Harper v. Colvin
Filing
27
DECISION AND ORDER ADOPTING REPORT AND RECOMMENDATION 24 . The plaintiff's motion for judgment on the pleadings or, in the alternative, to remand for further proceedings 14 , is GRANTED; the defendant's cross-motion for judgment on the pl eadings 20 , is DENIED; the decision of the Commissioner is VACATED; and the matter is REMANDED for further administrative proceedings consistent with Judge Foschio's R&R. The defendant shall complete all proceedings related to the plaintiff's claim within 120 days of the date of this order. The Clerk of the Court shall close the file. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 7/8/2018. (CMD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Anthony David Harper,
Plaintiff,
v.
16-CV-229
Decision and Order
Nancy A. Berryhill,
Defendant.
On March 17, 2016, the plaintiff commenced this action. Docket Item 1.
On December 20, 2016, this Court referred this case to United States Magistrate Judge
Leslie G. Foschio for all proceedings under 28 U.S.C. § 636(b)(1)(B). Docket Item 15.
On December 12, 2016, the plaintiff moved for judgment on the pleadings or, in the
alternative, to remand for further proceedings, Docket Item 14; on March 20, 2017, the
defendant responded and cross-moved for judgment on the pleadings, Docket Item 20;
and on April 10, 2017, the defendant replied, Docket Item 21. On May 23, 2018, Judge
Foschio issued a Report and Recommendation (“R&R”) finding that the plaintiff's motion
should be granted and that the defendant's motion should be denied. Docket Item 24.
The parties did not object to the R&R, and the time to do so now has expired. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district court
must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which a party objects. 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 requires a district court to review the recommendation of a magistrate
judge to which no objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50
(1985).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge Foschio's R&R as well as the parties’ submissions to him. Based on
that review and the absence of any objections, the Court accepts and adopts
Judge Foschio's recommendation to grant the plaintiff's motion and deny the
defendant's motion.
For the reasons stated above and in the R&R, the plaintiff's motion for judgment
on the pleadings or, in the alternative, to remand for further proceedings, Docket
Item 14, is GRANTED; the defendant’s cross-motion for judgment on the pleadings,
Docket Item 20, is DENIED; the decision of the Commissioner is VACATED; and the
matter is REMANDED for further administrative proceedings consistent with Judge
Foschio’s R&R. The defendant shall complete all proceedings related to the plaintiffs
claim within 120 days of the date of this order. The Clerk of the Court shall close the
file.
SO ORDERED.
Dated:
July 8, 2018
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
2
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