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Politte v. Commissioner of Social Security Administration

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 28, 2008

DAVID POLITTE, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION DEFENDANT.

The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER (1) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION and (2) REMANDING ACTION TO COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, (Doc. No. 11)

In the present action, the Hon. Anthony J. Battaglia has issued a report and recommendation (Doc. No. 14) that the Court grant defendant's ex parte motion to remand this action to the Commissioner of the Social Security Administration without a substantive review of the Commissioner's decision (Doc. No. 11). Magistrate Judge Battaglia further recommended denial of plaintiff's premature request for attorney fees. Neither party filed objections to Magistrate Judge Battaglia's report and recommendation.

Pursuant to 28 U.S.C. § 636, a district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." "When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

Having reviewed the report and recommendation in the absence of any timely objection, the Court finds that Magistrate Judge Battaglia did not commit clear error in his thorough, well-reasoned analysis. Therefore, the Court ADOPTS IN FULL the report and recommendation. The Court hereby GRANTS defendant's ex parte motion and REMANDS the action to the Commissioner of Social Security. The Court DENIES WITHOUT PREJUDICE plaintiff's request for attorney fees.

IT IS SO ORDERED.

20080428

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