United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
S. ROMAN United States District Judge.
Plaintiff, Ismael Marcano ("Plaintiff or
"Marcano"), commenced this action pursuant to 42
U.S.C. § 405(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 (ECF No. 19) be denied and
Plaintiffs motion (ECF No. 13) be granted. For the following
reasons, this Court adopts Judge Smith's R&R and
directs that the matter be remanded to the Commission for
further administrative proceedings.
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 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.
commenced the instant action on or about May 2011 challenging
the Commissioner's denial of disability benefits. In his
complaint, Plaintiff asserts 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 determination 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
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 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) (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. 186, 1189 (S.D.N.Y. 1985);
accordFeehan 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
neither party has objected to Judge Smith's R&R.
Therefore, the Court reviews the recommendation for clear
error. The Court finds no error on the face of the R&R.
R&R, Judge Smith found, inter alia, the ALJ
misapplied the treating physician rule, 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 administrative proceeding.
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