Locker v. Berryhill

Filing 19

OPINION AND ORDER granting 13 Plaintiff's Motion for Summary Judgment; denying 15 Defendant's Motion for Summary Judgment; adopting 18 Magistrate Judge's Report and Recommendations. The Acting Commissioner's final decision is VACATED and REMANDED. The parties are advised that they may appeal from this Opinion and Final Order by forwarding a written notice of appeal to the Clerk of the United States District Court. Said written notice must be received by the Clerk within sixty (60) days from the date of this Order. Signed by District Judge Henry C. Morgan, Jr on 8/30/18 and filed on 9/5/18. (tbro)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA
Norfolk Division

DIANE LOCKER,

Plaintiff,
V.

Civil Action No.: 2:17cv342

NANCY A.BERRYHILL,
ACTING COMMISSIONER

OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER

Plaintiff Diane Locker ("Plaintiff or "Locker") brought this action under 42 U.S.C. §
405(g) seeking judicial review of the final decision of the Acting Commissioner of the Social
Security Administration ("Acting Commissioner") denying her claim for Disability Insurance

Benefits("DIB") pursuant to Title II of the Social Security Act, Pursuant to the provisions of28
U.S.C. §§ 636(b)(1)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, Rule 72 of
the Rules of the United States District Court for the Eastern District of Virginia, and by order of
reference dated September 27, 2017, this matter was referred to a United States Magistrate Judge
for a Report and Recommendation. Doc. 10.

The Report and Recommendation of the Magistrate Judge ("R&R"), filed on July 6,

2018, finds that the Administrative Law Judge ("ALJ") erred by failing to fully develop the
record prior to determining that Plaintiff was not under a disability.

Doc. 18 at 14-17.

Accordingly, the Magistrate Judge recommends that Plaintiffs Motion for Summary Judgment,
Doc. 13, be GRANTED to the extent it seeks reversal and remand of the Commissioner's

decision, that the Acting Commissioner's Motion for Summary Judgment, Doc. 15, be DENIED,
and that the final decision ofthe Acting Commissioner be VACATED and REMANDED.
By copy of the R&R,each party was advised of the right to file written objections to the

findings and recommendations made by the Magistrate Judge within fourteen (14) days fi*om the
date the R&R was sent,^ 28 U.S.C. §636(b) and Federal Rule of Civil procedure 72(b),
computed pursuant to Federal Rule of Civil Procedure 6(a). Doc. 18 at 20. The parties were also

given an additional three (3) days, pursuant to Rule 6(d) of the Federal Rules of Civil Procedure.

The time for filing written objections has now passed, and neither party has filed objections. As

indicated in the R&R,failure to file timely objections to the findings and recommendations set
forth in the R&R "will result in waiver of right to appeal from a judgment of this Court based on
such findings and recommendations." Id

This Court has reviewed the R&R of the Magistrate Judge and hereby adopts and

approves in full the findings and recommendations set forth therein. Accordingly, it is hereby
ORDERED that Plaintiffs Motion for Summary Judgment, Doc. 13, is GRANTED to the
extent it seeks reversal and remand of the Commissioner's decision, that the Acting

Commissioner's Motion for Summary Judgment, Doc. 15, is DENIED, and that the Acting
Commissioner's final decision is VACATED and REMANDED.

The parties are advised that they may appeal from this Opinion and Final Order by
forwarding a written notice of appeal to the Clerk of the United States District Court, United
States Courthouse, 600 Granby Street, Norfolk, Virginia 23510. Said written notice must be
received by the Clerk within sixty(60)days from the date ofthis Order.

The Clerk is REQUESTED to send a copy of this Opinion and Order to all counsel of
record.
It is so ORDERED.

/s/

Henry Coke Morgan, Jr.

Senior United States District Judge
HENRY COKE MORGAN,JR.
SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, Virmia

August 3 K 2018

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