Myres v. Commissioner Social Security Administration

Filing 43

ORDER - The Court ADOPTS Judge Acosta's Findings and Recommendations, Dkt. 39 . Plaintiff's Motion for fees under the Equal Access to Justice Act (Dkt. 31 ) is DENIED. Signed on 8/25/2015 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SHANE ROBERT ERIC MYRES,
Plaintiff,

Case No. 6:13-cv-00262-AC
ORDER

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Michael H. Simon, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation
(“F&R”) in this matter on June 8, 2015. Dkt. 39. Judge Acosta recommended that Plaintiff’s
motion for attorney fees under the Equal Access to Justice Act be denied because the
Commissioner’s position was substantially justified.
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1)(C). If a party files objections to a magistrate’s findings and recommendations, “the
court shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).

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For those portions of a magistrate’s findings and recommendations to which neither party
has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S.
140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require
a district judge to review a magistrate’s report to which no objections are filed.”); United States
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 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 Act “does not
preclude further review by the district judge[] sua 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.
72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate’s
recommendations for “clear error on the face of the record.”
Plaintiff timely filed objections (Dkt. 41) to which the Commissioner responded
(Dkt. 42). Specifically, Plaintiff contends that the F&R conflicts with this Court’s previous
opinion (Dkt. 25) in which the Commissioner’s decision was reversed and remanded for the
immediate award of benefits. The Court has reviewed de novo Judge Acosta’s Findings and
Recommendation, as well as Defendant’s objections, Plaintiffs’ response, the underlying briefing
in this matter, and the Court’s previous opinion. The Court agrees with Judge Acosta’s reasoning
and adopts the Findings and Recommendation.
For those portions of Judge Acosta’s Findings and Recommendation to which neither
party has objected, this Court follows the recommendation of the Advisory Committee and
reviews those matters for clear error on the face of the record. No such error is apparent.
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CONCLUSION
The Court ADOPTS Judge Acosta’s Findings and Recommendations. Dkt. 39. Plaintiff’s
Motion for fees under the Equal Access to Justice Act (Dkt. 31) is DENIED.
IT IS SO ORDERED.
DATED this 25th day of August, 2015.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 3 – ORDER