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SOLANO v. BARNHART

United States District Court, S.D. New York


July 15, 2004.

JOANNA SOLANO o/b/o, EBONY V. JERNIGAN Plaintiff,
v.
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

I. INTRODUCTION

  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 Procedure.

  For the reasons set forth below, I recommend that the defendant's motion be granted.

  II. BACKGROUND

  Procedural History

  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 motion.

  Factual Background

  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 surgery. (Id.).

  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. (Id.).

  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. (Tr. 124-25).

  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. (Id.).

  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).

  III. DISCUSSION

  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 [1957]). 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. 1993).

  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 [1971]) (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 Cir. 1999).

  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 it aside.

  IV. RECOMMENDATION

  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).


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