Legall v. Commissioner of Social Security

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATIONS:for 35 Report and Recommendations. 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. The case is REMANDED for further administrative proceedings consistent with the R&R, pursuant to 42 U.S.C. § 405(g), sentence four. 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 9/9/2014) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ERICA R.M. LEGALL,
:
Plaintiff,
:
:
v.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.
:
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ORDER ADOPTING REPORT
AND RECOMMENDATION
13 CV 1426 (VB)

Briccetti, J.:
Before the Court is Magistrate Judge Lisa M. Smith’s Report and Recommendation
(“R&R”), dated August 13, 2014 (Doc. #35), on defendant’s unopposed motion for judgment on
the pleadings pursuant to Rule 12(c). (Doc. #23). Citing deficiencies in the Administrative Law
Judge’s determination of plaintiff’s residual functional capacity, Judge Smith recommended that
the motion be denied and the case remanded for further administrative proceedings.
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, and (iii) remands this case for further administrative proceedings
consistent with the R&R, pursuant to 42 U.S.C. § 405(g), sentence four.
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).
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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 Smith’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.
The case is REMANDED for further administrative proceedings consistent with the
R&R, pursuant to 42 U.S.C. § 405(g), sentence four.
The Clerk is instructed to enter Judgment accordingly and close this case.

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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: September 9, 2014
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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