Black v. Berryhill

Full title: CRISTAL HATCH BLACK, Plaintiff, v. NANCY A. BERRYHILL, Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

Date published: Mar 22, 2018

Case No. 2:17-cv-00153-JNP-EJF (D. Utah Mar. 22, 2018)

Opinion

Case No. 2:17-cv-00153-JNP-EJF

03-22-2018

CRISTAL HATCH BLACK, Plaintiff, v. NANCY A. BERRYHILL, Defendant.

District Judge Jill N. Parrish

ORDER ADOPTING REPORT AND RECOMMENDATION

Plaintiff Cristal Hatch Black filed this action asking the court to remand the final agency decision denying her Disability Insurance Benefits and Social Security Income Under Titles II and XVI of the Social Security Act. This matter was referred to Magistrate Judge Evelyn J. Furse under 28 U.S.C. § 636(b)(1)(B).

The matter was fully briefed, and after review of the parties' briefings, Judge Furse issued a Report and Recommendation (ECF No. 22). Judge Furse recommends that the court remand the Commissioner's decision. The Report and Recommendation specified that the parties should file objections within fourteen days of service. No objections were filed, and the time to object has now passed. Because no objections were filed, the court reviews the record for "clear error." See Fed. R. Civ. P. 72(b) advisory committee's note (1983) (citing Campbell v. U.S. Dist. Court for N. Dist. of Cal., 501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879).¹

1 The Tenth Circuit has adopted the "firm waiver" rule. United States v. One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1059 (10th Cir. 1996). Under this rule, "the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of both factual and legal questions." Id. (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). Precluding appellate review of any issue not raised in an objection "prevents a litigant from 'sandbagging' the district judge by failing to object and then appealing." Thomas v. Arn, 474 U.S. 140, 147-48 (1985). --------

Based on the court's review of the record, the relevant legal authority, and the Report and Recommendation, the court concludes that there is no "clear error" with respect to the Report and Recommendation. Accordingly, it is HEREBY ORDERED:

1. The Report and Recommendation (ECF No. 22) is ADOPTED IN FULL;

2. The Commissioner's decision is REMANDED for further proceedings consistent with the Report and Recommendation.

Signed March 22, 2018

BY THE COURT

/s/_________

Jill N. Parrish

United States District Court Judge