Davis v. Colvin
ORDER granting 9 Motion for Judgment on the Pleadings; denying 14 Motion for Judgment on the Pleadings; adopting 16 Report and Recommendations. Signed by Hon. Michael A. Telesca on 03/31/2017. (CDH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TISHNELL L. DAVIS,
No. 1:14-CV-00111 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Tishnell L. Davis (“plaintiff”) brings
this action pursuant to Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying her
supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). The matter was
initially before the Court on the parties’ cross motions for
summary judgment.1 The parties’ motions were referred to Magistrate
Judge Leslie G. Foschio for consideration of the factual and legal
Recommendation (“R&R”) containing a recommended disposition of the
issues raised. For the reasons discussed below, the Court adopts
This case was originally assigned to Judge Richard Arcara, who referred
it to Magistrate Judge Foschio for a Report and Recommendation, which was
completed and filed on June 24, 2015. The case was referred to this Court by
order dated March 6, 2017.
the R&R to the extent that it recommends remand for payment and
calculation of benefits.
The record reveals that in January 2009, plaintiff (d/o/b
August 17, 1980) applied for DIB and SSI, alleging disability as of
requested a hearing, which was held before administrative law judge
William Weir on December 9, 2010. The ALJ issued an unfavorable
decision on May 19, 2011. The Appeals Council granted review of
that decision and remanded the case to the ALJ with instructions to
further develop the record as well as to reconsider plaintiff’s
Following remand, the ALJ held a supplemental hearing on August 10,
2012. On December 26, 2012, the ALJ issued a second unfavorable
decision, which became the Commissioner’s final decision on January
7, 2014, when the Appeals Council denied review.
III. The Report and Recommendation
By R&R dated August 30, 2016, Magistrate Judge Foschio found
that plaintiff’s bipolar disorder met Listing 12.04, and that
regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.
Accordingly, the R&R recommended that the case be remanded solely
for the calculation and payment of benefits. Doc. 20. The R&R
recommended several alternative findings should the Court reject
its initial recommendation. The Commissioner objected to the R&R,
arguing that the ALJ’s decision was supported by substantial
When reviewing a magistrate judge’s report and recommendation,
a district court is required to “make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made[,]” 28 U.S.C. § 636(b),
and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge[,]” id.
“[W]here a party ‘makes only conclusory or general objections, or
simply reiterates the original arguments,’ the Court reviews for
clear error.” Milano v. Astrue, 2008 WL 4410131,*1 (S.D.N.Y. Sept.
26, 2008), aff’d, 382 F. App’x 4 (2d Cir. 2010). “When performing
such a ‘clear error’ review, ‘the court need only satisfy itself
that there is no clear error on the face of the record in order to
accept the recommendation.’” Kazel v. Colvin, 2016 WL 1435692, *1
(N.D.N.Y. Apr. 11, 2016) (citing Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition; Batista v. Walker, 1995 WL 453299,
*1 (S.D.N.Y. July 31, 1995)).
Here, the Commissioner’s argument on her objections merely
reiterates her argument on the original motion that the ALJ’s
decision was supported by substantial evidence. The Court thus
reviews the R&R for clear error. After carefully reviewing the R&R
along with the record and the parties’ submissions, the Court finds
no clear error in the R&R. Based on a review of the record, the
Court adopts the R&R and finds that substantial evidence in the
record persuasively supports a finding of disability. Accordingly,
the case is remanded solely for the payment and calculation of
Commissioner’s objections (doc. 17) and adopts the R&R to the
extent that it recommends remanding this case solely for the
calculation and payment of benefits. The Commissioner’s motion for
plaintiff’s motion (doc. 9) is granted. This case is remanded to
benefits. The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
March 31, 2017
Rochester, New York.
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