De Vizzio v. Commissioner of Social Security

Filing 47

DECISION & ORDER accepting and adopting # 42 Magistrate Judge Hines' Report and Recommendation in its entirety; the Commissioner's motion for judgment on the pleadings is denied; Plaintiff's motion for judgment on the pleadings is gra nted; and it is ordered that the Commissioner's decision denying disability benefits is vacated; and this matter is REMANDED to the Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. 405(g) and consistent with the instructions outlined in the report and recommendation. Signed by Judge Glenn T. Suddaby on 5/12/15. (lmw) (Copy served upon pro se plaintiff via regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
NICHOLAS J. DeVIZZIO,
Plaintiff,
1:14-CV-0386
(GTS/ESH)

v.
COMM’R OF SOC. SEC.,
Defendant.
______________________________________
APPEARANCES:

OF COUNSEL:

NICHOLAS J. DeVIZZIO
Plaintiff, Pro Se
40 Warren St.
Saratoga Springs, New York 12866
SOCIAL SECURITY ADMINISTRATION
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza - Room 3904
New York, New York 10278

JEREMY A. LINDEN, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this action filed by Nicholas J. DeVizzio (“Plaintiff”)
against the Commissioner of Social Security (“Defendant” or “Commissioner”) pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking child’s disability benefits, are (1) the
Report-Recommendation of United States Magistrate Judge Earl S. Hines, issued
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 72.3(c) of the Local Rules
of Practice for this Court, recommending that the Commissioner’s decision be reversed
and the case remanded, (2) Plaintiff’s objections to the Report and Recommendation,

(3) Defendant’s letter brief stating no objections to the Report and Recommendation.
(Dkt. Nos. 42, 44, 45, 46.)
After carefully reviewing the relevant filings in this action, including the
Objections, the Court can find no error in the Report-Recommendation: Magistrate
Judge Hines employed the proper standards, accurately recited the facts, and
reasonably applied the law to those facts. (Dkt. No. 42.)
A district court reviewing a magistrate judge's report and recommendation “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Parties may raise objections to the
magistrate judge's report and recommendation but they must be “specific written”
objections, and must be submitted “[w]ithin 14 days after being served with a copy of
the recommendations disposition.” Fed.R.Civ.P. 72(b)(2); see also 28 U.S.C. §
636(b)(1)(C). “Where, however, an objecting party makes only conclusory or general
objections, or simply reiterates his original arguments, the Court reviews the Report and
Recommendation only for clear error.” Caldwell v. Crosset, 2010 WL 2346330 at * 1
(N.D.N.Y. 2010) (internal quotations omitted) (citing Farid v. Bouey, 554 F.Supp.2d 301,
307 [N.D.N.Y. 2008]).
This situation is unique in that the pro se Plaintiff filed objections to a Report and
Recommendation that is in his favor. Plaintiff’s objections are in fact suggestions.
Plaintiff states that he is in “full agreement” with the Report and Recommendation, “with
the following [] suggested corrections.” (Dkt. No. 44 at 23.) Plaintiff suggests new
terminology be used in reference to his medical conditions. (Id. at 7-10.) Plaintiff further
suggests that new evidence be allowed on remand. (Id. at 10-16.)1
1

The Report and Recommendation instructs that additional evidence supplied by Plaintiff
should be included for review on remand. (Dkt. No. 42 at 19.)

As Plaintiff’s “objections” are mere suggestions, and not “specific” objections, the
Court reviewed the Report and Recommendation for evidence of “clear error.” Finding
no “clear error,” the Report and Recommendation is accepted and adopted in its entirety
for the reasons stated therein; the decision of the Commissioner is reversed and the
case is remanded for further proceedings.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hines’s Report and Recommendation (Dkt.
No. 42) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED the Commissioner’s motion for judgment on the pleadings (Dkt. No.
39) is DENIED; and it is further
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 30) is
GRANTED; and it is further
ORDERED that the Commissioner’s decision denying disability benefits is
VACATED; and it is further
ORDERED that this matter is REMANDED to the Commissioner of Social
Security for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g) and
consistent with the specific instructions outlined in the Report and Recommendation.
Dated: May 12, 2015
Syracuse, NY