Davis v. Commissioner of Social Security

Filing 14

DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent it requests remand for further administrative proceedings; granting 12 Defendant's Motion to Remand for further administrative proceedings.. Signed by Hon. Michael A. Telesca on 9/25/19. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to enter judgment in favor of Plaintiff and close this case.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

VENESSA DAVIS,
Plaintiff,
No. 1:18-cv-00215-MAT
DECISION AND ORDER

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

Venessa Davis(“Plaintiff”), represented by counsel, brings
this action under Titles II and XVI of the Social Security Act
(“the Act”), seeking review of the final decision of Nancy A.
Berryhill, former Acting Commissioner of Social Security (“the
Commissioner”

or

“Defendant”),

denying

her

applications

for

Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”).
Plaintiff filed a Motion for Judgment on the Pleadings (Docket
No. 9-1), arguing that the residual functional capacity (“RFC”)
assessment was not supported by substantial evidence because the
administrative law judge (“ALJ”) relied on stale medical opinion
evidence pre-dating significant changes in Plaintiff’s condition,
namely, her involvement in motor vehicle accidents in 2015 and
2016, and surgery to repair a right rotator cuff injury in October
2016. Plaintiff also argues that the ALJ improperly failed to weigh

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the opinions of her treating chiropractor. Finally, Plaintiff
contends that the RFC is not supported by substantial evidence
because the ALJ failed to incorporate any limitations in the RFC
based on her post-concussive headaches, which were found to be a
severe impairment at step two.
In response, the Commissioner filed a Motion to Remand (Docket
No. 12) the case for further administrative proceedings. Counsel
for

the

Commissioner

indicates

that

he

contacted

Plaintiff’s

attorney via telephone and email to inquire whether there were any
objections to the motion to remand but never heard back from him.
Plaintiff’s counsel has not responded to the Commissioner’s motion
or otherwise registered any objection with the Court.
The Court sees no reason why the Commissioner’s Motion to
Remand should

not

be

granted,

given

that

Plaintiff

also has

requested remand in her Motion.
Accordingly, the Court grants Plaintiff’s Motion to the extent
that it requests reversal of the Commissioner’s decision and remand
for further administrative proceedings, and the Court grants the
Commissioner’s

Motion

to

Remand

for

further

administrative

proceedings. The Clerk of Court is directed to enter judgment in
favor of Plaintiff and close this case.
SO ORDERED.
s/ Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

September 25, 2019
Rochester, New York
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