Summary
finding that, even where the treating physician was unresponsive to earlier requests, the existence of the same physician's treatment notes in the record suggested that the ALJ's failure to obtain relevant records could not be explained by ALJ's knowledge that the physician would not provide the necessary findings
Summary of this case from Fusilier v. Comm'r of Soc. Sec.Opinion
5:06-CV-1395 (LEK/VEB).
March 30, 2009
DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on March 5, 2009 by the Honorable Victor E. Bianchini, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(d) of the Northern District of New York. Report-Rec. (Dkt. No. 13). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including the objections by Plaintiff Randy J. Pitcher, which were filed on March 19, 2009. Objections (Dkt. No. 14).
It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. This Court has considered the objections and has undertaken a de novo review of the record and has determined that the Report-Recommendation should be approved for the reasons stated therein.
Accordingly, it is hereby ORDERED, that the Report-Recommendation (Dkt. No. 13) is APPROVED and ADOPTED in its ENTIRETY; and it is further
ORDERED, that Defendant's Motion for judgment on the pleadings is DENIED; and it is further
ORDERED, that Plaintiff's Cross Motion for judgment on the pleadings is DENIED in part and GRANTED in part, and the case is REMANDED to the Commissioner for reconsideration; and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.