Willingham v. Kijakazi

• Court: District Court, S.D. California
• Decided: August 9, 2024
• Docket: 3:23-cv-01464
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHAWN W., Case No.: 23cv1464-LL-MSB

12 Plaintiff, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION [ECF No. 15] 14 MARTIN O’MALLEY, Acting Commissioner of Social Security,1 15 Defendant. 16

17 18 Pending before the Court is Magistrate Judge Michael S. Berg’s Report and 19 Recommendation (“R&R”) regarding the Motion for Judicial Review of the Final Decision 20 of the Commissioner of Social Security. ECF Nos. 11, 15. The R&R recommends that the 21 Commissioner’s decision be reversed, and that Judgment be entered reversing the decision 22 23 24 1 Martin O’Malley became the Commissioner of Social Security on December 20, 2023. 25 See Commissioner SSA, https://www.ssa.gov/agency/commissioner/ (last visited February 6, 2024). Accordingly, Martin O’Malley should be substituted for Kilolo Kijakazi as the 26 defendant in this lawsuit. See Fed. R. Civ. P. 25(d) (“An action does not abate when a 27 public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted 28 1 the Commissioner and remanding the matter for further administrative proceedings 2 || pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 15. 3 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 4 ||court’s duties in connection with a magistrate judge’s report and recommendation. The 5 || district court must “make a de novo determination of those portions of the report to which 6 || objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or 7 ||recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United 8 || States. v. Raddatz, 447 U.S. 667, 673-76 (1980); United States v. Remsing, 874 F.2d 614, 9 ||617 (9th Cir. 1989). However, in the absence of timely objection, the Court “need only 10 satisfy itself that there is no clear error on the face of the record in order to accept the 11 ||recommendation.” Fed.R.Civ.P. 72 advisory committee’s note (citing Campbell v. U.S. 12 || Dist. Court, 501 F.2d 196, 206) (9th Cir. 1974)); see also United States v. Reyna-Tapia, 13 F.3d 1114, 1121 (9th Cir. 2003) (‘[T]he district judge must review the magistrate 14 ||judge’s findings and recommendations de novo if objection is made, but not otherwise.”). 15 Here, neither party has timely filed objections to Magistrate Judge Berg’s R&R. See 16 ||ECF No. 15, at 23 (objections due by August 8, 2024). Having reviewed the R&R, the 17 || Court finds that it is thorough, well-reasoned, and contains no clear error. Accordingly, the 18 ||Court hereby ADOPTS Magistrate Berg’s Report and Recommendation. The case is 19 ||remanded to the Social Security Administration for further proceedings as consistent with 20 || the R&R. This Order concludes the litigation in this matter. The Clerk shall close the file. 21 IT IS SO ORDERED. 22 ||Dated: August 9, 2024 NO 23 QF | 74 Honorable Linda Lopez 35 United States District Judge 26 27 28