Summary
remanding for lack of substantial evidence supporting ALJ's steptwo determination that claimant's seizure disorder was not severe impairment where, among other things, "ALJ failed to assess the credibility of [claimant's] mother's testimony"
Summary of this case from Mohammad v. AstrueOpinion
Civil Action No.: 2:08cv513.
January 22, 2010
OPINION AND ORDER
Plaintiff brought this action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Supplemental Security Income and Disability Insurance Income under 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 Local Rules of the United States District Court for the Eastern District of Virginia, and by order of reference dated May 26, 2009, this matter was referred to a United States Magistrate Judge for a Report and Recommendation. Doc. 10.
The Report and Recommendation of the Magistrate Judge ("R R"), filed on December 15, 2009, finds that the Administrative Law Judge's ("ALJ") determination that Plaintiff is not disabled was not based upon substantial evidence. Doc. 16. Accordingly, the Magistrate Judge recommends the following: (1) that Plaintiff's Motion for Summary Judgment seeking supplemental security income and disability insurance benefits be denied in part, but that the motion be granted in part to the extent of vacating and remanding the Commissioner's decision; (2) that Defendant's Motion for Summary Judgment be denied; and (3) that this matter be remanded to the Commissioner of Social Security for further proceedings consistent with the R R. Id. at 47.
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 mailed, pursuant to Rule 6(a) of the Federal Rules of Civil Procedure, plus three (3) days permitted by Rule 6(e) of said rules. The time for filing written objections has 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 a waiver of the right to appeal from a judgment of this Court based on such findings and recommendations." Id. at 48.
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 Plaintiffs Motion for Summary Judgment be GRANTED in part and DENIED in part, that Defendant's Motion for Summary Judgment be DENIED, and that the Commissioner's final decision be REVERSED and REMANDED for further proceedings consistent with the R R.
The Clerk is REQUESTED to send a copy of this Opinion and Order to all counsel of record.
It is so ORDERED.