Barnes v. Commissioner of Social Security

Filing 24

ORDER adopting the 23 Report and Recommendations. Order denying plaintiff's 16 Motion for Summary Judgment and denying defendant's 20 Motion for Summary Judgment. The Commissioner's decision is reversed and remanded to the Comm issioner of Social Security pursuant to the fourth circuit. ORDERED that the Clerk shall enter Judgment reversing the decision of the defendant and remanding the cause for a rehearing and shall thereafter dismiss this action. Signed by Senior Judge Robert E. Maxwell on 6/7/10. (jss)

IN THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF WEST VIRGINIA

L AU R A BARNES, Plaintiff, vs . Civil Action No. 2:09 CV 51 ( M a x w e ll)

M IC H AE L J. ASTRUE, C O M M IS S IO N E R OF SOCIAL SECURITY, D e fe n d a n t.

ORDER

It will be recalled that the above-styled social security appeal was instituted on April 1 7 , 2009, with the filing of a Complaint by Plaintiff Laura Barnes. It will further be recalled that the case was referred to United States Magistrate Judge James E. Seibert in accordance with Rule 83.12 of the Local Rules of General P ractic e and Procedure. On April 2, 2010, Magistrate Judge Seibert entered a Report And R e c o m m e n d a tio n wherein he recommended that the Plaintiff's Motion For Summary J u d g m e n t be denied; that the Defendant's Motion For Summary Judgment be denied; a n d that the action be remanded with directions for the ALJ to consider all medical e v id e n c e of record; to indicate the weight afforded to the medical opinions; and to e x a m in e whether the Plaintiff's impairments meet the C criteria of Listing 12.02. In said

Report And Recommendation, the parties were directed, in accordance with 28 U.S.C. § 6 3 6 (b )(1 ) and Rule 6(e) of the Federal Rules of Civil Procedure, to file any written o b je c tio n s thereto with the Clerk of Court within fourteen (14) days after being served w ith a copy of said Report And Recommendation. Magistrate Judge Seibert's Report A n d Recommendation expressly provided that a failure to timely file objections would re s u lt in waiver of the right to appeal from a judgment of this Court based thereon. T h e docket in the above-styled civil action reflects that no objections to Magistrate J u d g e Seibert's April 7, 2009, Report And Recommendation have been filed. U p o n consideration of said Report and Recommendation, and having received no w ritte n objections thereto1 , the Court accepts and approves the Report And R e c o m m e n d a tio n . Therefore, it is O R D E R E D that Magistrate Judge Seibert's Report And Recommendation (Docket N o . 23) be, and is hereby, ACCEPTED in whole and that this civil action be disposed of in a c c o rd a n c e with the recommendation of the Magistrate Judge. Accordingly, 1. T h e Plaintiff's Motion For Summary Judgment (Docket No. 16) is DENIED; and 2. T h e Defendant's Motion For Summary Judgment (Docket No. 20) is D E N IE D ; and
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The failure of the parties to object to the Report And Recommendation not only w a iv e s their appellate rights in this matter, but also relieves the Court of any obligation to c o n d u c t a de novo review of the issues presented. See W e lls v. Shriners Hospital, 109 F .3 d 198, 199-200 (4th Cir. 1997); Thomas v. Arn, 474 U.S. 140, 148-153 (1985).

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T h e Commissioner's decision is REVERSED, and the above-styled civil actio n is REMANDED to the Commissioner of Social Security pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings consistent with M agis trate Judge Seibert's Report And Recommendation.

In accordance with Shalala v. Schaefer, 125 L.Ed.2d 239 (1993), it is further O R D E RE D that the Clerk of Court shall enter JUDGMENT reversing the decision of the Defendant and remanding the cause for a rehearing and shall thereafter DISMISS this actio n from the docket of the Court. Counsel for the Plaintiff is advised that an application for attorney's fees under the E qual Access to Justice Act (EAJA), if one is to be submitted, must be filed within 90 days from the date of the judgment order. T he Clerk of Court is directed to transmit copies of this Order and the Judgment O rde r. EN TER : June 7 , 2010

/S/ Robert E. Maxwell United States District Judge

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