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Leavel v. Colvin

United States District Court, W.D. Virginia, Harrisonburg Division

February 7, 2014

WALTER J. LEAVEL, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

ORDER

MICHAEL F. URBANSKI, District Judge.

This matter was referred to the Honorable Robert S. Ballou, United States Magistrate Judge, pursuant to 28 U.S.C. ยง 636(b)(1)(B), for the proposed findings of fact and a recommended disposition. The magistrate judge filed a report and recommendation on January 13, 2014, recommending that plaintiff's motion for summary judgment be denied, the Commissioner's motion for summary judgment be granted and the Commissioner's final decision be affirmed. Plaintiff has filed objections to the report and recommendation.

The court has reviewed the magistrate judge's report, the objections to the report, and the pertinent portions of the administrative record, and, in so doing, made a de novo determination of those portions of the report to which the plaintiff objected. The court finds that the magistrate judge was correct in concluding that there is substantial evidence in the record to support the ALJ's determination that plaintiff was capable of sedentary work and that he is not disabled. Plaintiff objects on the basis that the magistrate judge erred in concluding that evidence presented to the Appeals Council was neither new nor material, and that the case should be remanded to the Commissioner for consideration of that evidence. In particular, plaintiff focuses on the treatment records and opinions of Dr. Michael Brookings. In the report and recommendation, the magistrate judge carefully and thoroughly reviewed the evidence submitted to the Appeals Council, including that of Drs. Brookings and Nelly Maybee, and concluded that this evidence was neither new nor material. The court has considered this objection and agrees with the magistrate judge's assessment of the evidence submitted to the Appeals Council. As such, the court overrules the objections to the report and recommendation. Accordingly, the court accepts the magistrate judge's recommendation that the Commissioner's decision should be affirmed.

It is therefore ORDERED and ADJUDGED that plaintiff's motion for summary judgment (Docket # 14) is DENIED, that the Commissioner's motion for summary judgment (Docket # 19) is GRANTED, plaintiff's objections to the report and recommendation (Docket # 25), are OVERRULED, the Commissioner's decision is AFFIRMED, and that this matter is STRICKEN from the active docket of the court.

The Clerk is directed to send a certified copy of this Order to all counsel of record.


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