Henderson v. Social Security, Commissioner

Filing 24

ORDER - The Report and Recommendation (ECF No. 23 ) is accepted and adopted in full. Plaintiff's motion to remand (ECF No. 15 ) is denied. Defendant's cross-motion to affirm (ECF No. 20) is granted. Clerk shall enter judgment in accordance with this Order and close this case. Signed by Judge Miranda M. Du on 3/15/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DARRELL L. HENDERSON,

Case No. 3:18-cv-00050-MMD-CBC
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
CARLA B. CARRY

Defendant.

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

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Judge Carla B. Carry (ECF No. 23) (“R&R”) relating to Plaintiff’s motion to remand (ECF

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No. 15) and Defendant’s response and cross-motion to affirm (ECF No. 20).1 Judge

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Carry recommended denying Plaintiff’s motion and granting Defendant’s motion. (ECF

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No. 23.) Plaintiff had until February 28, 2019, to file an objection. To date, no objection

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to the R&R has 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.” 28 U.S.C. § 636(b)(1). Where a party

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

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issue 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.

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1Plaintiff

did not file a response to Defendant’s motion or a reply in support of
Plaintiff’s motion.

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

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

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

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

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

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

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

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

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

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Plaintiff failed to object to Judge Carry’s recommendation. Nevertheless, this

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Court finds it appropriate to engage in a de novo review to determine whether to adopt

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Judge Carry’s R&R. Upon reviewing the R&R and the relevant records, this Court

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agrees with Judge Carry that the administrative law judge’s decision is supported by

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substantial evidence and will adopt the R&R.

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It is therefore ordered, adjudged and decreed

that the Report and

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Recommendation of Magistrate Judge Carla B. Carry (ECF No. 23) is accepted and

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adopted in full.

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It is further ordered that Plaintiff’s motion to remand (ECF No. 15) is denied.

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

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granted.
The Clerk of Court is directed to enter judgment in accordance with this Order
and close this case.
DATED THIS 15th day of March 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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