Milliner v. Commissioner of Social Security

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION. The Commissioner's motion for judgment on the pleadings (Dkt. 11) is GRANTED. This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and in forma pauperis status is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Re: 11 Motion for Judgment on the Pleadings filed by Commissioner of Social Security, 14 Report and Recommendation. (Signed by Judge P. Kevin Castel on 8/23/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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AMBER E. MILLINER,
Plaintiff,
-againstNANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,

16-cv-5744 (PKC) (KNF)
ORDER ADOPTING REPORT
AND RECOMMENDATION

Defendant.
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CASTEL, Senior District Judge:
On July 19, 2016, Amber Milliner, proceeding pro se, filed this action seeking
review of the final decision of the Commissioner of Social Security denying Milliner
supplemental security income. (Dkt. 2). The Commissioner moved for judgment on the
pleadings pursuant to Fed. R. Civ. P. (12)(c). (Dkt. 11). Milliner has not submitted any
opposition to that motion.
This Court referred the motion to Magistrate Judge Kevin Nathaniel Fox to hear
and report. (Dkt. 13). On July 21, 2017, Magistrate Judge Fox issued a Report and
Recommendation (the “R&R”) recommending that the motion for judgment on the pleadings be
granted. (Dkt. 14). In reviewing an R&R, 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). The R&R advised the parties that they had 14 days from the service of the R&R to
file any objections with the undersigned, citing Rule 72(b), Fed. R. Civ. P., and 28 U.S.C. §
636(b)(1), and warned that failure to file such objections would result in a waiver of any right to
object. (R&R at 14). More than three weeks have passed since the R&R was filed, and no

objections or requests for extensions have been submitted to the Court. Milliner received clear
notice of the consequences of the failure to object and has waived the right to object to the R&R
or obtain further judicial review of the magistrate’s decision. See Frank v. Johnson, 968 F.2d
298, 300 (2d Cir. 1992); Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002); see
also Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).
Where clear notice of the consequences of a failure to object has been provided,
the Court may adopt an unobjected-to report and recommendation without de novo review. See
Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require
district court review of a magistrate’s factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings.”). In such circumstances, “a district court
need only satisfy itself that there is no clear error on the face of the record.” Nelson v. Smith,
618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). Guided by Magistrate Judge Fox’s thorough and
well-reasoned R&R, I find no clear error. Therefore, I adopt the Report and Recommendation in
its entirety.
CONCLUSION
The Commissioner’s motion for judgment on the pleadings (Dkt. 11) is
GRANTED.
This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and in forma pauperis status is denied. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

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Dated: New York, New York
August 23, 2017

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