Barrett v. Astrue

Filing 23

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, )

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FILED NOV 2 7 2012 IN THE UNITED STATES DISTRICT COURberk,US Distri FOR THE DISTRICT OF MONTANA DistrictOfMo~~~urt Billi BILLINGS DIVISION ngs MARK R. BARRETT, Case No. CV-11-143-BLG-RFC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 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, 1 158 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: (1) 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; (2) the Commissioner's motion for summary judgment (doc. 18) is DENIED; and (3) 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. DATED the ~ 2}_:_ day ofNovember, 2 2. RICHARD F. CEBULL UNITED STATES DISTRICT JUDG 2

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