Durgan v. Astrue
Filing
18
DECISION and ORDER: Plaintiff's motion for judgment on the pleadings is GRANTED; The Commissioner's decision is VACATED and the matter REMANDED to the agency for further consideration consistent with the Report-Recommendation. Signed by Judge David N. Hurd on 3/18/2013. (mgh)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------DONNA M. DURGAN,
Plaintiff,
-v-
6:12-CV-279
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
-------------------------------APPEARANCES:
OF COUNSEL:
THE ANTONOWICZ GROUP
Attorney for Plaintiff
148 West Dominick Street
Rome, NY 13440
PETER W. ANTONOWICZ, ESQ.
HON. RICHARD S. HARTUNIAN
United States Attorney for the
Northern District of New York
Attorneys for Defendants
100 South Clinton Street
P.O. Box 7198
Syracuse, NY 13261
ANDREEA L. LECHLEITNER, ESQ.
Special Ass't United States Attorney
DAVID N. HURD
United States District Judge
DECISION and ORDER
Plaintiff Donna M. Durgan filed this action seeking judicial review of a final decision of
the Commissioner of Social Security which denied her application for benefits under the
Social Security Act. By Report-Recommendation dated February 19, 2013, the Honorable
Christian F. Hummel, United States Magistrate Judge, recommended that Durgan's motion
for judgment on the pleadings be granted and the Commissioner's decision be vacated and
remanded. No objections to the Report-Recommendation were filed.
Based upon a careful review of the Report-Recommendation and the entire file, it is
found that Magistrate Judge Hummel's reasoning is sound and the Report-Recommendation
will be accepted in whole. See 28 U.S.C. ยง 636(b)(1). It is noted however that the
"Conclusion" section of the Report-Recommendation recommends that "t]he Commissioner's
decision finding disability be VACATED . . . ." Dkt. No. 17 at 23. However, in the substantive
section of the Report-Recommendation discussing the issue of disability, Magistrate Judge
Hummel determined that the Commissioner's conclusion that Durgan was able to perform the
full range of medium work and thus was not disabled, was not supported by substantial
evidence. As such, Magistrate Judge Hummel recommended that Durgan's motion for
judgment on the pleadings be granted, the prior determination of no disability be vacated,
and the case remanded for further consideration. Thus, it is clear that the conclusion stating
that "t]he Commissioner's decision finding disability be VACATED . . . ." is a typographical
error. As such, the apparent error in the "Conclusion" section of the ReportRecommendation is rejected and the substantive finding of the Report-Recommendation is
accepted and adopted.
Accordingly, it is
ORDERED that
1. Plaintiff's motion judgment on the pleadings is GRANTED; and
-2-
2. The Commissioner's decision is VACATED and the matter REMANDED to the
agency for further consideration consistent with the Report-Recommendation.
IT IS SO ORDERED.
Dated: March 18, 2013
Utica, New York.
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?