Opinion
No. 00 Civ. 6775 (WHP) (FM)
August 30, 2002
REPORT AND RECOMMENDATION TO THE HONORABLE WILLIAM H. PAULEY
I. Introduction
In this action, Dulce Green ("Mrs. Green"), suing on behalf of her daughter, Jaime Green ("Jaime"), seeks review of a decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") benefits under the Social Security Act ("Act"). The Commissioner has now moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, I recommend that the Commissioner's motion be denied, the matter remanded to the Commissioner for further proceedings consistent with this Report and Recommendation, and the case closed.
II. Background
A. Procedural History
On August 1, 1994, acting through her mother, Jaime filed an application for SSI benefits in which she alleged that she had been disabled because of seizures since the age of nine. (Tr. 75-77, 94-107). Her application was denied initially on February 1, 1995, and, on reconsideration, on May 5, 1995. (Id. at 79-81, 87-89).
"Tr." refers to the certified copy of the administrative record filed by the Commissioner. (Docket No. 8).
Jaime subsequently requested a de novo hearing before an administrative law judge ("ALJ"), which was held before ALJ Susan Biro on May 7, 1996. (Id. at 31-56). Before the ALJ issued her decision, however, Congress enacted a new definition of disability applicable to children under the age of eighteen whose claims were finally decided on or after August 22, 1996. (See id. at 256-57). Accordingly, Jaime was afforded a supplemental hearing, (see id.), which was held before ALJ Allan T. O'Sullivan on August 19, 1997 (id., at 57-74). At both hearings, Jaime was represented by counsel. (Id. at 31, 57).
On February 26, 1998, ALJ O'Sullivan issued a ten-page decision in which he found that Jaime was not eligible for SSI benefits. (Id. at 18-27). On April 16, 1998, Jaime sought review of that decision by the Appeals Council which denied her request for review on July 15, 2000. (Id. at 5-7, 13-15, 317-20). ALJ O'Sullivan's February 26, 1998 decision therefore constitutes the Commissioner's final decision. (Id. at 5).
B. Hearing Testimony
1. 1996 Hearing
At the time of the first hearing, Jaime was a thirteen-year-old student in a regular eighth grade class. (Id. at 41-42). She testified that she suffered from seizures but, as a consequence of the attacks, could not say how often they occurred. (Id. at 36, 39). Following a seizure, she would get stomach aches and headaches which lasted two days. (Id. at 37). During the most recent attack in school, Jaime became unconscious and had to be taken to the hospital. (Id. at 37-38). She explained that she attended gym class but would not participate for fear that she might fall during a seizure. (Id. at 38). Indeed, for that same reason, both her mother and one of her former doctors had instructed her not to engage in such activities as rollerblading or bicycle riding. (Id. at 45-46).
Jaime also stated that she would feel "sick" and have stomach and head aches prior to the onset of a seizure. (Id. at 40). On occasion, she would have these symptoms without a subsequent seizure. (Id. at 40-41).
Finally, Jaime testified that her mother gave her medication three times each day although she once forgot to do so. (Id. at 42).
Mrs. Green testified that Jaime began having seizures at the age of nine and had experienced them "every day" during the prior year. (Id. at 47). The seizures resulted in Jaime's absence from school as often as "four or five days" each month. (Id. at 50). As of the May 7, 1996 hearing date, however, Jaime had suffered only four seizures during 1996, the last of which occurred on February 20, 1996. (Id. at 47-48). Mrs. Green stated that the doctor had instructed her to take Jaime to the hospital only if a seizure lasted seven minutes; the last such seizure had occurred in January. (Id. at 48).
According to Mrs. Green, during a seizure, Jaime would suffer stomach, head and back aches and have foam coming out of her mouth. (Id. at 50). Also, at the end of the seizure, Jaime often acted "crazy" and would "start ripping her clothes off."
Agreeing with her daughter, Mrs. Green stated that she always gave her daughter her prescribed medication, except for one instance when Lincoln Hospital failed to make it available to her because she and Jaime were late for a medical appointment. (Id. at 51). At the time of the hearing, Jaime was taking 500 mg. of Depakote three times per day, a change in medication (described in greater detail below) which had resulted in her having fewer seizures in 1996. (Id. at 53).
The only other witness at the 1996 hearing was Dr. Robert Berk, an SSA consulting pediatrician. On the basis of the hearing testimony by Jaime and her mother, as well as his review of the medical records, Dr. Berk testified that Jaime's impairment did "not meet or equal a listing" and that she had either "no" or a "less than moderate" impairment of her cognitive, communication, motor, social, personal behavioral, and concentration, pace and persistence skills. (Id. at 54). Dr. Berk concluded that Jaime's seizures were "moderately well controlled with a minimal amount of interruption of her functioning." (Id. at 55).
2. 1997 Hearing
The only witnesses to testify at the 1997 hearing were Mrs. Green and Jaime.
Jaime testified that she was then fourteen-years-old and going into the tenth grade. (Id. at 60). She said that she was subject to seizures "[o]nce every month," during which she would "rip off [her] clothes and . . . get like unconscious." (Id. at 63). In addition, her eyes would "roll up," she would shake and "get dizzy," and she would exude a "white puffy" substance from her mouth. (Id.). According to Jaime, these episodes would last "13 to 20 minutes" each; the most recent one took place the month before and had resulted in her losing consciousness. (Id. at 64-65). She stated that because of her seizures, her mother had to monitor her routine activities, such as bathing, and she often missed school. (Id. at 72).
Jaime testified that her seizures occurred more frequently when she was younger. (Id. at 65-66). She also said that she made frequent visits to the hospital emergency room as a consequence of her condition, but she was unable to recall her most recent visit. (Id. at 67). At the time of the hearing, she was taking 500 mg. of Depakote twice a day, which had reduced the frequency of her seizures to approximately one per month. (Id. at 70-71).
Mrs. Green indicated that her daughter's seizures would last "about 10 or 15 minutes in a state where she knows nothing [that] has happened." (Id. at 67). She said that, after the problem was first discovered, Jaime was given prescriptions at Lincoln and North Central Hospitals for varying dosages of Tegretol, which failed to stop the seizures. (Id. at 67-69). Indeed, she began to experience daily seizures. (Id. at 69). As a consequence, in 1994, Mrs. Green took Jaime to Jacobi Hospital (also known as the Bronx Municipal Hospital Center ("Bronx Municipal")), where she was prescribed Depakote. (Id. at 69-70). Following the change in medications, the frequency of her seizures declined to "once or twice a month." (Id. at 69-71).
C. Other Non-Medical Evidence
In a December 13, 1994 evaluation, Jaime's seventh-grade teacher, Canute Robinson, described Jaime's placement as age appropriate. Ms. Robinson noted further that Jaime was of "average ability" but "tend[ed] to be withdrawn." (Id. at 142). She also stated that Jaime had suffered a seizure during class. (Id.).
Other educational records indicate that Jaime had 37-1/2 absences and seven latenesses during the 1992-93 school year (i.e., before the claim period), 45-1/2 absences and ten latenesses during the 1993-94 school year (again, before the claim period), and, during the 1994-95 school year, five absences and eleven latenesses through November 30, 1994. (Id. at 122-23, 143-44). Despite these absences, the records for the period prior to the claim period indicate that Jaime was doing "very well" in school. (Id. at 123).
These partial figures suggest that the frequency of Jaime's absences probably declined sharply throughout the 1994-95 school year.
D. Medical Evidence
The administrative record of this case confirms that Jaime's medical care was administered largely through medical clinics and hospital emergency rooms.
The earliest medical records, from Lincoln Medical and Mental Health Center ("Lincoln Hospital"), cover both the early portion of the claim period and an earlier period of time. Those records indicate that Jaime was prescribed a daily dosage of 300 mg. of Tegretol after her first seizure in early 1992. (Id. at 149-50, 215). Despite that medication, between January 1992 and July 1993, Jaime was admitted to Lincoln Hospital three times. (Id. at 155). The progress notes for her third admission, in July 1993, indicate that she had used her medication for a two-week period following the second admission, but had not taken any seizure medication regularly for the past ten to twelve months. (Id. at 157, 159). She was discharged after five days with a new prescription for Tegretol. (Id. at 158).
The Lincoln Hospital records reflect three additional emergency room visits on April 11, May 26, and September 15, 1994. (Id. at 161, 163-64, 171-73, 174-78). One common theme of these visits is that Jaime's Tegretol level was either "negative" or unacceptably low. (Id.). The April record notations state that Jaime suffered a "break through seizure [secondary to] noncompliance." (Id. at 172). The September notations suggest that she may mistakenly have been taking incorrect dosages of Tegretol. (Id. at 178). No cause is listed for the May visit. (Id. at 164).
Many of the records actually refer to her level of carbamazepine, which is the active ingredient in Tegretol. See Physician's Desk Reference ("PDR") 2220 (55th ed. 2001).
In 1994, Jaime also was seen by Dr. E. Florez at "Bx-M.D. Medical Services." (Id. at 179-80). Although his report does not so indicate, both sides agree that Dr. Florez was a consulting physician for the SSA. (See Comm'r's Mem. at 6; Opp'n Mem. at 16). Dr. Florez listed his impression as "Seizure Disorder" and his prognosis as "Guarded." (Id. at 180). His physical examination disclosed nothing remarkable. (Id. at 179). He also noted that Jaime was:
In 7th grade, doing well. Absent 5x this year. Is well-behaved, obedient. No emotional problems noted. Sensory, communicative/cognitive skills, social/emotional skills — normal. Does not participate in gym or sports; restricted by PMD.
This is apparently a reference to Jaime's doctor at Lincoln Hospital.
(Id. at 180).
In 1995, Jaime visited the emergency room four times — on February 2, May 15, July 18, and July 30. (Id. at 183-85, 217-226, 230-31, 234-38). During the first such visit, her Tegretol level was listed as "subtherapeutic" and she was given a new Tegretol prescription. (Id. at 184). During the second visit, her carbamazepine level again was listed as subtherapeutic and she conceded that she had missed two doses in a row of her medication. (Id. at 236-37). During the third visit, Jaime's compliance with her medication was reported by Mrs. Green as "good except today [when] she took her Tegretol 1 1/2 hours late." (Id. at 225). The medical history for this visit further indicates that Jaime was "self-administering and seems to have some trouble [with] compliance." (Id.). A computer printout indicates that Jaime's carbamazepine level at the time was 7.6, slightly below the therapeutic range of 8-12. (Id. at 228). Finally, the notes for the fourth emergency room visit in 1995 state that Jaime "admitted" having been "non-compliant." (Id. at 219). Jaime also reported having "seizure[s] at least monthly" with her "last seizure 2 wks ago." (Id. at 218). Between the time of that last seizure and July 30, her carbamazepine level had dropped to less than two. (Id. at 228).
On August 4, 1995, Jaime was seen at Bronx Municipal's pediatric neurology clinic. The medical history for that visit indicates that Mrs. Green requested an MRI for Jaime because she thought her daughter was "having more seizures." (Id. at 215). The entries further indicate that Jaime usually had one seizure every month or two, but now, with the "new medication," was having seizures "every other week." (Id.). It appears that Jaime had recently been prescribed Depakote, but "misunderstood" and was also continuing to take Tegretol. (Id.). She was advised not to use the bathtub or swim without supervision. (Id. at 216).
It is not clear from the medical records precisely when the Depakote first was prescribed.
Jaime made several further visits to the Bronx Municipal clinic. On August 18, 1995, she reported that she had seizures once every three months at the onset of her illness, but was now experiencing them "weekly." (Id. at 212). On September 15, 1995, her Depakote dosage was increased. (Id. at 213-14). On April 5, 1996, following a seizure, she complained of drowsiness, problems in school, and occasional stumbling, although she said that she was compliant with her medications. (Id. at 209). She also reported what is described in the chart as a "GTC" in January 1996. (Id.). Both sides apparently interpret this as a reference to a generalized tonic clonic seizure. (Id.). The diagnosis noted was general tonic clonic/absence seizure disorder with possible breakthrough absence seizure. (Id.)
A generalized tonic clonic seizure results in the loss of consciousness and generalized tonic convulsions followed by clonic convulsions. It is sometimes referred to as a grand mal seizure. Dorland's Illustrated Medical Dictionary ("Dorland's") 1619 (29th ed. 2000).
An absence seizure is an epileptic seizure marked by a momentary break in the stream of thought and activity, often accompanied by rapid eyelid movements. Dorland's at 365, 1619.
Jaime also consulted Dr. Babra Saeed, a pediatrician. (Id. at 186-92, 201-05, 268-74, 277-96). In an undated response to a New York State Department of Social Services questionnaire, Dr. Saeed stated that Jaime's last examination was on April 3, 1996, and noted nothing remarkable, other than that Jaime was "clumsy" and "shy and withdrawn." (Id. at 190-91). In a second SSA questionnaire, dated May 2, 1996, Dr. Saeed reported that Jaime had indicated that she was experiencing one grand mal seizure every four months. (Id. at 201). A lab report dated April 22, 1996, indicates that Jaime's level of valproic acid was 94, within the therapeutic range of 50 to 100. (Id. at 205). Valproic acid is one of the active ingredients of Depakote. PDR at 432.
Dr. Saeed also completed an SSI Medical/Functional Assessment form on August 13, 1997, (id. at 268-71), which indicates that Jaime was admitted to a hospital in March 1997, and that she had visited the emergency room "at least" thirty times to date (id. at 268). Jaime's seizures are described as lasting for ten to fifteen minutes with a one to two month period of "remission" between attacks. (Id.). Dr. Saeed reported that the Depakote had caused Jaime to lose weight and have leg pain. (Id. at 269). She also indicated that Jaime had limitations in (a) social functioning because she was physically abusive to others during her seizures; (b) personal functioning because she ripped off her clothing and hurt herself during her seizures; and (c) concentration, persistence and pace because "she cannot concentrate and does not understand until she read[s] multiple times [and] need[s] help." (Id. at 270).
To the extent that these limitations arose only during her seizures, Jaime does not contest the ALJ's decision not to rely on Dr. Saeed's assessment. (See Opp'n Mem. at 15-16 n. 13).
III. Applicable Law
A. Determining Disability
A child seeking SSI benefits must be "disabled." As of August 22, 1996, an individual under the age of eighteen is considered disabled if she has
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 twelve months.42 U.S.C. § 1382c(a)(3)(A). The requirement that the impairment exist for a continuous period of at least twelve months is commonly referred to as the "durational requirement."
Following the adoption of this definition of disability, the ALJ decided Jaime's claim under a set of "interim final regulations promulgated by the Commissioner in 1997." 62 Fed. Reg. 6408-6432 (Feb. 11, 1997). Thereafter, the Commissioner issued final regulations. 65 Fed. Reg. 54747 (Sept. 11, 2000). The parties agree that the differences between the interim final and final regulations are of no consequence here. (See Comm'r's Mem. at 13-14; Opp'n Mem. at 3 n. 1).
Under the new regulations, the Commissioner employs a three-step evaluation to determine if a child is disabled:
[Step 1] If you are doing substantial gainful activity, we will determine that you are not disabled and not review your claim further. [Step 2] If you are not doing substantial gainful activity, we will consider your physical or mental impairment(s) first to see if you have an impairment or combination of impairments that is severe. If your impairment(s) is not severe, we will determine that you are not disabled and not review your claim further. [Step 3] If your impairment(s) is severe, we will review your claim further to see if you have an impairment(s) that meets, medically equals, or functionally equals the listings. If you have such an impairment(s), and it meets the duration requirement, we will find that you are disabled. If you do not have such an impairment(s), or if it does not meet the duration requirement, we will find that you are not disabled.20 C.F.R. § 416.924 (a). The "listings" referenced in Step 3 consist of an extensive catalog of conditions, set forth in Appendix 1 to Part 404, Subpart P, of Title 20 of the Code of Federal Regulations, which are disabling. Part B of the Appendix contains listings for impairments which are specific to children. Section 111.00 of Part B sets forth the listings for neurological disorders, including seizures.
Jaime contends that she satisfies the requirements of the listings for both "minor" motor seizure disorders. (See Opp'n Mem. at 17-18). At the time decision, insofar as relevant, Section 111.00 provided as follows:
111.02 Major motor seizure disorder.
A. Major motor seizures. In a child with an established seizure disorder, the occurrence of more than one major motor seizure per month despite at least three months of prescribed treatment. With:
1. Daytime episodes (loss of consciousness and convulsive seizures) . . .
. . .
B. Major motor seizures. In a child with an established seizure disorder, the occurrence of at least one major motor seizure in the year prior to application despite at least three months of prescribed treatment. And one of the following:
. . .
4. Where significant adverse effects of medication interfere with major daily activities.
111.03 Minor motor seizure disorder. In a child with an established seizure disorder, the occurrence of more than one minor motor seizure per week, with alteration of awareness or loss of consciousness, despite at least three months of prescribed treatment.
20 C.F.R. Pt. 404. App. 1 (2000).
Following the ALJ's decision, the text of these listings has been changed to reflect the fact that most seizures within the SSA's definitions result from epilepsy. For example, the phrase "[i]n a child with an established seizure disorder" has been changed to "[i]n a child with an established diagnosis of epilepsy." 67 Fed. Reg. 20027 (Apr. 24, 2002). These minor changes are of no consequence here.
B. Standard of Review
The Act provides that the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405 (g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). The term "substantial" does not require that the evidence be overwhelming, but it must be "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consol. Edison, 305 U.S. at 229, 59 S.Ct. at 217). See also Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999); Rosa v. Callahan. 168 F.3d 72, 77 (2d Cir. 1999). A reviewing court is not permitted to review the Commissioner's decision de novo. Shaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). Rather, where the Commissioner's determination is supported by substantial evidence, the decision must be upheld. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Ortiz v. Barnhart, No. 00 Civ. 9171, 2002 WL 449858, at *4 (S.D.N.Y. Mar. 22, 2002) (Sweet, J.).
IV. Discussion
Much of the ALJ's decision considered whether Jaime's condition was the functional equivalent of the listings for major and minor motor seizure disorders. However, Jaime has since abandoned her contention that her epilepsy "functionally equal[s]" the disorders set forth in the listings. (See Opp'n Mem. at 5 n. 3). Consequently, the only question presented by this appeal is whether substantial evidence exists to support the Commissioner's finding that Jaime's condition did not "meet" or "medically equal" the listings upon which she relied.
In his decision, the ALJ found that Jaime suffered from a "seizure disorder" which was severe. (Id. at 22-23). The ALJ did not state, however, whether this seizure disorder was a "major" seizure disorder or a "minor" seizure disorder. Instead, he simply set forth a boilerplate finding that Jaime's impairment did "not meet or medically equal in severity" any of the listings promulgated by the SSA. (Id. at 27 ¶ 4).
Both a major motor and a minor motor seizure disorder require that the claimant's seizures occur with specified frequency "despite at least three months of prescribed treatment." Listing 111.00.A. As the listings explain, this requirement was imposed because "[t]here is an expected delay in control of seizures when treatment is started, particularly when changes in the treatment regimen are necessary." Id.
With respect to this issue, the ALJ noted that many of Jaime's medical records reflected "a history of noncompliance with medication." (Id. at 24). He also observed that her "seizure disorder appeared to be adequately controlled with medication," particularly after she was given a prescription for Depakote. (Id.). As he explained:
Although testimony at the hearing in August, 1997 revealed that the claimant experiences seizure activity on a monthly basis, testimony at the hearing in July, 1996 revealed that new medication had helped reduce the frequency of seizure activity, that she had only experienced three seizures in 1995, and that although she had already experienced four seizures in 1996, she had not experienced any seizure activity since February, 1996.
(Id. at 24).
The Commissioner contends that these findings established Jaime's inability to meet the durational requirement of the listings and consequently obviated the need for any detailed findings with respect to any of the other requirements applicable to major and minor seizure disorders. (Reply Mem. at 3-4).
In Brown v. Apfel, 174 F.3d 59, 63 (2d Cir. 1999) (per curiam), the claimant suffered six seizures which required hospital emergency room visits over a period of approximately six months. During four of those visits, he reported that he had not taken his anti-seizure medication. Id. Based on this evidence, the ALJ concluded that the seizures would not have occurred had the claimant been taking his medication properly. Id. Although the case was remanded to the Commissioner on other grounds, the Second Circuit expressed considerable misgivings about the ALJ's findings, suggesting that the ALJ had, in effect, made a medical determination without asking the SSA's medical expert "about the potential link between [the claimant's] lapses and the onset of his seizures." Id. The court also indicated that the failure to explore the issue of causation with the expert arguably violated the ALJ's affirmative duty to compile a complete record. Id. (citing Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)).
Here, at the first hearing, Dr. Berk himself asked Mrs. Green about the extent to which Jaime was experiencing seizures despite her Depakote regimen:
Q Okay. And since she's been on the Depakote how many seizures has she had?
A Well, last year after she started taking it she had three. And now this year she had four.
Q She hasn't had one since February though, is that correct?
A Yes.
Q So she had four seizures in January and February?
A Yes.
Q And then no seizures since February?
A Only her headaches and stomachaches.
(Tr. 53). After this questioning, Dr. Berk opined that Jaime's seizures were "moderately well controlled with a minimal amount of interruption of her functioning." (Id. at 55). Had the evidentiary record closed in 1996, the ALJ's finding concerning the efficacy of Jaime s medication would therefore be supported by substantial evidence.
Due to changes in the applicable law, however, a supplemental hearing was held fifteen months later. At the second hearing, there was no testimony or other evidence that Jaime had been noncompliant since the last hearing. Nonetheless, both Jaime and her mother testified without contradiction that Jaime was continuing to experience seizures at the rate of approximately one each month. (Id. at 63, 69). Indeed, Jaime stated that she suffered a seizure that had rendered her unconscious the month before the hearing. (Id. at 64-65). The testimony of Jaime and her mother regarding the frequency of her seizures was further bolstered by Dr. Saeed's questionnaire response indicating that the period of "remission" between Jaime's attacks was "1-2 or more months" and that "she could have [a] seizure any time." (Id. at 268, 271).
Although it is conceivable that the ALJ may have considered the testimony of Jaime and her mother regarding "monthly" seizures unworthy of belief, he failed to make any such findings. See, e.g., Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) ("A finding that the witness is not credible must nevertheless be set forth with sufficient specificity to permit intelligible plenary review of the record."). Accordingly, on the present record, it appears that there is no evidence — much less substantial evidence — from which the ALJ could have concluded that Jaime had failed to meet the durational and other requirements of a seizure disorder during the fifteen-month period between the hearings.
Although this alone would compel a remand, several other gaps in the record warrant mention. First, when the hearing resumes, the ALJ should consider Jaime's argument that her drug regimen leads to significant adverse effects that interfere with her major daily activities. See Listing 111.02.B The record is silent on this point. Second, it is wholly unclear from the record how often Jaime has minor "absence" seizures. Unless Jaime abandons her claim that she has a minor motor seizure disorder, this issue merits further factual development. Finally, even if Jaime does not meet the listings for major or minor seizure disorders, the ALJ should consider whether she experiences a mix of major and minor seizures which, taken together, give rise to a condition medically equivalent in severity to one of the listings. See 20 C.F.R. § 416.926 (a).
V. Conclusion
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings should be denied, the matter remanded to the Commissioner for further proceedings consistent with this Report and Recommendation, and the case closed.
VI. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable William H. Pauley and the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Pauley. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6 (e), 72(b).