Walck v. Colvin
ORDER ADOPTING REPORT 14 of Magistrate Judge Cohn, AFFIRMING decision of Commissioner denying app for period of disability & disability ins benefits to Walck, directing Clrk of Ct to enter jdgmt in favor of Commissioner & against Walck per Para 2, & directing Clrk of Ct to CLOSE case. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 8/8/17. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DIANNE M. WALCK,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
CIVIL ACTION NO. 1:15-CV-1265
(Chief Judge Conner)
AND NOW, this 8th day of August, 2017, upon consideration of the report
(Doc. 14) of Magistrate Judge Gerald B. Cohn, recommending that the court deny
the appeal of Dianne M. Walck (“Walck”) from the decision of the administrative law
judge denying Walck’s application for a period of disability and disability insurance
benefits, and the court noting that Walck filed objections (Doc. 15) to the report, and
the Commissioner of Social Security (“Commissioner”) filed a response (Doc. 16)
thereto, and, following a de novo review of the contested portions of the report,
see Behar v. Pa. Dep’t of Transp., 791 F. Supp. 2d 383, 389 (M.D. Pa. 2011) (citing
Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(C)),
and applying a clear error standard of review to the uncontested portions, see Cruz
Carolyn W. Colvin (“Colvin”) was Acting Commissioner of Social Security
when the instant action was filed against her in her official capacity. On January
23, 2017, Nancy A. Berryhill succeeded Colvin as Acting Commissioner. Pursuant
to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted as the
defendant in this action. See FED. R. CIV. P. 25(d).
v. Chater, 990 F. Supp. 375, 376-78 (M.D. Pa. 1999), the court being in agreement
with Judge Cohn that the decision of the administrative law judge is “supported by
substantial evidence,” 42 U.S.C. § 405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d
Cir. 2001), and finding Judge Cohn’s analysis to be thorough, well-reasoned, and
fully supported by the record, and further finding Walck’s objections to be without
merit and squarely addressed by the report,2 it is hereby ORDERED that:
The report (Doc. 14) of Magistrate Judge Cohn is ADOPTED.
The decision of the Commissioner of Social Security (“Commissioner”)
denying the application for a period of disability and disability
insurance benefits of Dianne M. Walck (“Walck”) is AFFIRMED.
The Clerk of Court shall enter judgment in favor of the Commissioner
and against Walck as set forth in paragraph 2.
The Clerk of Court is directed to CLOSE this case.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Walck raises a new argument based upon the Third Circuit’s decision in
Doak v. Heckler, 790 F.2d 26 (3d Cir. 1986), for the first time in her objections. (See
Doc. 15 at 3-7). This argument was available to Walck at the time she filed this case
and submitted her opening brief. We accordingly consider Walck’s new argument
to be waived for failure to raise it before the magistrate judge in the first instance.
See Jimenez v. Barnhart, 46 F. App’x 684, 685 (3d Cir. 2002) (citing Laborers’ Int’l
Union of N.A. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)); see also Kelly
v. Wells Fargo Bank N.A., No. 1:13-CV-2298, 2015 WL 1333264, at *9 (M.D. Pa. Mar.
25, 2015) (Conner, C.J.) (collecting cases).
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