Harmon v. Commissioner of Social Security

Filing 30

ORDER Adopting in its entirety Magistrate Judge George Foley, Jr.'s 27 Report and Recommendation. Plaintiff's 22 Motion to Remand is Granted. This matter is remanded to the to Social Security Administration for further administrative proceedings. FURTHER ORDERED that defendant's 25 Cross-Motion to affirm is DENIED. Signed by Judge James C. Mahan on 4/8/2014. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5
UNITED STATES DISTRICT COURT
6
DISTRICT OF NEVADA
7
8

RHONDA S. HARMON,

9
10
11

2:12-CV-1419 JCM (GWF)

Plaintiff(s),
v.
CAROLYN W. COLVIN,

12
13

Defendant(s).

14

ORDER

15

Presently before the court are the report and recommendation of Magistrate Judge Foley.

16

(Doc. # 27). No objections have been filed even though the deadline for filing objections has passed.

17

Upon considering plaintiff Rhonda Harmon’s motion to remand to the Social Security

18

Administration (doc. # 22), Magistrate Judge Foley concluded that the administrative law judge

19

should have obtained vocational expert testimony prior to finding that plaintiff is not disabled. Thus,

20

Magistrate Judge Foley recommended that plaintiff’s motion to remand be granted.

21

This court “may accept, reject, or modify, in whole or in part, the findings or

22

recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects to

23

a magistrate judge’s report and recommendation, then the court is required to “make a de novo

24

determination of those portions of the [report and recommendation] to which objection is made.”

25

28 U.S.C. § 636(b)(1).

26

Where a party fails to object, however, the court is not required to conduct “any review at all

27

. . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

28
James C. Mahan
U.S. District Judge

1

Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate

2

judge’s report and recommendation where no objections have been filed. See United States v.

3

Reyna–Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the

4

district court when reviewing a report and recommendation to which no objections were made); see

5

also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s

6

decision in Reyna–Tapia as adopting the view that district courts are not required to review “any

7

issue that is not the subject of an objection.”). Thus, if there is no objection to a magistrate judge’s

8

recommendation, then this court may accept the recommendation without review. See, e.g.,

9

Johnstone, 263 F. Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation

10

to which no objection was filed).

11

Nevertheless, this court finds it appropriate to engage in a de novo review to determine

12

whether to adopt the recommendation of the magistrate judge. Upon reviewing the recommendation

13

and underlying briefs, this court finds good cause appears to ADOPT the magistrate judge’s findings

14

in full.

15

Accordingly,

16

IT IS HEREBY, ORDERED, AND DECREED that the report and recommendation of

17

Magistrate Judge Foley (doc. # 27) are ADOPTED in their entirety.

18

IT IS FURTHER ORDERED that plaintiff’s motion to remand (doc. # 22) is GRANTED,

19

and that this matter is remanded to the Social Security Administration for further administrative

20

proceedings, including the obtaining of vocational expert testimony, to determine whether there are

21

sedentary jobs available in sufficient numbers in the national economy that plaintiff can perform in

22

light of the environmental restrictions on her residual functional capacity.

23

IT IS FURTHER ORDERED that defendant’s cross-motion to affirm (doc. #25) is DENIED.

24

DATED April 8, 2014.

25
26
UNITED STATES DISTRICT JUDGE
27
28
James C. Mahan
U.S. District Judge

-2-