Russell v. Colvin
MEMORANDUM OPINION AND ORDER adopting the 15 Proposed Findings and Recommendations by Magistrate Judge, granting in part Plaintiff's 10 BRIEF IN SUPPORT OF JUDGMENT ON THE PLEADINGS to the extent that Plaintiff seeks remand for the purpose of considering new evidence, denying the Commissioner's 13 BRIEF IN SUPPORT OF DEFENDANT'S DECISION, vacating the final decision of the Commissioner, and remanding this case to the Commissioner for further proceedings pursuant to the sixt h sentence of 42 U.S.C. § 405(g) for the purpose of considering new evidence not previously before the ALG as outlined in the PF&R; directing the Clerk to place this matter on the Court's inactive docket until the post-remand proceedings are completed. Signed by Judge Thomas E. Johnston on 8/20/2014. (cc: attys) (tmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
ZACHERY PAUL RUSSELL,
CIVIL ACTION NO. 6:13-cv-12705
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Zachery Paul Russell’s Complaint seeking review of
the decision of the Acting Commissioner of Social Security (ECF 2). By Standing Order entered
April 8, 2013, and filed in this case on June 3, 2013, this action was referred to United States
Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a recommendation
(“PF&R”). (ECF 4.) Magistrate Judge Tinsley submitted a PF&R on July 30, 2014 (ECF 15),
recommending that this Court remand this matter pursuant to the sixth sentence of 42 U.S.C.
§ 405(g) for the purpose of considering new evidence not previously before the ALJ.
The Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file
timely objections constitutes a waiver of de novo review and the Petitioner’s right to appeal this
Court’s Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F .2d 91, 94 (4th Cir. 1984). In addition, this Court need
not conduct a de novo review when a party “makes general and conclusory objections that do not
direct the Court to a specific error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Objections to the July 30, 2014, PF&R in
this case were due on August 18, 2014. To date, no objections have been filed.
Accordingly, the Court ADOPTS the PF&R [ECF 14], GRANTS IN PART Plaintiff’s
brief in support of judgment on the pleadings [ECF 10] to the extent that Plaintiff seeks remand for
the purpose of considering new evidence, DENIES the Commissioner’s brief in support of
judgment on the pleadings [ECF 13], VACATES the final decision of the Commissioner, and
REMANDS this case to the Commissioner for further proceedings pursuant to the sixth sentence
of 42 U.S.C. § 405(g) for the purpose of considering new evidence not previously before the ALJ
as outlined in the PF&R. The Court DIRECTS the Clerk to place this matter on the Court’s
inactive docket until the post-remand proceedings are completed.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
August 20, 2014
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