Summary
approving magistrate judge's opinion that a non-examining State-agency analyst opinion "cannot be considered substantial evidence sufficient to support the [hearing officer]'s determination" where the analyst's findings that claimant can sit for six hours a day "were not supported by any citation to the medical records and are directly contradicted by the assessment of Plaintiff's treating physician" (citing Griffith v. Astrue, No. 08-CV-6004, 2009 WL 909630, at *9 (W.D.N.Y. July 27, 2009) (Siragusa, J.) ("The State Agency Officials' reports, which are conclusory, stale, and based on an incomplete medical record, are not substantial evidence"))
Summary of this case from Beylo v. AstrueOpinion
1:07-CV-1039 (LEK/VEB).
August 31, 2009
DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on August 12, 2009, by the Honorable Victor E. Bianchini, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Report-Rec. (Dkt. No. 16).
Within ten days, excluding weekends and holidays, after a party has been served with a copy of a Magistrate Judge's Report-Recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations," FED. R. CIV. P. 72(b), in compliance with L.R. 72.1. No objections have been raised in the allotted time with respect to Judge Bianchini's Report-Recommendation. Furthermore, after examining the record, the Court has determined that the Report-Recommendation is not subject to attack for plain error or manifest injustice.
Accordingly, it is hereby
ORDERED, that the Report-Recommendation (Dkt. No. 16) is APPROVED and ADOPTED in its ENTIRETY; and it is further ORDERED, that Defendant's Motion for judgment on the pleadings is DENIED, that the decision of the Commissioner is REVERSED, and that the case is REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with the Report and Recommendation; and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.