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Lance v. Berryhill

United States District Court, D. South Carolina, Orangeburg Division

November 14, 2017

VICTOR LANCE, Plaintiff,
v.
NANCY, A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1] Defendant.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This matter is before the court on United States Magistrate Jude Kaymani D. West's report and recommendation ("R&R"), ECF No. 35, that the court grant the motion to dismiss plaintiffs complaint, ECF No. 31, filed bydefendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (the "Commissioner"). For the reasons set forth below, the court adopts the R&R and grants the Commissioner's motion.

         I. BACKGROUND

         Plaintiff Victor Lance ("Lance") was awarded disability benefits effective June 1, 1996, pursuant to an administrative law judge's ("ALJ") decision dated January 28, 1999. However, in a continuing disability review on August 31, 2004, it was determined that Lance was no longer disabled as of August 1, 2004. This determination was affirmed by ALJ Richard L. Vogel on January 26, 2007.

         Thereafter, on June 2, 2009, Lance filed an application for disability insurance benefits ("DIB"), alleging disability as of July 1, 1992.[2] Lance's claim was denied initially and upon reconsideration. A hearing before an ALJ was held on May 26, 2010, and the ALJ determined that Lance was not disabled under the Social Security Act. The Appeals Council declined to review the ALJ's decision, and Lance filed an action in this court on April 4, 2011. On August 28, 2012, the court reversed the Commissioner's decision and remanded the case for further proceedings pursuant to sentence four of 42 U.S.C. §:;405(g).

         On April 22, 2015, the ALJ issued a decision denying Lance'sclaim for benefits. On October 1, 2015, after Lance filed exceptions to the ALJ's decision, the Appeals Council mailed Lance a notice of its decision, which explained the Appeals Council's reasons for declining review of the ALJ's order and stated Lance's right to commence a civil action within sixty days from the date of receipt.[3] The letter stated that the Appeals Council presumed Lance received a copy of the notice within five days of the date of the notice.[4] Thereafter, on December 14, 2015, seven days after the time allotted by statute, Lance filed the instant action. On June 29, 2016, the Commissioner filed a motion to dismiss plaintiffs complaint for lack of subject-matter jurisdiction, asserting that Lance filed his complaint after the permissible time period lapsed. ECF No. 31. Because Lance is proceeding in this case pro se, the court issued a Roseboro order on June 30, 2016. On July 19; 2016, Lance filed a response to the motion.to dismiss. ECF No. 34.

         In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), the caseswas referred to the magistrate judge for pre-trial proceedings and an R&R. On July 27, 2016, Magistrate Judge West issued an R&R, recommending that the court grant the Commissioner's motion to dismiss the complaint with prejudice because Lance allowed the sixty-day limitation period to run before filing his complaint. ECF No. 35 at 8-9. The R&R specifically advised the parties of the procedures for filing objections thereto and the consequences if they failed to do so. Id. at 10. On August 8, 2016, Lance timely filed his objections to the R&R, wherein he argued that he received ineffective assistance of counsel during the administrative process and discussed his need for disability benefits but failed to mention the sixty-day time limit set by the Social Security Act. ECF No. 38. On August 18, 2016, the Commissioner filed her response thereto. ECF No. 44.

         II. DISCUSSION

         This matter is now before the court for disposition. The magistrate judge makes only a recommendation to the court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The recommendation carries no presumptive weight, and the responsibility to make a final determination remains with the court. Id. at 271. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge ... or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1). The court is charged with making a de novo determination of any portion of the R&R to which a specific objection is made. IcL However, in the absence of a timely filed, specific objection, the court reviews the R&R only for clear error. Diamond v. Colonial Life & Accident Ins. Co.. 416 F.3d 310, 315 (4th Cir. 2005) (citation omitted).

         Furthermore, failure to file specific written objections to the R&R results in a party's waiver Of the right to appeal from the judgment of the district court based upon such recommendation. See United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).

         Because Lance has failed to make objections to the R&R with the requisite level of specificity or to provide any direction as to which portions of the R&R should be examined under a de novo lens, the court need "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." See Diamond, 416 F.3d at 315 (citation omitted). After reviewing the record of this matter, the applicable law, and the R&R, the court agrees with the conclusion of the magistrate judge.

         III. CONCLUSION

         Based on the foregoing, the court ADOPTS the magistrate judge's R&R, ECF No. 35, and GRANTS the Commissioner's motion to dismiss plaintiffs complaint with prejudice, ECF No. 31.

         AND IT ...


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