SWAIN v. BERRYHILL

Filing 13

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PLAINTIFF'S REQUEST FOR REVIEW IS GRANTED IN PART AND DENIED IN PART, ETC. THE COMMISSIONER'S DECISION DENYING PLAINTIFF'S CLAIM FOR BENEFITS IS VACATED; AND THIS MATTERS IS REMANDED TO THE COMMISSIONER OF SOCIAL SECURITY, ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 06/10/2019. 06/11/2019 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHERRY SWAIN,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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CIVIL ACTION
NO. 17-cv-5155

O R D E R
AND NOW, this 10th day of June, 2019, upon consideration
of the parties’ submissions, the record, and the Report and
Recommendation of United States Magistrate Henry S. Perkin (ECF
No. 11), there being no objections,1 it is hereby ORDERED that:
1.

The Report and Recommendation is APPROVED and

When neither party files timely objections to a
magistrate judge’s report and recommendation (“R&R”) on a
dispositive issue, the district court is not required to review
the R&R before adopting it. Thomas v. Arn, 474 U.S. 140, 150
(1985) (“It does not appear that Congress intended to require
district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither
party objects to those findings.”). However, the Third Circuit has
held that “in the absence of objections . . . the better practice
is for the district judge to afford some level of review to
dispositive legal issues raised by the report.” Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987); see also Fed R. Civ. P.
72, 1983 advisory committee notes (“When no timely objection is
filed, the court need only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.”). In that neither party has filed objections to
the R&R, this Court has reviewed it for clear error and has found
none.
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ADOPTED;
2.

Plaintiff’s Request for Review is GRANTED in part

and DENIED in part. The Request for Review is GRANTED to the
extent that it seeks a reversal of the Commissioner’s decision
denying Plaintiff’s claim for benefits.

The Request for Review is

DENIED to the extent it seeks a determination by this Court that
Plaintiff is entitled to social security benefits;
3.

The Commissioner’s decision denying Plaintiff’s

claim for benefits is VACATED;
4.

This matter is REMANDED to the Commissioner of

Social Security in accordance with the fourth sentence of 42
U.S.C. § 405(g) for further proceedings consistent with the Report
and Recommendation, including explicitly considering the opinion
of Dr. Gurubhagavatula and adding to the record the December 23,
2008 document from the Philadelphia School District; and
5.

The Clerk of Court shall remove this case from

suspense and mark the case as CLOSED.

AND IT IS SO ORDERED.

/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
J.

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