Lingenfelter v. Colvin

Filing 18

ORDER accepting and adopting 17 Report and Recommendation, granting 12 Motion to Remand to Agency, and denying 13 Cross-Motion to Affirm. Signed by Judge Miranda M. Du on 5/11/15. (Copies have been distributed pursuant to the NEF - JC)

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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. 3:14-cv-00202-MMD-VPC

MARK LINGENFELTER,
Plaintiff,
v.

ORDER ACCEPTING REPORT AND
RECOMMENDATION OF MAGISTRATE
JUDGE VALERIE P. COOKE

CAROLYN COLVIN, Acting Commissioner
of Social Security,
Defendant.

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Before the Court is Magistrate Judge Valerie P. Cooke’s Report and

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Recommendation (“R&R”) (dkt. no. 17), regarding Plaintiff Mark Lingenfelter’s motion for

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reversal or remand (dkt. no. 18) and Defendant Carolyn Colvin’s cross-motion to affirm

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and opposition (dkt. nos. 13, 14), and plaintiff’s opposition and reply (dkt. nos. 15, 16).

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Judge Cooke entered the R&R on February 2, 2015. The parties had until February 19,

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2015, to file any objections. No 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.” 28 U.S.C. § 636(b)(1). Where a party fails

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to object, however, the court is not required to conduct “any review at all . . . of any issue

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

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

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

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

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of review employed by the district court when reviewing a report and recommendation to

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which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

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view that 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., Johnstone, 263 F.

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

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which no objection was filed).

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

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order to determine whether to adopt the R&R. The R&R finds substantial evidence in the

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record does not support the ALJ’s determination of nondisability. The R&R also finds that

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the ALJ erred with respect to her evaluation of plaintiff’s past relevant work, her

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conclusion that plaintiff has transferable customer service skills, and her rejection of

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Cestkowski’s postural limitations findings. Because the errors are not harmless, and

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because further proceedings can rectify these errors, the R&R concludes that remand is

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appropriate. Upon review of the R&R and the records in this case, the Court finds good

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cause to adopt the R&R in full.

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It is hereby ordered that the R&R (dkt. no. 17) is accepted and adopted. Plaintiff’s

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motion to remand (dkt. no. 12) is granted and defendant’s cross-motion to affirm (dkt. no.

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13) is denied.

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It is further ordered that the case is remanded to the ALJ for further administrative
proceedings.
DATED THIS 11th day of May 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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