Summary
remanding when the ALJ did not support his finding that plaintiff needed to change position every thirty minutes
Summary of this case from Balistrieri v. SaulOpinion
No. 1:15-CV-00847 (MAT)
02-01-2018
KELLY A. TOMICKI, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
DECISION AND ORDER
Represented by counsel, Kelly A. Tomicki ("plaintiff") brings this action pursuant to Title XVI of the Social Security Act, seeking review of the final decision of the Acting Commissioner of Social Security ("the Commissioner") denying her application for supplemental security income ("SSI"). The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). The matter is before the Court on the parties' cross motions for judgment on the pleadings. The parties' motions were referred to Magistrate Judge Michael J. Roemer for consideration of the factual and legal issues presented, and to prepare and file a Report and Recommendation ("R&R") containing a recommended disposition of the issues raised.
By R&R dated January 11, 2018 (Docket No. 17), Judge Roemer recommended that the case be remanded for further administrative proceedings, for the reasons described therein. Both parties were notified that they had 14 days within which to file objections; however, neither party has filed an objection.
Within fourteen days after a party has been served with a copy of a magistrate judge's report and recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b). "Where no objection is made to a report and recommendation, or the parties make frivolous, conclusive, or general objections, only 'clear error' review is required by the district court." Teixeria v. St. Jude Med. S.C., Inc., 193 F. Supp. 3d 218, 222 (W.D.N.Y. 2016). "After conducting the appropriate review, the district judge may 'accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.'" Id. (quoting 28 U.S.C. § 636(b)). No objections having been filed, the Court has reviewed the R&R for clear error and finds none.
CONCLUSION
Accordingly, the R&R (Docket No. 17) is approved and adopted in its entirety. The Commissioner's motion for judgment on the pleadings (Docket No. 14) is denied, and plaintiff's motion for judgment on the pleadings (Docket No. 9) is granted to the extent that the case is remanded for further administrative proceedings. The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge Dated: February 1, 2018
Rochester, New York.