Neely v. Astrue

Filing 17

ORDER adopting 16 Memorandum and Recommendations; denying Pltf's 10 Motion for Summary Judgment; granting Deft's 14 Motion for Summary Judgment. Signed by District Judge Robert J. Conrad, Jr on 10/7/13. (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
2:12-cv-88-RJC-DSC
RENEA NEELY,
Plaintiff,
v.
1

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security Administration,
Defendant.

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ORDER
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THIS MATTER comes before the Court on Plaintiff’s Motion for Summary Judgment
and supporting Memorandum (Doc. Nos. 10; 11), Defendant’s Motion for Order Affirming
Commissioner’s Decision (Summary Judgment) and supporting Memorandum (Doc. Nos. 14;
15), and the Magistrate Judge’s Memorandum and Recommendation (M&R), (Doc. No. 16),
recommending that this Court deny Plaintiff’s Motion and grant Defendant’s Motion. The
parties have not filed objections to the M&R and the time for doing so has expired. FED. R. CIV.
P. 72(b)(2).
I.

BACKGROUND
Neither party has objected to the Magistrate Judge’s statement of the factual and

procedural background of this case. The Court thus adopts the facts as set forth in the M&R.
II.

STANDARD OF REVIEW
The district court may assign dispositive pretrial matters pending before the court to a

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the defendant in this suit. No further action need be taken to
continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C.§ 405(g).

magistrate judge for “proposed findings of fact and recommendations.” 28 U.S.C. §
636(b)(1)(B). The Federal Magistrate Act provides that “a district court shall make a de novo
determination of those portions of the report or specific proposed findings or recommendations
to which objection is made.” Id. at § 636(b)(1)(C); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.
1983). However, “when objections to strictly legal issues are raised and no factual issues are
challenged, de novo review of the record may be dispensed with.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Similarly, de novo review is not required by the statute “when a party
makes general or conclusory objections that do not direct the court to a specific error in the
magistrate judge’s proposed findings and recommendations.” Id. “[I]n the absence of a timely
filed 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 v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting FED. R. CIV. P. 72 advisory committee’s note).
III.

DISCUSSION
Under Rule 72(b) of the Federal Rules of Civil Procedure, a district court judge shall

make a de novo determination of any portion of an M&R to which specific written objection has
been made. FED. R. CIV. 72(b). No objection to the M&R having been filed, the parties have
waived their right to de novo review of any issue covered in the M&R. A party’s failure to make
timely objection is accepted as an agreement with the conclusions of the Magistrate Judge. See
Thomas v. Arn, 474 U.S. 140, 146 (1985).
Furthermore, the Social Security Act provides that the “findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . . ” 42
U.S.C. § 450(g). Judicial review of the Commissioner’s final decision regarding disability

benefits is limited to determining “whether the findings are supported by substantial evidence
and whether the correct law was applied.” Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002).
The reviewing court should not “undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute [the Court’s] judgment for that of the Secretary.” Maestro v. Apfel,
270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)).
This Court has conducted a full and careful review of the M&R and other documents of
record and, having done so, finds that the recommendation of the Magistrate Judge is, in all
respects, in accordance with the law and should be approved. Accordingly, the Court ADOPTS
the recommendation of the Magistrate Judge as its own.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that the Magistrate Judge’s M&R, (Doc. No. 16), is

ADOPTED, Plaintiff’s Motion for Summary Judgment (Doc. No. 10) is DENIED, and
Defendants’ Motion for Order Affirming Commissioner’s Decision, (Doc. No. 14), is
GRANTED. The Clerk of Court is directed to close this case.
Signed: October 7, 2013