Benson v. Colvin
ORDER ADOPTING REPORT AND RECOMMENDATION incorporating and adopting 17 Report and Recommendations; remanding 1 Petition for Review. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JULIE L. BENSON,
ORDER ADOPTING REPORT
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
On August 18, 2016, United States Magistrate Judge Candy W. Dale issued a
Report and Recommendation, recommending that the Petition for Review be granted and
the decision of the Commissioner be remanded to the Commissioner with further
instructions. (Dkt 17.) Any party may challenge a magistrate judge’s proposed
recommendation by filing written objections within fourteen days after being served with
a copy of the Report and Recommendation. See 28 U.S.C. § 636(b)(1); Idaho L. Rule
72.1(b). The district court must then “make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is
made.” Id. The district court may accept, reject, or modify in whole or in part, the
ORDER ADOPTING REPORT AND RECOMMENDATION - 1
findings and recommendations made by the Magistrate Judge. Id.; see also Fed. R. Civ.
P. 72(b). No written objections to the report and recommendation were filed and the time
for doing so has passed.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.”
Where the parties object to a report and recommendation, this Court “shall make a de
novo determination of those portions of the report which objection is made.” Id. Where,
however, no objections are filed the district court need not conduct a de novo review. In
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted
the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to
the extent that no objections are made, arguments to the contrary are waived. See Fed. R.
ORDER ADOPTING REPORT AND RECOMMENDATION - 2
Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within
fourteen days of service of the Report and Recommendation). “When no timely objection
is filed, the Court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Advisory Committee Notes to Fed. R.
Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.
In this case, no objections were filed so the Court is not required to conduct a de
novo determination of the Report and Recommendation. The Court has, however,
reviewed the Report and Recommendation and the record in this matter and finds no clear
error on the face of the record. Moreover, the Court finds the Report and
Recommendation is well-founded in the law based on the facts of this particular case and
this Court is in agreement with the same.
THEREFORE, IT IS HEREBY ORDERED as follows:
The Report and Recommendation entered on August 18, 2016, (Dkt. 17),
shall be, and is hereby, INCORPORATED by reference and ADOPTED
in its entirety.
Petitioner’s Petition for Review (Dkt. 1) is GRANTED and this action is
REMANDED to the Commissioner for further proceedings consistent with
this opinion. This Remand shall be considered a “sentence four remand”
ORDER ADOPTING REPORT AND RECOMMENDATION - 3
consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852,
854 (9th Cir. 2002).
The Court will enter a separate judgment in accordance with Fed. R. Civ. P.
DATED: September 12, 2016
B. Lynn Winmill
United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION - 4
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