Opinion
Case No.: 18cv145-CAB-MSB
02-05-2019
ERIC HUGH DIERKER, Plaintiff, v. NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION [Doc. No. 22]; (2) GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [Doc. No. 11]; (3) DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Doc. No. 13] and (4) REMANDING FOR FURTHER PROCEEDINGS
Pending before the Court is the Report and Recommendation ("R&R") of Magistrate Judge Michael S. Berg, filed on January 16, 2019, recommending that the Court grant Plaintiff Eric Dierker's motion for summary judgment, deny Defendant Commissioner's motion for summary judgment, and remand for further proceedings. [Doc. No. 22.]
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district court's duties in connection with a magistrate judge's report and recommendation. The district court must "make a de novo determination of those portion of the report to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673-76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely objection, the Court "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Cvi.P. 72 advisory committee's note (citing Campbel v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)("[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.").
Here, neither party has timely filed objections to Magistrate Judge Berg's R&R. [See Doc. No. 22 at 33 (objections due by January 30, 2019).] Having reviewed the R&R, the Court finds that it is thorough, well-reasoned, and contains no clear error. Accordingly, the Court hereby: (1) ADOPTS Magistrate Judge Berg's report and recommendation; (2) GRANTS Plaintiff's motion for summary judgment; (3) DENIES Defendant's cross-motion for summary judgment, and (4) REMANDS this matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. §405(g).
This Order concludes the litigation in this matter. The Clerk shall close the file.
IT IS SO ORDERED. Dated: February 5, 2019
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge