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KIGGINS v. BARNHART

May 20, 2004.

THOMAS B. KIGGINS, Petitioner
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Respondent



The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

On November 25, 2003, Magistrate Judge Theodore Katz issued a Report and Recommendation ("Report") recommending that the Defendant's motion for judgment on the pleading be granted and that the Complaint be dismissed.

In reviewing the Report, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West 2002). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, when a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report only for clear error. See United States ex rel. Casa Redimix Concrete Corp. v. Luvin Construction Corp., 00 CV 7552 (HB) 2002 US Dist LEXIS 24700, at *4-5 (S.D.N.Y. Dec. 26, 2002); Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992); Chabrier v. Leonardo, No. 90 Civ. 0173 (PKL), 1991 WL 44838, at *1 (S.D.N.Y. Mar. 26, 1991); Schoolfield v. Dep't of Corr., No. 91 Civ. 1691 (JL), 1994 WL 119740, at * 2 (S.D.N.Y. Apr. 6, 1994). Objections to a Report and Recommendation "are to be specific and are to address only those portions of the proposed findings to which the party objects." Camardo, 806 F. Supp. at 381-382.

  The Court has in this connection considered carefully all of the parties' submissions in this case. Since the Petitioner's arguments focus largely on errors in the judgment of the Administrative Law Judge (ALJ), which was the issue before the Magistrate Judge, Petitioner's objections as to the decisions of the ALJ essentially reiterate the arguments in his earlier submissions. Petitioner does assert that "the Magistrate Judge erred in relying on the testimony of Mr. Meola, when the ALJ did not." However, Petitioner makes only this one conclusory accusation and the discussion surrounding Mr. Meola merely rehashes the argument that was before the Magistrate Judge. Therefore the Court reviews the entire Report and Recommendation for clear error. See Schoolfield v. Dep't of Corr., No. 91 Civ. 1691 (JL), 1994 WL 119740, at * 2 (S.D.N.Y. Apr. 6, 1994) (objections stating the magistrate judge's decisions are wrong and unjust, and restating relief sought and facts upon which complaint grounded, are conclusory and do not form specific basis for not adopting report and recommendation)

  The Court has reviewed thoroughly the remainder of Judge Katz's well-reasoned Report and finds no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, the motion for judgment on the pleadings is granted, the decision of the Commissioner is affirmed as supported by substantial evidence and free from legal error, and the Complaint is dismissed.

  Magistrate Judge Katz's Report follows.

  SO ORDERED. FROM: THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.

  TO: HON. LAURA T. SWAIN, UNITED STATES DISTRICT JUDGE.

  This social security action was referred to the Court for a Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72.1(a) of the Local Civil Rules of the Southern District of New York. Plaintiff has moved, and Defendant has cross-moved, for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, I respectfully recommend that Defendant's motion on the pleadings be granted, and that this action be dismissed.

  PROCEDURAL BACKGROUND

  Plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") under 42 U.S.C. § 423, on July 13, 1992, claiming that he had been disabled since September 13, 1991, as a result of injuries to his shoulder and both knees. See Kiggins v. Shalala, No. 94 Civ. 319 (AGS), 1995 WL 450478, at * 1 (S.D.N.Y. July 31, 1995). Plaintiff's application and subsequent request for reconsideration were denied. (See R. 106-108, 119-121.)*fn1 Plaintiff then requested and received a hearing before an Administrative Law Judge ("ALJ"). See Kiggins, 1995 WL 450478, at *1. The ALJ found that (1) Plaintiff met the requirements for disability insured status, (2) he had not engaged in substantial gainful activity during the relevant period, (3) he produced sufficient medical evidence to establish severe internal derangement of both knees and a rotator cuff injury, and (4) these injuries precluded him from performing his past relevant work as a police officer. (See R. 217-18.) However, the ALJ also found that Plaintiff's "allegations of pain and functional loss are not credible to the extent stated" and that he had the residual functional capacity for the full range of sedentary work. (R. 218.) Consequently, the ALJ held that Plaintiff was not under a "disability" as defined by the Social Security Act and therefore not entitled to DIB. (See id.) On November 22, 1993, the Appeals Counsel denied Plaintiff's request for review, thus rendering the ALJ's denial of DIB the final decision of the Commissioner of Social Security ("Commissioner"). Plaintiff challenged the Commissioner's final determination by bringing an action in this Court under 42 U.S.C. § 405(g) and 1383(c)(3). See Kiggins, 1995 WL 450478. On July 31, 1995, the Court (Schwartz, J.) remanded the case to the Commissioner because it was "not possible to determine from the record . . . whether the ALJ (1) did not evaluate the treating physician's opinion . . . at all, (2) evaluated the treating physician's opinion, but did not assign it appropriate weight in accordance with established criteria, or (3) evaluated the treating physician's opinion, assigned it appropriate (perhaps negligible) weight, but simply did not articulate his rationale for disregarding it." Id. at *5.

  On remand, Plaintiff amended his application to limit it to a closed period beginning September 13, 1991, and ending May 21, 1995. (See Plaintiffs Amended Complaint ("Am. Compl.") ¶ 13.) On May 31, 1996, there was a hearing on Plaintiffs amended application, which the ALJ denied in a decision issued on June 19, 1997. (See R. 342-48.) However, on May 28, 1998, the Appeals Council remanded the ALJ's decision because the tape of the May 31, 1996 hearing could not be located, making the administrative record incomplete. (See R. 380.) In order to reconstruct the record, an ALJ presided over a second hearing on July 7, 1999. (See R. 50-96.)

  On December 28, 1999, the ALJ issued a decision finding that (1) Plaintiff met the special insured status requirements of the Social Security Act for the closed period at issue, (2) Plaintiff did not engage in substantial gainful activity during the closed period, (3) Plaintiff's disabilities did not meet or equal the severity of any impairments listed in Appendix 1, Subpart P to Regulation No. 4, (4) Plaintiffs allegations of significant functional limitations which precluded his ability to engage in work activity were not supported by the medical and other evidence, (5) although Plaintiff did not have the capability to perform his past relevant work as a police officer, he had the residual functional capacity to engage in the full range of sedentary work, and therefore (6) Plaintiff was not under a "disability" as defined by 20 C.F.R. § 404.1520(g)(1).*fn2 (See R. 32-41.) On November 19, 2001, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final determination of the Commissioner. (See R. 2-3.) Plaintiff then filed this action challenging the Commissioner's determination.

  FACTUAL BACKGROUND

  Plaintiff was born on July 19, 1952. (See R. 98) He was employed as a police officer from 1974 through 1991. (See R. 133, 237.) In 1984, Plaintiff injured his left knee at work and had arthroscopic surgery. (See R. 5.) In 1988, Plaintiff injured his right knee and subsequently had arthroscopic surgery performed on that knee. (See id.) During the procedure on his right knee, Plaintiff's lung went into spasm and the doctors had "great difficulty extubating him." (R. 147.) On July 2, 1991, Plaintiff was chasing a suspect, and in an attempt to vault a fence he fell, injuring both knees and his right shoulder. (See R. 5, 268.) Plaintiff returned to work, but on the advice of his treating physician, Dr. Dutkowsky, was restricted to light duty. (See R. 162.) He continued on a light desk duty schedule until September 12, 1991 when, again on the advice of Dr. Dutkowsky, he stopped working entirely. (See R. 160.) September 12, 1991 marks the beginning of the closed period in Plaintiff's application for DIB. At that time, Plaintiff had a high school degree and had completed five semesters of college. (See R. 66.) During the closed period, Plaintiff recommenced college and secured a Bachelor of Science Degree from St. Thomas Aquinas College. (See id.) Plaintiff testified that he attended classes four days a week for three to six hours each day. (See R. 68.) Each class period was about forty-five minutes in length and, according to Plaintiff, he was able to alternate between sitting and standing, as required. (See R. 71.) Plaintiff also earned a Master's Degree in social work from Hunter College during the closed period. He attended classes at Hunter two days a week for about four hours each day. (See id.) Again, according to Plaintiff, his professors permitted him to move around and change positions as needed. He commuted from Nanuet, New York to Hunter College, located in New York City, by a combination of car, railroad and subway. (See R. 67.)

  In May 1995, immediately after completing his graduate degree, Plaintiff began working as an alcohol rehabilitation counselor. (See R. 59-60.) The commencement of this job marks the end of the closed period in Plaintiffs application for DIB. Plaintiff testified that this was a desk job where he had the "freedom to get out of [his] chair and stand, sit or lean [or] walk." (R. 59-60.) He estimated that he spent about one-third of his time at work sitting, one-third standing and one-third walking. (See R. 59.) Subsequently, Plaintiff began a job as an employee counselor for the Metropolitan Transit Authority. (See R. 59-60.) Plaintiff testified that this was a desk job with demands similar to his previous counseling job, where he had the freedom to alternate between sitting, standing and walking. (See R. 58-60.) However, Plaintiff testified that at the second job he spent between fifty to sixty percent of his time seated, and the remaining time standing or walking. (See id.) Plaintiff was examined by five doctors during the closed period. Aside from Dr. Dutkowsky, Plaintiff's treating physician, and his colleague, Dr. Stephen Brenner, all the doctors examined Plaintiff in a consultative capacity. In addition, two non-examining state agency medical consultants assessed Plaintiff's ability to perform work-related physical activities based solely on a review of his ...


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