Barrett v. Commissioner of Social Security

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS AND REMANDING CASE TO COMMISSIONER [DKT. NO. 14 : grants in part and denying as moot 9 Motion for Summary Judgment; denying 11 Motion for Summary Judgment, VACATES the decision of the Commissioner under sentence four of 42 U.S.C. § 405(g); and REMANDS this case to the Commissioner for further proceedings consistent with this decision. Signed by Senior Judge Irene M. Keeley on 3/5/18. (njz)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KEVIN DWAYNE BARRETT,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:17CV30
(Judge Keeley)

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION
AND REMANDING CASE TO COMMISSIONER [DKT. NO. 14]
On February 27, 2017, the plaintiff, Kevin Dwayne Barrett
(“Barrett”), filed a complaint against the defendant, the Acting
Commissioner of Social Security (“Commissioner”) (Dkt. No. 1),
seeking review of the Commissioner’s final decision denying his
application

for

Disability

Insurance

Benefits

(“DIB”)

and

Supplemental Security Income (“SSI”). Id. at 1. According to
Barrett, the Commissioner’s decision was “neither supported by
substantial evidence nor based upon a correct application of the
law.” Id. at 2. The Commissioner answered the complaint and filed
the administrative record on May 8, 2017 (Dkt. Nos. 6, 7).
Pursuant to 28 U.S.C. § 636 and the local rules, the matter
was referred to the Honorable Michael J. Aloi, United States
Magistrate Judge for initial review.

BARRETT V. BERRYHILL

1:17CV30

ORDER ADOPTING REPORT AND RECOMMENDATION
AND REMANDING CASE TO COMMISSIONER [DKT. NO. 14]
In his Report and Recommendation (“R&R”) dated January 22,
2018, Magistrate Judge Aloi recommended that the Court grant
Barrett’s motion for summary judgment, deny the Commissioner’s
motion for summary judgment, vacate the Commissioner’s decision,
and remand the case for further proceedings (Dkt. No. 14). Upon
careful consideration of the record, Magistrate Judge Aloi was
unable to determine whether substantial evidence supported the
denial of benefits by the Adminstrative Law Judge (“ALJ”). Id. at
37.
More specifically, Magistrate Judge Aloi recommended remand
because information Barrett submitted to the Appeals Council, that
is the opinion of his treating physician, was not part of the
record before the ALJ.

That information was relevant because it

addressed an evidentiary gap identified in the ALJ’s decision.
Id. at 36-37 (citing Meyer v. Astrue, 662 F.3d 700 (4th Cir.
2011)). Magistrate Judge Aloi concluded that, “as in Meyer, ‘no
fact finder has made any findings as to the treating physician’s
opinion

or

attempted

to

reconcile

that

evidence

with

the

conflicting and supporting evidence in the record’” and, therefore,
recommended that the case be remanded for further fact finding. Id.
at 37 (quoting Meyer, 662 F.3d at 707).

2

BARRETT V. BERRYHILL

1:17CV30

ORDER ADOPTING REPORT AND RECOMMENDATION
AND REMANDING CASE TO COMMISSIONER [DKT. NO. 14]
The R&R also informed the parties of their right to file any
objections and further warned that failure to do so would result in
waiver of the right to appeal. Id. Despite receipt of the R&R,
neither party filed timely objections to the recommendation.
“The Court will review de novo any portions of the magistrate
judge’s Report and Recommendation to which a specific objection is
made...and the Court may adopt, without explanation, any of the
magistrate judge’s recommendations to which the prisoner does not
object.” Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04
(N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983)). Failure to file specific objections waives appellate
review of both factual and legal questions. See United States v.
Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984); see also Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991).
Having received no objections to the R&R, the Court has no
duty to conduct a de novo review of Magistrate Judge Aloi’s
findings. Furthermore, following a review of the R&R and the record
for clear error, the Court:
1)

ADOPTS the R&R (Dkt. No. 14);

3

BARRETT V. BERRYHILL

1:17CV30

ORDER ADOPTING REPORT AND RECOMMENDATION
AND REMANDING CASE TO COMMISSIONER [DKT. NO. 14]
2)

GRANTS in PART Barrett’s Motion for Summary Judgment to
the extent it requests remand for further proceedings and
DENIES as MOOT his additional arguments (Dkt. No. 9);

3)

DENIES the Commissioner’s Motion for Summary Judgment
(Dkt. No. 11);

4)

VACATES the decision of the Commissioner under sentence
four of 42 U.S.C. § 405(g); and

5)

REMANDS

this

case

to

the

Commissioner

for

further

proceedings consistent with this decision.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of both orders
to counsel of record.
Dated: March 5, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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