Reiber v. Colvin

Filing 21

DECISION AND ORDER granting 7 Plaintiff's Motion for Judgment on the Pleadings to the extent that the case is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order and the R&R; denying [11 ] Commissioner's Motion for Judgment on the Pleadings; and adopting in its entirety the Report and Recommendations re 19 Report and Recommendations. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/17/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Dennis P. Reiber,
14-CV-978
DECISION AND
ORDER

Plaintiff,

-vsNANCY A. BERRYHILL, Acting
Commissioner of Social
Security,
Defendant.

I.

Introduction
Plaintiff Dennis P. Reiber (“plaintiff”) brings this action

pursuant to 42 U.S.C. § 405(g), claiming that Defendant Nancy A.
Berryhill,

the

Acting

Commissioner

of

Social

Security

(“Commissioner” or “defendant”), improperly denied his application
for

Social

Security

Supplemental

Income

benefits

(“SSI”).

Currently before the Court are the parties’ competing motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
On March 28, 2017, Magistrate Judge Jeremiah M. McCarthy
issued

a

Report

and

Recommendation

(“R&R”)

(Docket

No.

19)

recommending that plaintiff’s motion be granted to the extent that
the case is remanded to the Commissioner for further proceedings
and that defendant’s motion be denied. As discussed further below,
the Court agrees with Judge McCarthy’s findings and adopts the R&R
in its entirety.

II.

Discussion
When specific objections are made to a magistrate judge’s

report and recommendation, the district judge makes 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)(1)(C).

When no objections or only general objections are

made, the district judge reviews the report and recommendation for
clear error or manifest injustice. E.g., DiPilato v. 7-Eleven,
Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009). After conducting
the appropriate review, the district court 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).
In this case, neither party has filed any objections to
Judge McCarthy’s R&R.

As a result, the Court reviews the R&R only

for clear error.
Plaintiff filed his application for SSI on July 1, 2004.
Administrative Transcript (“T.”) 75, 127-32.

Plaintiff alleged

that he became disabled on July 1, 2004, as a result of the
amputation of his left hand, a stomach condition, anxiety, and
depression.

Id.

Plaintiff’s initial application was denied and,

on April 25, 2013, at plaintiff’s request, Administrative Law Judge
(“ALJ”) Timothy McGuan conducted a hearing during which he took
testimony from plaintiff.

T. 45-65.

The ALJ subsequently issued

a decision denying plaintiff’s claim for benefits.

T. 22.

On

October 24, 2014, the Appeals Council denied plaintiff’s request

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for review, making the ALJ’s determination the Commissioner’s final
decision.

T.

4-8.

Plaintiff

then

commenced

this

action.

Judge McCarthy determined in the R&R that ALJ McGuan violated the
treating physician rule by failing to consider or assign weight to
the opinion of treating hand surgeon Dr. John J. Callahan that
plaintiff was totally disabled.

The Court agrees.

The treating

physician rule requires an ALJ to articulate “good reasons” for the
weight

assigned

to

a

treating

source’s

opinion.

Here,

as

Judge McCarthy explained in the R&R, ALJ McGuan failed to discuss
Dr.

Callahan’s

opinion

necessitating remand.
the

Commissioner

must

at

all,

resulting

in

legal

error

The Court further agrees that, on remand,
fully

consider

the

additional

evidence

submitted by plaintiff to the Appeals Council and, if appropriate,
obtain

an

updated

limitations,

if

psychiatric

any,

report

resulting

from

relating
his

to

plaintiff’s

mental

impairment.

Judge McCarthy’s findings are well-supported by the record and
applicable law.

Having found no error in the R&R, clear or

otherwise, the Court adopts it in its entirety.
III. Conclusion
For the reasons set forth in Judge McCarthy’s thorough and
well-reasoned R&R, the undersigned adopts all of his conclusions.
The R&R (Docket No. 19) is hereby adopted in its entirety.

The

Commissioner’s motion for judgment on the pleadings (Docket No. 11)
is denied and plaintiff’s motion for judgment on the pleadings
(Docket No. 7) is granted to the extent that the case is remanded
to

the

Commissioner

for

further
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administrative

proceedings

consistent with this Decision and Order and the R&R.

The Clerk of

Court is directed to close this case.
IT IS SO ORDERED.
s/Michael A. Telesca
__________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

April 17, 2017
Rochester, New York

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