Ebbert v. Commissioner of Social Security

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION. Court ADOPTS the R&R Dkt. No. 23 ; DENIES Ebberts Motion for Summary Judgment Dkt. No. 18 ; GRANTS the Commissioners Motion for Summary Judgment Dkt. No. 21 ; and DISMISSES this civil action WITH PREJUDICE. Court DIRECTS the Clerk ofCourt to enter a separate judgment order. Signed by Senior Judge Irene M. Keeley on 11/9/2018. (copy counsel of record)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
COREY MATTHEW EBBERT,
Plaintiff,
v.

CIVIL ACTION NO. 1:17CV193
(Judge Keeley)

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 23], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 18], AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 21]
On November 7, 2017, the plaintiff, Corey Matthew Ebbert
(“Ebbert”), 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
applications

for

Disability

Insurance

Benefits

(“DIB”)

and

Supplemental Security Income (“SSI”) due to: 1) “moderate cervical
curvature

(leftward)

dystonia/positionalcervical

curvature

vs.

torticollis; 2) left shoulder instability (prior brachial plexus
injury); and 3) headaches, obesity, anxiety disorder and major
depressive
According

disorder
to

Ebbert,

without
the

psychotic

Commissioner’s

features.”
decision

Id.

at

denying

2.
her

benefits “is not supported by substantial evidence.” Id. at 3. The
Commissioner answered the complaint and filed the administrative
record on February 5, 2018 (Dkt. Nos. 12, 13).

EBBERT V. BERRYHILL

1:17CV193

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 23], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 18], AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 21]
Pursuant to 28 U.S.C. § 636 and the local rules, the matter
was referred to the Honorable Robert W. Trumble, United States
Magistrate Judge for initial review. In a Report and Recommendation
(“R&R”)

dated

recommended

September

that

the

28,

Court

2018,

deny

Magistrate

Ebbert’s

Judge

motion

for

Trumble
summary

judgment and grant the Commissioner’s motion for summary judgment
(Dkt. No. 23). Following a careful review of the record, he
concluded that the Administrative Law Judge’s decision to deny
benefits was supported by substantial evidence. Id.
The R&R informed the parties of their right to file “written
objections

identifying

the

portions

of

the

Report

and

Recommendations to which objection is made, and the basis for such
objection.” Id. at 21. It 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 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
2

EBBERT V. BERRYHILL

1:17CV193

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 23], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 18], AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 21]
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 Trumble’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. 23);

2)

DENIES Ebbert’s Motion for Summary Judgment (Dkt. No.
18);

3)

GRANTS the Commissioner’s Motion for Summary Judgment
(Dkt. No. 21); and

4)

DISMISSES this civil action WITH PREJUDICE and DIRECTS
that it be stricken from the Court’s active docket.

It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court DIRECTS the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record.
Dated: November 9, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

3