Lopez v. Commissioner of Social Security

Filing 17

ORDER adopting #15 Report and Recommendations, #12 Motion for Judgment on the Pleadings filed by Commissioner of Social Security. Having conducted a review of the R & R, the Court finds that the R & R is not clearly erroneous and, in fact, is in conformity with the law. Judge Cott finds, inter alia, that the Commissioner "reasonably concluded that [Plaintiff] engaged in substantial gainful activity" during the period for which she seeks benefits. (R & R (Dkt. No. 15) at 17-21) This Court agrees that, as a result, Plaintiff is not eligible for benefits. Accordingly, the R & R's recommendations are adopted in their entirety, and the Commissioner's motion for judgment on the pleadings will be granted. For the reasons stated above, the Commissioner's motion for judgment on the pleadings is granted. The Clerk of Court is respectfully directed to terminate the motion (Dkt. No. 12), close this case, and mail a copy of this order to pro se Plaintiff Ebony Lopez, 1034 E. 219th Street, Bronx, NY 10469. Because the parties did not object to the R & R adopted herein, appellate review of this Order is precluded. See, e.g., Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988). (As further set forth in this Order.) (Signed by Judge Paul G. Gardephe on 3/13/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:~~~-----~~~­

DA TE FILED:

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EBONY LOPEZ,
Plaintiff,
ORDER
- V. -

15 Civ. 5258(PGG) (JLC)
CAROLYN W. COL VIN
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

PAUL G. GARDEPHE, U.S.D.J.:
Prose Plaintiff Ebony Lopez filed this action on July 6, 2015, pursuant to Section
205(g) of the Social Security Act, 42 U .S.C. § 405(g), seeking review of a final decision of the
Commissioner of the Social Security Administration denying her disability insurance and
Supplemental Security Income ("SSI") benefits on the ground that she was not disabled. (Dkt.
No. 2) On July 22, 2015, this action was referred to Magistrate Judge James L. Cott for a Report
and Recommendation ("R & R"). (Dkt. No. 5) On December 14, 2015, the Commissioner
moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. (Dkt. No. 12) Plaintiff did not file a response to the Commissioner's motion.
On March 1, 2016, Magistrate Judge Cott issued an R & R recommending that
this Court grant the Commissioner's motion for judgment on the pleadings and dismiss the
Complaint. (Dkt. No. 15) The R & R recites the requirement that the parties must file objections
within fourteen days of service, pursuant to 28 U.S.C. § 636(b)(l) and Rule 72(b) of the Federal
Rules of Civil Procedure, and that a failure to timely object "wi!l result in a waiver of objections
and will preclude appellate review." (Id. at 21) (emphasis omitted); see 28 U.S.C. § 636(b)(l)

("[w]ithin fourteen days after being served with a copy [of a magistrate judge's report and
recommendation], any party may serve and file written objections to such proposed findings and
recommendations"); Fed. R. Civ. P. 72(b)(2) ("[w]ithin 14 days after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations").
The R & R was mailed to Plaintiff on August 2, 2016. (Id. at 22) No objections
have been filed.
This 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 ). "'The district judge
evaluating a magistrate judge's recommendation may adopt those portions of the
recommendation, without further review, where no specific objection is made, as long as they are
not clearly erroneous."' Gilmore v. Comm 'r of Soc. Sec., No. 09 Civ. 6241 (RMB) (FM), 2011
WL 611826, at * 1 (S.D.N. Y. Feb. 18, 2011) (quoting Chimarev v. TD Waterhouse Inv'r Servs.,
Inc., 280 F. Supp. 2d 208, 212 (S.D.N. Y. 2003)). Because no objections have been filed, this
Court will review the R & R for clear error.
Having conducted a review of the R & R, the Court finds that the R & R is not
clearly erroneous and, in fact, is in conformity with the law. Judge Cott finds, inter alia, that the
Commissioner "reasonably concluded that [Plaintiff] engaged in substantial gainful activity"
during the period for which she seeks benefits. (R & R (Dkt. No. 15) at 17-21) This Court
agrees that, as a result, Plaintiff is not eligible for benefits. Accordingly, the R & R's
recommendations are adopted in their entirety, and the Commissioner's motion for judgment on
the pleadings will be granted.

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CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the
pleadings is granted. The Clerk of Court is respectfully directed to terminate the motion (Dkt.
No. 12), close this case, and mail a copy of this order to pro se Plaintiff Ebony Lopez, I 034 E.
2 l 9th Street, Bronx, NY 10469. Because the parties did not object to the R & R adopted herein,
appellate review of this Order is precluded. See,~. Wesolek v. Canadair Ltd., 838 F.2d 55, 58
(2d Cir. 1988).
Dated: New York, New York
March 13, 2017

SO ORDERED.

Paul G. Gardephe
United States District Judge

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