United States District Court, S.D. New York
SANTO E. BETANCES, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
E. Betances (“Plaintiff”) brings this action
pursuant to 42 U.S.C. § 405(g) challenging the decision
of the Commissioner of Social Security
(“Commissioner”) denying his application for
disability insurance benefits (“DIB”), and
supplemental security income (“SSI”). Pending
before the Court are the parties' respective motions for
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). On November 8, 2017, Magistrate Judge Kevin
Nathaniel Fox issued a Report and Recommendation
(“R&R”), recommending that Plaintiff's
motion be denied and the Commissioner's motion be
reasons stated herein, the Court ADOPTS the R&R and
directs the entry of judgment as recommended.
filed for DIB and SSI on May 23, 2011, alleging disability on
the basis of the diagnoses of HIV and hepatitis B that
purportedly caused psychological impairments, with an onset
date for his disability of April 9, 2011. Doc. 12 (“SSA
Administrative Record”) at 239, 248; R&R at 4. The
Social Security Administration (“SSA”) denied his
application on October 14, 2011. Id. at 103-09.
After timely requesting a hearing, Plaintiff appeared before
an Administrative Law Judge (“ALJ”) on July 19,
2012. Id. at 41-50, 111. On July 30, 2012, the ALJ
confirmed the denial of benefits, finding that Plaintiff was
not disabled. Id. at 80-96. Plaintiff appealed the
ALJ's decision to the Social Security Appeals Counsel on
September 28, 2012. Id. at 156-58. On October 18,
2013, it granted Plaintiff's request for review.
Id. at 97-102. The case was remanded to the ALJ, and
on December 29, 2014, the ALJ again denied Plaintiff's
claim for DIB and SSI benefits. Id. at 9-28.
Plaintiff appealed the ALJ's second decision, but on
August 4, 2016, the Social Security Appeals Counsel denied
this request. Id. at 1-8. Plaintiff filed the
instant action on September 23, 2016. Doc. 1. On May 1, 2017,
he moved for a judgment on the pleadings. Doc. 13. On August
2, 2017, the Commissioner cross-moved for a judgment on the
pleadings. Doc. 17.
November 8, 2017, Judge Fox issued his R&R, recommending
that judgment be entered in favor of the Commissioner.
R&R at 12. Specifically, Judge Fox found that the
ALJ's determination that Plaintiff was not disabled was
supported by substantial evidence. Id.
Fox noted that objections, if any, would be due fourteen days
from service of the R&R and that failure to timely object
would preclude later appellate review of any order of
judgment entered. Id. at 12-13. Neither the
Plaintiff, nor the Commissioner filed objections. They have
therefore waived their right to object to the R & R.
See Dow Jones & Co. v. Real- Time Analysis &
News, Ltd., No. 14 Civ. 131 (JMF) (GWG), 2014 WL
5002092, at *1 (S.D.N.Y. Oct. 7, 2014) (citing Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Caidor v.
Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Standard of Review
district court reviewing a magistrate judge's report and
recommendation “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)(C).
Parties may raise “specific, ”
“written” objections to the Fed.R.Civ.P.
72(b)(2). A district court reviews de novo those
portions of the report and recommendation to which timely and
specific objections are made. 28 U.S.C. § 636(b)(1)(C);
see also DeLeon v. Strack, 234 F.3d 84, 87 (2d Cir.
2000) (citing United States v. Male Juvenile
(95-CR-1074), 121 F.3d 34, 38 (2d Cir. 1997)). The
district court may adopt those parts of the report and
recommendation to which no party had timely objected,
provided no clear error is apparent from the face of the
record. Lewis v. Zon, 573 F.Supp.2d 804, 811
Court has carefully reviewed Judge Fox's thorough and
well-reasoned R&R and finds no error, clear or otherwise.
Accordingly, the Court adopts the R&R in its entirety.
Plaintiff's motion for judgment on the pleadings is
DENIED and the Commissioner's motion for judgment on the
pleadings is GRANTED.
parties' failure to file written objections precludes
appellate review of this decision. PSG Poker, LLC v.
DeRosa-Grund, No. 06 Civ. 1104 (DLC), 2008 WL 3852051,
at *3 (S.D.N.Y. Aug. 15, 2008) (citing United States v.
Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)).
Clerk of Court is respectfully directed to terminate the