Reilly v. Commissioner of Social Security

Filing 21

ORDERED: Plaintiff's Objections to the United States Magistrate Judge's Report and Recommendation (Doc. 20) are OVERRULED. United States Magistrate Judge Mac R. McCoy's Report and Recommendation (Doc. 19) is ACCEPTED and ADOPT ED and the findings incorporated herein. The Commissioner of Social's decision is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk is DIRECTED to enter judgment, terminate any pending motions or deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 2/18/2021. (AEH)

Case 2:19-cv-00917-SPC-MRM Document 21 Filed 02/18/21 Page 1 of 3 PageID 224

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOHN ANTHONY REILLY,
Plaintiff,
v.

Case No: 2:19-cv-917-SPC-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
ORDER1
Before the Court is United States Magistrate Judge Mac R. McCoy’s
Report and Recommendation (“R&R”) (Doc. 19). Judge McCoy recommends
affirming the Commissioner of Social Security’s decision to dismiss Plaintiff
John Reilly’s request for a hearing. Reilly objects to the R&R (Doc. 20), to
which the Commissioner did not respond. The R&R is ripe for review.
When reviewing an R&R, 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); Fed. R. Civ. P. 72(b)(3). When a party
makes specific objections to a magistrate judge’s report, the district court

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engages in a de novo review of the issues raised. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b)(3).
Reilly raises several objections mostly rehashing points that Judge
McCoy addressed and the Court agrees with. So those are overruled without
further discussion. Only one objection bears mentioning—Reilly’s argument
that the April 2, 2019, fax is different than the July and September 2018 faxes.
This argument was waived, and the Court will not consider it. Judge McCoy
noted Reilly did not advance that position during the administrative
proceedings or in this Court. (Doc. 20 at 15 n.3). That observation is correct.
And a district court need not consider argument raised for the first time as
objections to an R&R. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)
(“Thus, we answer the question left open in Stephens and hold that a district
court has discretion to decline to consider a party’s argument when that
argument was not first presented to the magistrate judge.”).

This is

particularly appropriate here, where Reilly had ample opportunity to make the
argument. The fact that no judges at any level of review decided to raise
argument on Reilly’s behalf does not translate to legal error. So the Court
exercises its discretion and will not address that objection. See e.g., Pineda v.
Commissioner of Social Security, No. 6:18-cv-1569-Orl-41DCI, 2020 WL
1430697, at *4 (M.D. Fla. Mar. 24, 2020) (refusing to address arguments raised
for first time as R&R objections).

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After a careful and independent review, the Court agrees with the
thorough, well-reasoned R&R in full.
Accordingly, it is now
ORDERED:
1. Plaintiff’s Objections to the United States Magistrate Judge’s Report
and Recommendation (Doc. 20) are OVERRULED.
2. United States Magistrate Judge Mac R. McCoy’s Report and
Recommendation (Doc. 19) is ACCEPTED and ADOPTED and the
findings incorporated herein.
3. The Commissioner of Social’s decision is AFFIRMED pursuant to
sentence four of 42 U.S.C. § 405(g).
4. The Clerk is DIRECTED to enter judgment, terminate any pending
motions or deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida on February 18, 2021.

Copies: All Parties of Record

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