Di Loreto v. Commissioner of the Social Security Administration, No. 1:2020cv00098 - Document 17 (N.D. Ohio 2021)

Court Description: Opinion and Order: The Court ADOPTS the Report and Recommendation (ECF No. 16 ) and AFFIRMS the Commissioner's final decision. The Court further DIRECTS the Clerk to enter judgment accordingly. SO ORDERED. Judge J. Philip Calabrese on 1/29/2021. (Y,A)

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Di Loreto v. Commissioner of the Social Security Administration Doc. 17 Case: 1:20-cv-00098-JPC Doc #: 17 Filed: 01/29/21 1 of 3. PageID #: 711 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION ENZO DI LORETO, Plaintiff, v. ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-098 Judge J. Philip Calabrese Magistrate Judge Jonathan D. Greenberg ORDER Before the Court is the Magistrate Judge’s Report and Recommendation (ECF No. 16) in this appeal from the administrative action of the Social Security Administration, which denied Enzo Di Loreto’s application for disability insurance benefits. The Magistrate Judge recommends that the Court affirm that decision. The R&R advised both parties that a failure to object within 14 days may result in waiver of rights on appeal, which includes the right to review before the Court. (See ECF No. 16, PageID #710.) Under the law of this Circuit, “failure to object to a magistrate judge’s Report and Recommendation results in a waiver of appeal on that issue as long as the magistrate judge informs parties of that potential waiver.” United States v. Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019) (emphasis added); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981); see also Thomas v. Arn, 474 U.S. 140, 152 (1985) (holding that the Sixth Circuit’s waiver rule is within its supervisory powers and “[t]here is no indication that Congress, in enacting Dockets.Justia.com Case: 1:20-cv-00098-JPC Doc #: 17 Filed: 01/29/21 2 of 3. PageID #: 712 § 636(b)(1)(C), intended to require a district judge to review a magistrate’s report to which no objections are filed”). Recently, the Sixth Circuit clarified this rule: failure to object is not a waiver, but a forfeiture. Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019) (“We clarify that forfeiture, rather than waiver, is the relevant term here.”). This is so because “[w]aiver is different than forfeiture.” United States v. Olando, 507 U.S. 725, 733 (1993); Freytag v. Commissioner, 501 U.S. 868, 894 n.2 (1991) (Scalia, J., concurring) (noting the Supreme Court’s cases “often used [waiver and forfeiture] interchangeably,” but that “[t]he two are really not the same.”). This difference matters because forfeited issues may, in certain circumstances, nevertheless be considered on appeal.” Berkshire, 928 F.3d at 530 (citing Harris v. Klare, 902 F.3d 630, 635–36 (6th Cir. 2018)). In any event, the time for filing objections to the R&R has passed. Mr. Di Loreto neither objected, nor provided some legitimate reason why he failed to do so. Nor does there appear to be clear error in the Magistrate Judge’s R&R. Therefore, the Court ADOPTS the Report and Recommendation (ECF No. 16) and AFFIRMS the Commissioner’s final decision. The Court further DIRECTS the Clerk to enter judgment accordingly. SO ORDERED. 2 Case: 1:20-cv-00098-JPC Doc #: 17 Filed: 01/29/21 3 of 3. PageID #: 713 Dated: January 29, 2021 J. Philip Calabrese United States District Judge Northern District of Ohio 3

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