Barrett v. Astrue
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; granting in part and denying in part 15 Motion for Summary Judgment; denying 18 Motion for Summary Judgment and adopting Findings and Recommendations re 22 Signed by Judge Richard F. Cebull on 11/27/2012. (ACL, )
NOV 2 7 2012
IN THE UNITED STATES DISTRICT COURberk,US Distri
FOR THE DISTRICT OF MONTANA
MARK R. BARRETT,
Case No. CV-11-143-BLG-RFC
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE
MICHAEL J. ASTRUE,
Commissioner of Social
United States Magistrate Judge Carolyn Ostby entered Findings and
Recommendation (doc. 22) as to the parties' cross-motions for summary judgment
in this action seeking an appeal of the Commissioner's denial of disability
insurance benefits under Title II ofthe Social Security Act, 42 U.S.C. §§ 401-403.
Magistrate Judge Ostby recommends this matter be remanded with directions that
the Administrative Law Judge consider additional evidence.
Upon service of a magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(l). No party filed
objections to the September 26, 2012 Findings and Recommendation. The parties'
failure to object waives any objection to the findings of fact, Turner v. Duncan,
158 F.3d 449, 455 (9th Cir. 1999), but this Court must still review de novo any
conclusions of law. Barilla v. Ervin, 886 F .2d 1514, 1518 (9th Cir. 1989).
After a de novo review, it is clear that Magistrate Judge Ostby properly
applied Brewes v. Commissioner of Social Security, 682 F.3d 1157 (9th Cir. 2012)
and Mayes v. Massanari, 276 F.3d 453 (9th Cir. 2001) in concluding that this case
must be remanded to the Commissioner for consideration of Dr. Jenkins's report in
light of the record as a whole. Magistrate Judge Ostby's Findings and
Recommendations (doc.22) are therefore adopted in their entirety.
Accordingly, IT IS HEREBY ORDERED that:
Barrett's motion for summary judgment (doc. 15) is DENIED to the
extent it seeks a remand for award of benefits, but GRANTED to the
extent it seeks remand;
the Commissioner's motion for summary judgment (doc. 18) is
this matter is REMANDED to the Commissioner for further
proceedings consistent with the Findings and Recommendations .
The Clerk of Court shall notify the parties of the entry of this Order and
close this case.
2}_:_ day ofNovember, 2
RICHARD F. CEBULL
UNITED STATES DISTRICT JUDG
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