United States District Court, Southern District of New York
April 10, 2003
CASIMIRO ACOSTA, PLAINTIFF,
JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Loretta A. Preska, United States District Judge:
Pro se plaintiff Casimiro Acosta brings this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny Acosta disability and Supplemental Security Income ("SSI") benefits for the time period prior to June 1998. (Dkt. No. 2: Compl.; Dkt. No. 12: Motion to Reopen.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 20-21.)
For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be GRANTED for the period prior to May 1996, but DENIED for the May 1996 to June 1998 time period. For the May 1996 to June 1998 time period, the case should be remanded to the Commissioner to obtain additional information from Acosta's treating physician about Acosta's physical and mental condition.
On June 11, 1996, plaintiff Casimiro Acosta applied for SSI and disability benefits, alleging an inability to work since January 1, 1993 due to back pain. (Dkt. No. 19: Administrative Record filed by the Commissioner ["R."] at 55-57, 64-69, 102-03; see also Dkt. No. 17:
Supplemental Administrative Record filed by the
Commissioner ["SR."] at 98-100, 110-15.)*fn1
Acosta's application was denied initially (SR. 83-87) and upon reconsideration (SR. 90-93). At Acosta's request (SR. 94), a hearing was held before an administrative law judge ("ALJ") on June 2, 1997 (SR. 145-55). On December 23, 1997, ALJ Mark S. Sochaezewsky issued his decision finding that Acosta was not disabled. (SR. 131-138.) The Appeals Council denied Acosta's request for review on October 23, 1998. (SR. 158-60.)
On November 13, 1998 (filed as of February 23, 1999), Acosta filed a complaint in this Court to review the Commissioner's decision. (Dkt. No. 2: Compl.) On August 12, 1999, the action was remanded on consent to the Commissioner for further administrative proceedings pursuant to the sixth sentence of 42 U.S.C. § 405(g). (Dkt. No. 11: Stip. & Order.) On remand, the Appeals Council vacated the ALJ's decision and remanded the case for further proceedings to obtain additional medical evidence. (SR. 161-62.)
ALJ Sochaezewsky held a second hearing on February 3, 2000. (SR. 40-49.) On March 6, 2000, the ALJ issued his decision finding that Acosta was under a disability and entitled to SSI benefits as of September 1, 1999. (SR. 169-76.) Acosta appealed this decision.*fn2 (SR. 180.) The Appeals Council vacated the ALJ's decision and remanded the case to a new administrative law judge. (SR. 185-87.)
On December 14, 2001, a third hearing was held, by ALJ Mark J. Hecht. (SR. 50-82.) ALJ Hecht issued his decision on March 18, 2002, finding Acosta to be disabled and eligible for SSI payments since June 1998. (SR. 23-33.) This decision became the final decision of the Commissioner when the Appeals Council denied Acosta's request for review on August 6, 2002. (SR. 5-6.)
Acosta's ALJ Hearings and Decisions Acosta's First Administrative Hearing and ALJ Decision On June 2, 1997, a hearing was held before ALJ Sochaezewsky. (SR. 145-55.) Acosta appeared without counsel but with an interpreter. (SR. 148.) Acosta testified that he was born in Santo Domingo and came to the United States in 1979. (SR. 148.) He completed the eighth grade, and can read and write simple English, but not speak or understand it. (SR. 149-50.) Acosta last worked about five years ago, in a factory, doing heavy work. (SR. 151.) He has not worked since January 1993, because of pain in his back, which also causes his right arm and leg to get numb. (SR. 151.) When asked if he had "any other limitations or other problems that affect [his] ability to work," Acosta responded "[n]o." (SR. 154-55.) Dr. Billini's June 1997 "Medical Report" form, summarizing Dr. Billini's treatment of Acosta from May 20, 1996 to June 24, 1997 (R. 91-97), was the only treating physician medical evidence in the record before the ALJ.
On December 23, 1997, ALJ Sochaezewsky denied Acosta's application for benefits. (SR. 131-38.) The ALJ found that Acosta "is not entitled to a period of disability or disability insurance benefits . . . and is not eligible for supplemental security income." (SR. 138.) The ALJ held that while Acosta had lower back pain and depression, Acosta's "assertions with respect to his limitations and his alleged inability to work are not credible, as they are not supported by the medical and other evidence." (SR. 136-37.)
As noted above, the Appeals Council denied Acosta's request for review of the ALJ's decision on October 23, 1998 (SR. 158-60) and shortly thereafter Acosta filed his federal complaint seeking review of the ALJ's decision. (Dkt. No. 2: Compl.) By stipulation of the parties, on August 12, 1999 the action was remanded to the Commissioner for further administrative proceedings. (Dkt. No. 11: Stip. & Order.) On remand, the Appeals Council ordered a hearing to obtain additional medical evidence, stating:
The Appeals Council has noted that the record does not
contain a complete medical assessment of the
claimant's ability to perform work-related activities
from Dr. Billini, the claimant's treating physician.
Dr. Billini has treated the claimant for both physical
and mental impairments; however, he has not provided
an assessment of the claimant's physical limitations,
if any. Accordingly, the Appeals Council has concluded
that additional evidence is necessary.
Acosta's Second Administrative Hearing and ALJ Decision On remand, ALJ Sochaezewsky held a second hearing on February 3, 2000. (SR. 40-49.) Again, Acosta appeared without counsel but with an interpreter. (SR. 42-43.) After an off the record discussion, the ALJ put on the record that Acosta had advised the ALJ that his condition "got worse approximately five months ago," and so "he wants to amend the allege[d] onset date [to] September 1st of 1999." (SR. 45-46.) The ALJ advised Acosta that that would necessitate withdrawal of the Title II disability claim and proceeding for SSI benefits only from September 1, 1999, and Acosta confirmed that he wished to do so. (SR. 46.) Acosta testified that he has been unable to work since September 1, 1999 because of back pain and because he is experiencing hallucinations and hearing voices, for which he regularly sees a psychiatrist. (SR. 46-47.) The ALJ did not obtain any additional medical records from Dr. Billini.
On March 6, 2000, ALJ Sochaezewsky issued his second decision (SR. 169-76) finding that Acosta "has been under a disability since September 1, 1999, but not prior thereto." (SR. 176.) The ALJ explained that during the second hearing, Acosta had "amended his alleged onset date to September 1, 1999, and withdrew his request for [disability] benefits under Title II of the Act." (SR. 173.) From this new onset date, the ALJ concluded that Acosta's "back condition and worsening psychiatric condition" limited him to "a narrow range of work at the medium exertional level and [that Acosta] cannot perform the basic demands of work on a sustained basis." (SR. 175.)
Acosta appealed this otherwise favorable decision, arguing that he neither knowingly withdrew his application for Title II disability benefits nor consented to changing his onset date from January 1, 1993 to September 1, 1999. (SR. 180-84.) The Appeals Council granted Acosta's appeal and remanded the case to a different ALJ to obtain additional medical records and to "clarify the nature and severity of [Acosta's] impairments." (SR. 185-88.) Specifically, the Appeals Council directed the ALJ to obtain additional records from Dr. Billini:
However, as noted in the Appeals Council's previous
remand order of December 6, 1999, the record does not
contain a complete medical assessment of the
claimant's ability to perform work-related activities
from Dr. Billini. Dr. Billini has treated the claimant
for both physical and mental impairments; but, he has
not provided an assessment of the claimant's physical
limitations, if any. In addition, Dr. Billini's report
is not supported by treatment records to support his
opinion regarding the claimant's mental limitations.
The Appeals Council also notes that Dr. Marcuzzo
performed a mental status examination on August 8,
1997, and assessed no significant mental limitations.
This report contradicts the information provided by
Dr. Billini regarding the claimant's mental status.
Moreover, another treating physician, Dr. Abrams,
reported on January 26, 2000, that the claimant has a
history of a psychiatric disorder with severe
symptoms. However, Dr. Abrams' report is also not
accompanied by a medical assessment and treatment
records. Accordingly, the Appeals Council concludes
that additional evidence and a further evaluation are
Therefore, the Appeals Council vacates the final
decision of the Commissioner in this case and remands
this case to an Administrative Law Judge for further
On remand, the Administrative Law Judge will obtain
from Dr. Billini the claimant's clinical notes,
treatment records, medicine regimen, objective tests
and results, and a medical source statement about what
the claimant can still do despite his impairments
(20 C.F.R. § 404.1513(b) and/or 416.913(b)) to
complete the record. The Administrative Law Judge will
obtain similar reports from Dr. Abrams. The
Administrative Law Judge will then further evaluate
the claimant's functional limitations or residual
(SR. 186-87, record citations omitted.)
Acosta's Third Administrative Hearing On December 14, 2001, a third hearing was held, this time before ALJ Hecht. (SR. 50-82.) Acosta again proceeded without counsel but with an interpreter. (SR. 52.)
Acosta testified that he was born in 1941 and was sixty years old at the time of this hearing. (SR. 54.) He was educated through the eighth grade in the Dominican Republic. (SR. 56.) Acosta testified that he can read and write in Spanish, but can neither read nor write in English. (SR. 56.) He worked as a packager at a paper factory, frequently lifting heavy items up to seventy pounds, for approximately ten years until 1991 when the company closed. (SR. 57-58.) Acosta testified that he was unable to find subsequent employment and that since 1993 he has been unable to work because of back pain. (SR. 58-59.) He also testified that he has been suffering from a psychiatric illness since 1996. (SR. 62-63.) Acosta stated that he experiences auditory hallucinations for which he undergoes psychotherapy and takes medication. (SR. 63, 68, 74-75.) Also, in January 2001 he was diagnosed with colon cancer, for which he had surgery. (SR. 64-67.) The cancer has made him more depressed. (SR. 66.)
Acosta confirmed that Dr. Billini was "the first doctor [he] went to." (SR. 70.)
During the hearing, a medical advisor, Dr. Carlos Berrios, provided expert testimony based upon a review of the medical reports before the ALJ. (SR. 76.) Dr. Berrios asserted that as of June 1998 when Acosta started to see Dr. Abrams, but not prior to that date, Acosta's condition satisfied the criteria for affective disorders. (SR. 79-80.)
The Medical Evidence Before the ALJ in the Final Administrative Hearing The medical evidence in the record includes records from Acosta's treating physicians, Dr. Francisco Billini (SR. 200-06) and Dr. Robert Abrams (e.g., SR. 212-15), as well as consultative evaluations by Dr. K. Seo (SR. 189-90), Dr. Luigi Marcuzzo (SR. 207-08), and Dr. P.C. Pellegrino (SR. 192-99).
Dr. Billini The medical record before the third ALJ from Dr. Billini is the same "Medical Report" form that had been before the original ALJ. (R. 91-97; accord SR. 200-06.) There is no evidence in the record to indicate that, at the time of the third hearing, the ALJ attempted to obtain any additional medical records or information from Dr. Billini.
Dr. Billini treated Acosta once a month from May 20, 1996 until June 24, 1997. (SR. 200.) Acosta complained of "severe low back pain associated with severe anxiety disorder, insomnia, depressed mood, poor attention, poor concentration and poor memory." (SR. 200.) Dr. Billini observed Acosta to be "anxious, cooperative with poor eye contact." (SR. 201.) Dr. Billini found that Acosta had a decreased range of motion of hip frontal flexion (SR. 200-01) and a normal neurological exam (SR. 201). Dr. Billini diagnosed Acosta with "low back pain", "anxiety disorder" and "disthymia."*fn3 (SR. 203.) Additionally, Dr. Billini filled out a form for the Commissioner, entitled "Assessment of Ability to Engage in Work-Related Activities (Mental)." (SR. 204-06.) In this mental assessment form, Dr. Billini rated Acosta as having marked to extreme limitations upon his ability to work, writing that "severe anxiety and moderate low self esteem and depression interfere" with Acosta's "attention, concentration, memory and reality testing" and with his "functioning in social situations." (SR. 205-06.) Dr. Billini further wrote that Acosta "is unable to concentrate adequately in order to produce work or work related activities." (SR. 206.)
Dr. Seo On July 11, 1996, Dr. Seo examined Acosta for complaints of "occasionally sharp low back pain" and "difficulty sitting and standing." (SR. 189.) Dr. Seo reported that Acosta "walks in the examination room with a normal gait. He has no difficulty standing up from the sitting position nor getting on and off the examination table." (SR. 189.) X-rays indicated "[m]ild spondylosis and mild levoscoliosis."*fn4 (SR. 191.) Dr. Seo concluded that Acosta "may have some difficulty bending, lifting and carrying heavy objects" due to a "[c]hronic strain of the paraspinal muscles of the low back." (SR. 190.)
Dr. Pelligrino In a residual functional capacity assessment dated September 18, 1996, Dr. Pelligrino found that Acosta could frequently lift twenty-five pounds; sit, stand and walk for six hours in an eight-hour workday; and push and pull without limitation. (SR. 193.) Dr. Pelligrino also found that Acosta had no other physical limitations. (SR. 194-96.) Dr. Pelligrino concluded that Acosta retained the residual functional capacity for his past work, because his lifting limitation could be compensated by "use [of] forklifts, another person, [or] dollys." (SR. 198.)
Dr. Marcuzzo Dr. Marcuzzo provided a consultative psychiatric evaluation of Acosta based on an examination on August 8, 1997. (SR. 207-08.) Acosta indicated that he felt depressed for about a year and had been obtaining treatment from psychiatrist Dr. Billini. (SR. 207.) Dr. Marcuzzo reported that Acosta "[c]urrently voiced some feelings of hopelessness, helplessness, and poor self-esteem. No evidence of vegetative symptoms of depression or suicidal ideation." (SR. 207.)
Dr. Marcuzzo described Acosta as "pleasant and cooperative" without delusions or hallucinations, but with a "mildly depressed" mood. (SR. 207.) Dr. Marcuzzo diagnosed Acosta with "[d]epression not otherwise specified" (SR. 208) and without significant limitations on memory and understanding, concentration, social interaction and adaptation (SR. 207).
Dr. Abrams Between June 4, 1998 and August 2001, psychiatrist Dr. Abrams treated Acosta every two to four weeks at the New York Hospital-Cornell Center.*fn5 (SR. 212-15; see also SR. 226-28, 232, 235-39, 241, 244-47, 250-51, 263-65, 269, 272, 273-75, 280, 286, 289.) Dr. Abrams reported that Acosta had a "severe psychiatric disorder involving chronic auditory hallucinations, depressive ruminations, low mood, social withdrawal, and slow mental processing, all leading to poor overall functioning." (SR. 212.) The hallucinations manifest as "multiple voices addressing [Acosta] loudly in a derogatory fashion . . . which grossly interfere with his concentration and communication, causing thought blocking." (SR. 212.) Dr. Abrams noted that while Acosta reported "mild" depression previously, the auditory hallucinations had begun within the last two months. (SR. 226.)
Acosta also told Dr. Abrams that he had "never before had any psychiatric treatment." (SR. 226.) Dr. Abrams diagnosed Acosta with schizoaffective disorder.*fn6 (SR. 215; see also, e.g., SR. 245-47, 250-51.) Dr. Abrams prescribed antipsychotic and antidepressant medication, Haldol and Effexor, respectively. (SR. 215; see also, e.g., SR. 236, 238, 244, 246-47, 282.) Dr. Abrams noted, however, that "medications have provided some diminution of symptoms but not full control, nor prevention of considerable disability." (SR. 212; see also SR. 215.) In late January 2001, Dr. Abrams reported that the "recent cancer diagnosis and surgical procedure have further exacerbated [Acosta's] mental disability." (SR. 281; see also SR 282.) ALJ Hecht's Decision In a written decision dated March 18, 2002 (SR. 23-33), ALJ Hecht approved Acosta's application for SSI payments for the period beginning June 1998, but denied any eligibility for disability benefits prior to that date. (SR. 27, 32.) ALJ Hecht noted that there were two issues before him — whether Acosta was entitled to disability benefits and whether he was entitled to SSI benefits. (SR. 27.) As to disability benefits, the ALJ found that Acosta only "was insured for disability benefits through December 31, 1995; [and] therefore [Acosta] must establish disability on or prior to this date" to get disability benefits. (SR. 27.) The ALJ concluded that Acosta was disabled, but only since June 1998. (SR. 27, 32.)
The ALJ used the five step evaluation process. (See discussion at pages 18-19, 24-33 below.) The ALJ found that Acosta "has not engaged in substantial gainful activity since his alleged onset date" of January 1, 1993, thus satisfying the analysis' first step. (SR. 28.) ALJ Hecht found that "[a]lthough [Acosta] alleges disability since January 1, 1993, the medical evidence submitted indicates that with regard to the claimant's treating physicians, Dr. Billini first examined the claimant on May 20, 1996 and Dr. Abrams first examined the claimant on June 4, 1998. There is no indication of any treatment prior to May, 1996." (SR. 28, emphasis added.)
The ALJ proceeded to review the treating physician's medical records. Psychiatrist Dr. Billini saw Acosta monthly from May 20, 1996 to June 14, 1997. (SR. 28.) Although "Dr. Billini opined that [Acosta's] symptoms were so extreme that he could not function in a work setting," the ALJ found that this was not supported by clinical findings, and so he gave Dr. Billini's opinion "little weight." (SR. 28-29.)
"By contrast," the ALJ noted that when Acosta saw psychiatrist Dr. Abrams on June 4, 1998, Acosta reported he had never had auditory hallucinations before. (SR. 29.) The ALJ noted "that there are extensive treatment notes by Dr. Abrams in [the record] and that these treatment notes fully support his opinion of grossly impaired mental and social functioning. [Dr. Abrams'] opinion is therefore given great weight." (SR. 29.)
Consultative psychiatrist Dr. Marcuzzo in April 1997 found no significant psychiatric limitations, and the consultative orthopedic exam by Dr. Seo in July 1996 diagnosed back pain with some limitations on lifting and moving objects. (SR. 29.) The ALJ concluded that these two consultative examinations "support a finding that the claimant's mental impairments were much milder prior to June, 1998, and that though [Acosta] has back pain, it has remained about the same in degree throughout," i.e., not disabling. (SR. 29-30.)
The ALJ concluded "[b]ased on all of the evidence, . . . that prior to May, 1996 [Acosta] had no medically determinable severe impairments"; that "between May, 1996 and June, 1998, the claimant had low back pain [and] an anxiety disorder . . . which, in combination were severe impairments, but not severe enough to meet the criteria of any impairment in the Listing of Impairments"; and that "as of June, 1998 [Acosta's] condition worsened and that since then he has had . . . a schizoaffective disorder that meets the criteria of Listing 12.04. . . ." (SR. 30.)
With respect to the May 1996 to June 1998 period, the ALJ concluded that Acosta "retained the residual functional capacity for medium work, lifting 25 pounds frequently and no more than 50 pounds occasionally, standing or walking for six hours in an eight-hour work day," based on Dr. Seo's consultative report. (SR. 30.) Thus, he could return to his prior relevant work as a hand packager, which requires only medium exertion. (SR. 31.)
The ALJ awarded Acosta SSI benefits starting June 1998, but no disability benefits, since he was not under a disability at the time of his last insured date of December 31, 1995. (SR. 32.)
I. THE APPLICABLE LAW
A. The Definition of Disability*fn7
A person is considered disabled for Social Security benefits purposes when he 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." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Barnhart v. Walton, 535 U.S. 212, 214, 122 S.Ct. 1265, 1268 (2002); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).*fn8
The combined effect of all impairments must be of such severity that the person is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. § 423(d)(2)(A); see, e.g., Barnhart v. Walton, 535 U.S. at 218, 122 S.Ct. at 1270; Draegert v. Barnhart, 311 F.3d at 472; Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo v. Chater, 142 F.3d at 79.*fn9
In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam); see, e. g., Brown v. Apfel, 174 F.3d at 62; Carroll v. Secretary of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); Rebull v. Massanari, 2002 WL 31898080 at *2; Worthy v. Barnhart, 2002 WL 31873463 at *4.
B. Standard of Review*fn10
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Vapne v. Apfel, No. 01-6247, 36 Fed. Appx. 670, 672, 2002 WL 1275339 at *2 (2d Cir. June 10, 2002), cert. denied, 123 S.Ct. 394 (2002); Horowitz v. Barnhart, No. 01-6092, 29 Fed. Appx. 749, 752, 2002 WL 337951 at *2 (2d Cir. Mar. 4, 2002); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); 42 U.S.C. § 405(g).*fn11 "`Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Morris v. Barnhardt, 2002 WL 1733804 at *4.*fn12
The Supreme Court has defined "substantial evidence" as "`more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); accord, e.g., Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74; Perez v. Chater, 77 F.3d at 46.*fn13 "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence."
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207 (1983). The Court must be careful not to "`substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); see also, e.g., Veino v. Barnhart, 312 F.3d at 586; Toles v. Chater, No. 96-6065, 104 F.3d 351 (table), 1996 WL 545591 at *1 (2d Cir. Sept. 26, 1996); Garcia v. Barnhart, 2003 WL 68040 at *3; Morales v. Barnhardt, 2002 WL 31729526 at *6. However, the Court will not defer to the Commissioner's determination if it is "`the product of legal error.'" E.g., Duvergel v. Apfel, 2000 WL 328593 at *7; see also, e.g., Tejada v. Apfel, 167 F.3d at 773 (citing cases).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. § 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2291 (1987). The Second Circuit has articulated the five steps as follows:
 First, the Secretary [now, Commissioner] considers
whether the claimant is currently engaged in
substantial gainful activity.  If he is not, the
Secretary next considers whether the claimant has a
"severe impairment" which significantly limits his
physical or mental ability to do basic work
activities.  If the claimant suffers such an
impairment, the third inquiry is whether, based solely
on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations. If
the claimant has such an impairment, the Secretary
will consider him disabled without considering
vocational factors such as age, education, and work
experience; the Secretary presumes that a claimant who
is afflicted with a "listed" impairment is unable to
perform substantial gainful activity.  Assuming the
claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant's severe
impairment, he has the residual functional capacity to
perform his past work.  Finally, if the claimant is
unable to perform his past work, the Secretary then
determines whether there is other work which the
claimant could perform.
Berry v. Schweiker, 675 F.2d 464
, 467 (2d Cir. 1982); accord, e.g., Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d at 132; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 62; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; Balsamo v. Chater, 142 F.3d at 79-80; Schaal v. Apfel, 134 F.3d at 501; Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).*fn14
The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only his medical capacity but also his age, education and training. See, e.g., Draegert v. Barnhart, 311 F.3d at 472; Curry v. Apfel, 209 F.3d at 122; Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675 F.2d at 467.
Where a claimant has multiple impairments, as the Second Circuit "has long recognized, the combined effect of a claimant's impairments must be considered in determining disability [and] the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d at 1031; see, e.g., DeLeon v. Secretary of Health & Human Servs., 734 F.2d 930, 937 (2d Cir. 1984).*fn15
C. The Treating Physician Rule*fn16
The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion.
Specifically, the Commissioner's regulations provide that:
If we find that a treating source's opinion on the
issue(s) of the nature and severity of your
impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other
substantial evidence in your case record, we will give
it controlling weight.
20 C.F.R. § 404.1527(d)(2); see, e.g., Kamerling v. Massanari, 295 F.3d 206
, 209 n. 5 (2d Cir. 2002); Jordan v. Barnhart, No. 01-6181, 29 Fed. Appx. 790, 792, 2002 WL 448643 at *2 (2d Cir. Mar. 22, 2002); Bond v. Social Sec. Admin., No. 00-6333, 20 Fed. Appx. 20, 21, 2001 WL 1168333 at *1 (2d Cir. Sept. 27, 2001); Shaw v. Chater, 221 F.3d 126
, 134 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72
, 78-79 (2d Cir. 1999); Clark v. Commissioner of Soc. Sec., 143 F.3d 115
, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998).*fn17
Further, the regulations specify that when controlling weight is not given a treating physician's opinion (because it is not "well supported" by other medical evidence), the Court should consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(d)(2); see also, e.g., Shaw v. Chater, 221 F.3d at 134; Clark v. Commissioner, 143 F.3d at 118; Schaal v. Apfel, 134 F.3d at 503; Martinez v. Massanari, 2003 WL 179771 at *4; Garcia v. Barnhart, 2003 WL 68040 at *6; Rebull v. Massanari, 00 Civ. 9774, 2002 WL 31898080 at *2 (S.D.N.Y. Dec. 30, 2002). The Commissioner's current "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563
, 568 (2d Cir. 1993).
D. The ALJ's Duty to Adequately Develop the Record*fn18
A court reviewing a denial of disability or SSI benefits "must first satisfy [itself] that the claimant has had `a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act.'" Echevarria v. Secretary of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Secretary of Health, Educ. & Welfare, 463 F.2d 38, 43 (2d Cir. 1972)); see, e.g., Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990); Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980).*fn19
"Moreover, it is the rule in our circuit that the ALJ, unlike a judge in a trial, must affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding, even if the claimant is represented by counsel." Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (internal quotations & alterations omitted); accord, e.g., Green v. Apfel, No. 01-6117, 25 Fed. Appx. 54, 56, 2002 WL 4566 at *2 (2d Cir. Dec. 28, 2001); Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); Cruz v. Sullivan, 912 F.2d at 12; Echevarria v. Secretary, 685 F.2d at 755.*fn20
"[W]hen the claimant appears pro se, suffers ill health and is unable to speak English well, as in this case, [the courts] have `a duty to make a "searching investigation" of the record' to make certain that the claimant's rights have been adequately protected. " Cruz v. Sullivan, 912 F.2d at 11 (quoting Gold v. Secretary, 463 F.2d at 43); see, e.g., Echevarria v. Secretary, 685 F.2d at 755; Hankerson v. Harris, 636 F.2d at 895.*fn21
The ALJ is thus obligated to explore the facts by obtaining relevant medical records and asking questions of a pro se claimant to assist the claimant in developing his case. See, e.g., Rosa v. Callahan, 168 F.3d at 80 (ALJ required to request additional records from physicians); Perez v. Chater, 77 F.3d at 47 (ALJ required to make "`every reasonable effort to help [the claimant] get medical reports from [his] own medical sources'") (quoting 20 C.F.R. § 404.1512(d)); Cruz v. Sullivan, 912 F.2d at 11 (ALJ required to obtain hospital records and ask plaintiff about his asthma attacks); Echevarria v. Secretary, 685 F.2d at 755-56 (ALJ failed to explore claimant's subjective complaints or obtain necessary medical records).*fn22
The ALJ's responsibility to assist a claimant in obtaining the claimant's medical records carries particular importance in light of the well-established treating physician rule, which requires an ALJ to grant special deference to the opinions of a claimant's treating physicians. (See pages 20-21 above.) As Judge Glasser explained:
[T]hese two principles — the duty to develop a
full record and the treating physician rule — do
not operate independently of each other. . . . [T]he
duty to develop a full record and to assist a pro se
plaintiff compels the ALJ . . . to obtain from the
treating source expert opinions as to the nature and
severity of the claimed disability. . . . Thus, when
the claimant appears pro se, the combined force of the
treating physician rule and of the duty to conduct a
searching review requires that the ALJ make every
reasonable effort to obtain not merely the medical
records of the treating physician but also a report
that sets forth the opinion of that treating physician
as to the existence, the nature, and the severity of
the claimed disability. . . . Until he satisfies this
threshold requirement, the ALJ cannot even begin to
discharge his duties to the pro se claimant under the
treating physician rule.
Peed v. Sullivan, 778 F. Supp. 1241
, 1246 (E.D.N.Y. 1991).*fn23
To achieve this goal, the ALJ is authorized to issue subpoenas requiring the production of any evidence relating to a matter under consideration. See, e.g., 42 U.S.C. § 405(d) ("For the purpose of any hearing . . . authorized or directed under this subchapter, or relative to any other matter within the Commissioner's jurisdiction hereunder, the Commissioner of Social Security shall have power to issue subpenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation or in question before the Commissioner of Social Security."); Treadwell v. Schweiker, 698 F.2d 137
, 141 (2d Cir. 1983).*fn24
II. APPLICATION OF THE FIVE-STEP SEQUENCE TO ACOSTA'S CLAIM
The Commissioner granted Acosta SSI benefits starting June 1998. (E.g., SR. 32.) That decision has not been challenged in this action. Rather, the Court needs to decide if there is substantial evidence to support the Commissioner's decisions that: (1) Acosta was not under a disability, and hence not entitled to Title II disability benefits, at any time through his date last insured, December 31, 1995 (e.g., SR. 32), and (2) Acosta was not disabled and hence not entitled to SSI benefits for the period from his June 11, 1996 application to June 1998 (id.). The Court therefore applies the five step process to those two issues.
A. Acosta Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether Acosta was engaged in substantial gainful activity after January 1, 1993. "Substantial gainful activity" is defined as work that involves "doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510 (1993).*fn25 The ALJ's conclusion that Acosta was not engaged in substantial gainful activity during the applicable time period is not disputed.
B. Acosta Had Severe Physical And Mental Impairments That Significantly
Limited His Ability To Do Basic Work Activities From June 1996 to June
1998, But Not Before June 1996
The next step of the analysis is to determine whether Acosta proved that he had a severe physical or mental impairment or combination of impairments that "significantly limit[ed] [his] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "Basic work activities" include:
. . . walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling . . .
seeing, hearing, and speaking . . . [u]nderstanding,
carrying out, and remembering simple instruction . . .
[u]se of judgment . . . [r]esponding appropriately
to supervision, co-workers and usual work situations.
20 C.F.R. § 404.1521(b)(1)-(5).*fn26
The Second Circuit has warned that the step two analysis may not do more than "screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995).*fn27
"A finding that a condition is not severe means that the plaintiff is not disabled, and the Administrative Law Judge's inquiry stops at the second level of the five-step sequential evaluation process." Rosario v. Apfel, 1999 WL 294727 at *5 (citing 20 C.F.R. § 404.1520(c)); accord, e.g., Morel v. Massanari, 2001 WL 776950 at *9; Duvergel v. Apfel, 2000 WL 328593 at *9. On the other hand, if the disability claim rises above the de minimis level, then the further analysis of step three and beyond must be undertaken. See, e.g., Dixon v. Shalala, 54 F.3d at 1030.*fn28
"A finding of `not severe' should be made if the medical evidence establishes only a `slight abnormality' which would have `no more than a minimal effect on an individual's ability to work. '" Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727 at *5 (E.D.N. Y. Mar. 13, 1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12, 107 S.Ct. 2287, 2298 n. 12 (1987)).
a. The Pre-May 1996 Period
For the period prior to May 1996, there was no medical evidence to support a claim of disability. While Acosta told the ALJ that he could not work because of back pain (SR. 151), he did not produce any medical evidence to support his subjective claim. The earliest medical evidence is from Dr. Billini, who first saw Acosta on May 20, 1996. (SR. 200.) Acosta admitted at the third ALJ hearing that Dr. Billini was "the first doctor [he] went to." (SR. 70.) While Dr. Billini diagnosed Acosta as having "low back pain" and "anxiety disorder" (SR. 200-03), he did not opine as to whether Acosta was disabled as of that date, nor did he provide any opinion or medical evidence that Acosta was disabled as of December 1995, his last insured date. Thus, Acosta failed to show the existence of a disability since he presented no medical evidence as to his condition during the pre-May 1996 period. See, e.g., 42 U.S.C. § 423(d)(5)(A) ("An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require. An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability."); see also, e.g., Arnone v. Bowen, 882 F.2d 34, 39 (2d Cir. 1989) (plaintiff's "failure to present any medical evidence from that period seriously undermines his contention that he was continuously disabled during that time"); Davis-Atkinson v. Barnhart, 02 Civ. 2155, 2003 WL 1610773 at *7 (S.D.N.Y. Mar. 26, 2003) (plaintiff failed to meet her burden of demonstrating disability because she "presented no medical evidence for the period prior to" the expiration date of her insured status).
Thus, at step two of the analysis, the Commissioner's decision that Acosta was not disabled prior to May 1996 is supported by the evidence (or rather the lack of medical evidence), and should be upheld. The Court need not go beyond step two as to the pre-May 1996 period. See, e.g., Bowen v. Yukert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291 (1987) ("If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step. . . ."); see also cases cited at page 26 above.
b. The May 1996 to June 1998 Period
Based on the medical evidence, the ALJ found "that between May, 1996 and June, 1998, [Acosta] had low back pain, an anxiety disorder, and disthymia which, in combination were severe impairments." (SR. 30.) This advances the analysis, in Acosta's favor, to the third analysis step.
C. The ALJ's Finding That Acosta Did Not Have A Disability Listed in
Appendix I of the Regulations for the Period May 1996 to June
1998 Cannot Be Affirmed Because the ALJ Failed to Adequately Develop
the Record The third step of the five-part test requires a
determination of whether, during the May 1996 to June 1998 period,
Acosta had an impairment listed in Appendix I of the Regulations.
20 C.F.R. Pt. 404, Subpt. P, App. 1. "These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the `listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).*fn29
The ALJ found that Acosta's low back pain and anxiety disorder, while severe, did not meet the criteria of any impairment in the Listing of Impairments prior to June 1998. (SR. 30.)
The regulations provide listings of mental disorders and "an individual with an impairment(s) that meets or is equivalent in severity to the criteria of a listing could not reasonably be expected to do any gainful activity." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A). The relevant sections for schizophrenic and affective disorders are 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.03, 12.04. Specifically, the issue is whether there is substantial evidence that Acosta's mental impairments "[r]esult[ed] in at least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12. 03(B)(1)-(4); see also § 12.04(B)(1)-(4).
Dr. Billini opined in June 1997 that Acosta could not function in social situations because of "severe anxiety and moderate low self esteem and depression" and that he "is unable to concentrate adequately in order to produce work or work related activities." (SR. 205-06.) The ALJ, however, gave "little weight" to Dr. Billini's opinion because Dr. Billini did not provide clinical findings or other evidence beyond these conclusions of the nature and extent of Acosta's anxiety, low self-esteem, and concentration. (SR. 28-29.) Moreover, Dr. Billini's opinions were found by the ALJ to be inconsistent with other medical evidence from the same time period. Dr. Marcuzzo performed a consultative psychiatric evaluation of Acosta on August 8, 1997, at which time Dr. Marcuzzo noted that Acosta was "pleasant and cooperative," had no delusions or hallucinations, with "minimal to adequate" memory, and "adequate" attention and concentration. (SR. 207.)
Dr. Marcuzzo diagnosed "[d]epression not otherwise specified," writing that Acosta "may benefit from psychiatric treatment," and gave Acosta a fair prognosis. (SR. 208.) Specifically, and contrary to Dr. Billini, Dr. Marcuzzo found "no significant psychiatric limitation" as to "[s]ustained concentration, persistence, social interaction, and adaptation." (SR. 207.)
Where there are inconsistent medical assessments, the ALJ must resolve those conflicts. Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) ("Genuine conflicts in the medical evidence are for the Commissioner to resolve."). However, before rejecting a treating physician's opinion as unsupported by medical evidence, the ALJ has an affirmative duty to develop the record in this regard. See, e.g., Green v. Apfel, No. 01-6117, 25 Fed. Appx. 54, 56, 2002 WL 4566 at *2 (2d Cir. Dec 28, 2001) ("Where there are `clear gaps' in the administrative record, the ALJ cannot reject the diagnosis of a treating physician without first attempting to obtain the missing information") (quoting Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)); Clark v. Commissioner, 143 F.3d 115, 118 (2d Cir. 1998) (treating physician's "failure to include [specific clinical findings in] support for the findings in his report does not mean that such support does not exist; he might not have provided this information in the report because he did not know that the ALJ would consider it critical to the disposition of the case."); Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998); Cleveland v. Apfel, 99 F. Supp.2d 374, 380 (S.D.N.Y. 2000) ("When the opinion submitted by a treating physician is not adequately supported by clinical finding, the ALJ must attempt, sua sponte, to develop the record further by contacting the treating physician to determine whether the required information is available."); see also cases cited at pages 21-24 above.
The ALJ determined that Dr. Billini's conclusions were not properly supported by clinical evidence (SR. 28) but made no attempt to subpoena or otherwise obtain additional records from Dr. Billini. In fact, upon remand of this case from this Court, the SSA Appeals Council twice instructed the ALJs to "attempt to obtain copies of Dr. Billini's treatment records" and "similar reports from all other treating sources on behalf of the pro se claimant." (SR. 162; see also SR. 186-87.) Despite these clear directions, the only evidence in the record at the third ALJ hearing from Dr. Billini is the same seven-page medical report to the Commissioner (SR. 200-06) that was before the original ALJ (R. 91-97) and that the Appeals Council ordered to be supplemented. Dr. Billini's report stated that Acosta's "[s]evere anxiety and moderate low self esteem and depression interfere with patient's functioning in social situations" and that Acosta "is unable to concentrate adequately in order to produce work or work related activities." (SR. 206.) If supported by clinical findings, these impairments would satisfy the requirements as set out in 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02(B).
The ALJ failed his burden to further develop the record with respect to Dr. Billini's clinical findings, and thus there is insufficient evidence to support the ALJ's determination that Acosta did not have a severe impairment under the regulations from May 1996 to June 1998.
"Upon a finding that an administrative record is incomplete or that an ALJ has applied an improper legal standard, we generally . . . remand the matter to the Commissioner for further consideration." Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000); accord e.g., Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); see also, e.g., Jones v. Apfel, 66 F. Supp.2d 518, 542 (S.D.N.Y. 1999) (Pauley, D.J. & Peck, M.J.) (& cases cited therein); Craven v. Apfel, 58 F. Supp.2d 172, 187-88 (S.D.N.Y. 1999) (Preska, D.J. & Peck, M.J.). However, if "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," the Court may order a remand solely "for calculation and payment of benefits." Parker v. Harris, 626 F.2d at 235. Additionally, the Second Circuit has opined that a remand solely for the calculation of benefit payments to be "particularly appropriate" where the claimant's "application has been pending more than six years and [where] a remand for further evidentiary proceedings (and the possibility of further appeal) could result in substantial, additional delay." Curry v. Apfel, 209 F.3d at 124.
The Court cannot remand solely for the calculation of benefits as a result of delay; "[a]s the Court of Appeals has noted, delay alone, absent sufficient evidence to support a finding of disability, is not a proper basis to remand solely for calculation of benefits." Felicie v. Apfel, 95 Civ. 2832, 1998 WL 171460 at *7 (S.D.N.Y. Apr. 13, 1998) (Preska, D.J.) (citing cases). The Court notes that the ALJs had three opportunities to satisfy the duty to develop the record with respect to the assessment of Acosta's treating physician. Indeed, the Appeals Council twice directed the ALJs to further develop the record. On remand, the Commissioner should expedite the handling of this matter and should insure that the ALJ properly develops the record. The Court therefore remands to the Commissioner once again for the Commissioner to properly develop the record by obtaining additional information from Dr. Billini about Acosta's condition in the May 1996 to June 1998 time period.
For the reasons set forth above, the Commissioner's determination that Acosta was not disabled within the meaning of the Social Security Act for the period before May 1996 is supported by substantial evidence, and the Commissioner's motion for judgment on the pleadings should be granted for that period.*fn30 For the period May 1996 to June 1998, the Commissioner's motion for judgment on the pleadings should be denied and the case remanded to the Commissioner to further develop the record by obtaining additional information from treating physician Dr. Billini about Acosta's physical and mental condition.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ. P. 72, 6(a), 6(e).