Sears v. Social Security Administration Office

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA Wheeling SCOTT ALLEN SEARS, Plaintiff, Vv. CIVIL ACTION NO. 5:20-CV-195 Judge Bailey SOCIAL SECURITY ADMINISTRATION OFFICE, Wheeling West Virginia (Branch) National Rd Wheeling, WV 26003, Defendant. ORDER ADOPTING REPORT AND RECOMMENDATION The above-styled matter came before this Court for consideration of the Report and Recommendation (“R&R”) of United States Magistrate Judge Mazzone [Doc. 5] and the pro se objections thereto [Docs. 7, 8, & 10]. Pursuant to 28 U.S.C. § 636 (b)(1)(C), this Court is required to make a de novo review of those portions of the magistrate judge’s findings to which objection is made. However, failure to file objections permits the district court to review the R&R under the standards that the district court believes are appropriate, and under these circumstances, the parties’ right to de novo review is waived. See Webb v. Califano, 468 F.Supp. 825 (E.D. Cal. 1979). Accordingly, this Court will conduct a de novo review only as fo those portions of the R&R to which the plaintiff objected. The remaining portions of the R&R will be reviewed for clear error. As a result, itis the opinion of this Court that the R&R should be ADOPTED. Construing the pro se Complaint liberally, plaintiff alleges that the Social Security Administration Office violated his right te due process by not appointing counsel when he appeared in front of an Administrative Law Judge (“ALJ”). Sears asserts that an individual can never appear in such a proceeding without a lawyer, and his appearance without an attorney makes his Social Security Appeal invalid. [Doc. 1 at 2]. On September 17, 2020, Magistrate Judge Mazzone issued his R&R, in which he identified that While a social security claimant has the right to be represented by counsel at an administrative hearing under the Social Security Act, such a claimant is not required to be represented at a Social Security Proceeding. [Doc. 5 at 2], citations omitted. Accordingly, the Magistrate Judge found that the Complaint fails to state a claim upon which relief can be granted and recommended the case be dismissed without prejudice and the Motion to Proceed in forma pauperis be denied as moot. The plaintiff in this case filed three separate documents stating objections [Docs. 7, 8, & 10]. Therein, plaintiff reasserts that he should not have had to represent himself in front of the Social Security Administration, that he is due back pay, that he needs to have a subpoena issued for the CEO of Weirton hospital, and that he “is asking that Courts ‘suppress evidence’ on all grounds.” See [Docs. 7 at 1, 8 at 1, & 10 at 1]. However, nowhere in his objections does plaintiff raise any reason why the Magistrate Judge is incorrect in his finding that plaintiff was not entitled to be represented by counsel at his Social Security proceeding. This Court finds the same. See Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980) (The Secretary of Health, Education, and Welfare has no duty to insist that claimant have counsel.). Accordingly, the plaintiffs objections are overruled. Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 5] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the Magistrate Judge’s report. Accordingly, the plaintiffs objections [Docs. 7, 8, & 10] are OVERRULED. This Court ORDERS that the Complaint [Doc. 1] be DISMISSED WITHOUT PREJUDICE, and the Motions for Leave to Proceed in forma pauperis [Docs. 2 & 9] are DENIED AS MOOT. The Court further DIRECTS the Clerk to enter judgment in favor of the defendant and STRIKE this case from the active docket of this Court. It is so ORDERED. The Clerk is directed to transmit copies of this Order to any counsel of record and to mail a copy to the pro se plaintiff. DATED: October 16, 2020. 4 PRESTON BAILEY 3 UN TES DISTRICT JU