Rumph v. Commissioner Social Security Administration

Filing 50

ORDER AND OPINION adopting 23 Report and Recommendation. Defendant John Lee is DISMISSED from this action without prejudice and without service of process. Signed by Honorable J Michelle Childs on 1/11/2017.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Stephanie Rumph,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Commissioner of the )
Social Security Administration; John Lee, )
)
Defendants.
)
____________________________________)

Civil Action No. 8:14-cv-02122-JMC

ORDER AND OPINION

Plaintiff Stephanie Rumph (“Plaintiff”) filed this pro se action seeking a judicial review of
the final decision by the Commissioner of Social Security (“Commissioner”) pursuant to 42 U.S.C.
§ 405(g). (ECF No. 1.) The matter is before the court for review of the Magistrate Judge’s Report
and Recommendation, filed on July 14, 2014, recommending that this court dismiss from the action
Defendant John Lee, a Social Security Administration employee, without prejudice and without
service of process, on the ground that suits against such employees to recover on a claim related
to a denial of benefits are not permitted. (ECF No. 23 (citing Cunningham v. Soc. Sec. Admin., 311
F. App’x 90 (10th Cir. 2009); Guess v. Motycka, No. 3:12-1092-CMC-PJG, 2012 WL 4586918,
at *3 (D.S.C. Aug. 24, 2012), adopted by 2012 WL 4511265 (D.S.C. Oct. 2, 2012)).) For the
reasons set forth below, the court ACCEPTS the Report and Recommendation (ECF No. 23), and
DISMISSES Lee from this action.
The Magistrate Judge’s Report and Recommendation 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
makes only a recommendation to this court, which has no presumptive weight. Thus, the
responsibility to make a final determination remains with this court. See Mathews v. Weber, 423

1

U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those
portions of the Report to which specific objections are made and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge’s recommendation or recommit the matter with
instructions. See 28 U.S.C. § 636(b)(1).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. Section 405(g) of the Act provides, “the findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable times
as more than a scintilla, but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543
(4th Cir. 1964). This standard precludes a de novo review of the factual circumstances that
substitutes the court's findings for those of the Commissioner. See Vitek v. Finch, 438 F.2d 1157
(4th Cir. 1971). The court must uphold the Commissioner's decision as long as it is supported by
substantial evidence. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “From this it
does not follow, however, that the findings of the administrative agency are to be mechanically
accepted. The statutorily granted right of review contemplates more than an uncritical rubber
stamping of the administrative agency.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “[T]he
courts must not abdicate their responsibility to give careful scrutiny to the whole record to assure
that there is a sound foundation for the [Commissioner's] findings, and that this conclusion is
rational.” Vitek, 438 F.2d at 1157-58.
Plaintiff was advised of her right to file specific written objections to the Report and
Recommendation within 14 days of the date of service. (ECF No. 23 at 4 (citing 28 U.S.C. §

2

636(b)(1); Fed. R. Civ. P. 72(b)).) Plaintiff filed an untimely objection on August 8, 2014, 1 which
the court reviews for clear error. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005).
After a thorough review of the record, the court finds the Report and Recommendation
provides an accurate summary of the facts and law and does not contain any clear error. 2 Therefore,
the court ACCEPTS the Report and Recommendation (ECF No. 23), and Defendant John Lee is
DISMISSED from this action without prejudice and without service of process.
IT IS SO ORDERED.

United States District Court Judge
January 11, 2017
Columbia, South Carolina

1

The Report and Recommendation was served on Plaintiff when the clerk’s office placed it in the
mail on July 15, 2014. (See ECF No. 27); Fed. R. Civ. P. 5(b)(2)(C) (“A paper is served under this
rule by . . . mailing it to the person’s last known address—in which event service is complete upon
mailing . . . .”). Thus, Plaintiff’s objections were due on or before August 1, 2014. See Fed. R. Civ.
P. 6(a) (providing applicable rules for computing time period); Fed. R. Civ. P. 6(d) (providing
three additional days to period “[w]hen a party may or must act within a specified time after being
served and service is made under Rule 5(b)(2)(C)” by mail). Although in her objection, Plaintiff
appears to state that she mailed the objection on July 28, 2014 (see ECF No. 31 at 1), the clerk’s
office stamped the objection as received on August 8, 2014 (see id.; ECF No. 31-2). Because
Plaintiff is not a prisoner, she is not afforded the benefit of the mailbox rule under Houston v. Lack,
487 U.S. 266, 276 (1988), and her objection is deemed filed on the date the clerk’s office received
it. See Torras Herreria y Construcciones, S.A. v. M/V Timur Star, 803 F.2d 215, 216 (6th Cir.
1986); Wise v. Ozmint, No. 6:13-cv-3414-RMG, 2015 WL 3902192, at *3 (D.S.C. June 24, 2015);
Gerald v. Lee, No. 4:12-cv-02516-RBH, 2012 WL 6727357, at *1 (D.S.C. Dec. 28, 2012).
Accordingly, the court finds that Plaintiff filed her objection after the period for doing so expired.
2

The court notes that, in her objection, Plaintiff concedes that the Magistrate Judge correctly
determined that Lee should be dismissed. (See ECF No. 31 at 1.)
3