McNulty v. Astrue, No. 5:2009cv00852 - Document 11 (S.D.W. Va. 2010)

Court Description: MEMORANDUM OPINION AND ORDER: adopting the 10 Proposed Findings and Recommendation; granting 9 Motion to Remand Case to Commissioner of Social Security Administration filed by Michael J. Astrue; reversing the decision of the Commissioner; remandi ng Plaintiff's case to the Commissioner of Social Security pursuant to the fourth Sentence of 42 USC Section 405(g) for further proceedings; dismissing this matter from the docket of the Court. Signed by Judge Irene C. Berger on 3/26/2010. (cc: attys; any unrepresented party) (slr) (Modified on 3/29/2010 to clarify text) (mkw).

Download PDF

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION DANNY C. MCNULTY, Plaintiff, v. CIVIL ACTION NO. 5:09-cv-00852 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. MEMORANDUM OPINION AND ORDER The Court has reviewed the Defendant s Motion to Remand [Docket 9] filed by counsel, Kelly R. Curry, Assistant United States Attorney for the Southern District of West Virginia, on behalf of the Defendant, Michael J. Astrue, Commissioner of Social Security. In said motion, the Defendant moves the Court to remand this case to the Commissioner pursuant to the provisions of the fourth sentence of 42 U.S.C. § 405(g). The Defendant asserts that this case would benefit by further administrative development. (Docket 9 at ¶ 2). The Defendant further states that Plaintiff s counsel has no objection to the motion. (Id. at ¶ 3). By Standing Order entered August 1, 2006, and filed in this case on July 28, 2009, this action was referred to United States Magistrate Judge R. Clarke VanDervort for submission of Proposed Findings and Recommendation (PF&R). Magistrate Judge VanDervort filed his PF&R [Docket 10] on March 8, 2010. In his PF&R, Magistrate Judge VanDervort found that remand was appropriate, and strongly suggested that, in the future, Defendant include an explanation of what evidence, or inferences drawn therefrom, were relied on in arriving at his decision, pursuant to the requirements of Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986). Magistrate Judge VanDervort further recommended that the undersigned grant the Defendant s Motion for Remand, reverse or vacate the decision of the Commissioner, and remand Plaintiff s case to the Commissioner of Social Security pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings as envisioned by the Defendant in his Motion to Remand. 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 PF&R in this case were due on March 25, 2010. To date, no objections have been filed. Accordingly, the Court ADOPTS the PF&R [Docket 10] and ORDERS that the Defendant s Motion for Remand [Docket 9] is GRANTED, the decision of the Commissioner is REVERSED, and the Plaintiff s case is REMANDED to the Commissioner of Social Security pursuant to the fourth Sentence of 42 U.S.C. § 405(g) for further proceedings. The Court further ORDERS that this matter be DISMISSED from the docket of the court. The undersigned reminds Defendant to follow the requirements of Cook in future cases. 2 The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: 3 March 26, 2010

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.