Pealo v. Berryhill

Filing 17

DECISION AND ORDER accepting and adopting # 16 Magistrate Judge Carter's Report and Recommendation in its entirety. Plaintiff's # 9 Motion for judgment on the pleadings is granted; and Defendants' # 15 motion for judgment on the pl eadings is denied. The Commissioner's decision denying Plaintiff Social Security benefits is reversed, and this case is remanded to the Commissioner of Social Security for further proceedings under sentence four of 42 U.S.C. 405(g). Signed by Chief Judge Glenn T. Suddaby on 11/28/17. (lmw)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________ KAY YVONNE PEALO, Plaintiff, 3:17-CV-0149 (GTS/WBC) v. COMMISSIONER OF SOCIAL SECURITY, Defendant. _____________________________________ APPEARANCES: OF COUNSEL: OLINSKY LAW GROUP Counsel for Plaintiff 300 South State Street, Suite 420 Syracuse, New York 13202 HOWARD D. OLINSKY, ESQ. SOCIAL SECURITY ADMINISTRATION OFFICE OF GEN. COUNSEL–REGION II Counsel for Defendant 26 Federal Plaza, Room 3904 New York, New York 10278 LORIE E. LUPKIN, ESQ. GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER Currently before the Court, in this Social Security against filed by Kay Yvonne Pealo (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “Commissioner”), is the Report-Recommendation of United States Magistrate Judge William B. Mitchell Carter, recommending that Plaintiff’s motion for judgment on the pleadings be granted, that Defendant’s motion for judgment on the pleadings be denied, that the Commissioner’s decision denying Plaintiff Social Security benefits be reversed, and that this matter be remanded to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. § 405(g). (Dkt. No. 16.) Objections to the Report-Recommendation have not been filed and the time in which to do so has expired. (See generally Docket Sheet.) After carefully reviewing all of the papers herein, including Magistrate Judge Carter’s thorough Report-Recommendation, the Court can find no clear error in the ReportRecommendation.1 Magistrate Judge Carter employed the proper legal standards, accurately recited the facts, and correctly applied the law to those facts. (Dkt. No. 16.) As a result, the Report-Recommendation is accepted and adopted in its entirety; Plaintiff’s motion for judgment on the pleadings is granted; Defendant’s motion for judgment on the pleadings is denied; the Commissioner’s decision denying Plaintiff Social Security benefits is reversed; and this matter is remanded to the Commissioner of Social Security for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). ACCORDINGLY, it is ORDERED that Magistrate Judge Carter’s Report-Recommendation (Dkt. No. 16) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is GRANTED, Defendant’s motion for judgment on the pleadings (Dkt. No. 15) is DENIED, the Commissioner’s decision denying Plaintiff Social Security benefits is REVERSED, and this 1 When no objection is made to a report-recommendation, the Court subjects the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. 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.” Id; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks and citations omitted). 2 matter is REMANDED to the Commissioner of Social Security for further proceedings under sentence four of 42 U.S.C. § 405(g). Dated: November 28, 2017 Syracuse, New York ____________________________________ HON. GLENN T. SUDDABY Chief United States District Judge 3

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