Wenzel v. Commissioner of Social Security Administration

Filing 40

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB ECF No. 39 ; Plaintiff's motion for attorney's fees ECF No. 36 is granted; Plaintiff's counsel is awarded attorney's fees in the amount of $13,000 with an offset to Wenzel of $3,700 for the fees awarded under the EAJA; Plaintiff's counsel is directed to reimburse Plaintiff the amount of $3,700.00. Signed by Judge Miranda M. Du on 1/3/2019. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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THERESA WENZEL,

Case No. 3:13-cv-00074-MMD-WGC
Plaintiff,

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v.
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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE WILLIAM G. COBB

Defendant.

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge William G. Cobb (ECF No. 39) (“R&R”) relating to Plaintiff Theresa Wenzel’s

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motion for attorney’s fees (ECF No. 36). The parties had until December 21, 2018, to

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object to the R&R. No objections to the R&R have been 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

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

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Circuit has recognized that a district court is not required to review a magistrate judge’s

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

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

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

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objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.

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Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that

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district courts are not required to review “any issue that is not the subject of an

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objection”). Thus, if there is no objection to a magistrate judge’s recommendation, then

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the court may accept the recommendation without review. See, e.g., id. 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, the Court finds it appropriate to engage in a de novo review to

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determine whether to adopt Magistrate Judge Cobb’s Recommendation. The Magistrate

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Judge recommended granting the motion for attorney's fees under 42 U.S.C. § 406(b)

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and awarding Wenzel’s counsel $13,000 in fees with an offset to Wenzel of $3,700 for

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the fees awarded under the EAJA. (ECF No. 39 at 5.) Upon reviewing the

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Recommendation and underlying briefs, this Court finds good cause to adopt the

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Magistrate Judge’s R&R in full.

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It is therefore ordered, adjudged, and decreed that the Report and

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Recommendation of Magistrate Judge William G. Cobb (ECF No. 33) is accepted and

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adopted in its entirety.

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It is further ordered that Plaintiff’s motion for attorney’s fees (ECF No. 36) is

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granted. Plaintiff’s counsel is awarded attorney’s fees in the amount of $13,000 with an

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offset to Wenzel of $3,700 for the fees awarded under the EAJA. Accordingly, Plaintiff’s

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counsel is directed to reimburse Plaintiff the amount of $3,700.00.

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DATED THIS 3rd day of January 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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