Werthy v. Commissioner of Social Security

Filing 23

OPINION and ORDER Adopting Findings and Recommendation 21 . Signed on 9/30/11 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
HENRIETTA WERTHY,
Plaintiff,

Case No. 3:1O-cv-00324-HU
OPINION AND ORDER

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.

SIMON, District Judge.,
On September 2, 2011, Magistrate Judge Dennis J. Hubel issued findings and
recommendations (#21) in the above-captioned case. Judge Hubelrecommended that the
Commissioner's decision be reversed and the case be remanded for further proceedings
consistent with his findings and recommendations. Neither party has filed objections.
Under the Federal Magistrates Act, the court may "accept, reject 01' modifY, in whole or in
part, the findings

01'

recommendations made by the magistrate." Federal Magistrates Act, 28

U.S.C. § 636(b)(1). Ifa party files objections to a magistrate's findings and recommendations,
"the court shall make a de novo determination of those portions of the repmi or specified

proposed findings or recommendations to which objection is made." Id.; Fed. R. Civ. P. n(b)(3).
If, however, no objections are filed, the Magistrates Act does not prescribe any standard
of review. In such cases, "[t]here is no indication that Congress, in enacting [the Magistrates
Act], intended to require a district judge to review a magistrate's report[.]" Thomas v. Arn, 474
U.S. 140, 152 (1985); see also United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en

bane), eert. denied, 540 U.S. 900 (2003) (the court must review de novo magistrate's findings
and recommendations if objection is made, "but not otherwise").
Although in the absence of objections no review is required, the Magistrates Act "does
not preclude further review by the district judger] slIa sponte . .. under a de novo or any other
standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ.
P. neb) recommend that "[w]hen no timely objection is filed," the court review the magistrate's
findings and recommendations for "clear error on the face of the record."
No party having made objections, this court follows the recommendation of the AdvisOlY
Committee and reviews Magistrate Judge Hubel's findings and recommendations (#21) for clear
enol' on the face of the record. No such error is apparent. Therefore the court orders that Judge
Hubel's findings and recommendations (#21) is ADOPTED.

1II-

IV

Dated this

day of September, 2011

/~~£-~
Michael H. Simon
United States District Judge

OPINION AND ORDER - Page 2