Vestal v. Berryhill

Filing 27

MEMORANDUM OPINION AND ORDER: The court ADOPTS the 26 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn; GRANTS plaintiff's 23 request for judgment on the pleadings to the extent that the final decision be reversed; DENIES the Commissioner's 24 request to affirm the final decision; REVERSES the final decision of the Commissioner; and REMANDS this matter back to the Commissioner for further administrative proceedings. Signed by Senior Judge David A. Faber on 5/28/2019. (cc: counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
BRENDA K. VESTAL,
Plaintiff,
v.

CIVIL ACTION NO. 1:18-00422

NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendations regarding disposition, pursuant to
28 U.S.C. § 636(b)(1)(B).

Magistrate Judge Aboulhosn submitted

to the court his Proposed Findings and Recommendation (“PF&R”)
on December 12, 2018, in which he recommended that the district
court grant plaintiff’s request for judgment on the pleadings to
the extent that the final decision be reversed; deny the
Commissioner’s request to affirm the final decision; reverse the
final decision of the Commissioner; and remand this matter back
to the Commissioner pursuant to the fourth sentence of 42 U.S.G.
§ 405(g) for further administrative proceedings in order for the
ALJ to properly consider and evaluate Dr. Rago’s medical source
statement in order to completely assess the plaintiff’s

limitations under “paragraph B” criteria.

(ECF No. 26).

In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to the magistrate judge’s
PF&R.

The failure of any party to file such objections

constitutes a waiver of such party’s right to a de novo review
by this court.

See Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.

1989).
Neither party has filed any objections to the magistrate
judge’s PF&R within the required time period.

Accordingly, the

court adopts the factual and legal analysis contained within the
PF&R as follows:
1. Plaintiff’s request for judgment on the pleadings is
GRANTED, to the extent that the final decision be
reversed, (ECF No. 23);
2. Commissioner’s request to affirm the final decision is
DENIED, (ECF No. 24);
3. The final decision of the Commissioner is REVERSED; and
4. The Clerk is directed to REMAND this matter back to the
Commissioner pursuant to the fourth sentence of 42 U.S.G.
§ 405(g) for further administrative proceedings in order
for the ALJ to properly consider and evaluate Dr. Rago’s
medical source statement in order to completely assess
the plaintiff’s limitations under “paragraph B” criteria.

The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record.
It is SO ORDERED this 28th day of May, 2019.
ENTER:
David A. Faber
Senior United States District Judge