MCELROY v. COLVIN
ORDERED AS FOLLOWS: 1. THE CLERK OF COURT IS DIRECTED TO RETURN THIS MATTER TO THE COURT'S ACTIVE DOCKET; 2. THE REPORT AND RECOMMENDATION (DOC. NO. 14) IS APPROVED AND ADOPTED; 3. THE PLAITNIFF'S REQUEST FOR REVIEW IS GRANTED INSOFAR AS SH E REQUESTS THAT THE COURT VACATE THE DECISION OF THE COMMISSSIONER AND REMAND FOR FURTHER PROCEEDINGS; 4. THE FINAL DECISION OF THE COMMISSIONER IS VACATED AND THIS MATTER IS REMANDED TO THE COMMISSIONER, PURSUANT TO SENTENCE FOUR OF 42 U.S.C. SECTION 405(g), FOR FURTHER PROCEEDINGS CONSISTENT WITH THE REPORT AND RECOMMENDATION; AND 5. THE CLERK OF COURT IS DIRECTED TO MARK THIS MATTER AS CLOSED. SIGNED BY HONORABLE EDWARD G. SMITH ON 10/12/2016. 10/12/2016 ENTERED AND COPIES E-MAILED.(lbs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ERICA JANE MCELROY,
CAROLYN W. COLVIN,
CIVIL ACTION NO. 15-3074
AND NOW, this 12th day of October, 2016, after considering the complaint (Doc. No.
1), the answer to the complaint (Doc. No. 8), the administrative record (Doc. No. 7), the
plaintiff’s brief and statement of issues in support of request for review (Doc. No. 9), the
defendant’s response to the request for review (Doc. No. 10), and the report and recommendation
filed by United States Magistrate Judge Lynne A. Sitarski on September 21, 2016 (Doc. No. 14);
and no party having filed objections to the report and recommendation; accordingly, it is hereby
ORDERED as follows:
The clerk of court is DIRECTED to return this matter to the court’s active
The report and recommendation (Doc. No. 14) is APPROVED and ADOPTED; 1
According to the display receipt attendant to the docket entry for Magistrate Judge Sitarski’s report and
recommendation, the clerk of court e-mailed a copy of the report and recommendation to counsel for the parties on
September 22, 2016. Pursuant to Local Rule of Civil Procedure 5.1.2(8)(e), the parties had an additional three days
beyond the 14-day period provided for the filing of objections under 28 U.S.C. § 636(b)(1) and Local Rule of Civil
Procedure 72.1IV(b). Therefore, they had until October 10, 2016, to file timely objections. As of today, neither
party has filed objections to the report and recommendation.
Since neither party filed objections to Judge Sitarski’s report and recommendation, the court need not
review the report before adopting it. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). Nonetheless, “the
better practice is for the district judge to afford some level of review to dispositive legal issues raised by the report.”
Id. As such, the court will review the report for plain error. See Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa.
1998) (“In the absence of a timely objection, . . . this Court will review [the magistrate judge’s] Report and
Recommendation for clear error.” (internal quotation marks omitted)). The court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). The
court has reviewed Judge Sitarski’s report for plain error and has found none.
The plaintiff’s request for review is GRANTED insofar as she requests that the
court vacate the decision of the Commissioner and remand for further proceedings;
The final decision of the Commissioner is VACATED and this matter is
REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g), for further
proceedings consistent with the report and recommendation; and
The clerk of court is DIRECTED to mark this matter as CLOSED.
BY THE COURT:
/s/ Edward G. Smith
EDWARD G. SMITH, J.
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