Banks v. Berryhill

Filing 29

ORDER. IT IS HEREBY ORDERED that 26 the Report and Recommendation is ADOPTED in full, and 27 Banks's objection is OVERRULED. IT IS FURTHER ORDERED that 20 Banks's Motion to Remand is DENIED, and 24 the Commissioner's Cr ossmotion to Affirm is GRANTED; the underlying decision is AFFIRMED. IT IS FURTHER ORDERED that the Clerk of Court is directed to ENTER JUDGMENT ACCORDINGLY and CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 2/14/2019. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Willie Banks,

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Case No.: 2:17-cv-02554-JAD-NJK
Plaintiff
Order Adopting
Report & Recommendation

v.

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Nancy A. Berryhill, Acting Commissioner of
7 Social Security Administration,

[ECF Nos. 20, 24, 26]

Defendant

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Plaintiff Willie Banks brought this action for the court to review the Commissioner of

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11 Social Security’s denial of his application for disability-insurance benefits under Title II of the
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12 Social Security Act. Having considered Banks’s single-sentence motion to remand and the
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13 Commissioner’s cross-motion to affirm, the magistrate judge recommends that I deny the
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14 motion to remand and grant the Commissioner’s cross-motion. She reasons that Banks “fails to

15 articulate any legal analysis or point to any errors in the ALJ’s determination warranting a
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16 remand.” Indeed, the entirety of his motion states “I Willie Banks would like to file motion to
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17 remand [this case] new document from the doctor for disability benefits [sic].”

Banks filed a timely objection to the report and recommendation.6 It’s the same length as

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19 his motion to remand and it states only “Please remand the R.R I need help I send doc report I
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ECF No. 20.

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ECF No. 24.

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ECF No. 26.

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Id. at 9.

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ECF No. 20.

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ECF No. 27.

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1 am in middow [sic] of getting a new evaluation so please don’t close my case.”7 He includes
2 with his objection a copy of an August 2018 orthopedic evaluation,8 but he offers no discussion
3 of its relevance or how it justifies rejection of the magistrate judge’s recommendation.
Even if I liberally construe this filing as a request for a remand based on new evidence,

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5 Banks’s effort falls short. To obtain a remand under sentence six of 42 U.S.C. § 405(g) based on
6 new evidence, a claimant must show “that there is new evidence [that] is material and that there
7 is good cause for the failure to incorporate [that] evidence into the record in a prior proceeding.”
8 As Magistrate Judge Koppe accurately assessed in her report and recommendation, Banks did
9 not make that showing—and his objection gets him no closer to it.
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Accordingly,

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IT IS HEREBY ORDERED THAT:

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The Report and Recommendation [ECF No. 26] is ADOPTED in full, and Banks’s

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objection [ECF No. 27] is OVERRULED;

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Banks’s Motion to Remand [ECF No. 20] is DENIED, and the Commissioner’s Cross-

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motion to Affirm [ECF No. 24] is GRANTED; the underlying decision is AFFIRMED;

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The Clerk of Court is directed to ENTER JUDGMENT ACCORDINGLY and CLOSE

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THIS CASE.

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Dated: February 14, 2019

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_________________________________
________________
_ _ _ _ _
U.S. District Judge Jennifer A. Dorsey
Judge J
dg
dg Jennifer A. D
er
er

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Id.

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ECF No. 27-1.

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