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FRYE v. COLVIN, 3:14-cv-00523-MMD-VPC. (2015)

Court: District Court, D. Nevada Number: infdco20151223h26 Visitors: 4
Filed: Dec. 22, 2015
Latest Update: Dec. 22, 2015
Summary: ORDER ACCEPTING ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE MIRANDA M. DU , District Judge . Before the Court is Magistrate Judge Valerie P. Cooke's Report and Recommendation ("R&R") (dkt. no. 20) regarding Jason Frye's Motion to Remand ("Plaintiff's Motion") (dkt. no. 13) and Defendant Carolyn Colvin's Cross Motion to Affirm ("Defendant's Motion") (dkt. no. 15). On November 16, 2015, Judge Cooke entered the R&R, recommending that Plaintiff's Motion be granted an
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ORDER ACCEPTING ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE

Before the Court is Magistrate Judge Valerie P. Cooke's Report and Recommendation ("R&R") (dkt. no. 20) regarding Jason Frye's Motion to Remand ("Plaintiff's Motion") (dkt. no. 13) and Defendant Carolyn Colvin's Cross Motion to Affirm ("Defendant's Motion") (dkt. no. 15). On November 16, 2015, Judge Cooke entered the R&R, recommending that Plaintiff's Motion be granted and Defendant's Motion be denied. (Dkt. no. 20.) The parties had until December 3, 2015 to object to the R&R. To date, no objections have been filed.

This Court "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). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Where a party fails to object, however, the court is not required to conduct "any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate judge's report and recommendation where no objections have been filed. See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection"). Thus, if there is no objection to a magistrate judge's recommendation, then the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 (accepting, without review, a magistrate judge's recommendation to which no objection was filed).

Nevertheless, this Court finds it appropriate to engage in a de novo review in order to determine whether to adopt the R&R. The R&R finds that the ALJ did not err in her assessment of the severity of Plaintiff's impairments or the adverse side effects of Plaintiff's medications, and in her rejection of Dr. Peddu's ("Plaintiff's treating physician's) medical opinion. The R&R determines, however, that legal error occurred at the fifth step of the sequential process because the ALJ failed to address the entirety of Dr. Debattista's medical opinion and to adequately consider all the functional limitations contained in that opinion when examining the vocational expert. Accordingly, the Magistrate Judge recommends that Plaintiff's Motion (dkt. no. 13) be granted and Defendant's Motion (dkt. no. 15) be denied. Upon review of the R&R and the records in this case, the Court agrees with the Magistrate Judge and adopts the R&R in full.

It is ordered that the Report and Recommendation of Magistrate Judge Valerie P. Cooke (dkt. no. 20) is accepted and adopted. Plaintiff's Motion to Remand (dkt. no. 13) is granted and Defendant's Cross Motion to Affirm (dkt. no. 15) is denied.

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

Source:  Leagle

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