Booker v. Colvin

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION: Accordingly, the Report and Recommendation is adopted in its entirety. Plaintiff's motion for judgment on the pleadings is GRANTED, 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. (Signed by Judge Jesse M. Furman on 2/15/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SARA BOOKER,
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Plaintiff,
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-v:
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COMMISSIONER OF SOCIAL SECURITY,
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Defendant.
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02/15/2017

16-CV-1753 (JMF)
ORDER ADOPTING
REPORT AND
RECOMMENDATION

JESSE M. FURMAN, District Judge:
The Court referred this appeal from the Commissioner of Social Security’s denial of
disability benefits to Magistrate Judge Kevin Nathaniel Fox for a Report and Recommendation.
(Docket No. 6). On July 27, 2016, Plaintiff moved for judgment on the pleadings. (Docket No.
16). On August 30, 2016, the Commissioner also moved for judgment on the pleadings.
(Docket No. 18). In a Report and Recommendation filed on January 31, 2017 (Docket No. 21),
Magistrate Judge Fox recommended that Plaintiff’s motion be granted, that the Commissioner’s
motion be denied, and that the matter 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)(1)(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 of the 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 of the 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 14
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 the parties’ attention to Rule 72 of the Federal Rules of Civil Procedure and
Title 28, United States Code, Section 636(b)(1). Nevertheless, as of the date of this Order, no
objections have been filed and no request for an extension of time to object has been made.
Accordingly, the parties have waived the right to object to the Report and Recommendation or to
obtain further 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 Report and Recommendation, unguided
by objections, and finds it to be well reasoned and grounded in fact and law. Specifically, the
Court finds no clear error in Magistrate Judge Fox’s conclusions that the Administrative Law
Judge failed to give controlling weight to the opinion of Plaintiff’s treating physician or to make
reasonable efforts to fill the clear gaps in the administrative record. (Report and
Recommendation at 8). Accordingly, the Report and Recommendation is adopted in its entirety.
Plaintiff’s motion for judgment on the pleadings is GRANTED, 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: February 15, 2017
New York, New York
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