Greener v. Commissioner of Social Security

Filing 23

ORDER that the R&R (ECF No. 22 ) is accepted and adopted; Plaintiff's motion to remand (ECF No. 16 ) is granted; Defendant's cross-motion to affirm (ECF No. 20 ) is denied; this case is remanded for further proceedings consistent with Judge Cobb's R&R; Clerk directed to enter judgment and close this case. Signed by Judge Miranda M. Du on 2/20/2019. (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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JOHN MARK GREENER,

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Case No. 3:17-cv-00631-MMD-WGC
Plaintiff,

v.
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 Magistrate Judge William G. Cobb’s Report and

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Recommendation (“R&R”) (ECF No. 22) relating to Plaintiff’s pro se opening brief, which

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Judge Cobb construed as a motion for reversal and/or remand (ECF No. 16) and

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Defendant’s response and cross-motion to affirm (ECF Nos. 20, 21). Judge Cobb

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recommended granting Plaintiff’s motion for remand, denying Defendant’s cross-motion,

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and remanding this case. (ECF No. 22.) Defendant had until February 8, 2019, to object.

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(Id.) To date, no objections 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 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. Upon review of the R&R and the records in this

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case, the Court finds good cause to adopt the R&R in full.

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It is therefore ordered that the R&R (ECF No. 22) is accepted and adopted.

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It is further ordered that Plaintiff’s motion to remand (ECF No. 16) is granted.

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It is further ordered that Defendant’s cross-motion to affirm (ECF No 20) is denied.

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This case is remanded for further proceedings consistent with Judge Cobb’s R&R.

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The Clerk is instructed to enter judgment in accordance with this order and close

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this case.
DATED THIS 20th day of February 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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