`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
`
`DAVID J. KESTER,
`
`Plaintiff,
`
` -vs-
`NANCY A. BERRYHILL, Acting
`Commissioner of Social Security,
` Defendant.
`
`No. 1:15-CV-00945 (MAT)
`DECISION AND ORDER
`
`Represented by counsel, David J. Kester(“plaintiff”) brings
`this action pursuant to Titles II and XVI of the Social Security
`Act, seeking review of the final decision of the Acting
`Commissioner of Social Security (“the Commissioner”) denying his
`applications for supplemental security income and disability
`insurance benefits. 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 Jeremiah J.
`McCarthy 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 October 30, 2017, Judge McCarthy recommended that
`the case be remanded for further administrative proceedings, for
`the reasons described therein. Docket No. 20. Both parties were
`notified that they had 14 days within which to file objections;
`however, neither party has filed an objection.
`
`
`
`Case 1:15-cv-00945-MAT-JJM Document 22 Filed 11/16/17 Page 2 of 2
`
`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. 20) is approved and adopted
`in its entirety. The Commissioner’s motion for judgment on the
`pleadings (Docket No. 16) 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:
`
`November 16, 2017
`Rochester, New York.
`
`
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