Armstrong v. Commissioner of Social Security

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 25 Report and Recommendations, 16 Motion for Judgment on the Pleadings filed by Commissioner of Social Security. Accordingly, the R&R is adopted in its entirety as the opinion of the Court. Defendant& #039;s motion for judgment on the pleadings is DENIED. Plaintiff's affirmation in opposition to defendant's motion is deemed to be a motion for judgment on the pleadings, and is GRANTED to the extent that the case is REMANDED for further ad ministrative proceedings consistent with the R&R, pursuant to 42 U.S.C. § 405(g), sentence four. Plaintiff's motion for an order "foregoing further administrative proceedings and rule on the plaintiff's filing as a dispositive mot ion urging the Court to vacate and reverse" is DENIED. The Clerk is instructed to enter Judgment accordingly and close this case. The 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 therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Vincent L. Briccetti on 12/3/2013) The Clerks Office Has Mailed Copies. (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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TERRENCE ARMSTRONG,
:
Plaintiff,
:
:
v.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.
:
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ORDER ADOPTING REPORT
AND RECOMMENDATION

12 CV 8126 (VB)

Briccetti, J.:
Before the Court is Magistrate Judge Paul E. Davison’s Report and Recommendation
(“R&R”), dated October 15, 2013 (Doc. #25), on defendant’s motion for judgment on the
pleadings pursuant to Rule 12(c). (Doc. #16). Because plaintiff’s affirmation in opposition to
defendant’s motion affirmatively urges the Court to vacate and reverse the Commissioner’s
decision (Doc. #23), Judge Davison treated plaintiff’s opposition as a motion for judgment on the
pleadings, and recommended the Court grant plaintiff’s motion and deny defendant’s motion.
Subsequent to the filing of the R&R, plaintiff filed a motion for an order “foregoing
further administrative proceedings and rule on the plaintiff’s filing as a dispositive motion urging
the Court to vacate and reverse.” (Doc. #27).
The Court presumes familiarity with the factual and procedural background of this case.
For the following reasons, the Court (i) adopts the R&R as the opinion of the Court, (ii) denies
defendant’s motion, (iii) deems plaintiff’s opposition to defendant’s motion to be a motion for
judgment on the pleadings, and grants plaintiff’s motion to the extent that the case is remanded
for further administrative proceedings consistent with the R&R, pursuant to 42 U.S.C. § 405(g),
sentence four, and (iv) denies plaintiff’s motion to forego further administrative proceedings.
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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). Parties may raise objections to the magistrate judge’s report and
recommendation, but they must be “specific[,] written,” and submitted within 14 days after being
served with a copy of the recommended disposition. Fed.R.Civ.P. 72(b)(2); 28 U.S.C.
§ 636(b)(1).
Insofar as a report and recommendation deals with a dispositive motion, a district court
must conduct a de novo review of those portions of the report or specified proposed findings or
recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1)(C). The district
court may adopt those portions of a report and recommendation to which no timely objections
have been made, provided no clear error is apparent from the face of the record. Lewis v. Zon,
573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y.
1985). The clearly erroneous standard also applies when a party makes only conclusory or
general objections, or simply reiterates his original arguments. Ortiz v. Barkley, 558 F. Supp. 2d
444, 451 (S.D.N.Y. 2008).
Neither party objected to Judge Davison’s thorough and well-reasoned R&R.
The Court has reviewed the R&R and finds no error, clear or otherwise.
CONCLUSION
Accordingly, the R&R is adopted in its entirety as the opinion of the Court.
Defendant’s motion for judgment on the pleadings is DENIED.
Plaintiff’s affirmation in opposition to defendant’s motion is deemed to be a motion for
judgment on the pleadings, and is GRANTED to the extent that the case is REMANDED for

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further administrative proceedings consistent with the R&R, pursuant to 42 U.S.C. § 405(g),
sentence four.
Plaintiff’s motion for an order “foregoing further administrative proceedings and rule on
the plaintiff’s filing as a dispositive motion urging the Court to vacate and reverse” is DENIED.
The Clerk is instructed to enter Judgment accordingly and close this case.
The 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 therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Dated: December 3, 2013
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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