Summary
holding that the ALJ should not have relied on an omission in the record in finding that plaintiff was not disabled, as this constituted mere speculation by the ALJ
Summary of this case from McIntosh v. BerryhillOpinion
No. 07 Civ. 3113 (RJS) (MHD).
February 8, 2010
ORDER ADOPTING REPORT AND RECOMMENDATION
On April 18, 2007, Plaintiff Ann Correale-Englehart commenced this suit against Defendant Michael J. Astrue, in his capacity as the Commissioner of Social Security. (Doc. No. 1.) Pursuant to 42 U.S.C. § 405(g), Plaintiff seeks review of the Commissioner's denial of her application for disability insurance benefits. The case was originally assigned to the Honorable Kenneth M. Karas, United States District Judge, who granted Defendant's request for an extension of time to submit an answer. (Doc. No. 2.) Defendant filed his Answer on August 24, 2007. (Doc. No. 3.) On September 4, 2007, this case was reassigned from Judge Karas to the undersigned. (Doc. No. 4.) The parties then submitted cross-motions for judgments on the pleadings (Doc. No. 5; Doc. No. 8), which the Court referred to the Honorable Michael H. Dolinger, United States Magistrate Judge, for a Report and Recommendation (Doc. No. 12).
On September 10, 2009, Judge Dolinger issued a Report and Recommendation recommending that Plaintiff's motion be granted in part, Defendant's cross-motion be denied, and that the case be remanded for further proceedings. (Doc. No. 14.) In an Order dated September 23, 2009, this Court granted Defendant's request for an extension to file an objection to the Report and Recommendation. (Doc. No. 15.) No party has filed objections to the Report, and the time to do so has expired. Cf. Frank v. Johnson, 968 F.2d 298 (2d Cir. 1993).
When no objections to a Report and Recommendation are made, the Court may adopt the Report if there is no clear error on the face of the record. Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005); La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000). After conducting a review of the record, the Court finds that Judge Dolinger's thorough Report and Recommendation is not facially erroneous. Accordingly, the Court adopts the Report and Recommendation in its entirety. For the reasons set forth in the Report and Recommendation, the Court grants in part Plaintiff's motion for judgment on the pleadings, denies Defendant's cross-motion for judgment on the pleadings, and remands the case for further proceedings to develop a comprehensive administrative record. The Clerk of the Court is respectfully directed to close the case.
SO ORDERED.