United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
Revi brings this action pro se pursuant to 42 U.S.C.
§ 405(g) challenging the decision of the Commissioner of
Social Security (“Commissioner”) denying her
application for Social Security Disability Insurance
(“SSDI”) and Supplemental Security Income
(“SSI”) benefits. Before the Court is the
Commissioner's unopposed motion for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. On January 30, 2018, Magistrate Judge Debra
Freeman issued a Report and Recommendation
(“R&R”), recommending that the
Commissioner's motion for judgment on the pleadings be
denied and the case be remanded to the Commissioner for
further proceedings. Doc. 15. For the reasons stated herein,
the Court ADOPTS the R&R and directs the entry of
judgment as recommended.
applied for SSDI and SSI benefits on July 2, 2013, and
October 7, 2013, respectively. R&R at 30. In both
applications, Plaintiff alleged that she was disabled as of
May 17, 2013, as a result of her thyroid condition, stage
zero breast cancer, lower back pain, and “diffuse
dis[c]s.” Id. The Social Security
Administration (“SSA”) denied her application on
October 8, 2013. Id. After timely requesting a
hearing, Plaintiff appeared before an Administrative Law
Judge (“ALJ”) on April 30, 2015. Id. On
June 3, 2015, the ALJ confirmed the denial of benefits.
Id. at 35. Plaintiff appealed the ALJ's
decision, and on August 31, 2016, the SSA's Appeals
Council denied Plaintiff's request for review.
Id. Plaintiff filed the instant action pro
se on October 31, 2016. Doc. 2. The Commissioner
thereafter moved for judgment on the pleadings. Doc. 11.
January 30, 2018, Judge Freeman issued an R&R,
recommending that the Commissioner's motion be denied and
that the matter be remanded to the Commissioner for
proceedings consistent with her analysis. R&R at 68. She
found that the matter should be remanded principally on the
basis of the ALJ's failure to develop the record with
respect to the potentially disabling side effects of the
medications that Plaintiff was required to take in order to
manage her hypothyroidism and to prevent breast cancer.
Id. at 57, 60. Judge Freeman found that the
ALJ's failure to fully develop the record necessarily
eroded his determination of Plaintiff's residual
functional capacity (“RFC”) to work. Id.
at 62. Judge Freeman further concluded that the ALJ's
weighing of available opinion regarding Plaintiff's
status post-mastectomy and hypothyroidism constituted legal
error. Id. at 65-66.
Freeman 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 20-21. Neither 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
Not Available) judge." 28 U.S.C. § 636(b)(1)(C).
Parties may raise "specific, " "written"
objections to the report and recommendation "[w]ithin
fourteen days after being served with a copy." Id.;
see also 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 (S.D.N.Y. 2008).
Court has carefully reviewed Judge Freeman's thorough and
well-reasoned R&R and finds no error, clear or otherwise.
Accordingly, the Court adopts the R&R in its entirety.
The Commissioner's motion for judgment on the pleadings
is therefore DENIED and the matter is REMANDED to the ALJ for
further proceedings. The 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
motion, Doc. 11, to mail a copy of this Opinion and Order ...