Rosario v. Commissioner of Social Security
ORDER ADOPTING REPORT AND RECOMMENDATION for 24 Report and Recommendation. For the reasons stated above, the Court adopts Magistrate Judge Smith's Report and Recommendation in its entirety. Plaintiff's motion is denied and the Commissi oner's motion is granted. The Clerk of Court is respectfully directed to issue a judgment in favor of the Commissioner, to terminate the motions at ECF Nos. 17 and 19, and to close the case. (Signed by Judge Nelson Stephen Roman on 4/5/2017) (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CARMEN L. ROSARIO,
13 CV 1627 (NSR)(LMS)
-againstCAROLYN W. COLVIN,
Commissioner o/Social Security,
ORDER ADOPTING REPORT
NELSON S. ROMAN, United States District Judge
Plaintiff Carmen L. Rosario brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review ofthe final decision of the Commissioner of Social Security (the "Commissioner"),
which partially denied her application for disability insurance benefits ("DIB"). (ECF No.2.)'
This case was previously referred to Magistrate Judge Lisa M. Smith. Each party has
submitted a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. (ECF Nos. 17 & 19.) On February 7, 2017, Magistrate Judge Smith issued a
Report and Recommendation ("R & R"), pursuant to 28 U.S.c. § 636(b) and Federal Rule of Civil
Procedure neb), recommending that Plaintiffs motion (ECF No. 19) be denied and the
Commissioner's motion (ECF No. 17) be granted. (See generally ECF No. 24.) For the following
reasons, the COUlt adopts Magistrate Judge Smith's R & R in its entirety, and Plaintiffs motion is
DENIED and the Commissioner's motion is GRANTED.
I The ALl found that Plaintiff was disabled for the period postdating her fiftieth billhday, but denied her
claim for DIB as to any period prior to that date. (AR 36.) Plaintiff only chaHenges the denial.
Plaintiff seeks DIB payments, alleging March 31, 2008, as the onset date. The Court
assumes familiarity with the underlying facts and prior proceedings in this case, as set f01th in the
R & R.
Plaintiff commenced the instant action on March II, 2013, arguing that the
Commissioner's findings with respect to the time period prior to her fiftieth bilthday are contrary
to law and regulations promulgated pursuant to the Social Security Act and not supp01ted by
substantial evidence. (ECF Nos. 2 & 20.) Accordingly, she asks that this COUIt modify the
decision and award and calculate benefits for that period or alternatively, remand for fUither
proceedings. (ECF No.2.)
On February 7, 2017, Magistrate Judge Smith issued the R & R recommending that this
COUIt deny Plaintiffs motion and grant the Commissioner's motion. Neither patty has filed
written objections to the R & R.
STANDARD OF REVIEW
A magistrate judge may "hear a pretrial matter dispositive of a claim or defense" if so
designated by a district COUIt. See Fed. R. Civ. P. 72(b)(1); accord 28 U.S.C. § 636(b)(I)(B). In
such a case, the magistrate judge "must enter a recommended disposition, including, if appropriate,
proposed findings of fact." Fed. R. Civ. P. 72(b)(1); accord 28 U.S.C. § 636(b)(I). Where a
magistrate judge issues a report and recommendation,
[w]ithin fOUiteen days after being served with a copy, any patty may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the COUIt
shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made. A judge of the COUIt 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)(I); accord Fed. R. Civ. P. 72(b)(2), (3). However, "[t]o accept the report and
recommendation of a magistrate, to which no timely objection has been made, a district court need
only satisfy itself that there is no clear error on the face of the record." Wilds v. United Parcel
Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)(quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)); accord Caidor v. Onondaga County, 517 F.3d 601,604 (2d Cir. 2008)
("[F]ailure to object timely to a magistrate's repOlt operates as a waiver of any flUther judicial
review of the magistrate's decision.") (quoting Small v. Sec. of HHS, 892 F.2d 15, 16 (2d Cir.
1989)); see also Fed. R. Civ. P. 72 advisory committee note (1983 Addition, Subdivision (b))
("When no timely objection is filed, the court need only satisfy itselfthat there is no clear error on
the face of the record in order to accept the recommendation. ").
Here, as neither patty objected to the R & R issued by Magistrate Judge Smith, the Court
reviews the recommendation for clear error.
The Court finds no error on the face of the R & R, and thus adopts Judge Smith's R & R
in its entirety. As stated more fully in the R & R, the ALJ applied the correct legal and regulatory
standards, and supported his legal findings with substantial evidence. Accordingly, the COlUt
grants the Commissioner's motion, upholding the ALJ's decision.
For the reasons stated above, the Court adopts Magistrate Judge Smith's Report and
Recommendation in its entirety. Plaintiffs motion is denied and the Commissioner's motion is
The Clerk of Court is respectfully directed to issue a judgment in favor of the
Commissioner, to terminate the motions at ECF Nos. 17 and 19, and to close the case.
White Plains, New York
United States District Judge
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