Ferdinand v. Astrue

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; granting 9 Motion for Summary Judgment; granting 10 Motion to Remand; denying 12 Motion for Summary Judgment; adopting Report and Recommendations re 18 Report and Recommendations. Signed by District Judge Henry C. Morgan, Jr., and filed on 3/29/2013. (bnew)

FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA

MAR 2 9 2013

Newport News Division
CLEHK, U S. (USlRiCr COURT
NOv:H.>L* VA

VINCENTE FERDINAND,

Plaintiff,
Civil Action No.: 4:12cv80

MICHAEL J. ASTRUE

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER

Plaintiff Vincente Ferdinand ("Plaintiff or "Ferdinand") brought this action under 42 U.S.C.

§ 405(g) and 42 U.S.C. § 1383(c)(3) seeking judicial review of the final decision of the
Commissioner of Social Security ("Commissioner") denying his claim for Supplemental Security
Income underthe Social Security Act. Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B) and
(C), Rule 72(b)of the Federal Rules of Civil Procedure, Rule 72 of the Rulesof the United States
District Court for the Eastern District of Virginia, and by order dated August 16,2012, this matter
was referred to a United States Magistrate Judge for a Report and Recommendation. Doc. 7.

The Report and Recommendation of the Magistrate Judge ("R&R"), filed on February 28,
2013, finds that a recent decision by the Fourth Circuit mandates remand to permit the

Administrative Law Judge ("ALJ") to re-evaluate both Ferdinand's Veteran Affairs ("VA")disability
rating and the post-hearing evidence submitted to the Appeals Council. Doc. 18. Accordingly, the
Magistrate Judge recommends the following: 1) that the final decision of the Commissioner be
vacated and remanded for further proceedings consistent with the R&R; 2) that Defendant's

Motionfor Summary Judgment be denied; 3) that Plaintiffs Motion for Summary Judgment be
denied; and 4) that Plaintiffs Motion for Remand be granted. Id. at 20.

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 from the date

the R&R was mailed, pursuant to Rule 6(a) of the Federal Rules of Civil Procedure. 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 a waiver of the right to appeal from a judgment
of this Court based on such findings and recommendations." Id. at 21.

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
the final decision of the Commissioner be VACATED and REMANDED for further

proceedings consistentwith the R&R, that Plaintiffs Motion for Remand be GRANTED, that
Plaintiffs Motion for Summary Judgment be DENIED, and that Defendant's Motion for
Summary Judgment be DENIED.

Plaintiff is advised that he 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 of this Order. If Plaintiff wishes to proceed in
forma pauperis on appeal, the application to proceed in forma pauperis is to be submitted to the
Clerk, United States Court of Appeals, Fourth Circuit, 1100 E. Main Street, Richmond, Virginia
23219.

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

It is so ORDERED.

fsf
Henry Coke Morgan, Jr.
Senior United States District Jud
HENRY COKE MORGAN, JR.

ii

SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, Virginia
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March %7 \ 2013