Harvey v. Commissioner of Social Security Administration

Filing 22

ORDER accepting the 18 Report and Recommendation, reversing the Commissioner's decision, and remanding the case for further administrative action in accordance with 42 U.S.C. § 405(g). Signed by Honorable J. Michelle Childs on 3/15/2019. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Nancy Harvey,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.

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Civil Action No.: 0:18-cv-00048-JMC
ORDER

This matter is before the court for review of the Magistrate Judge’s Report and
Recommendation (“Report”) filed on February 25, 2019 (ECF No. 18). The Report addresses
Plaintiff Nancy Harvey’s (“Plaintiff”) claims for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). (ECF No. 18 at 1.) The Magistrate Judge’s Report
recommends that the court reverse the decision of the Commissioner of Social Security
Administration (“the Commissioner”) and remand Plaintiff’s claim for further administrative
proceedings. (ECF No. 18 at 11.) For the reasons stated herein, the court ACCEPTS the Report
(ECF No. 18) and incorporates it herein, REVERSES the decision of the Commissioner, and
REMANDS Plaintiff’s claim for additional administrative action.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Report sets forth the relevant facts and legal standards, which this court incorporates
herein without a full recitation. (ECF No. 18.) As brief background, an administrative law judge
(“ALJ”) determined that Plaintiff was not disabled for purposes of the Social Security Act (“the
Act”) on January 13, 2017, and denied Plaintiff’s claims for DIB and SSI. (ECF No. 9-2 at 32.)
Although the ALJ found that Plaintiff “is unable to perform past relevant work,” the ALJ ultimately

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concluded that Plaintiff “is capable of making a successful adjustment to other work that exists in
significant numbers in the national economy.” (Id. at 30–31.) After submitting new opinion
evidence from Dr. Rosenberg to the Appeals Council (“the Council”), Plaintiff requested the
Council to review the ALJ’s decision and was denied that request on November 20, 2017. (ECF
No. 9-2 at 2.) Thus, the ALJ’s decision became the final decision of the Commissioner. (Id.) See
also Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011) (stating that an ALJ’s decision was the
final decision of the Commissioner when the Council denied a request for review); Higginbotham
v. Barnhart, 405 F.3d 332, 336 (5th Cir. 2005) (holding that the Commissioner’s “final decision”
includes when the Council denies a request for review). Plaintiff filed the instant action on January
5, 2018. (ECF No. 1.)
In the Report, the Magistrate Judge found that the Council “erred in finding that the new
opinion evidence signed by Dr. Rosenberg did not relate to the period on or before the date of the
ALJ’s decision.” (ECF No. 18 at 8.) Additionally, the Magistrate Judge reasoned that Dr.
Rosenberg’s opinion was not “cumulative or duplicative . . . .” (Id. at 9.) Moreover, the Magistrate
Judge concluded that the evidence was “material” because it could have “likely” impacted the
ALJ’s analysis of Plaintiff’s case. (Id. at 10.) On this basis, the Report recommended that the court
reverse the decision of the Commissioner and remand the case for further administrative
proceedings. (Id. at 12.)
II. LEGAL STANDARD
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no presumptive weight. See Mathews
v. Weber, 423 U.S. 261, 270–71 (1976). The responsibility to make a final determination remains

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with the court. Id. at 271. As such, the court is charged with making de novo determinations of
those portions of the Report to which specific objections are made. See 28 U.S.C. § 636(b)(1). See
also FED. R. CIV. P. 72(b)(3). In the absence of specific objections to the Magistrate Judge’s
Report, the court is not required to give any explanation for adopting the Report. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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.” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (emphasis added) (quoting FED.
R. CIV. P. 72 advisory committee’s note). Furthermore, a failure to file specific, written objections
to the Report results in a party’s waiver of the right to appeal from the judgment of the court based
upon such recommendation. 28 U.S.C. § 636(b)(1). Thus, the court may accept, reject, or modify,
in whole or in part, the Magistrate Judge’s recommendation or recommit the matter with
instructions. 28 U.S.C. § 636(b)(1).
III. DISCUSSION
The parties were apprised of their opportunity to file specific objections to the Report on
February 25, 2019. (ECF No. 18.) Objections to the Report were due by March 12, 2019. (Id.) On
March 11, 2019, the Commissioner notified the court that she would not object to the Magistrate
Judge’s Report. (ECF No. 19 at 1.) To date, Plaintiff has not filed any objection to the Report.
Since no specific objections were filed by either party and the Report does not contain clear error
on its face, the court adopts the Report herein. See Camby, 718 F.2d at 199; Diamond, 416 F.3d at
315.
IV. CONCLUSION
After a thorough review of the Report and the record in this case, the court ACCEPTS the

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Magistrate Judge’s Report and Recommendation (ECF No. 18) and incorporates it herein. The
Commissioner’s decision is therefore REVERSED and REMANDED for further administrative
action in accordance with 42 U.S.C. § 405(g).
IT IS SO ORDERED.

United States District Judge

March 15, 2019
Columbia, South Carolina

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