Kershner v. Kijakazi

Filing 15

ORDER ADOPTING in its entirety 14 REPORT AND RECOMMENDATION; granting in part 11 Plaintiff's Brief/Motion for Summary Judgment; denying 12 Defendant's Motion for Summary Judgment; The case is REMANDED to the Commissioner for further development and consideration. Signed by Senior Judge Norman K. Moon on 9/24/2021. (al)

9/24/2021

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION
KEVIN K., 1
CASE NO. 6:20-cv-00028

Plaintiff,

ORDER

v.
KILOLO KIJAKAZI, 2 Acting
Commissioner, Social Security
Administration,

JUDGE NORMAN K. MOON
Defendant.

Plaintiff Kevin K. has filed this action challenging the Commissioner of Social Security’s
final decision denying his supplemental social security income (“SSI”) benefits under the Social
Security Act. 42 U.S.C. §§ 1381, et seq.
Pursuant to Standing Order 2011-17 and 28 U.S.C. § 636(b)(1)(B), the Court referred this
matter to U.S. Magistrate Judge Robert S. Ballou for proposed findings of fact and a
recommended disposition. The parties filed cross motions for summary judgment, Dkts. 11, 12,
and the magistrate judge issued a Report & Recommendation (“R&R”), which recommended
that this Court grant in part Kevin’s motion for summary judgment, deny the Commissioner’s
motion for summary judgment, and remand for further administrative consideration under
sentence four of 42 U.S.C. § 405(g). Dkt. 14. Though advised of the right to object to the
1

The Court adopts the recommendation of the Committee on Court Administration and
Case Management of the Judicial Conference of the United States that courts only use the first
name and last initial of the claimant in social security opinions.
2

Kilolo Kiiakazi became the Acting Commissioner of the Social Security Administration
on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi
should be substituted, therefore, for Andrew Saul as the defendant in this suit.
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proposed findings and recommendations of the R&R within fourteen days, and that failure to
timely file objections may result in waiver of review of the R&R, id. at 11, no party has filed
objections within the fourteen-day period.
The Court reviews de novo every portion of an R&R to which objections have been filed.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). But where, as here, no objections to an R&R are
filed, the Court reviews only for clear error. Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005); Fed. R. Civ. P. 72 advisory committee’s note. The Court need not
provide any explanation for adopting the R&R. Camby v. Davis, 718 F.2d 198, 199–200 (4th
Cir. 1983) (“Absent objection, we do not believe that any explanation need be given for
adopting the report.”).
No objections to the R&R have been filed, and the Court can discern no clear error
therein. Indeed, as the R&R demonstrates, the magistrate judge carefully scrutinized the record
in concluding that the ALJ’s decision was not supported by substantial evidence, as the ALJ had
failed to properly account for Kevin’s moderate impairment with concentration, persistence or
pace. Accordingly, the Court ORDERS that:
1. The R&R is ADOPTED in its entirety, Dkt. 14;
2. The Plaintiff’s motion for summary judgment is GRANTED in part, Dkt. 11;
3. The Commissioner’s motion for summary judgment is DENIED, Dkt. 12;
4. The case is REMANDED to the Commissioner for further development and
consideration.
The Clerk of Court is directed to send this Order to all counsel of record.
24th
ENTERED this ______ day of September, 2021.

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