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Moreno v. Astrue

July 17, 2009

TEODOSO SERRANO MORENO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, OFFICIALLY AS COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the court is the review of the Report and Recommendation (Doc. # 21) issued by United States Magistrate Judge Peter C. Lewis, recommending that Plaintiff's Motion for Motion for Summary Judgment (Doc. # 12) be denied and Defendant's Cross-Motion for Summary Judgment (Doc. # 15) be granted.

BACKGROUND

On November 28, 2005, Plaintiff protectively filed an application for Supplemental Security Income ("SSI"), alleging he was suffering from schizophrenia and unable to work. (Administrative Record, Doc. # 10 ("AR"), 24-26). The Social Security Administration denied Plaintiff's application for SSI initially on March 26, 2006 and upon reconsideration on December 4, 2006. (AR 24-36).

On December 26, 2006, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 37). On April 24, 2007, Plaintiff appeared and testified at the hearing before the ALJ. (AR 13, 225-77). Also appearing and testifying were Sidney Bolter, M.D., an impartial medical expert (AR 248-73); Mark Remas, an impartial vocational expert (AR 273-77); and Flerida Hernandez, Plaintiff's sister (AR 237-43).

On September 26, 2007, the ALJ denied Plaintiff's application for SSI in a written decision. (AR 13-23).

On November 28, 2007, Plaintiff filed a request for review of the ALJ's decision. (AR 9). On April 7, 2008, the Appeals Council denied Plaintiff's request for review, rendering the decision of the ALJ final. (AR 4-9).

On June 6, 2008, Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. 405(g).*fn1 (Doc. # 1). On March 26, 2009, after the parties filed cross-motions for summary judgment, the Magistrate Judge issued a Report and Recommendation recommending that the Court deny Plaintiff's Motion for Summary Judgment and grant Defendant's Motion for Summary Judgment. (Doc. # 21).

On April 17, 2009, Plaintiff filed objections to the Report and Recommendation. (Doc. # 22). On April 27, 2009, Defendant filed a reply to Plaintiff's objections. (Doc. # 23).

STANDARD OF REVIEW

The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district judge must "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." 28 U.S.C. § 636(b). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).

The ALJ's decision denying benefits "will be disturbed only if that decision is not supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999) (citation omitted). "Substantial evidence is more than a mere scintilla but less than a preponderance." Id. (citation omitted).

DISCUSSION

Plaintiff objects to the Magistrate Judge's findings that: (1) the ALJ sufficiently considered the lay testimony of Plaintiff's sister, and (2) the ALJ properly discounted the Mini-Mental Status Examination and Psychiatric Review ...


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