Maserang v. Colvin

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION. Court adopts 21 Report and Recommendation in its entirety and remands the case to the Administrative Law Judge (ALJ) for proceedings consistent with this Order. The ALJ is instructed not to apply the principle of the res judicata presumption of continuing nondisability to resolve Plaintiff's present application for Social Security benefits. Signed by Judge Cynthia Bashant on 9/20/2017. (cc: Social Security) (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ZSCAQULINE C. MASERANG, Case No. 16-cv-2098-BAS-MDD Plaintiff, 12 ORDER: v. 13 (1) ADOPTING REPORT AND RECOMMENDATION IN ITS ENTIRETY AND 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 (2) REMANDING THE CASE TO THE ADMINISTRATIVE LAW JUDGE FOR FURTHER PROCEEDINGS Defendant. 17 18 19 20 On August 18, 2016, Plaintiff Zscaquline C. Maserang filed a complaint under 21 Section 405(g) of the Social Security Act, requesting judicial review of Social 22 Security Administration’s final decision denying her application for disability 23 benefits. (ECF No. 1.) 1 The Court referred this matter to United States Magistrate 24 Judge Mitchell D. Dembin. Plaintiff moved for summary judgment and Defendant 25 26 27 28 On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security. She is therefore substituted as Defendant in this suit for former Acting Commissioner Carolyn W. Colvin. See Fed. R. Civ. P. 25(d); 20 C.F.R. § 422.210(d) (stating that where an action for judicial review of a final decision by the Commissioner is instituted “the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 1 –1– 16cv2098 1 cross moved. (ECF Nos. 16, 19). On August 29, 2017, Judge Dembin issued a Report 2 and Recommendation (“Report” or “R&R”) on Plaintiff’s motion for summary 3 judgment and Defendant’s cross-motion. Judge Dembin recommended that this 4 Court remand the case to the Administrative Law Judge (“ALJ”) for further 5 proceedings due to legal error in the ALJ’s decision. (ECF No. 21 at 15:27−16:2.) 6 The time for filing objections to the R&R expired on September 12, 2017. (Id. 7 16:6−8). Both parties are represented by counsel, but to date, neither party has filed 8 any objections. 9 I. ANALYSIS 10 The Court reviews de novo those portions of an R&R to which objections are 11 made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or 12 in part, the findings or recommendations made by the magistrate judge.” Id. “The 13 statute makes it clear,” however, “that the district judge must review the magistrate 14 judge’s findings and recommendations de novo if objection is made, but not 15 otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 16 banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 17 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district 18 court had no obligation to review the magistrate judge’s report). “Neither the 19 Constitution nor the statute requires a district judge to review, de novo, findings and 20 recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328 21 F.3d at 1121. This legal rule is well-established in the Ninth Circuit and this district. 22 See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course, de novo 23 review of a[n] R & R is only required when an objection is made to the R & R.”); 24 Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting 25 report in its entirety without review because neither party filed objections to the 26 report despite the opportunity to do so); see also Nichols v. Logan, 355 F. Supp. 2d 27 1155, 1157 (S.D. Cal. 2004) (Benitez, J.). 28 In this case, the deadline for filing objections was September 12, 2017. (ECF –2– 16cv2098 1 No. 21 at 16:6−8.) However, no objections have been filed, and neither party has 2 requested additional time to do so. Consequently, the Court may adopt the R&R on 3 that basis alone. See Reyna-Tapia, 328 F.3d at 1121. 4 Nonetheless, having conducted a de novo review of the parties’ cross-motions 5 for summary judgment and the magistrate judge’s R&R, the Court concludes that 6 Judge Dembin’s reasoning is sound. The R&R is thorough, well-reasoned, and 7 correctly concludes that the ALJ erroneously applied the presumption of 8 nondisability in deciding Plaintiff’s present application for Social Security benefits. 9 Therefore, the Court hereby approves and ADOPTS IN ITS ENTIRETY the R&R. 10 See 28 U.S.C. § 636(b)(1). 11 II. CONCLUSION & ORDER 12 Having reviewed the R&R and there being no objections, the Court ADOPTS 13 IN ITS ENTIRETY the R&R (ECF No. 21) and REMANDS the case to the ALJ 14 for proceedings consistent with this order. The ALJ is instructed not to apply the 15 principle of the res judicata presumption of continuing nondisability to resolve 16 Plaintiff’s present application for Social Security disability benefits. 17 IT IS SO ORDERED. 18 19 DATED: September 20, 2017 20 21 22 23 24 25 26 27 28 –3– 16cv2098

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