(SS) Nardone v. Commissioner of Social Security

Filing 22

ORDER ADOPTING in full the Findings and Recommendations recommending that Plaintiff's Motion for Summary Judgment be granted, Defendant's Cross-Motion for Summary Judgment be denied, and the action be remanded to the acting Commissioner for further proceedings 15 , 19 , 21 signed by District Judge Jennifer L. Thurston on 11/21/2022. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGINA NARDONE, on behalf of I.F.
(a minor),
Plaintiff,

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v.

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KILOLO KIJAKAZI,
Acting Commissioner of Social Security,1
Defendant.

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Case No.: 1:21-cv-1444 JLT SKO
ORDER ADOPTING IN FULL THE FINDINGS
AND RECOMMENDATIONS
RECOMMENDING THAT PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT BE
GRANTED, DEFENDANT’S CROSS-MOTION
FOR SUMMARY JUDGMENT BE DENIED,
AND THE ACTION BE REMANDED TO THE
ACTING COMMISSIONER FOR FURTHER
PROCEEDINGS
(Docs. 15, 19, 21)

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Georgina Nardone filed a complaint on behalf of her minor child I.F. under 42 U.S.C. §

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1383(c) seeking judicial review of a final decision of the Commissioner of Social Security denying her

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application for Supplemental Security Income under the Social Security Act. (Doc. 1.)
The assigned magistrate judge issued findings and recommendations recommending that

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Plaintiff’s motion for summary judgment be granted and that Defendant’s motion for summary

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judgment be denied. (Doc. 21.) The magistrate judge recommended that the action be remanded to the

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Acting Commissioner for further proceedings because the ALJ’s finding that I.F. was a “preschooler”

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on the application date was harmful error.

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On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See
https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 U.S.C.
§ 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the
Commissioner shall, in [their] official capacity, be the proper defendant.”).

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The Court granted the parties 14 days from the date of service to file objections to the

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recommendation of the magistrate judge. (Doc. 21 at 12.) The Court advised the parties “that failure

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to file objections within the specified time may waive the right to appeal the district judge’s order.”

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(Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014)). Thus, any objections were due

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no later than November 17, 2022. To date, no objections have been filed.

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According to 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d

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452, 454 (9th Cir. 1983), this Court conducted a de novo review of the case. Having carefully reviewed

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the matter, the Court finds the findings and recommendations are supported by the record and proper

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analysis. Based upon the foregoing, the Court ORDERS:

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1.

The findings and recommendations filed November 3, 2022 (Doc. 21) are ADOPTED
IN FULL.

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2.

Plaintiff’s motion for summary judgment (Doc. 15) is GRANTED.

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3.

Defendant’s cross-motion for summary judgment (Doc. 19) is DENIED.

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4.

This matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
further proceedings consistent with this decision.

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5.

The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff Georgina

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Nardone, on behalf of minor child I.F., and against Defendant Acting Commissioner of

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Social Security, and to CLOSE this action.

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IT IS SO ORDERED.
Dated:

November 21, 2022

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