Callahan v. Berryhill

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS granting 15 Motion for Judgment on the Pleadings; denying 17 Motion for Judgment on the Pleadings; adopting Report and Recommendations as to 24 Report and Recommendations. Accordingly, the R&R (D.E. 24) is ADOPTED in its entirety. Plaintiff's motion for judgment on the pleadings (D.E. 15) is GRANTED, Defendant's cross-motion for judgment on the pleadings (D.E. 17) is DENIED, and the case is REMANDED for further proceedings. The Clerk of the Court is respectfully directed to substitute Andrew M. Saul for Nancy A. Berryhill as the defendant in this action and shall mark this case CLOSED. So Ordered by Judge Joanna Seybert on 10/22/2020. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------X
RUTHANN C. CALLAHAN,
Plaintiff,

ADOPTION ORDER
17-CV-4920(JS)(AKT)

-againstNANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.
-------------------------------X
APPEARANCES:
For Plaintiff:
Charles E. Binder, Esq.
Law Office of Charles E. Binder
and Harry J. Binder
485 Madison Avenue, Suite 501
New York, New York 10022
For Defendant:

Jason Peck, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East, 7th Fl
Brooklyn, New York 11201

SEYBERT, District Judge:
On August 21, 2017, Plaintiff Ruthann Callahan (the
“Plaintiff” or “Claimant”) commenced this appeal pursuant to the
Social Security Act, 42 U.S.C. § 405 et seq., challenging a
final determination by the Defendant, Nancy A. Berryhill,1 thenActing

Commissioner

of

the

Social

Security

Administration

Andrew M. Saul is now the Commissioner of the Social Security
Administration. Pursuant to Federal Rule of Civil Procedure
(“FED. R. CIV. P.”) 25(d), Saul is hereby substituted for Nancy A.
Berryhill as the defendant in this action. See, e.g., Pelaez v.
Berryhill, No. 12-CV-7796, 2017 WL 6389162 (S.D.N.Y. Dec. 14,
2017), adopted by, 2018 WL 318478 (S.D.N.Y. Jan. 3, 2018).
1

1

(“Defendant” or the “Commissioner”), that she was ineligible to
receive Social Security disability benefits.

(Compl., D.E. 1.)

The Plaintiff moved, pursuant to FED. R. CIV. P. 12(c)
for

a

judgment

on

the

pleadings.

(Pl.

Mot.,

D.E.

Defendant cross-moved for a judgment on the pleadings.
Mot., D.E. 17.)

15.)
(Def.

On April 2, 2019, the Honorable Arthur D. Spatt2

referred the parties’ cross motions to United States Magistrate
Judge A. Kathleen Tomlinson for a Report and Recommendation as
to whether either of the cross-motions should be granted, and if
so, what relief should be ordered.
August

11,

2020,

Recommendation

Judge

(“R&R”),

(Ref. Order, D.E. 22.)

Tomlinson

issued

recommending

that

her
the

Report
Court

On
and

grant

Plaintiff’s motion, deny the Commissioner’s cross-motion, and
remand the case to the Administrative Law Judge (“ALJ”) for
further proceedings.

(R&R, D.E. 24.)

Judge Tomlinson based

this recommendation on the ALJ’s committing multiple errors in
his decision:
Remand for further proceedings is generally the
appropriate form of relief “in cases in which the
Commissioner has failed to provide a full and fair
hearing, to make explicit findings, or to have
correctly applied the . . . regulations.” Here, where
the ALJ misapplied the Commissioner’s own regulation,
i.e., the treating physician rule, the exercise of
remanding for further proceedings is far from an
academic exercise and could lead to a different
result.
The ALJ’s re-application of the treating

The case was reassigned from Judge Spatt to the undersigned on
June 29, 2020.
2

2

physician rule could not only impact his weighting of
Dr. Torelli’s opinion, but his weighting of Dr.
Pollack’s opinion as well.
Moreover, the Court
identified an omission in the ALJ’s credibility
finding as to Plaintiff’s intermittent orthopedic care
which should be further developed as well. Thus, the
Court finds that remand for further proceedings is
appropriate in this case.
(R&R at 47–48 (internal citations omitted; emphasis and ellipsis
in original).)
More

than

fourteen

publication of the R&R.

days

have

elapsed

since

the

The parties have not filed objections.

As such, pursuant to 28 U.S.C. § 636(b) and Federal Rule of
Civil Procedure 72, the Court has reviewed the R&R for clear
error, and, finding none, now concurs in both its reasoning and
its result.

See Off. Comm. of Unsecured Creditors of Exeter

Holding, Ltd. v. Haltman, No. 13-CV-5475, 2020 WL 2832192, at *4
(E.D.N.Y. June 1, 2020) (reviewing R&R without objections for
clear

error);

Coburn

v.

P.N.

Fin.,

No.

13-CV-1006,

520346, at *1 (E.D.N.Y. Feb. 9, 2015) (same).

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

3

2015

WL

Accordingly,
entirety.

Plaintiff’s

the

R&R

motion

(D.E.
for

24)

is

judgment

ADOPTED
on

the

in

its

pleadings

(D.E. 15) is GRANTED, Defendant’s cross-motion for judgment on
the pleadings (D.E. 17) is DENIED, and the case is REMANDED for
further proceedings.

The Clerk of the Court is respectfully

directed to substitute Andrew M. Saul for Nancy A. Berryhill as
the defendant in this action and shall mark this case CLOSED.

SO ORDERED.

/s/ _JOANNA SEYBERT___
Joanna Seybert, U.S.D.J.
Dated:

October
22 , 2020
Central Islip, New York

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