Schempf
v.
Berryhill

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Newport News DivisionAug 30, 2018
Civil Action No.: 4:17cv57 (E.D. Va. Aug. 30, 2018)

Civil Action No.: 4:17cv57

08-30-2018

ALLISON SCHEMPF, Plaintiff, v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.


OPINION AND ORDER

Plaintiff Allison Shempf ("Plaintiff" or "Schempf") brought this action under 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Acting Commissioner of the Social Security Administration ("Acting Commissioner") denying her claim for Disability Insurance Benefits ("DIB") pursuant to Title II of the Social Security Act. Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia, and by order of reference dated August 14, 2017, this matter was referred to a United States Magistrate Judge for a Report and Recommendation. Doc. 7.

The Report and Recommendation of the Magistrate Judge ("R&R"), filed on June 20, 2018, finds that the Administrative Law Judge's ("ALJ's") conclusions are not supported by substantial evidence, because the incorrect legal standards were applied. Doc. 14 at 14-19. Accordingly, the Magistrate Judge recommends that Plaintiff's Motion for Summary Judgment, Doc. 9, be GRANTED, that the Acting Commissioner's Motion for Summary Judgment, Doc. 11, be DENIED, and that the final decision of the Acting Commissioner be VACATED and REMANDED. Id.

By copy of the R&R, each party was advised of the right to file written objections to the findings and recommendations made by the Magistrate Judge within fourteen (14) days from the date the R&R was sent, see 28 U.S.C. §636(b) and Federal Rule of Civil procedure 72(b), which is computed pursuant to Federal Rule of Civil Procedure 6(a). Doc. 14 at 20. The parties were also given an additional three (3) days, pursuant to Rule 6(d) of the Federal Rules of Civil Procedure. Id. The time for filing written objections has now passed, and neither party has filed objections. As indicated in the R&R, failure to file timely objections to the findings and recommendations set forth in the R&R "will result in waiver of right to appeal from a judgment of this Court based on such findings and recommendations." Id.

This Court has reviewed the R&R of the Magistrate Judge and hereby adopts and approves in full the findings and recommendations set forth therein. Accordingly, it is hereby ORDERED that Plaintiff's Motion for Summary Judgment, Doc. 9, is GRANTED, that the Acting Commissioner's Motion for Summary Judgment is, Doc. 11, DENIED, and that the Acting Commissioner's final decision is VACATED and REMANDED.

The parties are advised that they may appeal from this Opinion and Final Order by forwarding a written notice of appeal to the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510. Said written notice must be received by the Clerk within sixty (60) days from the date of this Order.

The Clerk is REQUESTED to send a copy of this Opinion and Order to all counsel of record.

It is so ORDERED.

/s/_________


Henry Coke Morgan, Jr.


Senior United States District Judge Norfolk, Virginia
August 30, 2018