14-4320
Matos v. Comm’r of Soc. Sec.

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 30th day of September, two thousand fifteen.

PRESENT:            JOSÉ A. CABRANES,
                    ROSEMARY S. POOLER,
                    REENA RAGGI,
                                 Circuit Judges.


ELIZABETH MATOS,

                    Plaintiff-Appellant,

                               v.                                   No.     14-4320

COMMISSIONER OF SOCIAL SECURITY,

                    Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                             Elizabeth Matos, pro se, Bronx, NY.

FOR DEFENDANT-APPELLEE:                              Jacob T. Lillywhite, Emily E. Daughtry,
                                                     Assistant United States Attorneys, for Preet
                                                     Bharara, United States Attorney for the
                                                     Southern District of New York, New York,
                                                     NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Colleen McMahon, Judge).
     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

       Plaintiff Elizabeth Matos, proceeding pro se, appeals from the District Court’s September 4,
2014 judgment granting the motion of defendant the Commissioner of Social Security (“the
Commissioner”) for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. In granting defendant’s motion, the District Court adopted the July 30, 2014 Report and
Recommendation (“R & R”) of Magistrate Judge James L. Cott. Matos had sought judicial review of
the Commissioner’s final determination denying her applications for Supplemental Security Income
and Disability Insurance Benefits.

        The R & R informed plaintiff in bold, capital letters that her failure to file objections within
14 days would result in waiver and preclude appellate review. Matos v. Colvin, No. 13-CV-4525 (CM)
(JLC), 2014 WL 3746501, at *14 (S.D.N.Y. July 30, 2014). The R & R also cited pertinent authority
in support of that proposition, including 28 U.S.C. § 636 and Rules 6 and 72 of the Federal Rules of
Civil Procedure, and apprised plaintiff that if she did not have access to the cases cited therein, she
should request copies from counsel for the Commissioner. Id.

         As a general matter, “[w]here parties receive clear notice of the consequences, failure to
timely object to a magistrate’s report and recommendation operates as a waiver of further judicial
review of the magistrate’s decision.” Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015) (internal
quotation marks omitted). “[A] pro se party’s failure to object,” however, “does not operate as a
waiver . . . unless the magistrate’s report explicitly states that failure to [do so] . . . will preclude
appellate review and specifically cites 28 U.S.C. § 636(b)(1) and rules 72, 6(a) and 6(e) of the Federal
Rules of Civil Procedure.” Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989);
accord Caidor v. Onondaga Cty., 517 F.3d 601, 602–03 (2d Cir. 2008) (“It is settled law that a pro se
litigant’s failure to object to a magistrate judge’s decision on a dispositive matter does not effect a
waiver of appellate review absent an express warning from the magistrate judge.”). Here, because the
R & R complied with these requirements, plaintiff has waived her right to appellate review.

          The aforementioned rule “is a nonjurisdictional waiver provision whose violation we may
excuse in the interests of justice.” Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); accord In re
Warburgh, 644 F.3d 173, 178 (2d Cir. 2011). But we perceive no basis in the record for such a
departure here. As Magistrate Judge Cott correctly found in his thorough and well-reasoned R & R,
the Commissioner “compl[ied] with the applicable legal standards and made a determination that
was . . . sufficiently supported by the evidence.” Matos, 2014 WL 3746501, at *9.

        We note that, on appeal, plaintiff has submitted new evidence from December 2014 and
April 2015, which suggests that her asthma may have recently worsened. “We will not consider new
evidence absent extraordinary circumstances,” however, “and no such circumstances are present
here.” Munn v. Hotchkiss Sch., 795 F.3d 324, 330 (2d Cir. 2015) (internal quotation marks omitted).

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         Moreover, even if we were to consider plaintiff’s new evidence, it would not call into
question the Commissioner’s final determination, which relates to plaintiff’s claimed disability period
of February 22, 2011 to December 16, 2011. Matos, 2014 WL 3746501, at *13. Although “[t]he court
may . . . at any time order additional evidence to be taken before the Commissioner,” it may do so
“only upon a showing that there is new evidence which is material.” 42 U.S.C. § 405(g). To be
“material,” new evidence must be “relevant to the claimant’s condition during the time period for
which benefits were denied.” Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (internal quotation
marks omitted). Here, there has been no showing, nor is there any reason to believe, that plaintiff’s
new evidence is relevant to her condition approximately three-to-four years earlier.

         If plaintiff’s position is that she “me[ ]t all the requirements for entitlement after the period
for which [her] application was in effect, [she] must file a new application for benefits.” 20
C.F.R. § 404.620; cf. Vargas v. Sullivan, 898 F.2d 293, 297 (2d Cir. 1990) (suggesting that, where a
plaintiff introduces new evidence “not properly part of the record” that postdates the period of
disability, and this Court determines “that the [Commissioner’s] decision . . . was correct,” the
appropriate procedure is for the plaintiff to “file a new application for benefits based on a later
period of disability”).

                                            CONCLUSION

       We have considered all of the arguments raised by plaintiff on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the District Court’s September 4, 2014
judgment.

                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe, Clerk




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