United States District Court, S.D. New York
July 15, 2004.
JOANNA SOLANO o/b/o, EBONY V. JERNIGAN Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE BARBARA S. JONES, UNITED STATES DISTRICT JUDGE
Joanna Solano ("Solano") brings this action on behalf of her
infant daughter, Ebony V. Jernigan ("Jernigan" or "plaintiff"),
pursuant to 42 U.S.C. § 405(g), to obtain judicial review of a
final decision of the Commissioner of Social Security
("Commissioner") denying the plaintiff's application for
Supplemental Security Income ("SSI") benefits under Title XVI of
the Social Security Act, 42 U.S.C. § 1381, et seq.*fn1
The Commissioner has moved for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil
For the reasons set forth below, I recommend that the
defendant's motion be granted.
On May 23, 2000, Solano filed an application for SSI benefits,
in which she alleged that Jernigan was born disabled by right
Erb's Palsy.*fn2 (Tr. 12).*fn3 The application was
denied initially on July 12, 2000, and upon reconsideration on
August 23, 2000. (Tr. 33-34). Solano then requested a de novo
hearing before an Administrative Law Judge ("ALJ"), and appeared,
without counsel, before ALJ Kenneth Scheer on March 28, 2001.
(Tr. 10). On June 20, 2001, ALJ Scheer (hereafter "the ALJ")
issued a decision finding that the plaintiff was not entitled to
SSI benefits because she was not disabled within the meaning of
the Social Security Act. (Tr. 16). The ALJ's decision became the
final decision of the Commissioner when the Appeals Council
denied the plaintiff's request for review on November 16, 2001.
(Tr. 3-4). See 42 U.S.C. § 405(h). Thereafter, Solano filed the
instant complaint seeking review of the Commissioner's decision.
Although Solano received notice of the defendant's motion for
judgment on the pleadings, she has not filed any response to that
1. Non-Medical Evidence The plaintiff was born on March 22, 2000, and was approximately
one year old at the time of the March 28, 2001 hearing. (Tr.
33-34). At the hearing, Solano testified that the plaintiff was
born with a brachial plexus*fn4 injury that impaired the
plaintiff's ability to use her right hand and shoulder and caused
her to limp. (Tr. 23-24, 26). Solano reported that the plaintiff
had worn a splint and cast on her right arm for six months,
although she no longer wore it at the time of the hearing. (Tr.
30). Solano stated that the plaintiff was left handed. Although
the plaintiff does attempt to use her right hand, it has little
strength, according to Solano. (Tr. 27). Solano stated that she
enrolled the plaintiff in an early intervention program at Saint
Mary's Hospital ("St. Mary's") in June or July of 2000. (Tr. 24).
Occupational therapists from the early intervention program
visited the plaintiff at her home twice per week and worked to
improve the plaintiff's range of motion on her right side. (Tr.
25). St. Mary's also provided the services of a special educator,
who worked with Jernigan twice per week to improve her motor
skills. (Tr. 25). Solano stated that the plaintiff's condition
had improved since she began therapy and that the plaintiff was
using her right hand more often. (Tr. 29-30). Solano testified
that the plaintiff was bright and alert, did not take medication
on a regular basis, recognized people and noises, liked music,
and was a happy baby. (Tr. 26).
b. Medical Evidence
Jernigan's medical records indicate that she was examined at
New York Medical College by Dr. Deborah L. Benzil in April, May,
August and October of 2000. (Tr. 57, 111-13). On May 23, 2000,
Dr. Benzil examined Jernigan and reported that the plaintiff,
then two months old, had been receiving therapy at home for a right brachial plexus
injury and had been using her right arm more than she had
earlier. (Tr. 111). The report noted that the plaintiff's parents
had no new complaints about her medical condition and that there
had been no substantial changes in her condition since her
previous visit. (Id.). Dr. Benzil reported that the plaintiff
was active, awake, and alert, and had: 1) a symmetrical face; 2)
good suck, root, and gag reflexes; 3) a deltoid strength of four
out of five, a bicep strength of three or four out of five, and a
tricep strength of three out of five; 4) strong finger extension,
finger flexion, and thumb movement; 5) no obvious
scapular*fn5 winging; 6) sensation throughout her right
hand; 7) a splint on her right extremity; 8) no joint
deformities; 9) toes that remained up going bilaterally; 10) an
excellent range of motion; 11) strength in nearly all muscle
groups; and 12) a below average wrist extensor strength of two
out of five. According to Dr. Benzil, Jernigan's recovery from
her brachial plexus injury had progressed significantly, and she
might, in time, make a complete or nearly complete recovery. Dr.
Benzil considered it unlikely that the plaintiff would require
On August 22, 2000, Dr. Benzil again examined the plaintiff.
(Tr. 112). Dr. Benzil noted that Jernigan's right arm was
somewhat shorter than her left arm. (Id.). It was reported that
the plaintiff was receiving physical and occupational therapy and
was exercising at home. Dr. Benzil stated that the plaintiff was
a very playful and active child. (Id.). The plaintiff
reportedly smiled, fixed and followed very well. Dr. Benzil
indicated that Jernigan had excellent head control and appeared
to be meeting her developmental milestones. (Id.). Except for
her right upper extremity, the plaintiff was reported to be neurologically
intact. Dr. Benzil stated that there was evidence of scapular
winging, although the plaintiff had no infra or supra
spinates wasting. (Id.). On the right side, the plaintiff had a
deltoid strength of three to four-minus out of five, a tricep
strength of three to four-minus out of five, and a bicep strength
of three out of five. Dr. Benzil reported that Jernigan had
excellent wrist and finger activity and that her sensation
appeared to be grossly intact throughout. (Id.). It was
reported that the plaintiff had made some progress since her
visit in May of 2000. Dr. Benzil noted that Jernigan still had a
lag, evidenced by scapular winging. (Id.). Dr. Benzil scheduled
another examination of the plaintiff two months hence, to
determine whether the infant had root avulsion.*fn6 (Id.).
On October 24, 2000, Dr. Benzil conducted another examination
of the plaintiff, who was then seven months old. (Tr. 113). She
reported that the plaintiff continued to be a playful and active
child who smiled, fixed and followed well. Dr. Benzil stated that
the plaintiff rolled over from front to back, pushed up on her
forearm and continued to meet her developmental milestones.
(Id.). It was reported that Jernigan was intact, except for her
right upper extremity. Dr. Benzil reported mild scapular winging,
but no infra or supra spinates wasting. (Id.). The
plaintiff reportedly had a deltoid strength of at least four out
of five, a tricep strength of at least four-minus to four out of
five, and a bicep strength of four to four-plus out of five. Dr.
Benzil stated that the plaintiff's wrist and finger activity was
virtually normal and that she had good sensation throughout. It
was noted that the developmental delay that the plaintiff
exhibited in her previous visit was "resolved." (Id.) Dr.
Benzil reported that the plaintiff had abnormalities that were being addressed with physical therapy. (Id.). Dr. Benzil
stated that the plaintiff had made continued progress and
recommended that the infant be evaluated annually, unless new
concerns developed and merited more frequent evaluations.
On June 21, 2000, Dr. Celeste Zaffuto, a physiatrist, examined
the plaintiff and completed a disability evaluation form. (Tr.
84-90). Dr. Zaffuto stated that she had first seen the plaintiff
on April 12, 2000. (Id.). Dr. Zaffuto reported a treating
diagnosis of Erb's Palsy. (Tr. 84). The plaintiff was three
months old at the time of this visit and was reported to have
fine/gross motor skills equivalent to those of a one month old
child. (Tr. 85). Dr. Zaffuto reported that the plaintiff's
sensory abilities, communication skills, cognitive skills and
social/emotional skills were age appropriate. (Tr. 85-86). It was
reported that the plaintiff received occupational therapy and
physical therapy, each once per week. (Tr. 87).
On June 24, 2000, Dr. Elmer Arteaga reported that he first
examined the plaintiff on March 31, 2000, and that he most
recently examined her on May 26, 2000. (Tr. 91). Dr. Arteaga
reported a treating diagnosis of Erb's Palsy and noted that the
plaintiff exhibited decreased movement of the right arm. (Id.).
He reported that the plaintiff's fine and gross motor skills were
otherwise age appropriate, as were her sensory and
social/emotional skills. (Tr. 93-94). Dr. Arteaga stated that the
plaintiff did not take any medication and received physical
therapy. (Tr. 92). He determined that the plaintiff was too young
to have her cognitive skills evaluated. (Tr. 93-94). Dr. Arteaga
reported that the plaintiff smiled, turned her head in response
to noises and regarded her mother's face. (Tr. 96).
On June 27, 2000, Dr. Robert DeVita, a pediatrician, conducted
an examination of Jernigan. (Tr. 99-101). Dr. DeVita reported
that the plaintiff was wearing a splint on her right forearm and wrist. (Tr. 100). The plaintiff's arm and hand were
reportedly "held in adduction and internal rotation with
pronation of the forearm." (Id.) Dr. DeVita reported that the
plaintiff was alert, active, well developed, and well nourished.
He found the plaintiff's behavior to be age appropriate. He
reported that: 1) the plaintiff's extremities showed no gross
deformities; 2) her pulses were equally bilateral; 3) she had
full range of motion of both her upper and lower extremities; 4)
cranial nerves II through XII were intact; 5) the plaintiff's
deep tendon reflexes were normal; 6) her startle reflex on her
right side was absent; 7) there was a slight decrease in the
"grasp" of her right hand and right arm; 8) her right arm
appeared to be slightly smaller than her left arm; 9) she had no
skin lesions, pallor, or cyanosis; 10) her lymph nodes were not
palpable; and 11) her capillary refill and turgor was good. (Tr.
100-01). Dr. DeVita indicated an "impression" of "Erb-Duchenne
palsy with involvement of the right upper arm and forearm and
slight involvement of the hand" (Id.). The plaintiff's ability
to perform age appropriate activities was reported to be markedly
affected, but her ability to behave in an age appropriate manner
was unaffected. (Id.).
On July 11, 2000, Dr. S. Imam,*fn7 a state agency medical
consultant, performed a consultive examination of the plaintiff.
(Tr. 102-03). Dr. Imam reported that the plaintiff's right Erb's
Palsy was severe, but opined that it did not meet, medically
equal, or functionally equal any of the impairments listed in
20 C.F.R. § 404, Subpart P, Appendix 1 ("Listing of Impairments").
(Tr. 104). Dr. Imam reported that the plaintiff had marked
impairment of motor development, but was not limited in the areas
of cognitive/communicative development, social development, or
responsiveness to stimuli. (Tr. 106). On December 19, 2000, Tina M. Fasulo, a speech and language
pathologist from St. Mary's Early Intervention Program, conducted
a speech and language evaluation of Jernigan. (Tr. 123-25). The
plaintiff's communication skills were assessed using the Rossetti
Infant-Toddler Scale. (Tr. 124). The plaintiff "was observed to
attend to new words, look at the person saying her name, perform
a routine activity upon verbal request, look at familiar objects
and people when named, attend to objects mentioned during
conversations, follow simple commands occasionally, understand
simple questions, gesture in response to a verbal request and
participate in speech routine games." (Id.). Ms. Fasulo stated
that, according to developmental milestones, the plaintiff's
receptive language skills were age appropriate. (Id.). She
observed the plaintiff respond to mobile objects and vocalize
four different syllables and a two syllable combination. Jernigan
was reportedly able to imitate reduplicated syllables and able to
vocalize during games. Ms. Fasulo stated that the plaintiff
exchanged gestures with an adult and used gestures and
vocalizations to protest or gain attention. (Id.). She further
reported that Jernigan's expressive language skills and
play/pragmatic skills were age appropriate and consistent with
expected milestones. (Id.). Ms. Fasulo recommended that the
plaintiff receive audiological and visual evaluations, but
concluded that speech-language intervention was not warranted.
On December 19, 2000, Kristina Guthorn, a physical therapist at
St. Mary's, conducted a physical therapy evaluation of the
plaintiff. (Tr. 126-28). Ms. Guthorn reported that throughout the
evaluation, the plaintiff was alert, social, amicable, content,
and interactive. (Tr. 126). Ms. Guthorn stated that although
Jernigan tended to keep her right arm internally rotated and
adducted close to her body, she did initiate some movement in her
right arm. (Id.). The plaintiff reportedly responded to
auditory and visual stimuli, tracked objects bilaterally, and
responded to noise on both sides. (Tr. 127). Ms. Guthorn described the
plaintiff's tactile response as inconsistent with respect to her
right arm. (Id.). She further reported that Jernigan's right
arm was "flaccid throughout," but that otherwise her muscle tone
was normal. (Id.). Ms. Guthorn reported that the plaintiff's
skin was warm and dry to touch. She also stated that the
plaintiff: 1) reached for objects solely with her left arm; 2)
used her right hand primarily for activities that required the
use of both hands; 3) used her right arm mostly for stability; 4)
was able to bang two cubes together independently, after being
given a demonstration and guidance; 5) maintained independent
sitting indefinitely; 6) initiated reaching with trunk rotation;
7) reached forward while sitting and supported herself on her
hands, but could not transition out of sitting into quadruped or
onto her stomach; and 8) rose independently into four point
kneeling. Ms. Guthorn stated that Jernigan was not able to crawl
forward with reciprocal arm and leg movements. Instead, the
plaintiff reportedly "belly crawl[ed]," using her left side to
propel herself forward. (Id.)
According to Ms. Guthorn, Jernigan's physical development, when
measured using the Alberta Infant Motor Scale, ranked between the
tenth and twenty-fifth percentiles. (Tr. 128). While Ms. Guthorn
observed no developmental delay, she opined that other factors,
namely lack of mobility and decreased voluntary movement of the
right arm, indicated a need for physical therapy. (Id.). Ms.
Guthorn recommended that Jernigan receive physical therapy.
On February 20, 2001, Jernigan's progress at the New York City
Early Intervention Program was evaluated by Jamie Gasparre of St.
Mary's. (Tr. 117-22). Ms. Gasparre reported that the plaintiff's
health was stable and that the infant could sit independently.
Ms. Gasparre stated that, although Jernigan could not crawl or
stand alone, she could "belly crawl" and could stand with assistance. It was reported that the plaintiff could
grasp and release objects and reach midline. (Id.). The
plaintiff reportedly slept well. With regard to adaptive skills,
Ms. Gasparre stated that the plaintiff drank from a bottle, was
fed by spoon, ate pureed food and table food, and enjoyed baths.
(Id.). With respect to communication skills, the plaintiff was
observed to babble and produce multiple vowel sounds. (Tr. 118).
Ms. Gasparre reported that Jernigan cried when she was soiled or
upset. (Id.). Ms. Gasparre stated that Jernigan followed simple
commands and understood simple questions. (Id.). It was
reported that the plaintiff imitated or made gestures upon
request and had no oral motor issues or developmental delay. With
respect to cognitive ability, it was reported that the
plaintiff's play skills were purposeful. Ms. Gasparre reported
that Jernigan enjoyed operating cause-and-effect toys. (Id.).
Jernigan reportedly turned in the direction of sound, enjoyed
books, and stared at pictures. Ms. Gasparre further reported that
Jernigan recognized familiar faces and family members, that the
plaintiff had a social smile, and that she seemed to be a very
happy and social child. (Id.). Ms. Gasparre recommended that
Jernigan receive physical therapy. (Tr. 119-22).
On March 27, 2001, Ms. Gasparre wrote, in a letter received
into evidence at the hearing conducted by the ALJ, that the
infant was still receiving special instruction and occupational
therapy twice per week. (Tr. 115). Ms. Gasparre stated that the
plaintiff had begun receiving physical therapy recently. (Id.).
Decision of the ALJ
The ALJ considered whether Jernigan was disabled within the
meaning of the Social Security Act. The ALJ found that: 1)
Jernigan had never engaged in substantial gainful activity; 2)
Jernigan had a severe impairment, namely right Erb's Palsy; 3)
the testimony of Solano, though credible, did not support an ultimate determination of
disability; 4) the limitations resulting from Jernigan's
impairment did not meet, medically equal, or functionally equal
the impairments contained in the Listing of Impairments ("listed
impairments"); and 5) Jernigan's impairment did not result in an
extreme limitation in any functional domain, and resulted in
marked limitations in only one functional domain. Accordingly,
the ALJ found that Jernigan was not disabled within the meaning
of the Social Security Act at any time during the period March
22, 2000 through June 20, 2001. (Tr. 16).
Judgment on the Pleadings
Rule 12(c) of the Federal Rules of Civil Procedure provides, in
pertinent part, that "[a]fter the pleadings are closed but within
such time as not to delay the trial, any party may move for
judgment on the pleadings." The standard for granting a motion
for judgment on the pleadings under Rule 12(c) is identical to
that of a Rule 12(b)(6) motion for failure to state a claim.
See Patel v. Contemporary Classics of Beverly Hills,
259 F.3d 123, 126 (2d Cir. 2001). In both instances, a court is required
to accept as true all factual allegations in the complaint and to
view the pleadings in the light most favorable to, and draw all
reasonable inferences in favor of, the nonmoving party. See
id; District Council No. 9 v. APC Painting, Inc.,
272 F. Supp.2d 229, 235 (S.D.N.Y. 2003). Dismissal of a complaint is
not warranted "unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief." Ad-Hoc Comm. of the Baruch Black and
Hispanic Alumni Ass'n v. Bernard M. Baruch College,
835 F.2d 980, 982 (2d Cir. 1987) (quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 101-02 ). Additionally, on a motion to
dismiss, a court may consider all papers and exhibits appended to the complaint as well as any matters of
which judicial notice may be taken. See Hirsch v. Arthur
Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v.
American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.
Standard of Review
Under the Social Security Act, the findings of the Commissioner
about any fact are conclusive, if they are supported by
substantial evidence. See 42 U.S.C. § 405(g). When a district
court reviews a decision by the Commissioner denying a claim for
disability benefits, it must assess whether the Commissioner
applied the appropriate legal standard and whether her decision
is supported by substantial evidence. See Toribio v.
Barnhart, No. 02 Civ. 4929, 2003 WL 21415329, at *2 (S.D.N.Y.
June 18, 2003) (citing Balsamo v. Chater, 142 F.3d 75, 79 [2d
Cir. 1998]). "Substantial evidence" within the meaning of the
Social Security Act is defined as "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Id. (quoting Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 )
(internal quotation marks omitted). Thus, a reviewing court is
limited to considering whether the Commissioner's determination
is supported by substantial evidence in the record and is free
from legal error. See Rosa v. Callahan, 168 F.3d 72, 77 (2d
Determination of Disability
An individual is disabled within the meaning of the Social
Security Act if he or she can show an "inability 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). The impairment suffered must be such
that the individual
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).
The ALJ or other examiner must apply a three-step sequential
procedure when evaluating a disability claim made on behalf of an
individual under the age of 18. See 20 C.F.R. § 404.1520 &
416.924. The Second Circuit has summarized that procedure as
follows: (1) the ALJ must determine whether the individual is
engaged in substantial gainful activity; (2) if she is not, then
the ALJ must consider whether the individual has an impairment or
combination of impairments that is severe; (3) if the individual
is found to have a severe impairment, then the ALJ must determine
whether the impairment meets or medically equals a listed
impairment, or is functionally equivalent to the listed
impairments. See Encarnacion v. Barnhart, 331 F.3d 78, 84 (2d
Cir. 2003); see also 20 C.F.R. § 416.924(a).*fn8
An individual's impairment meets a listed impairment only if
certain required "symptoms, signs and laboratory findings" are
established by the record medical evidence. 20 C.F.R. § 416.925.
An individual's impairment, or combination of impairments, is
medically equivalent to a listed impairment if related medical
findings established by record medical evidence are at least equal in severity and duration to the findings required for
the listed impairment. See 20 C.F.R. § 416.926. An individual's
impairment or combination of impairments is functionally
equivalent to the listed impairments if the individual's
impairment(s) results in an extreme limitation in one or more
domains of functioning or marked limitations in two or more
domains of functioning. See 20 C.F.R. § 416.926a. A marked
limitation is one that interferes seriously with the individual's
ability to initiate, sustain or complete activities
independently. See 20 C.F.R. § 416.926a(e)(2)(i); see also
20 C.F.R. § 416.926a(e)(2)(ii)-(iv). An extreme limitation is one
that is more severe than a marked limitation, although it need
not entail a total lack or loss of ability to function. See
20 C.F.R. § 416.926a(e)(3)(i); see also
20 C.F.R. § 416.926a(e)(3)(ii)-(iv). To determine a child's ability to engage
in activities, the ALJ must consider how the child performs in
six domains of functioning: (i) acquiring and using information;
(ii) attending and completing tasks; (iii) interacting and
relating with others; (iv) moving about and manipulating objects;
(v) caring for oneself; and (vi) health and physical well-being.
See 20 C.F.R. § 416.926a(b)(1).
Application of the Legal Standard
The ALJ's decision contains the sequential analysis of the
plaintiff's disability claim required by 20 C.F.R. § 416.924.
First, the ALJ found that the plaintiff had not engaged in
substantial and gainful activity. Second, the ALJ determined that
the plaintiff's right Erb's Palsy is a severe impairment within
the meaning of 20 C.F.R. § 416.924(c), since it is more than a
slight abnormality and causes more than minimal functional
limitations. The ALJ also found that the plaintiff's impairment
satisfied the twelve-month duration requirement of the Social
Security Act. However, based on the record medical evidence, the
ALJ determined that the plaintiff's impairment did not meet or
medically equal a listed impairment. Therefore, the ALJ
considered whether the plaintiff had an impairment or combination of
impairments that was functionally equivalent to the listed
impairments. To determine this, the ALJ considered whether the
plaintiff's impairment caused an extreme limitation of
functioning in at least one domain of functioning or a marked
limitation of functioning in at least two domains of functioning.
The ALJ found that the plaintiff had no limitation of
functioning in the following domains of functioning: (i)
acquiring and using information; (ii) attending and completing
tasks; (iii) interacting and relating with others; and (iv)
health and physical well being. The ALJ also found that the
plaintiff had a marked limitation in the domain of moving and
manipulating objects and a less-than-marked limitation of
functioning in the domain of caring for oneself. The ALJ's
findings were supported by extensive medical evidence.
Based on his review of the record in this case, the ALJ
determined that the plaintiff, despite her severe impairment, did
not have an impairment that resulted in an extreme limitation in
at least one domain of functioning or marked limitations in at
least two domains of functioning. Therefore, the ALJ found that
the plaintiff's impairment was not functionally equivalent to the
listed impairments. Accordingly, the ALJ found that the plaintiff
was not disabled within the meaning of the Social Security Act.
The Court finds that the ALJ applied the appropriate legal
standards in evaluating the plaintiff's disability claim.
Therefore, in light of the substantial medical evidence
supporting the ALJ's determination, no basis exists for setting
For the reasons set forth above, I recommend that the
defendant's motion for judgment on the pleadings be granted. V. 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 Court, with courtesy
copies delivered to the chambers of the Honorable Barbara S.
Jones, 40 Centre Street, Room 2103, New York, New York, 10007,
and to the chambers of the undersigned, 40 Centre Street, Room
540, New York, New York, 10007. Any requests for an extension of
time for filing objections must be directed to Judge Jones.
FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A
WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See
Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund
v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 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).