Mercano v. Commissioner of Social Security
ORDER ADOPTING REPORT AND RECOMMENDATION for 13 Motion for Judgment on the Pleadings filed by Ismael Mercano, 21 Report and Recommendations, 19 Motion for Judgment on the Pleadings filed by Commissioner of Social Security. After careful review of the R&R, the Court finds no clear error and adopts the recommendations of Judge Smith. The instant matter is remanded to the administrative agency for further proceeding consistent with the R&R and this Order. The Clerk of the Court is respectfully requested to terminate the motions(Doc. Nos. 13 and 19). The Clerk of Court is directed to close this case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 6/13/2017) (anc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
!j Di'o'fZ FILED:
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13-cv-3648 (NSR) (LMS)
ORDER ADOPTING REPORT
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
NELSON S. ROMAN, United States District Judge
Plaintiff, Ismael Marcano ("Plaintiff' or "Marcano"), commenced this action pursuant to 42 U.S.C.
§ 40S(g) seeking judicial review of the final determination of the Commissioner of Social Security
("Commissioner" or "Defendant"), which denied his application seeking Supplemental Security Income
("SSI") payments. Each party moved pursuant to FRCP 12(c)l for judgment on the pleadings. (ECF Nos.
13, 19). This matter was referred to the Honorable Judge Lisa M. Smith, Magistrate Judge ("Judge Smith").
On March 29, 2017, Judge Smith issued a Report and Recommendation (the "R&R") pursuant to 28 U.S.C.
§ 636(b) and F. R.C.P. § 72(b) recommending that the Commissioner's motion (ECFNo. 19) be denied and
Plaintiffs motion (ECF No. 13) be granted. For the following reasons, this Coutt adopts Judge Smith's
R&R and directs that the matter be remanded to the Commission for further administrative proceedings.
On or about December 2010, Plaintiff applied to the Social Security Administration ("SSA") seeking
disability benefits alleging he was disabled and unable to work. On or about February 25, 2011, Plaintiffs
application was denied. Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ").
A hearing was held on November 8, 2011 and subsequently on December 1, 2011, the ALJ issued a
Facts are taken from the R&R, unless otherwise noted.
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decision denying Plaintiffs application for benefits. Plaintiff filed a request for review of the ALJ's
determination with the Appeals Council, which was denied on April 24, 2013. Thus, the ALJ's
determination denying Plaintiff's application for benefits of December 201 lbecame final.
Plaintiff commenced the instant action on or about May 2011 challenging the Commissioner's
denial of disability benefits. In his complaint, Plaintiff asse1ts the Commissioner's findings are not
supported by substantial evidence and are contrary to law and the rules and regulations of the Social
Security Act ("SSA"). More specifically, Plaintiff request this Court reverse the Commissioner's
detennination or, in the alternative, request that the matter be remanded for further proceedings. Now
before this Court is Judge Smith's R&R recommending the matter be remanded for further administrative
STANDARD OF REVIEW
A magistrate judge may "hear a pretrial matter [that is] dispositive of a claim or defense" if so
designated by a district court. Fed. R. Civ. P. 72(b)(l); accord 28 U.S.C. § 636(b)(l)(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)(l); accord 28 U.S.C. § .636(b)(l). Where a magistrate judge issues a report and
[w]ithin fourteen days after being served with a copy, any party may serve and file written
objections to such proposed findings or recommendations as provided by rules of court. A
judge of the coUlt shall make a de novo dete1mination of those portions of the report or
specified proposed findings or recommendations to which objection is made. A judge of the
coUlt may accept, reject, or modify, in whole or in pait, the findings or recommendations
made by the magistrate judge.
28 U.S.C. § 636(b) (emphasis added); 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) (emphasis added) (quoting Nelson v. Smith, 618 F. Supp.
1186, 1189 (S.D.N.Y. 1985); accord Feehan v. Feehan, No. 09 Civ. 7016 (DAB), 2011 WL 497776, at* 1
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(S.D.N.Y. Feb. 10, 2011); 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 itself that there is no clear error on the
face of the record in order to accept the recommendation.").
Here, neither party has objected to Judge Smith's R&R. Therefore, the Comt reviews the
recommendation for clear error. The Court finds no error on the face of the R&R.
In the R&R, Judge Smith found, inter alia, the ALJ misapplied the treating physician rnle, failed to
delineate why, if appropriate, Plaintiffs treating physician's opinions and findings were not entitled to
greater deference, and what was the ALJ' s basis for granting greater deference to the consultative
examiner's findings. Based on the foregoing, Judge Smith recommends the matter be remanded for further
After careful review of the R&R, the Court finds no clear eirnr and adopts the recommendations of
Judge Smith. The instant matter is remanded to the administrative agency for further proceeding consistent
with the R&R and this Order. The Clerk of the Court is respectfully requested to terminate the motions
(Doc. Nos. 13 and 19). The Clerk of Court is directed to close this case.
Dated: June 13, 2017
White Plains, New York
United States District Judge
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