Lebow v. Astrue

Filing 21

OPINION AND ORDER: Adopting 20 Report and Recommendations. No party has objected to the R&R. The Court has reviewed Judge Maas' thorough R&R and finds no error, clear or otherwise. Judge Maas reached his determination after a careful review of the parties' submissions. Doc. 20 at 10-14. The Court therefore ADOPTS Judge Maas' recommended judgment regarding the motions for judgment on the pleadings for the reasons stated in the R&R and REFERS back to Judge Maas future applicatio ns, if any are filed. The parties' failure to file written objections precludes appellate review of this decision. PSG Poker, LLC v. DeRosa-Grund, No. 06 CIV. 1104 (DLC), 2008 WL 3852051, at *3 (S.D.N.Y. Aug. 15, 2008) (citing United States v. M ale Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). it is SO ORDERED.Motions Terminated: 16 CROSS MOTION for Judgment on the Pleadings filed by Michael J. Astrue, 13 MOTION for Judgment on the Pleadings filed by Keith A. Lebow. (Signed by Judge Edgardo Ramos on 3/27/2015) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

KEITH A. LEBOW,
Plaintiff,
– against –

OPINION AND ORDER

MICHAEL J. ASTRUE, as Commissioner of the
United States Social Security Administration,

13-CV-5895 (ER)

Defendant.

RAMOS, D.J.:
Before the Court is the Report and Recommendation (“R&R”) dated March 9, 2015 of
Magistrate Judge Frank Maas, to whom this matter was referred for judicial review of a final
decision of the Commissioner of Social Security (“Commissioner”) denying Plaintiff Keith A.
Lebow’s (“Plaintiff”) application for disability insurance benefits (“DIB”). In the R&R, Judge
Maas recommends granting in part Lebow’s motion for judgment on the pleadings, and denying
Commissioner’s cross-motion. For the reasons stated herein, the Court ADOPTS the R&R and
directs the entry of judgment as recommended.
I.

Background
On May 24, 2011, Plaintiff filed an application for DIB. R&R, Doc. 20 at 2. After his

application was denied on August 16, 2011, Plaintiff requested a de novo hearing before an
Administrative Law Judge (“ALJ”). Id. On May 11, 2012, a hearing was held before ALJ Mark
Solomon (“ALJ Solomon”), who issued a written decision in which he concluded that Plaintiff
was not disabled within the meaning of the Social Security Act (“the Act”). Id. The Appeals

Council denied Plaintiff’s request for review and the ALJ’s decision became the final decision of
the Commission on July 12, 2013. Id. Plaintiff commenced the present action on August 21,
2013 seeking review of the Commissioner’s decision. Id.
On March 9, 2015, Judge Maas issued his R&R, recommending that the Commissioner’s
cross-motion be denied and Plaintiff’s motion be granted in part to the extent of remanding the
case to the Commissioner for proceedings consistent with his analysis. 1 Id. at 14. Specifically,
he found that the matter should be remanded due to the Appeals Council’s failure to explain its
decision not to reevaluate the ALJ’s findings based on new and material evidence pertaining to
Plaintiff’s condition. Id. at 13.
The R&R noted that objections, if any, would be due within fourteen days from service
of the R & R and that failure to timely object would preclude later appellate review of any order
of judgment entered. Id. at 15. Neither the Plaintiff, nor the Defendant filed objections. They
have therefore waived their right to object to the R&R. See Dow Jones & Co. v. Real-Time
Analysis & News, Ltd., No. 14 Civ. 131 (JMF) (GWG), 2014 WL 5002092, at *1 (S.D.N.Y. Oct.
7, 2014) (citing Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Caidor v. Onondaga
County, 517 F.3d 601, 604 (2d Cir. 2008).
II.

Standard of Review
A district court reviewing a magistrate judge’s report and recommendation “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). Parties may raise “specific,” “written” objections to the
report and recommendation “[w]ithin fourteen days after being served with a copy.” Id.; see also
Fed. R. Civ. P. 72(b)(2). A district court reviews de novo those portions of the report and
1

Judge Maas denied Plaintiff’s request to remand the case for a hearing before a different ALJ. Doc. 20 at 15 n.6.

2