Palestro v. Commissioner of Social Security Administration

Filing 22

ORDER RULING ON REPORT AND RECOMMENDATION adopting 19 Report and Recommendation, reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the action for further administrative proceedings. Signed by Honorable Mary Geiger Lewis on 12/09/2016. (bshr, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA AIKEN DIVISION FRANK PALESTRO, Plaintiff, vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. § § § § § CIVIL ACTION NO. 1:16-cv-707-MGL § § § § § § § ORDER ADOPTING THE REPORT AND RECOMMENDATION AND REVERSING AND REMANDING FOR FURTHER PROCEEDINGS This is a Social Security appeal in which Plaintiff seeks judicial review of the final decision of Defendant denying his claim for Disability Insurance Benefits (DIB). The parties are represented by excellent counsel. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting to the Court this matter be reversed and remanded for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). The Magistrate Judge filed the Report on November 14, 2016. ECF No. 19. Defendant filed a reply on December 1, 2016, stating she would decline filing objections to the Report. ECF No. 20. Plaintiff failed to file any objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment of the Court that this matter is REVERSED AND REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). IT IS SO ORDERED. Signed this 9th day of December 2016 in Columbia, South Carolina. s/Mary Geiger Lewis MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE 2

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