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
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
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
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 ...