Powell v. Commissioner of the Social Security Administration

Filing 32

OPINION AND ORDER: The court adopts the 26 Report and Recommendation. The decision of the Commissioner to deny benefits is reversed and the action is remanded under sentence four of 42 U.S.C. § 405(g) for further administrative action. Signed by Honorable Mary G Lewis on 1/8/2014. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
James Preston Powell, Jr.,

)
)
Plaintiff, )
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v.
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)
1
Carolyn W. Colvin,
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Acting Commissioner of Social Security, )
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Defendant. )
______________________________ )

Civil Action No.: 4:12-2085-MGL

OPINION AND ORDER

This matter is before the court for review of the Report and Recommendation of
United States Magistrate Judge Thomas E. Rogers, III, made in accordance with 28 U.S.C.
636(b)(1)(B) and Local Civil Rule 73.02 for the District of South Carolina. PlaintiffJames
Preston Powell, Jr., (“Plaintiff”) brought this action seeking judicial review of the final
decision of the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s claim
for Disability Insurance Benefits (“DIB”).
On December 17, 2013, the Magistrate Judge issued a Report and
Recommendation in which he concluded that while the Commissioner's decision may have
been supported by substantial evidence, it is not clear on the record presented. (ECF No.
26.)

Accordingly, the Magistrate Judge recommended that the case be reversed and

remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further
administrative proceedings. (ECF No. 26 at 12.) Plaintiff filed no objections to the Report
and Recommendation. On January 3, 2014, the Commissioner filed “Defendant’s Notice

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 Defendant in this lawsuit.

of Not Filing Objections to the Report and Recommendation of Magistrate Judge.” (ECF
No. 29.)
The Magistrate Judge makes only a recommendation to this court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court
is charged with making a de novo determination of those portions of the Report to which
specific objection is made, and the court may accept, reject, or modify, in whole or in part,
the recommendation of the Magistrate Judge, or recommit the matter to him with
instructions. 28 U.S.C. § 636(b)(1). 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).
The court has carefully reviewed the record and concurs in the recommendation of
the Magistrate Judge. The court adopts the Report and Recommendation and incorporates
it herein by reference. The decision of the Commissioner to deny benefits is reversed and
the action is remanded under sentence four of 42 U.S.C. § 405(g) for further administrative
action consistent with this order and the Report and Recommendation.
IT IS SO ORDERED.
/s/ Mary G. Lewis
United States District Judge
January 8, 2014
Spartanburg, South Carolina