Crossman v. Colvin

Filing 19

ORDER - The Report and Recommendation (ECF No. 18 ) is accepted and adopted. Plaintiff's Motion to Remand (ECF No. 12 ) is granted and the Commissioner's Cross- Motion to Affirm (ECF No. 15 ) is denied. This case is remanded to the ALJ for further proceedings consistent with the Report and Recommendation (ECF No. 18 ). Clerk is directed to enter judgment in accordance with this Order and close this case. Signed by Judge Miranda M. Du on 7/27/2016. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9
10
11
12
13

Case No. 3:15-cv-00249-MMD-WGC

RONALD CROSSMAN,
Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner
of Social Security Administration,

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

Defendant.

14
15

Before the Court is Magistrate Judge William G. Cobb’s Report and

16

Recommendation (“R&R”) (ECF No. 18), regarding Plaintiff Ronald Crossman’s Motion

17

for Reversal and/or Remand (ECF No. 12) and Defendant Commissioner’s Cross-

18

Motion to Affirm and Opposition to Plaintiff’s Motion to Remand (ECF Nos. 15, 16).

19

Judge Cobb recommends granting Plaintiff’s motion and denying the Commissioner’s

20

cross-motion. (ECF No. 18.) The Commissioner has until June 6, 2016, to object (ECF

21

No. 18). To date, no objection has been filed.

22

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

23

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

24

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

25

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

26

recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party

27

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

28

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

1

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

2

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

3

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

4

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

5

recommendation to which no objections were made); see also Schmidt v. Johnstone,

6

263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in

7

Reyna-Tapia as adopting the view that district courts are not required to review “any

8

issue that is not the subject of an objection”). Thus, if there is no objection to a

9

magistrate judge’s recommendation, then the court may accept the recommendation

10

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

11

review, a magistrate judge’s recommendation to which no objection was filed).

12

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

13

order to determine whether to adopt the R&R. The R&R finds that the ALJ erred in

14

determining there was no conflict between the vocational expert’s (“VE”) testimony and the

15

Dictionary of Occupational Titles, and such error is not harmless. (ECF No. 18.) The R&R

16

recommends that the matter be remanded for additional testimony from the VE. Upon

17

review of the R&R and the records in this case, the Court finds good cause to adopt the

18

R&R in full.

19

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

20

Plaintiff’s Motion to Remand (ECF No. 12) is granted and the Commissioner’s Cross-

21

Motion to Affirm (ECF No. 15) is denied.

22
23
24
25
26

It is further ordered that the case is remanded to the ALJ for further proceedings
consistent with the Report and Recommendation (ECF No. 18).
The Clerk is directed to enter judgment in accordance with this Order and close
this case.
DATED THIS 27th day of July 2016.

27
28

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
2