Rivera v. Commissioner of Social Security

Filing 27

MEMORANDUM DECISION AND ORDER adopting 26 Report and Recommendations: Accordingly, this Court agrees that remand to the Social Security Administration is appropriate. Magistrate Judge Pitman's Report and Recommendation is adopted. Plainti ffs motion is GRANTED, the Commissioner's motion is DENIED, and the case is remanded to the Social Security Administration for further proceedings in accordance with the Magistrate Judge's findings and recommendations. The Clerk of Court is directed to close the motions at ECF Nos. 17, 22, and 24. (Signed by Judge George B. Daniels on 3/9/2017) (jwh)

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UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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NANCY RIVERA,
Plaintiff,
-againstCOMMISSIONER OF SOCIAL SECURITY,
15 Civ. 8439 (GBD) (HBP)
Defendant.

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GEORGE B. DANIELS, United States District Judge:
Plaintiff Nancy Rivera brought this action seeking review of a determination by the
Commissioner of Social Security that she is ineligible for disability insurance benefits under the
Social Security Act, 42 U.S.C. § 405(g). (Compl., ECF No. 1, at 1.) The Commissioner and
Plaintiff both moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. (See Rivera Mot. for J. on the Pleadings, ECF Nos. 17, 22; Comm'r Mot. for J.
on the Pleadings, ECF No. 24.)
Before this Court is Magistrate Judge Henry Pitman's January 12, 2017 Report and
Recommendation ("Report" (ECF No. 26)), recommending that Plaintiff's motion be granted, the
Commissioner's motion be denied, and that this case be remanded to the Social Security
Administration. 1 (Report at 2, 41.) This Court adopts that recommendation.
This Court "may accept, reject, or modify, in whole or in part, the findings or
recommendations" set forth within a magistrate judge's report. 28 U.S.C. § 636(b)(l)(C). The
Court must review de nova the portions of a magistrate judge's report to which a party properly

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The relevant procedural and factual background is set forth in greater detail in the Report, and is
incorporated herein.

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objects. Id. Portions of a magistrate judge's report to which no or merely perfunctory objections
have been made are reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 34647 (S.D.N.Y. 2006). Clear error is present only when "upon review of the entire record, [the court
is] left with the definite and firm conviction that a mistake has been committed." Brown v.
Cunningham, No. 14-CV-3515, 2015 WL 3536615, at *4 (S.D.N.Y. June 4, 2015) (internal
citations omitted).
This Court has the "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). This Court may set aside a decision by
the Commissioner if it is based upon legal error or is not supported by substantial evidence. See
Hickson v. Astrue, No. 09-CV-2049, 2011WL1099484, at *2 (E.D.N.Y. Mar. 22, 2011).
Magistrate Judge Pitman advised the parties that failure to file timely objections to the
Report would constitute a waiver of those objections on appeal. (Report at 41-42.) No objection
to the Report has been filed. Having found no clear error, this Court adopts the Report in full.
The Report correctly found that the Administrative Law Judge committed legal errors in
Plaintiffs earlier administrative proceedings, including failure to obtain necessary medical records
to fully develop the record and failure to perform a function-by-function assessment of Plaintiffs
Residual Functional Capacity. (See id. at 36-41.) Accordingly, this Court agrees that remand to
the Social Security Administration is appropriate.
Magistrate Judge Pitman's Report and Recommendation is adopted. Plaintiffs motion is
GRANTED, the Commissioner's motion is DENIED, and the case is remanded to the Social
Security Administration for further proceedings in accordance with the Magistrate Judge's
findings and recommendations.

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The Clerk of Court is directed to close the motions at ECF Nos. 17, 22, and 24.
Dated: New York, New York
March , 2017

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