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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, 1995). This evidence has thus been reviewed twice before. The Court will not allow plaintiff to relitigate matters already decided in the original judgment. Donovan v. Sovereign Security Corp., 726 F.2d 55, 60 (2d Cir. 1984).

 B. The Schleuderer Report and Plaintiff's Second Application for SSI

 Plaintiff's motion in part seems based upon the fact that her second application for SSI, dated August 23, 1995, was granted on February 15, 1996. Plaintiff asserts that the very same evidence she submitted on her motion for judgment on the pleadings (addressed by Judge DiBianco's report and recommendation) was submitted to the Commissioner when she filed her second application. Plaintiff further asserts that the January 23, 1996 report of Dr. Claude Schleuderer (the "Schleuderer Report"), confirms that plaintiff "suffered from a serious psychiatric illness which justified the allowance of her application." (Pl. Mem. at 4). The Court notes two fatal flaws in plaintiff's reliance on this evidence for the present motion.

 First, newly discovered evidence forming the basis of a Rule 60(b)(2) motion must not have been discoverable, with due diligence, in time to move for a new trial under Rule 59(b). "Rule 60(b)(2) clearly applies to Social Security disability reviews, despite the absence of a trial by a District Court." Harden v. Secretary of Health and Human Services, 1988 U.S. Dist. LEXIS 16913, 1988 WL 26098 at *1 (E.D.N.Y.) (citing Mumford v. Bowen, 814 F.2d 328, 329-30 (7th Cir. 1986)). Rule 59(b) requires that a motion for a new trial be filed within 10 days after entry of the judgment. Fed.R.Civ.P. 59(b). Judgment was entered on June 11, 1996. Plaintiff first presented this evidence to the Court on July 23, 1996, in support of the present motion. Plaintiff offers no reason why this evidence was not discoverable within the proper time frame under Rules 59 or 60.

 Second, 42 U.S.C § 405(g) provides that new evidence must be "material." Plaintiff claims that this evidence is material because it "caused defendant to grant [plaintiff's] second application." (Pl. Mem. at 5). This formalistic assertion confuses the proper subject matter with respect to which such evidence must be material. Material evidence must be "both relevant to the claimant's condition during the time period for which benefits were denied and probative." Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (emphasis added) (citing Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975)). The time period for which benefits were denied ended July 27, 1993, when the ALJ rendered his final decision concluding that plaintiff was not disabled. Plaintiff's second application for SSI, which was granted, determined that plaintiff's period of disability began on October 10, 1993. (See Pl. Attorney Aff., Ex. C: Disability Determination and Transmittal, Feb. 15, 1996). Thus, whatever findings the Commissioner made with respect to plaintiff's second application were for an entirely different period than that currently in dispute.

 Moreover, the Schleuderer Report made no findings relevant to the period for which benefits were denied. Under the heading "Longitudinal Psychiatric History," there is mention of a history of abuse, but this reference goes only so far as to state what plaintiff herself indicated to Schleuderer at the time of the interview. Nothing in the report suggests any evidence of disability during the period prior to July of 1993. Thus, neither the Schleuderer report nor the Commissioner's grant of SSI benefits to plaintiff based upon her second application are "material" within the meaning of 42 U.S.C. § 405(g).

 C. The ALJ's Alleged Bias and Failure to Develop the Record

 Finally, plaintiff argues that the ALJ failed to develop a full record, and that his decision denying plaintiff benefits exhibited bias toward Title XVI claimants. After reviewing the plaintiff's arguments, the Court finds that plaintiff offers no new evidence which would require the Court to vacate its prior judgment. Furthermore, the Court once again refers the plaintiff to Magistrate Judge DiBianco's report and recommendation, in which these arguments were specifically addressed and rejected. See Schaal v. Commissioner of Social Security, 969 F. Supp. 822, slip op. at 7, 9 (N.D.N.Y. 1995) (DiBianco, Mag. J.). Plaintiff goes so far as to premise her argument that the ALJ failed to develop the record on the very same case which the Magistrate Judge expressly found distinguishable in rejecting that argument the first time. See slip op. at 9 (citing Fishburn v. Sullivan, 802 F. Supp. 1018 (S.D.N.Y. 1992)).

 II. Conclusion

 Because plaintiff has not presented sufficient grounds for relief under either Rule 60(b) or 42 U.S.C. § 405(g), her motion to vacate or modify the judgment, or in the alternative for remand, is hereby denied.


 Dated at Binghamton, New York

 October 23, 1996

 Hon. Thomas J. McAvoy

 Chief U.S. District Judge


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