Willingham v. Kijakazi

Opinion

SHAWN W., Case No.: 23cv1464-LL-MSB

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

Pending before the Court is Magistrate Judge Michael S. Berg’s Report and Recommendation (“R&R”) regarding the Motion for Judicial Review of the Final Decision of the Commissioner of Social Security. ECF Nos. 11, 15. The R&R recommends that the Commissioner’s decision be reversed, and that Judgment be entered reversing the decision 1 Martin O’Malley became the Commissioner of Social Security on December 20, 2023. 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 defendant in this lawsuit. See Fed. R. Civ. P. 25(d) (“An action does not abate when a 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 the Commissioner and remanding the matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 15. 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 portions 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.Civ.P. 72 advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206) (9th Cir. 1974)); see also United States v. Reyna-Tapia, 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 ECF No. 15, at 23 (objections due by August 8, 2024). Having reviewed the R&R, the Court finds that it is thorough, well-reasoned, and contains no clear error. Accordingly, the Court hereby ADOPTS Magistrate Berg’s Report and Recommendation. The case is remanded to the Social Security Administration for further proceedings as consistent with the R&R. This Order concludes the litigation in this matter. The Clerk shall close the file. Dated: August 9, 2024 NO QF | 74 Honorable Linda Lopez United States District Judge