United States District Court, S.D. New York
CARMEN L. ROSARIO, Plaintiff,
CAROLYN W. COLV1N, Commissioner of Social Security, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
S. ROMAN United States District Judge.
Carmen L. Rosario brings this action pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of the final decision
of the Commissioner of Social Security (the
"Commissioner"), which partially denied her
application for disability insurance benefits
("DIB"). (ECF No. 2.)
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 72(b), 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
Court adopts Magistrate Judge Smith's R & R in its
entirety, and Plaintiffs motion is DENIED and the
Commissioner's motion is GRANTED.
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 forth in the R
& R. Plaintiff commenced the instant action on March 11,
2013, arguing that the Commissioner's findings with
respect to the time period prior to her fiftieth birthday are
contrary to law and regulations promulgated pursuant to the
Social Security Act and not supported by substantial
evidence. (ECF Nos. 2 & 20.) Accordingly, she asks that
this Court modify the decision and award and calculate
benefits for that period or alternatively, remand for further
proceedings. (ECF No. 2.)
February 7, 2017, Magistrate Judge Smith issued the R & R
recommending that this Court deny Plaintiffs motion and grant
the Commissioner's motion. Neither party has filed
written objections to the R & R.
magistrate judge may "hear a pretrial matter dispositive
of a claim or defense" if so designated by a district
court. See 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 and recommendations as provided by rules of court. A
judge of the court 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
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)(1); 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
report operates as a waiver of any further 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 itself that there is no
clear error on the face of the record in order to accept the
as neither party 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 Court grants the Commissioner's motion,
upholding the ALJ's decision.
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 granted. The Clerk of Court is respectfully directed to
issue a judgment in favor of the ...