateral degenerative arthritis in his knees. For

his arthritic knees, Hulen has been treated with pain

medication, injections, and physical therapy. Surgery has been

considered, but ruled out because of Hulen’s obesity.1

At his hearing, Hulin testified that he was given crutches

during a visit to a hospital emergency room in December of 2009.

In a letter dated April 8, 2010, addressed to whom it may

concern, nurse Nancy Clayman of Harbor Health Care Clinic wrote:

He [Hulen] continues to need crutches and obviously has difficulty with ambulation. This now has caused other issues, such as acute carpel tunnel syndrome.

1 During the relevant time period, Hulen’s weight has ranged between 325 and 400 pounds.

4 Tr. 391. The apparent purpose of Clayman’s letter was to

encourage the people running the shelter where Hulen was staying

to let him remain in the facility during the day, so he could

keep off his feet and take a break from using his crutches.

Shortly after Clayman wrote the letter quoted above, Dr. Dana

O’Shea gave Hulen a prescription for forearm crutches,2 which

were intended to relieve the pressure on Hulen’s wrists and

hands that resulted from using standard crutches. When Hulen

went back to prison after his parole violation, he was issued a

cane, but was not allowed to have crutches.

In the report on his consultative examination in May of

2010, Dr. Wolf noted: “The claimant ambulated with an antalgic

gait using two single-prong crutches.” Tr. 316. Dr. Wolf

concluded his report with the following recommendation:

Any full-time sitting or driving activity with a minimal amount of walking should be possible now and for the long-term future. Heavy manual labor and prolonged weight bearing is not recommended.

.

In May of 2010, non-examining state-agency consultant Dr.

Charles Meader stated, in a Physical Residual Functional

2 A forearm crutch is “a crutch whose top is at the level of the forearm, with a hand bar as well as a cuff that goes around the forearm to increase stability.” Dorland’s Illustrated Medical Dictionary 437 (32nd ed. 2012).

5 Capacity Assessment, that “crutches use is not continuous

according to MER [medical evidence of record] and there is no

MER to indicate they were prescribed 12/2009.” Tr. 319. When

assessing Hulen’s symptoms, Dr. Meader explained:

MER indicates there is MDI [medically determinable impairment] support for allegations but no direct MER evidence for crutches continuously needed or medically prescribed in 12/2009 as claimed. Claimant thus is not credible in this context. He did not need ambulatory aids at 9/9/2009 prison infirmary visit. He further states he can walk 300-500 feet before resting 2-3 minutes.

Tr. 323. In the narrative section of his assessment, Dr. Meader

added to his discussion of Hulen’s use of crutches:

MER indicates morbid obesity and deconditioned. Released from long prison incarceration 5/2003 to parole 9/2009. [Social Security Administration] [i]nterviewer intake observation face to face indicated: “He was walking with the help of crutches. He was rubbing his knee while seated. He had a lot of difficulty getting up from the chair”. This is a SOMATIC evaluation only.

. . . .

MER indicates he is independent and uses no ambulatory aids except crutches at times. [no MER for prescribing encounter claimed 12/2009]. . . . He is limited [in his capacity for] lifting and can walk 300-500 feet before resting 3-5 minutes. Symptoms relate to MDI and based on the MER all allegations are credible except crutches use is not continuous.

Tr. 323, 325.

In a Medical Source Statement of Ability to Do Work-Related

Activities (Physical) completed in May of 2011, nurse

6 practitioner Joanne Pomerantz stated that for Hulen, a

“medically required hand-held assistive device is necessary for

ambulation.” Tr. 451.

In June of 2011, Hulen received a hearing before an

Administrative Law Judge (“ALJ”), who determined that he was not

disabled. Hulen appealed to this court, which granted the

Commissioner’s assented-to motion to remand. In turn, the

Appeals Counsel remanded Hulen’s case to the ALJ with various

instructions, including a directive to “[f]urther consider

whether the claimant’s impairment meets or equals Listing

1.02A.” Tr. 531.

Regarding the ALJ’s determination that Hulen’s arthritis

did not meet the listing for major dysfunction of a joint, the

Appeals Council had this to say:

The hearing decision indicates that the claimant did not meet Listing 1.02A because the medical evidence of record indicated that the claimant could ambulate sufficiently to carry out activities of daily living. However, the hearing decision did not explain what medical evidence of record it relied upon; further, the medical evidence of record does not appear to support the decision’s conclusion. The claimant testified that he needed two crutches to ambulate, and the medical evidence of record indicated that the crutches were prescribed by Dr. Dana O’Shea in April 2010. In addition, the claimant’s nurse practitioner indicated that the claimant used a medically required hand-held assistive device. Moreover, another nurse indicated that the claimant’s bone-on-bone arthritis required surgery once other medical issues had been addressed and that the claimant needed to use crutches. Finally, Ralph Wolf, M.D., the consultative

7 examiner, indicated that the claimant ambulated with an antalgic gait using two crutches and noted that the claimant was limited to minimal walking and no prolonged weight bearing. The claimant also testified that his activities of daily living were largely restricted to a single room that he rented in a rooming house. Further consideration is required.

Tr. 530 (citations to the record omitted).

On remand, the ALJ conducted a second hearing, which was

convened at the NHSP. After the hearing, the ALJ issued a

decision that includes the following relevant findings of fact

and conclusions of law:

3. The claimant has the following severe impairments: degenerative arthritis of the knees, obesity, depression, an anxiety disorder and a personality disorder (20 CFR 404.1520(c) and 416.920(c)).

. . . .

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 916.920(d), 416.925 and 416.926).

. . . .

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

. . . .

10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

8 Tr. 472, 474, 482. Specifically, the ALJ determined that

Hulen’s residual functional capacity (“RFC”) allowed him to

perform nearly a full range of unskilled sedentary work.

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability.

(a)(1)(A)-(D). To be eligible

for supplemental security income, a person must be aged, blind,

or disabled, and must meet certain requirements pertaining to

income and assets.

(a). The question in this

case is whether Hulen was under a disability from May 1, 2003

through September 26, 2014.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

is required to employ a five-step process. See

(DIB) and 416.920 (SSI).

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional

9 capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

).

The claimant bears the burden of proving that he is

disabled. See Bowen v. Yuckert,

(1987). He

must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

(D. Mass. 1982)). Finally,

[i]n assessing a disability claim, the [Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the [claimant] or other witness; and (3) the [claimant]’s educational background, age, and work experience.

Mandziej,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS,

(1st Cir. 1982)).

B. Hulen’s Claims

Hulen claims that the ALJ erred by: (1) determining, at

step three, that his arthritis does not meet or equal the

severity of Listing 1.02A because he is able to ambulate

effectively without assistive devices; (2) determining, at step

10 three, that his depression, anxiety disorder, and personality

disorder do not meet or equal the severity of Listings 12.04,

12.06, and 12.08; (3) improperly weighing the medical opinions;

(4) formulating an RFC that is not supported by substantial

evidence; and (5) failing to elicit testimony from a vocational

expert. Hulen’s first argument is persuasive, and dispositive.

The listing for the physical impairment at issue in this

case, major dysfunction of a joint, defines that impairment to

include:

[G]ross anatomical deformity . . . and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically accepted imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:

A. Involvement of one major peripheral weight- bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b.

20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.02. With respect

to effective ambulation, the regulations provide:

To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine

11 ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one’s home without the use of assistive devices does not, in and of itself, constitute effective ambulation.

20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.00B2b(2).

As the court has noted, the Appeals Council directed the

ALJ, on remand, to consider the following evidence suggesting an

inability to ambulate effectively: (1) Dr. O’Shea’s prescription

for crutches; (2) Pomerantz’s statement that Hulen used a

medically required hand-held assistive device; (3) Clayman’s

statement that Hulen needed to use crutches; and (4) Dr. Wolf’s

observation that Hulen used crutches and was limited to minimal

walking and no prolonged weight bearing.

In his decision, the ALJ says nothing about Dr. O’Shea’s

prescription for crutches. But, the ALJ does say this: “Of

note, in December 2009, Dr. O’Shea reported that the claimant

had ridden his bicycle to his appointment and was not using

crutches.” Tr. 475. The treatment note the ALJ cites for that

statement actually provides: “Using crutches to get around. No

crutches today as pt rode bike here.” Tr. 368. Reporting that

Hulen did not carry his crutches with him when he was riding his

bicycle is not the same thing as reporting that Hulen was not

using crutches. And, in fact, Dr. O’Shea did report that Hulen

was using crutches to get around. Thus, contrary to what the

12 ALJ says, Dr. O’Shea did not report that Hulen was not using

crutches. The ALJ also reports, accurately, Dr. O’Shea’s

report, in August of 2010 that Hulen was engaging in aqua

therapy and could ride an exercise bicycle with low resistance.

But, the ALJ does not indicate how Hulen’s ability to do aqua

therapy or ride an exercise bicycle is evidence that he had the

ability to effectively ambulate without crutches.

With respect to Pomerantz’s Medical Source Statement, the

ALJ acknowledges Pomerantz’s opinion that Hulen required an

assistive device, but discounts that opinion on grounds that

Pomerantz “did not opine that the claimant met any listing.”

Tr. 475. The form Pomerantz completed, however, asked only

about specific exertional, postural, manipulative,

visual/communicative, and environmental limitations; it did not

ask for an opinion on whether Hulen’s physical impairments met

or medically equaled the severity of a listed impairment. Thus,

the lack of such an opinion provides no basis for discounting

Pomerantz’s statement that Hulen required the use of a hand-held

assistive device.

Turning to Clayman’s statement that Hulen “continues to

need crutches and obviously has difficulty with ambulation,” Tr.

391, the ALJ discounts that statement on grounds that Clayman

“did not describe any mechanical reason for the claimant’s use

13 of crutches to assist with ambulation,” Tr. 475. However, two

sentences before she said that Hulen needed crutches, Clayman

said this: “He has bilateral knee bone on bone arthritis and

will require surgery for this condition.” Tr. 391. Bone on

bone arthritis in both knees, of sufficient severity to require

surgery, is a mechanical reason for using crutches. Thus, the

ALJ’s dismissal of Clayman’s statement misses the mark as a

factual matter.

Finally, the ALJ discounts the observations and

recommendations in Dr. Wolf’s examination report because “Dr.

Wolfe [sic] did not opine that the claimant met any Listing.”

Tr. 474. But, like Pomerantz’s Medical Source Statement, Dr.

Wolf’s report gives no indication that its author ever

considered the operative step-three question in the first place.

Accordingly, while Dr. Wolf did not opine that Hulen’s arthritis

met the criteria for any listing, he also did not opine that

Hulen’s impairment fell short of any listing. In sum, Dr.

Wolf’s silence on the question of whether Hulen’s arthritis met

or medically equaled the severity of a listed impairment

provides no basis for discounting his observations and

recommendations.

The long and the short of it is this. The medical evidence

of record that the Appeals Council directed the ALJ to consider

14 includes a prescription for crutches, unaddressed by the ALJ,

and statements from several medical professionals that Hulen

needed to avoid prolonged weight bearing, used crutches, and

needed to use crutches to ambulate. The ALJ’s explanations for

discounting that evidence are manifestly unpersuasive because

they are not supported by substantial evidence.

In addition to attempting to discount the evidence he was

directed to consider by the Appeals Council, the ALJ also points

to other evidence to support his determination that Hulen did

not require the use of crutches or other bilateral hand-held

assistive devices. The court considers that evidence below.

The ALJ first notes that when Hulen saw Dr. Stephanie Lynch

for a psychological examination in May of 2010, he was using

crutches and also reported to her that he could walk, take

public transportation, drive, cook simple meals, shop, use the

library, go to church and a soup kitchen, and do laundry and

light housework. The ALJ fails to explain, however, how Dr.

Lynch’s Comprehensive Psychological Profile supports his

determination that Hulen could ambulate without crutches.

The ALJ next turns his attention to Dr. Meader’s RFC

assessment. To begin, the ALJ suggests that Dr. Meader relied

upon the December 2009 treatment note in which Dr. O’Shea

reported that Hulen had arrived to an appointment on a bicycle,

15 but the court can locate no reference to that note in Dr.

Meader’s RFC assessment. Beyond that, the ALJ reports Dr.

Meader’s observation that Hulen had not received a prescription

for crutches in December of 2009. But, neither Dr. Meader nor

the ALJ acknowledge that regardless of whether Hulen received a

prescription for crutches in 2009, he did receive a prescription

from Dr. O’Shea in April of 2010 for forearm crutches to replace

the standard crutches that he had been given, with or without a

prescription, in December of 2009. To be sure, Dr. Meader

opined that Hulen’s arthritis was not a listing-level

impairment, but he did so without considering the fact that

Hulen had been prescribed crutches by Dr. O’Shea.

The ALJ next mentions an office note by Dr. Kenneth

Weintraub, who saw Hulen in early April of 2010 for a problem

with his left ankle, but who did not examine Hulen’s knees. Dr.

Weintraub noted that Hulen was using crutches, but the ALJ

discounts that observation because Dr. Weintraub “did not

indicate that this was needed in order for the claimant to

ambulate.” Tr. 475. But, the ALJ gives no reason why Dr.

Weintraub – who did not examine Hulen’s knees – would have had

anything to say about whether Hulen needed his crutches to

ambulate. Thus, Dr. Weintraub’s failure to comment on whether

Hulen needed the crutches he was using is not substantial

16 evidence that Hulen did not need them. The court further notes

that when Dr. Weintraub observed Hulen using crutches, he had

not yet received his prescription for forearm crutches. It is

difficult to imagine that Hulen would have endured the pain that

resulted from using standard crutches if he did not need them to

get around.

The ALJ next cites a June 8, 2011, chart document authored

by Pomerantz indicating that Hulen “had a normal gait and

station, normal alignment and mobility of his spine and hips,

and normal range of motion and strength of his upper

extremities.” Tr. 475. Two days before Pomerantz wrote the

June 8 chart document, she wrote a letter, addressed to whom it

may concern, stating:

Mr Hulen has a medical necessity for water exercise . . . . Because of the osteoarthritis in both his knees he is unable to do any type of exercise other than water/pool. He cannot ambulate without his crutches and he is unable to ride a stationary bike.

Tr. 650. In light of the June 6 letter, the June 8 chart

document is not substantial evidence that Hulen was able to

ambulate without crutches.3

3 The ALJ also says that Hulen reported to Pomerantz that he was still “able to move around his apartment okay.” Tr. 475. However, the SSA regulations provide that a claimant’s “ability to walk independently about [his] home without the use of assistive devices does not, in and of itself, constitute effective ambulation.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.00B2b(2).

17 The various office notes by Dr. Jon Mazur, Dr. Gargi Kundu,

and Dr. Keri Lemmond on which the ALJ relies are more of the

same. Dr. Mazur repeatedly observed Hulen using crutches. See

Tr. 715, 717, 721, 723, 725 (“Currently, he ambulates with

bilateral Lofstrand crutches.”).4 In a chart document

memorializing Hulen’s first visit with him, on June 25, 2010,

Dr. Mazur reported that Hulen was limping and that his gait was

“quite antalgic and labored.” Tr. 726. Dr. Kundu listed

forearm crutches as one of Hulen’s prescriptions. Neither

physician expressly stated that Hulen needed crutches to

ambulate. But, their notes were all written after Dr. O’Shea

prescribed crutches for Hulen, and the ALJ gives no reason why

Drs. Mazur or Kundu would have commented one way or the other on

whether Hulen actually needed the crutches he had been

prescribed and was using.

According to the ALJ, “in April 2011, the claimant was

using only a cane to ambulate per Dr. Lemmond.” Tr. 471

(emphasis added). With regard to Hulen’s use of assistive

devices to ambulate, Dr. Lemmond’s chart documents actually say:

W[a]lks with cane assist[] because of knee problems. (Apr. 15, 2011);

Walks with assistance. (May 18, 2011);

4 Lofstrand crutches are “the most common kind of forearm crutch.” Dorland’s, supra note 2, at 437.

18 Walks with assistance of canes. (July 31, 2011);

[W]alks with canes [sic] assists. (Sept. 28, 2011);

[W]alks with the aid of 2 walking canes. Unsteady on his feet. (Nov. 9, 2011);

Walks with assistance of canes. (Apr. 25, 2012); and

Wal[k]s with assistance. (June 6, 2012).

Tr. 713, 710, 705, 703, 701, 697, 695 (emphasis added). Dr.

Lemmond’s comments are not substantial evidence that Hulen was

using only a single cane and, thus, had the ability to ambulate

without using two assistive devices.

The ALJ also discusses various records generated by Hulen’s

incarceration. He refers to a prison record indicating that

Hulen used only a cane for ambulation. See Tr. 476. But Hulen

testified that the prison would not issue him crutches. That

Hulen did not use assistive devices that the prison did not

allow him to have is not substantial evidence that he did not

need those devices. The ALJ also refers to two prison records

indicating that Hulen ambulated from one place to another, but

those records say nothing about whether he had assistance while

doing so. Passing references to Hulen’s use of a cane in

prison, where he was not allowed to have crutches, and to two

occasions on which he was able to walk from one place to

another, are not substantial evidence that Hulen did not need

bilateral assistive devices in order to ambulate.

19 Equally unavailing is the ALJ’s observation of Hulen at the

hearing he conducted at the NHSP:

Of note, the claimant presented at [the] hearing on April 17, 2014 carrying a cane. His hands were hand- cuffed. He walked without use of the cane.

Tr. 476.5 Hulen testified that he had a cane because the prison

would not issue him crutches. And, given that he was handcuffed

at his hearing, the fact that he was carrying his cane rather

than using it provides no reasonable basis for concluding that

he did not need his cane to get around. Like the medical

evidence on which the ALJ relies, the evidence from Hulen’s

incarceration is not substantial evidence that he could ambulate

effectively without the use of two hand-held assistive devices.

To sum up, the ALJ’s step-three determination that Hulen’s

arthritis does not meet or medically equal the severity of

Listing 1.02A is not supported by substantial evidence.

Accordingly, this case must be remanded for further proceedings.

IV. Conclusion

For the reasons described above, the Acting Commissioner’s

motion for an order affirming her decision, document no. 19, is

denied, and Hulen’s motion to reverse that decision, document

no. 13, is granted to the extent that the case is remanded to

5 That hearing lasted just 11 minutes.

20 the Acting Commissioner for further proceedings, pursuant to

sentence four of

(g). The clerk of the court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 9, 2016

cc: Jared P. O’Connor, Esq. Terry L. Ollila, Esq.

21