Racine v. Colvin
DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 15 Defendant's Motion for Judgment on the Pleadings; adopting 20 Report and Recommendations. Signed by Hon. Michael A. Telesca on 10/11/17. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TIMOTHY HARRY RACINE,
DECISION AND ORDER
-vsCAROLYN COLVIN, Acting
Commissioner of Social Security,
This matter comes before the Court following a Report and
Recommendation (Dkt #20) filed on September 12, 2017, by the
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72(b) and (c)
Recommendation (“R&R”), Judge Foschio recommended that the decision
issued by Carolyn Colvin, Acting Commissioner of Social Security1
(“Plaintiff”) be affirmed in full, that Defendant’s motion for
judgment on the pleadings be granted, and that Plaintiff’s motion
for judgment on the pleadings be denied.
The R&R was served electronically to both parties on September
Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
12, 2017. The parties were given fourteen (14) days from the date
of their receipt of the R&R to file objections to it, and were
specifically informed that any objections were due by September 27,
2017. To date, no objections have been filed, and neither party has
sought an extension of time in which to file objections.
When reviewing a magistrate judge’s report and recommendation,
a district court is required to “make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made[,]” 28 U.S.C. § 636(b),
and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge[,]” id.
Where no “specific written objection” is made to portions of the
magistrate judge’s report, the district court may adopt those
portions, “as long as the factual and legal bases supporting the
findings and conclusions set forth in those sections are not
clearly erroneous or contrary to law.” Eisenberg v. New England
Motor Freight, Inc., 564 F. Supp.2d 224, 226 (S.D.N.Y. 2008)
(citing Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149
(1985); other citation omitted). The district court is not required
to review any portion of a magistrate judge’s report that is not
the subject of an objection. Eisenberg, 564 F. Supp.2d at 227
(citing Thomas, 474 U.S. at 149).
As noted above, no objections were made to any portion of the
R&R. The Court accordingly has reviewed the R&R for clear error.
Finding that the R&R is not clearly erroneous or contrary to law,
the Court accepts all of the findings and recommendations therein.
Accordingly, it is hereby
ORDERED that the R&R (Dkt #20) is adopted in its entirety; and
it is further
ORDERED that Defendant’s motion for judgment on the pleadings
(Dkt #15) is granted; and it is further
ORDERED that Plaintiff’s motion for judgment on the pleadings
(Dkt #8) is denied.
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
s/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
October 11, 2017
Rochester, New York
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