Bennett v. Colvin

Filing 44

ORDER - the court ADOPTS the findings and recommendations in the 2015 M&R [D.E. 42], OVERRULES plaintiff's objections to the M&R [D.E. 43], DENIES plaintiff's motion to alter or amend the judgment [D.E. 36], and DISMISSES the action. The clerk shall close the case. Signed by Chief Judge James C. Dever III on 11/19/2015. (Downing, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-871-D

CARL J. BENNETT,
Plaintiff,

v.

)
)
)
)

)

ORDER

)
CAROLYNW.COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

On January 27, 2015, this court adopted Magistrate Judge Gates's December 16, 2014
Memorandum and Recommendation ("20 14 M&R") to grant judgment on the pleadings to the
defendant. See [D.E. 34, 35]; 2014 M&R [D.E. 32]. Plaintiff now seeks to alter or amend the
judgment [D.E. 36, 37], and the government responded in opposition [D.E. 38]. On May 29,2015,
the court referred plaintiff's motion to alter or amend to Magistrate Judge Gates for a second
Memorandum and Recommendation [D.E. 41]. On September 24, 2015, Magistrate Judge Gates
issued a Memorandum and Recommendation ("20 15 M&R") [D.E. 42] recommending that the court
deny plaintiff's motion to alter or amend the judgment [D.E. 36]. On October 8, 2015, plaintiff filed
objections to the M&R [D.E. 43].
"The Federal Magistrates Act requires a district court to make a de novo determination ofthose
portions of the magistrate judge's report or specified proposed fmdings or recommendations to which
objection is made." Diamond v. Colonial Life & Accident Ins. Co., 416 F .3d 310, 315 (4th Cir. 2005)
(emphasis, alteration, and quotation omitted); see 28 U.S. C.§ 636(b). Absent a timely objection, "a
district court need not conduct a de novo review, but instead must only satisfy itself that there is no

clear error on the face of the record in order to accept the recommendation." Diamond, 416 F.3d at
315 (quotation omitted).
The court has reviewed the 2014 M&R and the 2015 M&R, the record, and plaintiffs
objections. As for those portions of the 2015 M&R to which plaintiff made no objection, the court is
satisfied that there is no clear error on the face of the record.
The court has reviewed de novo the portions of the 2015 M&R to which plaintiff objected.
Although plaintiff originally moved under Federal Rule of Civil Procedure 59(e) [D.E. 36], and Judge
Gates properly recommended rejecting the motion as untimely under Rule 59(e) [D.E. 42], plaintiff
now seeks relief under Rule 60. See [D.E. 43]; Fed. R. Civ. P. 60(b)(6). In support, plaintiff cites
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Unlike in Mascio, however, the ALJ properly
conducted a function-by-function analysis of plaintiffs condition. See [D.E. 34]; 2014 M&R 12-13.
Accordingly, the court overrules plaintiffs objections.
In sum, the court ADOPTS the findings and recommendations in the 2015 M&R [D.E. 42],
OVERRULES plaintiffs objections to the M&R [D.E. 43], DENIES plaintiffs motion to alter or
amend the judgment [D.E. 36], and DISMISSES the action. The clerk shall close the case.
SO ORDERED. This Jj_ day ofNovember 2015.

J
S C. DEVER III
Chief United States District Judge

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