FRYE v. Colvin

Filing 22

ORDER adopting and accepting 20 Report and Recommendation, granting Plaintiff's 13 Motion to Remand, denying Defendant's 15 Cross Motion to Affirm; directing Clerk to enter judgment and close case. Signed by Judge Miranda M. Du on 12/22/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JASON FRYE,

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Case No. 3:14-cv-00523-MMD-VPC
Plaintiff,

v.
CAROLYN COLVIN, Acting Commissioner
of Social Security,

ORDER ACCEPTING ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
VALERIE P. COOKE

Defendant.

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Before the Court is Magistrate Judge Valerie P. Cooke’s Report and

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Recommendation (“R&R”) (dkt. no. 20) regarding Jason Frye’s Motion to Remand

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(“Plaintiff’s Motion”) (dkt. no. 13) and Defendant Carolyn Colvin’s Cross Motion to Affirm

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(“Defendant’s Motion”) (dkt. no. 15). On November 16, 2015, Judge Cooke entered the

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R&R, recommending that Plaintiff’s Motion be granted and Defendant’s Motion be

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denied. (Dkt. no. 20.) The parties had until December 3, 2015 to object to the R&R. To

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date, no objections have been filed.

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails

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to object, however, the court is not required to conduct “any review at all . . . of any issue

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that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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Indeed, the Ninth Circuit has recognized that a district court is not required to review a

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magistrate judge’s report and recommendation where no objections have been filed. See

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United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard

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of review employed by the district court when reviewing a report and recommendation to

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which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

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view that district courts are not required to review “any issue that is not the subject of an

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objection”). Thus, if there is no objection to a magistrate judge’s recommendation, then

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the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.

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Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to

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which no objection was filed).

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Nevertheless, this Court finds it appropriate to engage in a de novo review in

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order to determine whether to adopt the R&R. The R&R finds that the ALJ did not err in

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her assessment of the severity of Plaintiff’s impairments or the adverse side effects of

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Plaintiff’s medications, and in her rejection of Dr. Peddu’s (“Plaintiff’s treating

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physician’s) medical opinion. The R&R determines, however, that legal error occurred at

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the fifth step of the sequential process because the ALJ failed to address the entirety of

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Dr. Debattista’s medical opinion and to adequately consider all the functional limitations

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contained in that opinion when examining the vocational expert. Accordingly, the

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Magistrate Judge recommends that Plaintiff’s Motion (dkt. no. 13) be granted and

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Defendant’s Motion (dkt. no. 15) be denied. Upon review of the R&R and the records in

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this case, the Court agrees with the Magistrate Judge and adopts the R&R in full.

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It is ordered that the Report and Recommendation of Magistrate Judge Valerie P.

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Cooke (dkt. no. 20) is accepted and adopted. Plaintiff’s Motion to Remand (dkt. no. 13) is

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granted and Defendant’s Cross Motion to Affirm (dkt. no. 15) is denied.

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The Clerk is directed to enter judgment pursuant to this Order and close this case.

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DATED THIS 22nd day of December 2015.

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MIRANDA M. DU

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UNITED STATES DISTRICT JUDGE

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