Acevedo v. Commissioner of Social Security

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION: Accordingly, the Reportand Recommendation is adopted in its entirety. The Commissioner's motion for judgment on the pleadings is DENIED and the case is REMANDED for further proceedings. The Clerk of Court is directed to close this case. SO ORDERED. (Signed by Judge Jesse M. Furman on 9/24/2012) (ama)

USOC SO'IY

DOCL,IE\T
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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ELECTRO\ICALL Y FILED·
DOC#:
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DATE FILED:

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MARILU ACEVEDO,
Plaintiff,
-vCOMMISSIONER OF SOCIAL SECURITY,

11 Civ. 8853 (JMF)
ORDER ADOPTING
REPORT AND
RECOMMENDATION

Defendant.

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JESSE M. FURMAN, United States District Judge:
The Commissioner's motion for judgment on the pleadings in this case, brought pursuant
to the Social Security Act, was referred to Magistrate Judge James L. Cott for a Report and
Recommendation. In a Report & Recommendation filed on September 4, 2012 (Docket No. 17),
Magistrate Judge Cott recommended that the motion for judgment on the pleadings be denied
and that Plaintiffs case be remanded to the Commissioner for further proceedings.
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)(l)(C). A district court "must determine de novo any part of the magistrate
judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also United

States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To accept those portions ofthe report to
which no timely objection has been made, however, a district court need only satisfy itself that
there is no clear error on the face ofthe record. See, e.g., Wilds v. United Parcel Serv., 262 F.
Supp. 2d 163, 169 (S.D.N.Y. 2003). This clearly erroneous standard also applies when a party
makes only conclusory or general objections, or simply reiterates his original arguments. See,

e.g., Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008).

In the present case, the Report and Recommendation advised the parties that they had
fourteen days from service of the Report and Recommendation to file any objections, and
warned that failure to timely file such objections would result in waiver of any right to object. In
addition, it expressly called attention to Rule 72 ofthe Federal Rules of Civil Procedure and Title
28, United States Code, Section 636(b)(l). Nevertheless, as ofthe date of this Order, no
objections have been filed and no request for an extension of time to object has been made.
Accordingly, the Commissioner has waived the right to object to the Report and
Recommendation or to obtain appellate review. See Frank v. Johnson, 968 F.2d 298, 300 (2d
Cir. 1992); see also Caidor v. Onondaga County, 517 F.3d 601 (2d Cir. 2008).
Despite the waiver, the Court has reviewed the petition and the Report and
Recommendation, unguided by objections, and finds the Report and Recommendation to be well
reasoned and grounded in fact and law. Specifically, the Court finds no clear error in Judge
Cott' s conclusions that there is not substantial evidence in the record to support the
Administrative Law Judge's ("ALJ") conclusion that Plaintiffs impairments did not significantly
limit her ability to perform work at all exertionallevels, that the Administrative Law Judge was
thus required to consult a vocational expert prior to rendering a decision on Plaintiffs disability,
and that the he failed to do so. (Report and Recommendation at 28-32). Accordingly, the Report
and Recommendation is adopted in its entirety. The Commissioner's motion for judgment on the
pleadings is DENIED and the case is REMANDED for further proceedings.
The Clerk of Court is directed to close this case.
SO ORDERED.
Dated: September 24, 2012
New York, New York

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