Douville v. Colvin

Filing 23

ORDER: (1) Adopting 22 Report and Recommendation; (2) Denying Plaintiff's 18 Motion for Summary Judgment; and (3) Granting Defendant's 20 Cross-Motion for Summary Judgment. Signed by Judge Roger T. Benitez on 2/22/2017. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAYMOND J. DOUVILLE,

Case No.: 3:15-cv-02946-BEN-JLB
Plaintiff,

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v.

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ORDER:

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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(1) ADOPTING REPORT AND
RECOMMENDATION;

Defendant.

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(2) DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT;

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(3) GRANTING DEFENDANT’S
CROSS-MOTION FOR SUMMARY
JUDGMENT

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[Docket Nos. 18,20,22]
Plaintiff Raymond J. Douville filed this action seeking judicial review of the Social
Security Commissioner’s denial of his application for disability insurance benefits.
(Docket No. 1.) Plaintiff filed a motion for summary judgment (docket no. 18), and
Defendant filed a cross-motion for summary judgment and an opposition to Plaintiff s
motion. (Docket No. 20.)

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3:15-cv-02946-BEN-JLB

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On January 13, 2017, Magistrate Judge Jill L. Burkhardt issued a thoughtful and

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thorough Report and Recommendation, recommending that this Court deny Plaintiffs

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motion for summary judgment and grant Defendant’s cross-motion for summary

4 judgment. (Docket No. 22.) Plaintiffs Motion for Summary Judgment contends that the
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Administrative Law Judge (“ALJ”) committed reversible error for rejecting a portion of

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the medical opinion of Dr. Phong T. Dao, D.O., and failing to adequately explain the

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reason for the rejection. Magistrate Judge Burkhardt found that the ALJ did not err in

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rejecting the disputed portion of Dr. Dao’s opinion because it was contradictory to some

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of Plaintiff s medical records and the opinions of two other physicians (one treating, one

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non-treating). Magistrate Judge Burkhardt also found the ALJ sufficiently explained his

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reasons for rejecting Dr. Dao’s opinion. See Howard ex. Rel. Wolff v. Barnhart, 341 F.3d

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1006, 1012 (9th Cir. 2003) (citing Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (“[I]n

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interpreting the evidence and developing the record, the ALJ does not need to discuss

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‘every piece of evidence.’ ”).

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Objections to the Report and Recommendation were due by January 30, 2017.

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(Docket No. 22.) Neither party has filed any objections. For the reasons that follow, the

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Report and Recommendation is ADOPTED.

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A district judge “may accept, reject, or modify the recommended disposition” of a

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magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.

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§ 636(b)(1). “[T]he district judge must determine de novo any part of the [report and

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recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

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However, “[t]he statute makes it clear that the district judge must review the magistrate

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judge’s findings and recommendations de novo if objection is made, but not otherwise.”

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also

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Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). “Neither the Constitution nor

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the statute requires a district judge to review, de novo, findings and recommendations

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that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at 1121.

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3:15-cv-02946-BEN-JLB

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The Court need not conduct de novo review given the absence of objections.

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However, the Court has conducted a de novo review and fully ADOPTS the Report and

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Recommendation. Plaintiffs motion for summary judgment is DENIED. Defendant’s

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cross-motion for summary judgment is GRANTED.

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IT IS SO ORDERED.

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Dated: February <0^-2017
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rROGER T. BBNITEZ
nited States District Court Judge

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