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Tudino v. Barnhart

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 5, 2008

EVA M. TUDINO, PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SECURITY, DEFENDANT.

The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART PARTIES' MOTIONS FOR SUMMARY JUDGMENT [Docket Nos. 12, 16, 21]

Plaintiff Eva M. Tudino seeks judicial review of the Commissioner's decision to deny Tudino disability benefits and supplemental security income. Cross motions have been filed. The Honorable Jan M. Adler has issued a Report and Recommendation ("Report"), recommending that Plaintiff's Motion for Summary Judgment be DENIED in part and GRANTED in part, and that Defendant's cross-motion for summary judgment be DENIED in part and GRANTED in part.

Specifically, Judge Adler found that two of the ALJ's six findings were insufficient to discredit Plaintiff's objective complaints, but that the ALJ otherwise articulated clear and convincing reasons for his findings. Additionally, Judge Adler found that the ALJ erred by not inquiring into whether the Vocational Expert's testimony conflicted with the Dictionary of the Occupational Titles. Furthermore, the Report concluded that the ALJ did not err in discounting Plaintiff's subjective complaints. Objections to the Report were due on or before August 25, 2008. To date, no objections have been filed.

The Court's role in reviewing the Report is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the Court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id.; see also U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ("The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.").

Notwithstanding, the Court has made a de novo review of the Report and agrees with Judge Adler's reasoning and conclusions. See 28 U.S.C. § 636(b). Thus, Judge Adler's Report ADOPTED in full. For the reasons stated in the Report, Plaintiff's motion for summary judgment is DENIED in part and GRANTED in part, and Defendant's cross-motion for summary judgment is DENIED in part and GRANTED in part. The case is remanded for further proceedings.

SO ORDERED.

20080905

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