Durgan v. Astrue, No. 6:2012cv00279 - Document 18 (N.D.N.Y 2013)
Court Description: DECISION and ORDER: Plaintiff's motion for judgment on the pleadings is GRANTED; The Commissioner's decision is VACATED and the matter REMANDED to the agency for further consideration consistent with the Report-Recommendation. Signed by Judge David N. Hurd on 3/18/2013. (mgh)
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------DONNA M. DURGAN, Plaintiff, -v- 6:12-CV-279 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. -------------------------------APPEARANCES: OF COUNSEL: THE ANTONOWICZ GROUP Attorney for Plaintiff 148 West Dominick Street Rome, NY 13440 PETER W. ANTONOWICZ, ESQ. HON. RICHARD S. HARTUNIAN United States Attorney for the Northern District of New York Attorneys for Defendants 100 South Clinton Street P.O. Box 7198 Syracuse, NY 13261 ANDREEA L. LECHLEITNER, ESQ. Special Ass't United States Attorney DAVID N. HURD United States District Judge DECISION and ORDER Plaintiff Donna M. Durgan filed this action seeking judicial review of a final decision of the Commissioner of Social Security which denied her application for benefits under the Social Security Act. By Report-Recommendation dated February 19, 2013, the Honorable Christian F. Hummel, United States Magistrate Judge, recommended that Durgan's motion for judgment on the pleadings be granted and the Commissioner's decision be vacated and remanded. No objections to the Report-Recommendation were filed. Based upon a careful review of the Report-Recommendation and the entire file, it is found that Magistrate Judge Hummel's reasoning is sound and the Report-Recommendation will be accepted in whole. See 28 U.S.C. ยง 636(b)(1). It is noted however that the "Conclusion" section of the Report-Recommendation recommends that "t]he Commissioner's decision finding disability be VACATED . . . ." Dkt. No. 17 at 23. However, in the substantive section of the Report-Recommendation discussing the issue of disability, Magistrate Judge Hummel determined that the Commissioner's conclusion that Durgan was able to perform the full range of medium work and thus was not disabled, was not supported by substantial evidence. As such, Magistrate Judge Hummel recommended that Durgan's motion for judgment on the pleadings be granted, the prior determination of no disability be vacated, and the case remanded for further consideration. Thus, it is clear that the conclusion stating that "t]he Commissioner's decision finding disability be VACATED . . . ." is a typographical error. As such, the apparent error in the "Conclusion" section of the ReportRecommendation is rejected and the substantive finding of the Report-Recommendation is accepted and adopted. Accordingly, it is ORDERED that 1. Plaintiff's motion judgment on the pleadings is GRANTED; and -2- 2. The Commissioner's decision is VACATED and the matter REMANDED to the agency for further consideration consistent with the Report-Recommendation. IT IS SO ORDERED. Dated: March 18, 2013 Utica, New York. -3-
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