United States District Court, D. South Carolina
ORDER AND OPINION
Stephanie Rumph (“Plaintiff”) filed this pro se
action seeking a judicial review of the final decision by the
Commissioner of Social Security (“Commissioner”)
pursuant to 42 U.S.C. § 405(g). (ECF No. 1.) The matter
is before the court for review of the Magistrate Judge's
Report and Recommendation, filed on September 3, 2015,
recommending that this court grant the Commissioner's
motion to dismiss Plaintiff's complaint (ECF No. 34), on
the ground that the court lacks jurisdiction because
Plaintiff filed this action before exhausting her
administrative remedies. (ECF No. 45 at 4-7 (citing 42 U.S.C.
§ 405(g); Sims v. Apfel, 530 U.S. 103, 107
(2000); Bowen v. City of New York, 476 U.S. 467,
482-83 (1986); Heckler v. Ringer, 466 U.S. 602,
618-19 (1984); Mathews v. Eldridge, 424 U.S. 319,
327(1976); Weinberger v. Salfi, 422 U.S. 749, 763-65
(1975); 20 C.F.R. §§ 416.1400(a)(1)-(4), 1402(c),
1405, 1407, 1421, 1429, 1455, 1467, 1481).) For the reasons
set forth below, the court ACCEPTS the Report and
Recommendation (ECF No. 45), GRANTS the Commissioner's
motion to dismiss (ECF No. 34), and DISMISSES the complaint
(ECF No. 1).
Magistrate Judge's Report and Recommendation is made in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02 for the District of South Carolina. The Magistrate
Judge makes only a recommendation to this court, which has no
presumptive weight. Thus, the responsibility to make a final
determination remains with this court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The court is charged
with making a de novo determination of those
portions of the Report to which specific objections are made
and the court may accept, reject, or modify, in whole or in
part, the Magistrate Judge's recommendation or recommit
the matter with instructions. See 28 U.S.C. §
role of the federal judiciary in the administrative scheme
established by the Social Security Act is a limited one.
Section 405(g) of the Act provides, “the findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive . . .
.” 42 U.S.C. § 405(g). “Substantial evidence
has been defined innumerable times as more than a scintilla,
but less than a preponderance.” Thomas v.
Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This
standard precludes a de novo review of the factual
circumstances that substitutes the court's findings for
those of the Commissioner. See Vitek v. Finch, 438
F.2d 1157 (4th Cir. 1971). The court must uphold the
Commissioner's decision as long as it is supported by
substantial evidence. See Blalock v. Richardson, 483
F.2d 773, 775 (4th Cir. 1972). “From this it does not
follow, however, that the findings of the administrative
agency are to be mechanically accepted. The statutorily
granted right of review contemplates more than an uncritical
rubber stamping of the administrative agency.”
Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969).
“[T]he courts must not abdicate their responsibility to
give careful scrutiny to the whole record to assure that
there is a sound foundation for the [Commissioner's]
findings, and that this conclusion is rational.”
Vitek, 438 F.2d at 1157-58.
was advised of her right to file specific written objections
to the Report and Recommendation within 14 days of the date
of service. (ECF No. 45-1 (citing 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)).) Plaintiff filed an untimely objection
on October 5, 2015,  which the court reviews for clear error.
Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
thorough review of the record, the court finds the Report and
Recommendation provides an accurate summary of the facts and
law and does not contain any clear error. Therefore, the
court ACCEPTS the Report and Recommendation (ECF No. 45). The
Commissioner's motion to dismiss (ECF No. 34) is GRANTED,
and Plaintiff's complaint (ECF No. 1) is DISMISSED.
 The Report and Recommendation was
served on Plaintiff when the clerk's office placed it in
the mail on September 3, 2015. (See ECF No. 46);
Fed.R.Civ.P. 5(b)(2)(C) (“A paper is served under this
rule by . . . mailing it to the person's last known
address-in which event service is complete upon mailing . . .
.”). Thus, Plaintiff's objections were due on or
before September 21, 2015. See Fed. R. Civ. P. 6(a)
(providing applicable rules for computing time period);
Fed.R.Civ.P. 6(d) (providing three additional days to period
“[w]hen a party may or must act within a specified time
after being served and service is made under Rule
5(b)(2)(C)” by mail). Although in her objection,
Plaintiff appears to state that she mailed the objection on
September 19, 2015 (see ECF No. 48 at 1), the
clerk's office stamped the objection as received on
October 5, 2015 (see id.; ECF No. 48-1). Because
Plaintiff is not a prisoner, she is not afforded the benefit
of the mailbox rule under Houston v. Lack, 487 U.S.
266, 276 (1988), and her objection is deemed filed on the
date the clerk's office received it. See Torras
Herreria y Construcciones, S.A. v. M/V Timur Star, 803
F.2d 215, 216 (6th Cir. 1986); Wise v. Ozmint, No.
6:13-cv-3414-RMG, 2015 WL 3902192, at *3 (D.S.C. June 24,
2015); Gerald v. Lee, No. 4:12-cv-02516-RBH, 2012 WL
6727357, at *1 (D.S.C. Dec. 28, 2012). Accordingly, the court
finds that Plaintiff filed her objection after the period for
doing so expired.
 The court notes that, in her
objection, Plaintiff requests that the matter be remanded to
the Commissioner so that she may obtain a hearing before an
Administrative Law ...