Opinion
No. 04 Civ. 1433 (KMW)(KNF).
May 23, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE I. INTRODUCTION
Plaintiff Stuart W. Bartels ("Bartels" or "plaintiff") brings this action 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. The plaintiff has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure; he seeks an order directing that his case be remanded to the Commissioner for additional administrative proceedings, pursuant to 42 U.S.C. § 405(g). The Commissioner has filed a cross-motion for judgment on the pleadings. The parties' respective motions are addressed below.
II. BACKGROUND
On June 14, 2001, the plaintiff filed an application for SSI benefits in which he alleged that he became disabled on November 15, 1999, due to a herniated disc. (Tr. 15). The application was denied initially on January 2, 2002 (Tr. 48-51), and upon reconsideration. (Tr. 14). The plaintiff then requested a de novo hearing before an Administrative Law Judge ("ALJ") (Tr. 52), and appeared with counsel before ALJ Edward J. McNeil on October 17, 2002. (Tr. 23). On December 27, 2002, the ALJ issued a decision finding that the plaintiff was not entitled to disability benefits under the Social Security Act. (Tr. 11-20). The plaintiff appealed the ALJ's decision to the Social Security Administration Office of Hearings and Appeals ("Appeals Council") on March 4, 2003. (Tr. 10). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied the plaintiff's request for review on December 18, 2003. (Tr. 4-6). See 42 U.S.C. § 405(h). The plaintiff filed the instant complaint seeking review of the Commissioner's decision on February 17, 2004. Thereafter, the plaintiff moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking an order remanding his case to the Commissioner for further administrative proceedings. The defendant filed a cross-motion for judgment on the pleadings.
"Tr." refers to the administrative record filed by the Commissioner as part of the Answer.
Factual Background 1. Non-Medical Evidence
The plaintiff was born on March 21, 1963, and is a citizen of the United States. He has completed high school, is married and has two children.
As noted above, in his application for SSI benefits, Bartels identified his disabling condition as a herniated disc and reported that, as a result of this condition, he became unable to work on November 15, 1999. (Tr. 60). At his hearing before the ALJ, Bartels testified that prior to that date he had worked in a variety of jobs including deli worker, deliveryman and manager of a Quik-Lube oil change facility. As a deli worker, Bartels was required to lift weights of over fifty pounds frequently, and loads of over one hundred pounds occasionally. (Tr. 65).
Bartels claims his injury occurred as a result of being hit by a car while at work. (Tr. 86). Following the accident, he received bi-weekly Workers' Compensation payments of $522. (Tr. 26). At his hearing, Bartels testified that, although he and his doctor had discussed surgery as a means of alleviating the pain caused by his herniated disc, for a variety of reasons he decided not to undergo that procedure. (Tr. 28-33). Additionally, Bartels stated that he: 1) was 6' 5" tall and weighed 325 pounds; 2) had difficulty sleeping at night and getting out of bed due to acute pain; 3) had severe difficulty sitting, standing, or walking for significant periods of time; 4) spent most of his time watching television; 5) was undertaking, with the help of his wife, a weight-loss regimen; and 6) was taking several medications and performing a variety of procedures such as stretching and heating to assuage his lower back pain. (Tr. 25, 33-45).
2. Medical Evidence
On November 15, 1999, Jennifer Goldberg, a Physician's Assistant, evaluated the plaintiff upon his arrival at the Emergency Room of Good Samaritan Hospital and generated a medical report. (Tr. 83-86). Ms. Goldberg reported that the plaintiff was hit by a car while at work and complained of lower back pain that increased upon movement. According to the report, the plaintiff had mild paralumbar tenderness to deep palpation, but was otherwise neurologically asymptomatic. Ms. Goldberg diagnosed the plaintiff with acute lower back pain and discharged him the same day with prescriptions for Naprosyn and Flexeril, a note excusing him from work for that day and a recommendation that he refrain from lifting heavy weights for three days.
On November 19, 1999, Dr. Louis M. Starace examined the plaintiff and generated a medical report. (Tr. 147-48). Dr. Starace reported that the plaintiff was well nourished and well-developed but was unable to bend or flex without experiencing pain and tightness in his lower back. X-rays of the lumbo-sacral spine were taken and did not reveal any abnormalities. Dr. Starace diagnosed the plaintiff with a cervical strain and low back pain for which he prescribed an anti-inflammatory medication and rest. For the period of time covered by the transcript of the proceedings in this case, November 19, 1999, to June 21, 2002, Dr. Starace was the plaintiff's orthopedist and primary care-giver.
On January 25, 2000, Dr. E.M. Bursztyn of Inter County Imaging interpreted a Magnetic Resonance Imaging (MRI) test of the plaintiff's lumbosacral spine and generated a medical report. (Tr. 157). Dr. Bursztyn reported disc bulges at L3-4 and L4-5, as well as a focal large foraminal herniation on the left at L3-4.
On July 26, 2001, Dr. Roger Antoine of Diagnostic Health Services, Inc., examined the plaintiff and generated a medical report. (Tr. 87-89). Dr. Antoine diagnosed the plaintiff with status-post severe contusion of the knees, status-post sprain of the lumbosacral spine, and left lumbar radiculopathy. According to Dr. Antoine, the plaintiff's prognosis at that time was "guarded."
On July 26, 2001, Dr. Lawrence S. Liebman interpreted a radiographic examination of the plaintiff's lumbosacral spine and generated a medical report. (Tr. 89). Dr. Liebman reported a negative radiographic examination of the lumbosacral spine.
The plaintiff started attending physical therapy treatment sessions at the office of Dr. Frank Nani on December 15, 1999 (Tr. 105). A review of the record reveals that the plaintiff continued receiving treatment on a bi-weekly basis until December 7, 2001. (Tr. 92). On June 21, 2002, the plaintiff informed Dr. Starace that he had discontinued physical therapy because his insurance carrier ceased paying for it. (Tr. 158).
According to the transcript of the proceedings in this case, the plaintiff remained in Dr. Starace's care until at least June 21, 2002. Between November 19, 1999, and June 21, 2002, the plaintiff saw Dr. Starace, on average, once every 45 days. (Tr. 130-158). During that period of time, the plaintiff was diagnosed repeatedly as having lumbosacral tenderness, pain and stiffness in his neck, negative straight-leg raising, no gross neurovascular abnormalities and a limp. Dr. Starace characterized the plaintiff consistently as being unable to work due to his having a total disability.
Decision of the ALJ
The ALJ found that the plaintiff had not engaged in any substantial gainful activity since the alleged onset of his disability. The ALJ also found that the plaintiff had an impairment or a combination of impairments considered "severe" within the meaning of the Social Security Act. However, the ALJ determined that the plaintiff's medically determinable impairments did not meet or medically equal one of the impairments listed in Part 404, Subpart P, Appendix 1 of Title 20 of the Code of Federal Regulations ("C.F.R."). Therefore, the ALJ considered whether the plaintiff had the capacity to perform his prior work.
Based on a review of the record, including the plaintiff's medical history, the ALJ determined that the plaintiff was not able to perform his past relevant work, but nevertheless had the capacity to perform the full range of sedentary work. See 20 C.F.R. § 416.967. Accordingly, the ALJ found that the plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 14-20).
The regulations define "sedentary work" as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties.20 C.F.R. § 416.967(a).
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). 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).
The Social Security Act provides, in pertinent part, that "[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The court may remand the case for good cause shown, either upon the motion of a party or sua sponte. Clark v. Callahan, No. 96 Civ. 3020, 1998 WL 512956, at *1-2 (S.D.N.Y. Aug. 17, 1998) (citing Igonia v. Califano, 568 F.2d 1383 [D.C. Cir. 1977]).
Standard of Review
Under the Social Security Act, the findings of the Commissioner as to 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 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).
Pursuant to 20 C.F.R. §§ 404.1520 and 416.920, the Commissioner must apply a five-step sequential procedure for evaluating a disability claim. The Second Circuit has summarized that procedure as follows: (1) the Commissioner considers whether the claimant is currently engaged in substantial gainful activity; (2) if he is not, the Commissioner considers whether the claimant has a "severe impairment" which significantly limits his or her physical or mental ability to do basic work activities; (3) if the claimant suffers from a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has one of these impairments, the Commissioner will consider him disabled without considering vocational factors such as age, education, and work experience; (4) if the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he or she has the residual functional capacity to perform his or her past work; (5) if the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. See Rosa, 168 F.3d at 77 (citing Berry v. Schweiker, 675 F.2d 464, 467 [2d Cir. 1982]).
The disability claimant has the burden of proving the first four steps. Thereafter, at the fifth step, the burden shifts to the Commissioner who must prove that the claimant is capable of performing other work. See Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000); Toribio, 2003 WL 21415329 at *3.
Treating Source Opinions
A treating physician's opinion is given controlling weight when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 416.927(d)(2); see also Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). If the ALJ chooses not to give the opinion of the treating physician controlling weight, he or she must "give good reasons in [the] notice of determination or decision for the weight [given to the] treating source's opinion." 20 C.F.R. § 416.927(d)(2). Moreover, when the treating source's opinion is not given controlling weight, the factors that must be considered in determining what weight it should receive include: (i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist. See Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998);Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998). Furthermore, where the ALJ decides that the treating source opinion is without supporting clinical data, he or she
may not reject the opinion as unsupported by objective medical evidence without taking affirmative steps to develop the record in this regard. . . . [A]n ALJ has an affirmative duty to seek amplification of an otherwise favorable treating physician report where the report is believed to be insufficiently explained or lacking in support.Rivas v. Barnhart, No. 01 Civ. 3672, 2005 WL 183139, at *23 (S.D.N.Y. January 27, 2005).
Application of the Legal Standard
In this case, the ALJ followed the five-step sequential evaluation process set forth at 20 C.F.R. §§ 404.1520 and 416.920. In the first step of the analysis, the ALJ found that the plaintiff had not engaged in substantial gainful activity since November 15, 1999, the date of the work-related accident that plaintiff claims precipitated the onset of his disability. At the second step, the ALJ determined that the plaintiff had an impairment that was considered "severe" within the meaning of the Social Security Act. At the third step, the ALJ found that the plaintiff's impairments did not meet or medically equal one of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P. Appendix 1. Therefore, in the fourth step of the analysis, the ALJ considered whether the plaintiff, despite his "severe" impairment had the residual functional capacity to perform his past work and concluded that he did not. However, applying the fifth step of the sequence, the ALJ found that there was other work that the plaintiff could perform in his current physical state. Accordingly, the ALJ found that the plaintiff was not "disabled," as that term is defined in the Social Security Act.
The plaintiff claims that the ALJ erred at the third step of the analysis in failing to assign the proper weight to the findings of Bartels' treating physician. Additionally, the plaintiff maintains that the ALJ erred at the fourth step of the analysis in failing to consider all of the evidence available to him in determining plaintiff's residual functional capacity. The plaintiff also asserts that the ALJ, in reaching his decision to deny Bartels' application for SSI benefits, improperly substituted his own opinion for that of the medical professionals who provided medical evidence in this case.
In finding that the plaintiff was not disabled, the ALJ cited the July 2001 report of Dr. Antoine which noted that although the plaintiff was able to walk independently and had full range of motion in the cervical spine, shoulders, elbows and wrists, he walked with a limp and could not sit or stand for long periods of time or walk long distances. The ALJ also cited the most recent office record prepared by Dr. Starace which indicated that the plaintiff had back pain that was relieved by the plaintiff's physical therapy program and mild to moderate discomfort during movement, and that the plaintiff was disabled and not working due to his condition. In addition, the ALJ cited a May 2000 Worker's Compensation report, which revealed that the plaintiff had mild tenderness of the lumbar spine and negative straight leg testing, and that the drug Vioxx had been helpful with the plaintiff's pain.
The ALJ also noted that the plaintiff had testified at his hearing that he: (a) was able to attend to all of his personal needs; (b) was able to drive; (c) has had no back operations and has not been hospitalized for back problems; (d) has not had a back operation because he is afraid of the risk; (e) was able to lift up to twenty pounds, take his youngest child to his father's house, watch television, do limited housework and go to restaurants; (f) experienced a constant dull pain in his lower back; and (g) was able to control the pain through the use of a TENS unit and medication.
The ALJ concluded that the plaintiff's complaints were "basically subjective" and "without substantial medical foundation." The ALJ noted that the plaintiff had no impairment that warranted in-patient hospitalization and that no medical doctor had limited his activities. According to the ALJ, the limitations to which the plaintiff testified were "far in excess" of those consistent with the objective medical evidence and were not consistent with all of the other evidence in the record. The ALJ found, moreover, that the "treating physician's opinion that the claimant is disabled is persuasive, but not controlling." The ALJ noted that controlling weight need not be given to a treating source's opinion "where, such as here, the opinion is not well supported by medically acceptable clinical and laboratory diagnostic techniques." The ALJ found, therefore, that the plaintiff retained the residual functional capacity to perform sedentary work requiring lifting and carrying up to ten pounds, standing or walking for two hours and sitting for six hours in an eight-hour workday.
In this case, although the ALJ provided an explanation for deciding that the treating physician's opinion should not be given controlling weight, it does not appear that the decision was reached after consideration of all the relevant factors. As noted above, the first factor to be considered is the frequency of examinations of the claimant by a treating physician and the length, nature and extent of the treatment relationship. In this case, the ALJ failed to address these aspects of plaintiff's treatment by Dr. Starace, although the record shows that the plaintiff was examined by Dr. Starace on a regular basis for over two and a half years. Moreover, the omission is noteworthy in light of the provision, set forth in the regulations, that "the longer a treating source has treated [a claimant] and the more times [a claimant has] been seen by a treating source, the more weight we will give to the source's medical opinion." 20 C.F.R. 404.1527(d)(2)(i).
The second factor the ALJ was required to consider was the evidence in support of the treating physician's opinion. Here, the ALJ concluded that Dr. Starace's opinion was not well supported by the medical evidence in the record. However, in reaching that conclusion the ALJ failed to take into account the MRI test that was performed on Bartels in January 2000. Since the MRI provides evidence of the plaintiff's disability and the source of his pain, the ALJ should have considered it in determining how much weight to give the treating source's opinion. Moreover, as noted above, where the treating physician's report is found to be unsupported by objective medical evidence, an ALJ has an affirmative duty to develop the record in this regard. See Rivas, 2005 WL 183139, at *23 (citing cases);Bussi v. Barnhart, No. 01 Civ. 4330, 2003 WL 21283448, at *8 (S.D.N.Y. June 3, 2003) (finding that an ALJ must obtain additional information when, inter alia, the record of the treating physician's opinions is insufficient for the ALJ to accord it controlling weight). This duty is described in the regulations:
When the evidence we receive from your treating physician . . . is inadequate for us to determine whether you are disabled, we will need additional information to reach a determination or a decision. . . . We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.20 C.F.R. § 404.1512(e)(1). In this case, there is no indication that the ALJ attempted to amplify the record with respect to the absence of objective medical evidence or other necessary information.
The third factor requiring consideration and discussion is the degree to which the treating physician's opinion is consistent with the record as a whole. Here, although the ALJ's decision included discussion of the report of Dr. Antoine, as well as the plaintiff's Worker's Compensation records, no attempt was made to compare these opinions with those of the treating physician or to consider in what way the treating physician's findings were at variance with other evidence in the record. Rather, the ALJ simply noted that Dr. Starace's opinion was "not persuasive in light of the medical and other evidence in the record."
Additionally, although the ALJ found that plaintiff's testimony concerning his own limitations was inconsistent with the medical evidence and, therefore, declined to credit that testimony, the ALJ's determination in this regard depended in part upon a perceived absence of medically acceptable findings. Since the ALJ failed to remedy this defect in the record by seeking additional medical evidence, as he was required to do, it cannot be determined whether the ALJ's finding concerning the plaintiff's credibility is supported by substantial evidence.
"Where an ALJ fails to consider all of the relevant factors in deciding what weight to assign the opinion of a treating physician, the ALJ's decision is flawed." Rivas, 2005 WL 183139, at *22 (citing Schaal, 134 F.3d at 504). In light of the ALJ's failure to consider all of the factors discussed above or to seek additional evidence with regard to the treating physician's opinion, it cannot be determined whether the finding at step three of the ALJ's sequential analysis is supported by substantial evidence. Therefore, there is reason to doubt whether the ALJ applied correct legal principles in reaching his conclusion that plaintiff's medically determinable impairments did not meet or medically equal one of the impairments listed in the relevant provision of the regulations.
With respect to the ALJ's finding concerning the plaintiff's residual functional capacity, relevant to steps four and five of his sequential analysis, the same difficulty arises. The ALJ's determination that the plaintiff has the residual functional capacity to perform sedentary work was based on his decision that the findings of plaintiff's treating physician were not entitled to controlling weight and there was insufficient objective evidence to establish those findings. Since these conclusions may or may not have been supported by substantial evidence, it cannot be determined whether the ALJ's decision at steps four and five of his sequential analysis are free of legal error. Since there is a reasonable basis for doubt in this case whether the ALJ applied correct legal principles, "application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that [the plaintiff] will be deprived of the right to have [his] disability determination made according to the correct legal principles." Schaal, 134 F.3d at 504. Consequently, it is appropriate in this case to remand the plaintiff's disability claim to allow the ALJ to reweigh the evidence pursuant to the regulations and to develop the record as may be needed.
To the extent that the ALJ's conclusion that the plaintiff retains the residual functional capacity to perform sedentary work was based on plaintiff's testimony that, inter alia, he is able to lift his two-year-old daughter, take her to her grandfather's house and do limited housework, his finding in this regard may lack adequate support. See Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989) ("When a person gamely chooses to endure pain in order to pursue important goals, it would be a shame to hold this endurance against him in determining benefits unless his conduct truly showed that he is capable of working.").
The plaintiff claims that the ALJ substituted his own judgment for that of the treating physician improperly when, at the plaintiff's hearing, the ALJ expressed his opinion that orthopedic surgery "helps a lot of people" and is preferable to "complaining about pain" and having restricted movements over a period of many years. "[I]t is well settled that the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion." Balsamo v. Chater, 142 F.3d at 81 (internal quotation marks and citations omitted). In this case, although the ALJ stated his own views on the subject of orthopedic surgery with some force during the hearing, the Court finds that he did not improperly set his own judgment against that of a physician in concluding that plaintiff was not disabled. Nevertheless, as noted above, the ALJ did not explain with sufficient clarity his reasons for reaching that conclusion.
Under the circumstances, the Court finds that the errors discussed above warrant remand of the plaintiff's disability claim. Accordingly, plaintiff's request for an order remanding his case to the Commissioner for further administrative proceedings should be granted.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that: (1) the plaintiff's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) be granted; and (2) the defendant's cross-motion for judgment on the pleadings be denied.
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 Kimba M. Wood, 500 Pearl Street, Room 1610, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. 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. Hermann, 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).