KELLNER v. BURWELL et al

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE CAROL SANDRA MOORE WELLS. JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF. THIS CASE IS CLOSED. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 11/17/17. 11/17/17 ENTERED AND COPIES E-MAILED.(ky, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
MARK DAVID KELLNER,
Plaintiff,

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v.

No. 5:16-cv-06305

NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.
__________________________________________

ORDER
AND NOW, this 17th day of November, 2017, upon consideration 2 of Plaintiff’s
Complaint, ECF No. 1; Defendant’s Answer, ECF No. 5; the Social Security Administrative
Record, ECF No. 7; Plaintiff’s Brief and Statement of Issues in Support of Request for Review,
ECF No. 9; Defendant’s Response to Request for Review of Plaintiff, ECF No. 10; and the
Report and Recommendation (“R&R”) of Carol Sandra Moore Wells, United States Magistrate
Judge, ECF No. 12, IT IS ORDERED THAT:
1.

The Report and Recommendation is APPROVED and ADOPTED.

2.
Plaintiff’s Request for Review is GRANTED, and the decision of the
Commissioner of the Social Security Administration is REVERSED to the extent that the matter
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On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of the
Social Security Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
Nancy A. Berryhill should be substituted as the defendant in this case.
2
When neither party objects to a magistrate judge’s report and recommendation, the
district court is not statutorily required to review the report, under de novo or any other standard.
28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 152 (1985). Nevertheless, the United
States Court of Appeals for the Third Circuit has held that it is better practice 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), writ denied 484 U.S. 837 (1987). “When no objections are filed, the
district court need only review the record for plain error or manifest injustice.” Harper v.
Sullivan, No. 89-4272, 1991 U.S. Dist. LEXIS 2168, at *2 n.3 (E.D. Pa. Feb. 22, 1991). See also
Hill v. Barnacle, No. 15-3815, 2016 U.S. App. LEXIS 12370, at *16-17 (3d Cir. 2016) (holding
that even when objections are filed, district courts “are not required to make any separate
findings or conclusions when reviewing a Magistrate Judge’s recommendation de novo under 28
U.S.C. § 636(b)”); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (explaining that in
the absence of a timely objection, the court should review the magistrate judge’s report and
recommendation for clear error). The district 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).
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is REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with the Report and Recommendation of United States Magistrate Judge
Carol Sandra Moore Wells.
3.
Judgment is ENTERED in favor of Plaintiff, reversing the decision of the
Commissioner for the purpose of this remand only.
4.

This case is CLOSED.
BY THE COURT:

/s/ Joseph F. Leeson, Jr._____________
JOSEPH F. LEESON, JR.
United States District Judge

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