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concluding that the relationship between the treating physician rule and the duty to develop the record required the ALJ to request an RFC assessment from a treating physician
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12 CV 5112 (VB)
06-05-2013
THERESA BELLER, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.
ORDER ADOPTING REPORT
AND RECOMMENDATION
Briccetti, J.:
Before the Court is Magistrate Judge Paul E. Davison's Report and Recommendation ("R&R"), dated May 3, 2013, on the parties' respective motions for judgment on the pleadings pursuant to Rule 12(c). (Docs. #10, 12). Judge Davison recommended the Court grant plaintiff's motion and deny defendant's motion. The Court presumes familiarity with the factual and procedural background of this case. For the following reasons, the Court adopts the R&R as the opinion of the Court, and grants plaintiff's motion for judgment on the pleadings and remands the action for further administrative proceedings.
A district court reviewing a magistrate judge's report and recommendation "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). Parties may raise objections to the magistrate judge's report and recommendation, but they must be "specific[,] written," and submitted within 14 days after being served with a copy of the recommended disposition. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1).
Insofar as a report and recommendation deals with a dispositive motion, a district court must conduct a de novo review of those portions of the report or specified proposed findings or recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1)(C). The district court may adopt those portions of a report and recommendation to which no timely objections have been made, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F.Supp.2d 804, 811 (S.D.N.Y. 2008); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates his original arguments. Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008).
Neither party objected to Judge Davison's decision.
The Court has reviewed Judge Davison's thorough and well-reasoned R&R and finds no error, clear or otherwise.
CONCLUSION
Accordingly, the R&R is adopted in its entirety as the opinion of the Court.
Defendant's motion for judgment on the pleadings is DENIED.
Plaintiff's motion for judgment on the pleadings is GRANTED.
The case is REMANDED for further administrative proceedings pursuant to 42 U.S.C. § 405(g), sentence four.
The Clerk is instructed to enter Judgment accordingly and close this case. Dated: June 5, 2013
White Plains, NY
SO ORDERED:
___________
Vincent L. Briccetti
United States District Judge