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Pressley v. Astrue

United States District Court, Second Circuit

August 2, 2013

KEVIN PRESSLEY Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

NELSON S. ROMN, District Judge.

Kevin Pressley ("Plaintiff"), through counsel, seeks review under 42 U.S.C. § 405(g) of a decision by the Commissioner of Social Security ("Defendant") denying his claim for Social Security Disability ("SSD") benefits. Defendant has moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted, asserting that Plaintiff failed to commence this action within the sixty-day time period provided by § 405(g). As this case was previously referred to Magistrate Judge Paul E. Davison, on June 12, 2013, Judge Davison issued a Report and Recommendation ("R & R") pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b) recommending that Defendant's motion be granted. For the following reasons, Defendant's motion to dismiss the complaint is granted

Background[1]

Plaintiff alleges that his application for SSD benefits was denied by the Bureau of Disability Insurance of the Social Security Administration for failing to establish a period of disability and for not having an impairment severe enough to establish a period of disability. (Compl. ¶ 6.) Plaintiff subsequently requested a hearing, which was allegedly held on October 6, 2010. On April 8, 2011, an Administrative Law Judge ("ALJ") denied Plaintiff's claim. On June 7, 2011, Plaintiff requested review by the Appeals Council, but his request for review was denied on September 10, 2012.

On November 19, 2012, seventy days later, Plaintiff filed the instant action, asserting that the decision to deny him benefits was not supported by substantial evidence and was contrary to law and regulation. (Compl. ¶¶ 9-10.) After receiving an extension of time to answer, (M.J. Stip. & Order of Jan. 23, 2013), Defendant filed the instant motion to dismiss on April 5, 2013. Plaintiff did not file opposition papers.

On June 12, 2013, Magistrate Judge Davison issued the R & R recommending that this Court grant Defendant's motion to dismiss for failure to state a cause of action. Neither party has filed written objections to the R & R.

Discussion

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)(1); accord 28 U.S.C. § 636(b)(1)(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)(1). Where a magistrate judge issues a report and recommendation,

[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 court shall made 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 court 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) (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 (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, as neither party objected to Judge Davison's R & R, the Court reviews the recommendation for clear error.

In the Second Circuit,

[w]here the dates in a complaint show that an action is barred by a statute of limitations, a defendant may raise the affirmative defense in a pre-answer motion to dismiss. Such a motion is properly treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted rather than a Rule 12(b)(1) motion to dismiss for lack of jurisdiction over the subject matter.

Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989); accord Gelber v. Stryker Corp., 788 F.Supp.2d 145, 153 (S.D.N.Y. 2011); Jowers v. Lakeside Family & Children's Servs., 435 F.Supp.2d 280, 283 (S.D.N.Y. 2006). Here, as Defendant relies on the express time limitation in the statute that allows individuals to seek judicial review of the Social Security Administration's decisions, 42 U.S.C. § 405(g), it was ...


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