UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------X RUTHANN C. CALLAHAN,

Plaintiff, ADOPTION ORDER 17-CV-4920(JS)(AKT) -against-

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration,

Defendant. -------------------------------X APPEARANCES: For Plaintiff: Charles E. Binder, Esq. Law Office of Charles E. Binder and Harry J. Binder 485 Madison Avenue, Suite 501 New York, New York 10022

For Defendant: Jason Peck, Esq. United States Attorney’s Office Eastern District of New York 271 Cadman Plaza East, 7th Fl Brooklyn, New York 11201 SEYBERT, District Judge: On August 21, 2017, Plaintiff Ruthann Callahan (the “Plaintiff” or “Claimant”) commenced this appeal pursuant to the Social Security Act,

et seq., challenging a final determination by the Defendant, Nancy A. Berryhill,1 then- Acting Commissioner of the Social Security Administration

1 Andrew M. Saul is now the Commissioner of the Social Security Administration. Pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.”) 25(d), Saul is hereby substituted for Nancy A. Berryhill as the defendant in this action. See, e.g., Pelaez v. Berryhill, No. 12-CV-7796,

(S.D.N.Y. Dec. 14, 2017), adopted by,

(S.D.N.Y. Jan. 3, 2018). (“Defendant” or the “Commissioner”), that she was ineligible to receive Social Security disability benefits. (Compl., D.E. 1.) The Plaintiff moved, pursuant to FED. R. CIV. P. 12(c) for a judgment on the pleadings. (Pl. Mot., D.E. 15.) Defendant cross-moved for a judgment on the pleadings. (Def. Mot., D.E. 17.) On April 2, 2019, the Honorable Arthur D. Spatt2

referred the parties’ cross motions to United States Magistrate Judge A. Kathleen Tomlinson for a Report and Recommendation as to whether either of the cross-motions should be granted, and if so, what relief should be ordered. (Ref. Order, D.E. 22.) On August 11, 2020, Judge Tomlinson issued her Report and Recommendation (“R&R”), recommending that the Court grant Plaintiff’s motion, deny the Commissioner’s cross-motion, and remand the case to the Administrative Law Judge (“ALJ”) for further proceedings. (R&R, D.E. 24.) Judge Tomlinson based this recommendation on the ALJ’s committing multiple errors in his decision:

Remand for further proceedings is generally the appropriate form of relief “in cases in which the Commissioner has failed to provide a full and fair hearing, to make explicit findings, or to have correctly applied the . . . regulations.” Here, where the ALJ misapplied the Commissioner’s own regulation, i.e., the treating physician rule, the exercise of remanding for further proceedings is far from an academic exercise and could lead to a different result. The ALJ’s re-application of the treating

2 The case was reassigned from Judge Spatt to the undersigned on June 29, 2020. physician rule could not only impact his weighting of Dr. Torelli’s opinion, but his weighting of Dr. Pollack’s opinion as well. Moreover, the Court identified an omission in the ALJ’s credibility finding as to Plaintiff’s intermittent orthopedic care which should be further developed as well. Thus, the Court finds that remand for further proceedings is appropriate in this case.

(R&R at 47–48 (internal citations omitted; emphasis and ellipsis in original).) More than fourteen days have elapsed since the publication of the R&R. The parties have not filed objections. As such, pursuant to

(b) and Federal Rule of Civil Procedure 72, the Court has reviewed the R&R for clear error, and, finding none, now concurs in both its reasoning and its result. See Off. Comm. of Unsecured Creditors of Exeter Holding, Ltd. v. Haltman, No. 13-CV-5475,

, at *4 (E.D.N.Y. June 1, 2020) (reviewing R&R without objections for clear error); Coburn v. P.N. Fin., No. 13-CV-1006,

, at *1 (E.D.N.Y. Feb. 9, 2015) (same).

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK] Accordingly, the R&R (D.E. 24) is ADOPTED in its entirety. Plaintiff’s motion for judgment on the pleadings (D.E. 15) is GRANTED, Defendant’s cross-motion for judgment on the pleadings (D.E. 17) is DENIED, and the case is REMANDED for further proceedings. The Clerk of the Court is respectfully

directed to substitute Andrew M. Saul for Nancy A. Berryhill as the defendant in this action and shall mark this case CLOSED.

SO ORDERED.

/s/ _JOANNA SEYBERT___ Joanna Seybert, U.S.D.J.

Dated: October 22 , 2020 Central Islip, New York