Goldblatt v. Berryhill

Filing 19

ORDER that the R&R (ECF No. 18 ) is accepted and adopted in full; Plaintiff's Motion to Remand (ECF No. 14 ) is granted in part consistent with the R&R; This case is remanded for the ALJ to properly evaluate the opinion of Dr. Mumford; Defendant's Motion to Affirm (ECF No. 15 ) is denied; Clerk directed to enter judgment and close this case. Signed by Judge Miranda M. Du on 10/15/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Case No. 2:17-cv-02193-MMD-VCF

HAL GOLDBLATT,

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Plaintiff,
v.

ORDER ACCEPTING REPORT AND
RECOMMENDATION

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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Before

the

Court

is

Magistrate

Judge

Cam

Ferenbach’s

Report

and

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Recommendation (“R&R”) (ECF No. 18), regarding Hal Goldblatt’s motion for reversal

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and/or remand (“Motion to Remand”) (ECF No. 14) and Defendant Nancy A. Berryhill’s

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crossmotion to affirm the agency decision (“Motion to Affirm”) (ECF No. 15). Plaintiff did

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not respond to the Motion to Affirm, though Defendant responded to Plaintiff’s Motion to

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Remand (ECF No. 16). Judge Ferenbach entered the R&R on August 21, 2018. The Court

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allowed the parties to file any objections by September 4, 2018. (ECF No. 18.) No

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objections were filed.

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

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

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” Id. Where a party fails to object, however,

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the court is not required to conduct “any review at all . . . of any issue that is not the subject

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of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has

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recognized that a district court is not required to review a magistrate judge’s report and

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recommendation where no objections have been filed. See United States v. Reyna-Tapia,

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328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district

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

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

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Ninth Circuit’s decision in Reyna-Tapia as adopting the view that district courts are not

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required to review “any issue that is not the subject of an objection”). Thus, if there is no

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objection to a magistrate judge’s recommendation, then the court may accept the

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recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226

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(accepting, without review, a magistrate judge’s recommendation to which no objection

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was filed).

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Nevertheless, this Court finds it appropriate to engage in a de novo review in order

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to determine whether to adopt the R&R. Judge Ferenbach found that the ALJ erred in

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evaluating a doctor’s (Dr. Mumford) consultative examination of Plaintiff by incorrectly

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stating that the doctor opined Plaintiff could sit for six hours in a workday, rather than four.

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(ECF No. 18 at 3.) Judge Ferenbach further found that the error was not harmless because

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the doctor’s opinion—if correctly considered—could “cause the ALJ in this case to re-

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evaluate his findings.” (Id. at 4.) Judge Ferenbach thus recommended that the Court grant

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Plaintiff’s Motion to Remand in part and deny Defendant’s Motion to Affirm. (Id. at 6.)

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Upon review of the R&R and the record in this case, the Court determines that it is
appropriate to adopt the R&R in full.

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It is therefore ordered that the R&R (ECF No. 18) is accepted and adopted in full.

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Plaintiff’s Motion to Remand (ECF No. 14) is granted in part consistent with the R&R. This

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case is remanded for the ALJ to properly evaluate the opinion of Dr. Mumford.

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It is further ordered that Defendant’s Motion to Affirm (ECF No. 15) is denied.

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It is further ordered that the Clerk enter judgment in accordance with this order and

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close this case.
DATED THIS 15th day of October 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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