Arbogast v. Astrue

Full title: JUDY A. ARBOGAST, Plaintiff, v. MICHAEL ASTRUE, COMMISSIONER, SOCIAL…

Court: United States District Court, N.D. West Virginia

Date published: Mar 12, 2008

CIVIL ACTION NO. 3:07cv28 (Maxwell) (N.D.W. Va. Mar. 12, 2008)

Opinion

CIVIL ACTION NO. 3:07cv28 (Maxwell).

March 12, 2008

ORDER

ROBERT MAXWELL, Senior District Judge

The above-styled matter is before the Court for consideration of the Report and Recommendation of United States Magistrate Judge John S. Kaull. Magistrate Judge Kaull filed his Report and Recommendation on November 15, 2007, wherein the parties were directed, in accordance with 28 U.S.C. § 636(b)(1), to file with the Clerk of Court any written objections within ten (10) days after being served with a copy of the Report and Recommendation. No objections have been filed. Accordingly, the Court will review the Magistrate's Report and Recommendation for clear error.¹

1 The failure of a party to object to a Report and Recommendation waives the party's right to appeal from a judgment of this Court based thereon and, additionally, relieves the Court of any obligation to conduct a de novo review of the issues presented. See Wells v. Shriners Hospital, 109 F.3d 198, 199-200 (4^th Cir. 1997); Thomas v. Arn, 474 U.S. 140, 148-153 (1985).

Upon examination of the report from the Magistrate Judge, it appears to the Court that the issues raised in the cross motions for summary judgment were thoroughly considered by Magistrate Judge Kaull in his Report and Recommendation. The Court, reviewing all matters now before it for clear error, is of the opinion that the Report and Recommendation accurately reflects the law applicable to the facts and circumstances before the Court in this action. As noted by Magistrate Judge Kaull, the Plaintiff in this matter had previously filed a separate application on November 1, 2001 also alleging disability since January 9, 2001, and the Court ruled on her appeal of that matter on September 12, 2007, whereby the Court found the Plaintiff's condition met the requirements for disability and remanded for the calculation of benefits. Therefore, it is

ORDERED that Magistrate Judge Kaull's Report and Recommendation be, and hereby is, accepted in whole and that this civil action be disposed of in accordance with the recommendation of the Magistrate Judge. Accordingly, it is

ORDERED that the Defendant's Motion for Summary Judgment be, and the same hereby is, DENIED. It is further

ORDERED that the Plaintiff's Motion for Summary Judgment be, and the same hereby is, GRANTED. It is further

ORDERED that this matter is REVERSED AND REMANDED to the Commissioner solely for the calculation of benefits. It is further

ORDERED that the Clerk of Court shall enter judgment reversing the decision of the Defendant and remanding the case to the Defendant for further proceedings and shall thereafter DISMISS this action from the docket of the Court.

The Clerk of Court is directed to enter a separate judgment order and to send a copy of this Order to all counsel of record.