UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________

REBECCA S.,

Plaintiff, vs. 5:23-CV-628 (MAD/ DJS) COMMISSIONER OF SOCIAL SECURITY,

Defendant. ____________________________________________

APPEARANCES: OF COUNSEL:

OLINSKY LAW GROUP HOWARD D. OLINSKY, ESQ. 250 South Clinton Street, Suite 210 Syracuse, New York 13202 Attorney for Plaintiff

SOCIAL SECURITY ADMIN. KRISTINA D. COHN, ESQ. OFFICE OF GENERAL COUNSEL 6401 Security Boulevard Baltimore, Maryland 21235 Attorney for Defendant

Mae A. D'Agostino, U.S. District Judge:

ORDER

On September 5, 2022, Plaintiff Rebecca Seamans filed an application for Disability Insurance Benefits under Title II of the Social Security Act, alleging disability beginning on February 19, 2020. See Dkt. No. 8-2 at 15. Plaintiff alleges several impairments stemming from a back injury, including lumbar degenerative disc disease, left lumbar radiculopathy, foraminal left lumbar disc herniation at L5-S1 and ankylosing spondylitis. See id. at 18. Plaintiff's application was initially denied on April 29, 2021, and upon reconsideration on September 15, 2021. See Dkt. No. 8-4 at 18. On September 17, 2021, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). See Dkt. No. 8-4 at 22. On July 28, 2022, ALJ Bruce Fein conducted a hearing by phone conference. See Dkt. No. 8-2 at 39-41. On October 4, 2022, ALJ Fein issued a written decision finding that Plaintiff was not disabled under the Social Security Act. See id. at 15-31. On May 3, 2023, ALJ Fein's decision became the Commissioner's final decision when the Social Security Appeals Council denied Plaintiff's request for review. See id. at 2-5. On May 25, 2023, Plaintiff commenced this action pursuant to

(g) seeking review of the Commissioner's decision. See Dkt. No. 1 at 1. In a Report-Recommendation dated

April 15, 2024 (the "Report-Recommendation"), Magistrate Judge Stewart recommended (1) Plaintiff's motion for judgment on the pleadings be granted; (2) Defendant's motion for judgment on the pleadings be denied; and (3) the Commissioner's decision be reversed and remanded for further proceedings, pursuant to sentence four of

(g). See Dkt. No. 16 at 17. Neither party has filed objections to the Report-Recommendation. When a party declines to file objections to a magistrate judge's report-recommendation or files "[g]eneral or conclusory objections or objections which merely recite the same arguments presented to the magistrate judge," the district court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322,

, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted); see also McAllan v. Von Essen,

(S.D.N.Y. 2007). "When performing

such a 'clear error' review, 'the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Canady v. Comm'r of Soc. Sec., No. 1:17- CV-0367,

, *1 n.1 (N.D.N.Y. Nov. 14, 2017) (quotation and citations omitted). After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."

(b)(1). The Court does not discern any clear error in the Report-Recommendation. As Magistrate Judge Stewart found, remand is warranted in this case because ALJ Fein (1) failed to properly address the consistency of medical opinion evidence, see Rivera v. Comm'r of the Soc. Sec. Admin., No. 19-CV-4630,

, *14 (S.D.N.Y. Dec. 30, 2020) ("If the ALJ fails adequately to explain the supportability or consistency factors, or bases [his] explanation upon a misreading of the record, remand is required"); Smith v. O'Malley, No. 23-CV-02339,

, *10 (S.D.N.Y. May 6, 2024) ("When an ALJ does not explain why an opinion from a treating source is rejected, then the reviewing court cannot perform a full and fair review of the

decision") (citing Snell v. Apfel,

(2d Cir. 1999)); and (2) that the ALJ's procedural error is not harmless because without an explanation of the consistency of evidence the Court cannot determine whether a proper analysis would have confirmed the ALJ's decision, nor can the Court state with confidence that assessing the whole record would establish that the ALJ did not traverse the substance of the regulation. See Holly S. v. Comm'r of Soc. Sec., No. 3:20- CV-597,

, *6 (N.D.N.Y. Feb. 25, 2022) ("Several [more restrictive] findings occurred across multiple medical opinions. It seems entirely plausible to this Court that any one of these limitations could have more than a negligible impact on [the plaintiff]'s ability to perform the full range of work") (internal quotation marks and citations omitted); see also Estrella v. Berryhill,

(2d Cir. 2019) (explaining that, in determining whether an ALJ's error

is harmless, "the question becomes whether 'a searching review of the record . . . assure[s the reviewing court] . . . that the substance of the [regulation] was not traversed'") (quoting Halloran v. Barnhart,

(2d Cir. 2004)). Accordingly, after carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the above-stated reasons, the Court hereby ORDERS that Magistrate Judge Stewart's April 15, 2024 Report-Recommendation (Dkt. No. 16) is ADOPTED in its entirety for the reasons stated herein; and the Court further ORDERS that Plaintiff's motion for judgment on the pleadings is GRANTED; and the Court further ORDERS that Defendant's motion for judgment on the pleadings is DENIED; and the Court further ORDERS that the Commissioner's decision denying disability benefits is REVERSED and this matter is REMANDED, pursuant to sentence four of

(g), for further proceedings consistent with this Order and Magistrate Judge Stewart's Report-Recommendation; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Plaintiff's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules. IT IS SO ORDERED.

Dated: June 10, 2024 Ja GL lg asi, Albany, New York Mae A. D'Agostino?” U.S. District Judge