Newcomb v. Commissioner of Social Security Administration

Filing 17

ORDER ordering that Plaintiff may file a motion for summary judgment with a supporting memorandum on or before March 7, 2012. Defendant shall file a response, or notice of intent not to respond, regarding any such filing on or before March 16, 2012. Signed by Magistrate Judge David Keesler on 2/16/12. (Pro se litigant served by US Mail.)(smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:11-CV-023 -RLV-DCK
ELIZABETH WARD NEWCOMB,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,
)
)
Defendant.
)
____________________________________)

ORDER

THIS MATTER IS BEFORE THE COURT sua sponte regarding its status and schedule.
This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b),
and immediate review is appropriate.
Pro se Plaintiff Elizabeth Ward Newcomb (“Plaintiff”) filed this action on February 7, 2011,
seeking review of a final determination of the Commissioner of Social Security. (Document No.
1). On June 29, 2011, the Court issued a “Pretrial Scheduling Order” (Document No. 9) requiring
Plaintiff to file a motion for summary judgment and supporting memorandum on or before
September 1, 2011. To date Plaintiff has failed to file a proper motion and/or memorandum
supporting her claim.
This Court’s review of a final decision of the Commissioner is limited to: (1) whether
substantial evidence supports the Commissioner’s decision; and (2) whether the Commissioner
applied the correct legal standards. Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). As previously noted by the Court, motions for
summary judgment are routinely decided on the pleadings submitted; however, a party may request

a hearing of oral arguments by providing good reason for such hearing along with the party’s
memorandum of law. (Document No. 9).
On August 31, 2011, the undersigned issued an “Order” (Document No. 11) allowing
Plaintiff additional time to October 14, 2011, to file her motion for summary judgment and
supporting memorandum. On October 14, 2011, Plaintiff instead filed another letter with the Court.
(Document No. 12). A liberal reading of Plaintiff’s letter suggests that she seeks remand to an
Administrative Law Judge (“ALJ”) for a new hearing. Id. In addition, her letter seems to contend
that: she was never allowed to explain her disability to the ALJ; blindness in her left eye has not
been properly evaluated; relevant medical evidence is missing from the record; and her attorney
committed significant errors. Id. Defendant timely filed its “Motion For Summary Judgment”
(Document No. 15) and “Memorandum In Support...” (Document No. 16) on December 21, 2011.
Based on the foregoing, and allowing this pro se Plaintiff additional leeway, the undersigned
will allow Plaintiff one final opportunity to file a motion for summary judgment and memorandum
in support. Plaintiff’s motion and supporting memorandum should discuss the relevant facts of this
case and describe in detail whether substantial evidence supports the Commissioner’s decision,
and/or whether the Commissioner applied the correct legal standards in reaching his decision.
Plaintiff may also identify and produce any alleged new or missing evidence that pertains to the
relevant time period for determining her disability.
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), as well as the
“Pretrial Scheduling Order” (Document No. 9) in this case, the Court advises Plaintiff that she has
a right to file a motion for summary judgment in this case. The Court also advises Plaintiff that
failure to do so may result in Defendant being granted the relief it seeks, that is, entry of a judgment

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that Plaintiff is not disabled. Under the unique circumstances of this case, the Court will allow
Defendant to file a response, if Plaintiff seizes the opportunity she is being allowed here.
IT IS, THEREFORE, ORDERED that Plaintiff may file a motion for summary judgment
with a supporting memorandum on or before March 7, 2012. Defendant shall file a response, or
notice of intent not to respond, regarding any such filing on or before March 16, 2012.

Signed: February 16, 2012

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