Rosenbaum v. Astrue

Filing 24

-CLERK TO FOLLOW UP-ORDER granting 12 Motion for Judgment on the Pleadings; adopting Report and Recommendation re 18 . Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 9/16/2013. (JMB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SUSAN ILENE ROSENBAUM,
Plaintiff,
v.

DECISION AND ORDER
11-CV–890

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,1
Defendant.

The instant case involves the appeal of a final determination by the
Commissioner of Social Security (“Commissioner” or “defendant”) that plaintiff is
not disabled and therefore not entitled to disability benefits and/or Supplemental
Security Income Benefits. The action has been brought pursuant to Section
405(g) of Title 42 of the United States Code and was referred to Magistrate Judge
Hugh B. Scott in accordance with Section 636(b)(1) of Title 28 of the United
States Code.
Plaintiff’s application for social security benefits was denied initially and on
reconsideration. She then appeared before an administrative law judge who,
after a de novo review of the record, found that plaintiff was not disabled within

1

As set forth in defendant’s response, Carolyn W. Colvin became the Acting
Commissioner of Social Security on February 14, 2013. Thus, Carolyn W. Colvin has
been substituted for the original defendant in this matter, Michael J. Astrue, pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure.

the meaning of the Social Security Act. Plaintiff then commenced the present
action, and both plaintiff and the Commissioner subsequently moved for judgment
on the pleadings. (Dkt. Nos. 10 and 12)
Magistrate Judge Scott issued a Report and Recommendation
recommending that defendant’s motion for judgment on the pleadings be granted
and that plaintiff’s motion for the same relief be denied. (Dkt. No. 18)
Specifically, the Magistrate recommended affirming the Commissioner’s final
determination that plaintiff was not disabled under the Social Security Act and
dismissing plaintiff’s complaint in its entirety. Id. Plaintiff filed objections to the
Report and Recommendation and defendant filed a reply. (Dkt. Nos. 22 and 23)
The Court considered the matter submitted.
Pursuant to 28 U.S.C. §636(b)(1), this Court must make a de novo
determination of those portions of the Report and Recommendation to which
objections have been made.2 Upon de novo review, and after reviewing the
parties’ submissions, the Court hereby adopts Magistrate Judge Scott’s
recommendation to grant defendant’s motion for judgment on the pleadings, deny

2

In her response, the Commissioner argues that because plaintiff makes only
“frivolous, conclusive, and general” objections, this Court should review the Report and
Recommendation for clear error only. Dambrowski v. Astrue, 590 F. Supp.2d 579, 581
(SDNY 2008). However, the Court finds that plaintiff did specifically object to the
Magistrate’s assessment of her credibility, his conclusions regarding the expert
testimony of Dr. Andrews, and his determinations regarding the severity of her
impairments. Thus, the Court considers those portions of the Report and
Recommendation in accordance with the de novo standard of review.
2

plaintiff’s motion for judgment on the pleadings and dismiss plaintiff’s complaint.
Accordingly, for the reasons set forth in Magistrate Judge Scott’s Report
and Recommendation, defendant’s motion for judgment on the pleadings is
granted, plaintiff’s motion for judgment on the pleadings in denied, and plaintiff’s
complaint is dismissed.
The Clerk of the Court is directed to close the case.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: September 16, 2013

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