Haberer v. Colvin

Filing 17

ORDER ADOPTING 16 REPORT AND RECOMMENDATION GRANTING plaintiff's 12 motion for judgment on the pleadings or, in the alternative, to remand for a new hearing; DENYING defendant's 14 motion for judgment on the pleadings, and REVERSING the decision of the Commissioner and remanding the matter for further administrative proceedings. The Clerk of the Court is instructed to close the file. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 11/27/2017. (CMD)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
LEO HABERER,
Plaintiff,
v.

16-CV-892
ORDER

NANCY A. BERRYHILL,
acting Commissioner of Social Security,
Defendant.
___________________________________

On November 4, 2016, the plaintiff commenced this action. Docket Item 1.
On March 3, 2017, the Court referred this case to United States Magistrate Judge Hugh
B. Scott for all proceedings under 28 United States Code Section 636(b)(1)(B). Docket
Item 8. On June 1, 2017, the plaintiff moved for judgment on the pleadings, or, in the
alternative, to remand the matter for a new hearing. Docket Item 12. On August 1,
2017, the defendant responded to the plaintiff’s motion and moved for judgment on the
pleadings. Docket Item 14. On October 24, 2017, Judge Scott issued a Report and
Recommendation finding that the plaintiff’s motion should be granted and that the
defendant’s motion should be denied. Docket Item 16. The parties did not object to the
Report and Recommendation, 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 objection is made. 28 U.S.C. § 636(b)(1);

Fed. R. Civ. P. 72(b)(3). But neither 28 United States Code Section 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 Scott's Report and Recommendation as well as the parties’
submissions to him. Based on that review and the absence of any objections, the Court
accepts and adopts Judge Scott's recommendation to grant the plaintiff’s motion and
deny the defendant’s motion.
For the reasons stated above and in the Report and Recommendation, the
plaintiff’s motion for judgment on the pleadings or, in the alternative, to remand for a
new hearing, Docket Item 12, is GRANTED; the defendant’s motion for judgment on the
pleadings, Docket Item 14, is DENIED; the decision of the Commissioner is
REVERSED; and this matter is REMANDED for further administrative proceedings.
The Clerk of the Court is instructed to close the file.

SO ORDERED.
Dated:

November 27, 2017
Buffalo, New York

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

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