Nunez v. Commissioner of Social Security

Filing 23

OPINION & ORDER re: 15 MOTION for Judgment on the Pleadings. filed by Commissioner of Social Security. For the reasons stated herein, the Court adopts the Report in full. The defendant's motion for judgment on the pleadings is granted. The Clerk of Court is directed to terminate the motion pending at docket number 15, and to close this case. (Signed by Judge Paul A. Engelmayer on 8/19/2013) (djc)

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11 Civ. 8519 (PAE)

P ATRIA NUNEZ,
Plaintiff,
-v-

OPINION & ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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PAUL A. ENGELMA YER, District Judge:
Before the Court is the July 18, 2013 Report and Recommendation ("Report") of
Magistrate Judge Kevin Nathaniel Fox, recommending that the Court grant defendant's
unopposed motion for judgment on the pleadings. For the reasons that follow, the Court adopts
the Report in full.

I.

Background and Procedural History
On November 18,2011, Patria Nunez ("Nunez"), proceeding pro se, filed this action

pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review ofa final decision
finding her ineligible for disability insurance benefits and Supplemental Security income. Dkt.
2.

On June 11,2012, defendant moved for judgment on the pleadings, pursuant to Federal
Rule of Civil Procedure 12(c). Dkt. 15. Nunez failed to oppose the defendant's motion, despite
having originally been ordered to do so by July 9,2012, see Dkt. 17, and later having been given

until May 20,2013, see Dkt. 18. 1 On July 18,2013, Judge Fox issued the Report, Dkt. 22,
recommending that the Commissioner's motion for judgment on the pleadings be granted
because "[t]he ALJ applied the correct legal standard in finding that Nunez was not disabled"
and that decision was "supported by substantial evidence." Report 8.
The deadline for the parties to file objections to the Report was August 5, 2013. To this
date, no objections have been filed.

II.

Discussion
In reviewing a Report and Recommendation, a 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)(C). To accept those portions of the report to which no timely objection has
been made, "a district court need only satisfy itself that there is no clear error on the face of the
record." King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8,
2009) (quoting Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)); see
also Edwards v. Fischer, 414 F. Supp. 2d 342,346-47 (S.D.N.Y. 2006).

Because Nunez has not submitted objections to the Report, a review for clear error is
appropriate. Careful review of the Report reveals no facial error in its conclusions; the Report is
therefore adopted in its entirety. Because the Report explicitly states that "[f]ailure to file
objections within fourteen (14) days will result in a waiver of objections and will preclude
appellate review," Report 9, Nunez's failure to object operates as a waiver of appellate review.
See Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (citing Small v. Sec y ofHealth

& Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)).

In an order dated May 1,2013, Judge Fox warned Nunez that "[i]fno opposition is served and
filed by the plaintiff, the defendant's motion will be treated as unopposed." Dkt. 18.
I

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CONCLUSION

For the reasons stated herein, the Court adopts the Report in full. The defendant's motion
for judgment on the pleadings is granted. The Clerk of Court is directed to terminate the motion
pending at docket number 15, and to close this case.

SO ORDERED.

P::i.1n~el~
United States District Judge

Dated: August 19, 2013
New York, New York

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