Cappa v. Astrue
ORDER -- the 19 Report and Recommendations of Magistrate Judge Bianchini is accepted in its entirety. Plaintiff's motion is granted; Defendant's motion is denied. The Commissioner's decision is revered, this case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with Magistrate Judge Bianchini's Report and Recommendation. Signed by Senior Judge Frederick J. Scullin, Jr on 7/28/11. (mnm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Commissioner of Social Security,
OLINSKY & SHURTLIFF
300 South State Street, 5th Floor
Syracuse, New York 13202
Attorneys for Plaintiff
HOWARD OLINSKY, ESQ.
SOCIAL SECURITY ADMINISTRATION
OFFICE OF REGIONAL GENERAL
COUNSEL, REGION II
26 Federal Plaza – Room 3904
New York, New York 10278
Attorneys for Defendant
MICHELLE L. CHRIST, ESQ.
SUZANNE M. HAYNES, ESQ.
SCULLIN, Senior Judge
Plaintiff filed this action on May 19, 2009, seeking judicial review of the Commissioner's
final decision pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). See Dkt. No. 1. Defendant filed his
answer on December 14, 2009. See Dkt. No. 9. Plaintiff filed a supporting brief on February 18,
2010, see Dkt. No. 12; and Defendant filed a brief in opposition on May 14, 2010, see Dkt. No.
17. Pursuant to General Order No. 18, Magistrate Judge Bianchini proceeded "as if both parties
had accompanied their briefs with a motion for judgment on the pleadings." See General Order
No. 18. On June 29, 2011, Magistrate Judge Bianchini issued a Report and Recommendation, in
which he recommended that the Court grant Plaintiff's motion, deny Defendant's motion, reverse
the Commissioner's decision and remand this matter to the Commissioner for further
administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). See Dkt. No. 19 at
24. Neither party filed any objections to these recommendations.
When a party does not object to a magistrate judge's report-recommendation, the court
reviews that report-recommendation for clear error or manifest injustice. See Linares v.
Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and
footnote omitted). After conducting this review, "the Court may 'accept, reject, or modify, in
whole or in part, the . . . recommendations made by the magistrate judge.'" Id. (quoting 28
U.S.C. § 636(b)(1)(C)).
The Court has reviewed Magistrate Judge Bianchini's June 29, 2011 Report and
Recommendation for clear error and manifest injustice; and, finding none, the Court hereby
ORDERS that Magistrate Judge Bianchini's June 29, 2011 Report and Recommendation
is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Plaintiff's motion is GRANTED; and the Court further
ORDERS that Defendant's motion is DENIED, the Commissioner's decision is
REVERSED; and this case is remanded to the Commissioner pursuant to sentence four of 42
U.S.C. § 405(g) for further administrative proceedings consistent with Magistrate Judge
Bianchini's Report and Recommendation.
IT IS SO ORDERED.
Dated: July 28, 2011
Syracuse, New York
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