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)

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

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