Butler v. Commissioner of Social Security

Filing 21

ORDER: Accordingly, this Court adopts Judge Netburn's R & R in its entirety. Plaintiffs motion for judgment on the pleadings is denied, and Defendant's cross-motion for judgment on the pleadings is granted. The Clerk of the Court is respectfully directed to terminate the motions (Dkt. Nos. 14, 18) and to close this case. SO ORDERED. (Signed by Judge Paul G. Gardephe on 9/17/2019) (jca) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHAMEIKA L. BUTLER,
Plaintiff,
ORDER

- v. 18 Civ. 5293 (PGG) (SN)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

PAUL G. GARDEPHE, U.S.D.J.:
Plaintiff Shameika Butler filed the Complaint in this action on June 12, 2018.
(Cmplt. (Dkt. No. 2)) Butler seeks judicial review, pursuant to 42 U.S.C. § 405(g), of a final
decision of the Commissioner of Social Security denying her application for Supplemental
Security Income ("SSI") benefits. (Isl) On June 25, 2018, this Court referred the case to
Magistrate Judge Sarah Netburn for a Report and Recommendation ("R & R"). (See Order of
Reference (Dkt. No. 7))
On December 6, 2018, Plaintiff filed a motion for judgment on the pleadings
arguing, inter alia, that Plaintiff did not knowingly and voluntarily waive her right to counsel,
and that the administrative law judge ("ALJ") "failed to perform a full and fair development and
evaluation of the evidence; failed to make findings rationally supported by the probative
evidence; ignored important evidence; misinterpreted, misapplied[,] and failed to follow Social
Security regulations and rulings; and failed to consider pertinent provisions of the law." (Mot.
(Dkt. No. 14); Pltf. Br. (Dkt. No. 15) at 9-12, 18)
On March 11, 2019, Defendant filed a cross-motion for judgment on the
pleadings. (Mot. (Dkt. No. 18))

On August 14, 2019, Judge Netbum issued a 24-page R & R, recommending that
this Court deny Plaintiffs motion for judgment on the pleadings and grant Defendant's crossmotion for judgment on the pleadings. (R & R (Dkt. No. 20))
In her R & R, Judge Netbum notified the parties that they had fourteen days from
service of the R & R to file any objections, pursuant to 28 U.S.C. § 636(b)(l) and Rule 72(b) of
the Federal Rules of Civil Procedure. (R & R (Dkt. No. 20) at 24) The R & R further states that
"[t]he failure to file ... timely objections will result in waiver of those objections for purposes of
appeal."

(MJ

Neither party has filed objections to the R & R.

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). When a timely objection has been made to the magistrate judge's
recommendations, the district court judge "shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is made."

Where, as here, no objections are filed to a magistrate judge's R & R- despite
clear warning that a failure to file objections will result in a waiver of judicial review - judicial
review has been waived. See Thomas v. Am, 474 U.S. 140, 147-48 (1985); see also Mario v. P
& C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice
of the consequences, failure timely to object to a magistrate's report and recommendation
operates as a waiver of further judicial review of the magistrate's decision." (citing Small v.
Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (illrr curiam))); Spence v.
Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir. 2000) ("Failure
to timely object to a report generally waives any further judicial review of the findings contained
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in the report.").
This Court has nonetheless reviewed Judge Netbum's comprehensive and wellreasoned R & Rand is satisfied 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) (citations omitted). Accordingly, this Court
adopts Judge Netbum's R & R in its entirety. Plaintiffs motion for judgment on the pleadings is
denied, and Defendant's cross-motion for judgment on the pleadings is granted. The Clerk of the
Court is respectfully directed to terminate the motions (Dkt. Nos. 14, 18) and to close this case.
Dated: New York, New York
September 17, 2019
SO ORDERED.

Paul G. Gardephe
United States District Judge

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