Smith v. Commissioner of Social Security

Filing 26

ORDER denying 19 Motion to Remand ; ORDER granting 22 Countermotion to Affirm the Agency Decision; ORDER adopting Report and Recommendations re 25 Report and Recommendation; Signed by Judge James C. Mahan on 11/1/2018. (Copies have been distributed pursuant to the NEF - JM)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

CRAIG R. SMITH,

8
9
10

Case No. 2:17-CV-2092 JCM (NJK)
Plaintiff(s),

ORDER

v.
NANCY A. BERRYHILL,

11

Defendant(s).

12
13

Presently before the court is Magistrate Judge Koppe’s report and recommendation

14

(“R&R”) in the matter of Smith v. Berryhill, case number 2:17-cv-02092-JCM-NJK. (ECF No.

15

25). No objections have been filed, and the deadline for doing so has passed.

16

Upon considering plaintiff’s motion to remand to the Social Security Administration (ECF

17

No. 19) and the commissioner’s countermotion to affirm (ECF No. 22), Magistrate Judge Koppe

18

concluded that the administrative law judge (“ALJ”) did not err in partially rejecting plaintiff’s

19

pain and symptom testimony. (ECF No. 25 at 7, 14). Because the ALJ’s rejection of plaintiff’s

20

testimony is the single issue on appeal before the court, Magistrate Judge Koppe recommended

21

plaintiff’s motion to remand be denied, and the commissioner’s countermotion to affirm be

22

granted. Id. at 14.

23

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

24

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

25

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

26

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

27

28 U.S.C. § 636(b)(1).

28
James C. Mahan
U.S. District Judge

1

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

2

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

3

(1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a

4

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

5

States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

6

employed by the district court when reviewing a report and recommendation to which no

7

objections were made).

8

Nevertheless, this court conducted a de novo review to determine whether to adopt the

9

recommendation of the magistrate judge. Upon reviewing the recommendation and underlying

10

briefs, this court finds good cause appears to adopt the magistrate judge’s findings in full.

11

Accordingly,

12

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Magistrate Judge Koppe’s

13

report and recommendation (ECF No. 25) are ADOPTED in their entirety.

14

IT IS FURTHER ORDERED that plaintiff’s motion to remand (ECF No. 19) is DENIED.

15

IT IS FURTHER ORDERED that the commissioner’s countermotion to affirm (ECF No.

16

22) is GRANTED.

17

The clerk of court is instructed to enter judgment accordingly and close the case.

18

DATED November 1, 2018.

19
20

__________________________________________
UNITED STATES DISTRICT JUDGE

21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-2-