Opinion
No. 6:01-CV-608
February 22, 2003
DECISION and ORDER
This matter was referred to the Hon. Gustave J. Di Bianco, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72.3(d) of the Local Rules of the Northern District of New York. In a Report-Recommendation dated January 27, 2003, Magistrate Judge Di Bianco recommended that the matter be "reversed and benefits be awarded to the plaintiff in accordance with 42 U.S.C. § 405(g)" The defendant has filed objections to the report recommendation. Plaintiff has also moved by Order to Show Cause for a temporary award of benefits in the event this Court remands the action to the Commissioner.
When objections to a magistrate judge's Report — Recommendation are lodged, the Court reviews the record de nova. See 28 U.S.C. § 636(b)(1). After such a review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Court may also receive further evidence or recommit the matter to the magistrate judge with instructions."Id. Thus, the Court reviews the instant matter de nova.
After reviewing the matter de nova, the Court agrees with the Report-Recommendation in its entirety. The decision of the AU was not supported by substantial evidence. Moreover, the opinion of the treating physician, Dr. Disposo, was not overcome by the medical evidence or the testimony of the non-treating physicians. Consequently, the Court adopts the Report-Recommendation in its entirety.
Therefore, the decision of the AU is reversed and benefits shall be awarded pursuant to 42 U.S.C. § 405(g). Plaintiff's application for an Order to Show Cause is denied as moot.