Spittler v. Colvin

Filing 19

ORDER ADOPTING 18 REPORT AND RECOMMENDATION and denying defendant's 15 motion for judgment on the pleadings; granting plaintiff's 11 motion as to request for remand, and denying as to the request for judgment on the pleadings; FURTHER, this matter is remanded in accordance with Judge Foschio's 18 Report and Recommendation. Signed by Hon. Lawrence J. Vilardo on 8/22/2016. (CLERK TO FOLLOW UP). (CMD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

NICHOLAS J. SPITTLER,
Plaintiff,
v.

ORDER
14-CV-279V(F)

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.

The plaintiff, Nicholas J. Spittler, seeks review, pursuant to 42 U.S.C. § 405(g), of
the defendant’s decision denying him disability insurance benefits under the Social
Security Act. See Docket Item 1.

Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court (Hon. Richard J. Arcara) referred
this case to United States Magistrate Judge Leslie G. Foschio “for all proceedings
necessary to a determination of the merits of the factual and legal issues presented by
this action” and the preparation of a Report and Recommendation. See Docket Item 12.
On November 24, 2015, I replaced Judge Arcara as the district judge assigned to this
matter. See Docket Item 17.

On September 15, 2014, the plaintiff moved for judgment on the pleadings, see
Docket Item 11, asking that the defendant’s decision “be vacated and remanded for
rehearing.” See Docket Item 11-1 at 30. On December 15, 2014, the defendant filed its

own motion for judgment on the pleadings. See Docket Item 15. And on April 21, 2016,
Judge Foschio issued a Report and Recommendation (Docket Item 18), recommending
that the case be remanded, and that, “upon remand, the ALJ should consider whether
Plaintiff’s hand and foot clubbing was a severe impairment under step two of the
disability analysis, and include the combined effects of Plaintiff’s hand and foot clubbing
with Plaintiff’s other impairments throughout the entirety of the ALJ’s disability review
analysis.” Docket Item 18 at 21. Neither side objected to the Report and
Recommendation, and the time for filing objections has now passed.

A district court may accept, reject, or modify, in whole or in part, the findings or
recommendation of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
In doing so, the district court must conduct a de novo review of those portions of a
magistrate judge’s recommendation to which an objection is raised. 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of
Civil Procedure 72 require a district court to review the recommendation of a magistrate
judge to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149-50
(1985). This Court nevertheless has reviewed Judge Foschio’s Report and
Recommendation, the underlying papers, and the administrative record. Upon that
review, this Court agrees with Judge Foschio’s analysis and conclusions.

Therefore, this Court adopts Judge Foschio’s April 21, 2016 Report and
Recommendation (Docket Item 18). For the reasons stated above and in the Report
and Recommendation: the defendant’s motion for judgment on the pleadings (Docket
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Item 15) is DENIED; the plaintiff’s motion (Docket Item 11) is GRANTED as to the
request for remand and DENIED as to the request for judgment on the pleadings; and
the matter is remanded in accordance with Judge Foschio’s April 21, 2016 Report and
Recommendation (Docket Item 18).
IT IS SO ORDERED.

Dated: August 22, 2016
Buffalo, New York

s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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