Leavel v. Astrue

Filing 27

ORDER denying 14 Motion for Summary Judgment; granting 19 Motion for Summary Judgment; adopting 23 Report and Recommendations. Signed by District Judge Michael F. Urbanski on 2/7/2014. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
WALTER J. LEAVEL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

)
)
) Civil Action No. 5:12cv073
)
)
) By: Michael F. Urbanski
)
United States District Judge
)
)
ORDER

This matter was referred to the Honorable Robert S. Ballou, United States Magistrate
Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), for the proposed findings of fact and a
recommended disposition. The magistrate judge filed a report and recommendation on January
13, 2014, recommending that plaintiff’s motion for summary judgment be denied, the
Commissioner’s motion for summary judgment be granted and the Commissioner’s final
decision be affirmed. Plaintiff has filed objections to the report and recommendation.
The court has reviewed the magistrate judge’s report, the objections to the report, and the
pertinent portions of the administrative record, and, in so doing, made a de novo determination of
those portions of the report to which the plaintiff objected. The court finds that the magistrate
judge was correct in concluding that there is substantial evidence in the record to support the
ALJ’s determination that plaintiff was capable of sedentary work and that he is not disabled.
Plaintiff objects on the basis that the magistrate judge erred in concluding that evidence
presented to the Appeals Council was neither new nor material, and that the case should be
remanded to the Commissioner for consideration of that evidence. In particular, plaintiff focuses
on the treatment records and opinions of Dr. Michael Brookings. In the report and

recommendation, the magistrate judge carefully and thoroughly reviewed the evidence submitted
to the Appeals Council, including that of Drs. Brookings and Nelly Maybee, and concluded that
this evidence was neither new nor material. The court has considered this objection and agrees
with the magistrate judge’s assessment of the evidence submitted to the Appeals Council. As
such, the court overrules the objections to the report and recommendation. Accordingly, the
court accepts the magistrate judge’s recommendation that the Commissioner’s decision should
be affirmed.
It is therefore ORDERED and ADJUDGED that plaintiff’s motion for summary
judgment (Docket # 14) is DENIED, that the Commissioner’s motion for summary judgment
(Docket # 19) is GRANTED, plaintiff’s objections to the report and recommendation (Docket
# 25), are OVERRULED, the Commissioner’s decision is AFFIRMED, and that this matter is
STRICKEN from the active docket of the court.
The Clerk is directed to send a certified copy of this Order to all counsel of record.
Entered: February 7, 2014

/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge

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