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SCHAAL v. CHATER

October 23, 1996

RITA SCHAAL, Plaintiff, against SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.


The opinion of the court was delivered by: MCAVOY

 On December 30, 1993, plaintiff filed this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) ("the Act"), to review a final determination of the Commissioner of Social Security ("the Commissioner") denying plaintiff's application for Supplemental Security Income ("SSI") under the Act. The matter was referred to the Hon. Gustave J. DiBianco, United States Magistrate Judge, for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d).

 Magistrate Judge DiBianco's report and recommendation, dated October 17, 1995, recommended that the Commissioner's decision to deny plaintiff's August 14, 1990 application for SSI be affirmed and the Complaint dismissed. By Order dated June 8, 1996, this Court adopted the report and recommendation. Judgment was entered on June 11, 1996.

 Plaintiff now moves, pursuant to Fed.R.Civ.P. 60(b) and 42 U.S.C. §§ 405(g) and 1383(c)(3), to vacate or modify the judgment of this Court, for judgment on the pleadings in favor of plaintiff, or in the alternative to remand this matter to the Commissioner for consideration of new and material evidence.

 I. Discussion

 A. Standard for Motion to Vacate

 Federal Rule of Civil Procedure 60(b) provides, in pertinent part, that

 
the court may relieve a party...from a final judgment, order, or proceeding for the following reasons...(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)...or (6) any other reason justifying relief from operation of the judgment.

 It is well established that a motion to vacate a judgment under Rule 60(b) is addressed to the sound discretion of the trial court. National Petrochemical Company of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 244 (2d Cir. 1991) (citing Weissmann v. Freeman, 868 F.2d 1313, 1326 (2d Cir.), cert. denied, 493 U.S. 883, 110 S. Ct. 219, 107 L. Ed. 2d 172 (1989)). The Second Circuit has explained that Rule 60(b) should be broadly construed to do substantial justice, but that final judgments should not lightly be overturned. Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).

 With respect to judicial review of the Commissioner's denial of SSI, the SSA provides, in pertinent part, that "the court may . . . at any time order additional evidence to be taken before the [Commissioner], but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding...". 42 U.S.C § 405(g) (1991 and Supp. 1996).

 It is with these considerations in mind that the Court turns to plaintiff's motion.

 B. Report of Dr. Wilson Meaders

 Plaintiff first argues that the Court should vacate the June 1996 judgment on the basis of a report of Dr. Wilson Meaders ("Meaders Report"), dated October 1993 through April of 1994. The Court is perplexed as to how the plaintiff could construe this evidence as being "newly discovered" under Fed.R.Civ.P. 60(b), or "new" under 42 U.S.C. § 405(g), since this report was submitted to and addressed by Magistrate Judge DiBianco in his report and recommendation. See Schaal v. Commissioner of Social Security, 969 F. Supp. 822, slip op. at 22 (N.D.N.Y. 1995) (DiBianco, Mag. J.). The Court refers plaintiff to Judge DiBianco's ruling on this evidence therein. Plaintiff is also reminded that the Court adopted the report and recommendation, notwithstanding plaintiff's further reliance on this evidence in her objections thereto. (See Pl. Exceptions and Memorandum at 2-3, filed October 27, ...


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