Schmidt v. Berryhill

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS the court ADOPTSthe Report and Recommendation in its entirety and hereby DISMISSES Plaintiffs Complaint. The Clerk of Court is directed to CLOSE this case. Signed by Judge Clark Waddoups on 12/12/18. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
DONNA S.,

ORDER ADOPTING REPORT AND
RECOMMENDATION

Plaintiff,
v.
Case No. 2:17-cv-00954
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration

District Judge Clark Waddoups

Defendant.
Plaintiff Donna S.1 brought this action to obtain judicial review of the decision by
Defendant Nancy Berryhill, Acting Commissioner of the Social Security Administration,
denying her application for Title II disability insurance benefits. Now before the court is the
Report & Recommendation prepared by Chief Magistrate Judge Paul M. Warner in which he
recommends that the Commissioner’s decision be affirmed. For the reasons briefly discussed
below, the court adopts the Report & Recommendation in its entirety, dismisses this action, and
directs the Clerk of Court to close this case.
BACKGROUND
“On February 28, 2014,” Plaintiff applied for Title II disability insurance benefits,
alleging disability beginning on November 15, 2010. (See ECF No. 15-5 at 2–3; see also ECF
No. 15-2 at 12.) Plaintiff’s alleged disability onset was later amended to July 22, 2013. (ECF No.
15-2 at 34.) It appears that Plaintiff’s application was “initially denied on May 30, 2014, and
[again] upon reconsideration on October 15, 2014.” (ECF No. 15-2 at 12; see also ECF Nos. 15-

Chief Magistrate Judge Warner refers to Plaintiff in his Report and Recommendation in this manner to protect her
privacy. The court will continue the practice in this Order.
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3 at 2, 20.) On October 23, 2014, Plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”). (ECF No. 15-4 at 12 (“I request a hearing before an administrative law judge.”).)
That hearing was held on May 25, 2016. (ECF No. 15-2 at 28.) On September 12, 2016, the ALJ
issued a written decision denying Plaintiff’s claim for disability insurance benefits. (See ECF No.
15-2 at 23 (“Based on the application for a period of disability and disability insurance benefits
protectively filed on February 28, 2014, the claimant was not disabled under sections 216(i) and
223(d) of the Social Security Act through December 31, 2013, the last date insured.”).) On June
27, 2017, the Appeals Council denied Plaintiff’s request for review. (See ECF No. 15-2 at 2 (“We
Have Denied Your Request for Review.”) (emphasis in original).) This made the ALJ’s
decision the Commissioner’s final decision for purposes of judicial review. See 20 C.F.R. §
404.981 (“The Appeals Council’s decision, or the decision of the administrative law judge if the
request for review is denied, is binding unless you or another party file an action in Federal
district court . . . .”).
On August 25, 2017, Plaintiff filed her Complaint seeking, among other things, “[r]eview
[of] the decision of the Administrative Law Judge and the Appeals Council . . . .” (ECF No. 3 at
3.) Plaintiff alleged that “[t]he decision of the Administrative Law Judge and the Appeals council
[were] not supported with substantial evidence.” (ECF No. 3 at 2.) The court referred this case to
Chief Magistrate Judge Warner on October 17, 2017, pursuant to 28 U.S.C. § 636(b)(1)(B). (See
ECF No. 13.) On September 4, 2018, Chief Judge Warner filed a thorough Report &
Recommendation in which he dispensed with Plaintiff’s arguments and recommended that the
Commissioner’s decision be affirmed. (See ECF No. 22 at 13.) Pursuant to 28 U.S.C. § 636(b)
and Rule 72(b)(2), Federal Rules of Civil Procedure, Chief Magistrate Judge Warner, in his
Recommendation instructed that any Objection to it must be filed within fourteen (14) days of

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service, and warned that failure to do so “may constitute a waiver of objections upon subsequent
review.” (ECF No. 22 at 13.) More than three months later, neither party has filed an Objection.
ANALYSIS AND ORDER
No party timely objected to Chief Magistrate Judge Warner’s Report &
Recommendation. Having reviewed the relevant materials de novo, the court finds the reasoning
set forth in the Report & Recommendation to be correct. For these reasons, the court ADOPTS
the Report & Recommendation in its entirety and hereby DISMISSES Plaintiff’s Complaint. The
Clerk of Court is directed to CLOSE this case.
SO ORDERED this 12th day of December, 2018.

BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

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