Brooks v. Colvin
Filing
14
ORDER denying Plaintiff's 9 Motion for Summary Judgment and Defendant's 11 Motion for Summary Judgment. Adopting Magistrate Judge 13 Memorandum and Recommendations, the Commissioner's decision is vacated and this mater is remanded under Sentence Four. Signed by District Judge Richard Voorhees on 6/16/2017. (nvc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CASE NO. 5:16-cv-00086-RLV-DCK
VIVIEN WAYNE BROOKS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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ORDER
THIS MATTER IS BEFORE THE COURT on Plaintiff Vivien Wayne Brooks’s
Motion for Summary Judgment (Doc. 9); Defendant Acting Commissioner Nancy A. Berryhill’s
Motion for Summary Judgment (Doc. 11); and the March 7, 2017 Memorandum and
Recommendation (“M & R”) of Magistrate Judge David C. Keesler (Doc. 13), to whom this case
was referred pursuant to 28 U.S.C. § 636(b)(1)(B).
In the M & R the Magistrate Judge
recommended that Plaintiff Brooks’s summary judgment motion be denied; that Defendant
Berryhill’s summary judgment motion be denied; and that the Commissioner’s decision be vacated
and this matter be remanded for further consideration. (Doc. 13 at 10). The M & R advised the
parties of their right to object as well as the effect of failure to file a timely objection. (Id. at 10).
Neither party filed an objection within the time allotted.
The Federal Magistrates Act requires a district court to “make a de novo determination of
those portions of the magistrate judge’s report or specified proposed findings or recommendations
to which objection is made.” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)) (emphases and brackets omitted). However, “in
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.” Id. (internal quotation marks omitted). After a careful review of the record,
including the briefs of the parties and the M & R, the Court has not found clear error. Accordingly,
the Court hereby accepts the M & R and adopts it as the final decision of this Court for all purposes
relating to this case.
IT IS, THEREFORE, ORDERED THAT
(1) The Memorandum and Report of the Magistrate Judge (Doc. 13) is ADOPTED;
(2) Plaintiff’s Motion for Summary Judgment (Doc. 9) is DENIED1;
(3) Defendant’s Motion for Summary Judgment (Doc. 11) is DENIED;
(4) The Commissioner’s decision is VACATED; and
(5) This matter is REMANDED under Sentence Four of 42 U.S.C. § 405(g) for further
proceedings consistent with this Order and with the Magistrate Judge’s Memorandum
and Recommendation (Doc. 13).
Signed: June 16, 2017
Although this Court’s order grants Plaintiff favorable relief in the form of a remand for further administrative
proceedings, the M & R recommended that Plaintiff’s Motion for Summary Judgment, which seeks judgment as a
matter of law generally, be denied. (Doc. 13 at 10). Plaintiff has not objected to that recommendation.
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