Sheppard v. Commissioner of the Social Security Administration

Filing 14

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts the Report and Recommendation of the Magistrate Judge and dismisses the Complaint without prejudice and without issuance and service of process so that Plaintiff may pursue administrative remedies. Signed by Honorable Cameron McGowan Currie on 3/29/2017. (gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Anthony Wayne Sheppard,

Civil Action No. 4:17-cv-724-CMC

Plaintiff,
vs.

OPINION AND ORDER

Nancy A. Berryhill,
Acting Commissioner of Social Security
Administration,
Defendant.
Through this action, Plaintiff seeks judicial review of the decision of the Administrative
Law Judge (“ALJ”) denying Plaintiff’s application for disability insurance benefits and
supplemental security income. ECF No. 1. The matter is currently before the court for review of
the Report and Recommendation (“Report”) of Magistrate Judge Thomas E. Rogers, III, made in
accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rules 73.02(b)(2)(a) and 83.VII.02, et seq.,
D.S.C.
The Report, filed March 17, 2017, recommends Plaintiff’s Complaint be dismissed without
prejudice and without issuance and service of process to allow Plaintiff to pursue administrative
remedies by filing a request for appeal with the Appeals Council. ECF No. 10. On March 28,
2017, Plaintiff filed objections to the Report. ECF No. 12.
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 the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The court
reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
The Magistrate Judge recommends dismissal of the Complaint because Plaintiff has failed
to demonstrate he has sought Appeals Council Review of the ALJ’s decision. Plaintiff objects to
the Report, noting he has sent appeals to the District Court, the U.S. Appeals Court, the U.S.
Supreme Court, and the Appeals Council. If Plaintiff has timely filed an appeal with the Social
Security Appeals Council, through the process laid out in the letter accompanying the ALJ’s denial
of his application, then Plaintiff has initiated the proper administrative review of the ALJ’s
decision.1 The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. A federal district court does not have jurisdiction to review a decision
by the Commissioner until it is a final decision, and if it is under review by the Appeals Council,
it is not yet final.2 If the Appeals Council issues an unfavorable decision, Plaintiff may re-file his
Complaint in the District Court.

1

If Plaintiff has not yet filed an appeal with the Appeals Council through the process laid out in
the letter, that is the proper channel for administrative review of an ALJ’s decision.
2

As the cover letter of the denial states, without Appeals Council review, there is no right to
Federal Court review.
2

Conclusion
For the reasons set forth above, the court adopts the Report and Recommendation of the
Magistrate Judge and dismisses the Complaint without prejudice and without issuance and service
of process so that Plaintiff may pursue administrative remedies.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
March 29, 2017

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