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Deleon v. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 26, 2010

GLORIA DELEON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER

HAYES, Judge

The matter before the court is the review of the Report and Recommendation (Doc. # 18) issued by United States Magistrate Judge William McCurine, Jr., recommending that Plaintiff's Motion for Summary Judgment (Doc. # 13) be denied and Defendant's Cross-Motion for Summary Judgment (Doc. # 14) be granted.

BACKGROUND

On April 7, 2005, Plaintiff filed an application for supplemental security income benefits. (Admin. R. at 19, Doc. # 10). Plaintiff's claim was denied at the initial level and upon reconsideration. Plaintiff then requested a hearing before an administrative law judge ("ALJ"), which was held on January 4, 2007. On February 7, 2007, the ALJ issued a written decision denying benefits. Plaintiff filed a request for review to the Appeals Council for the Social Security Administration, which granted Plaintiff's request. On July 28, 2008, Plaintiff received a second hearing before the ALJ. On March 3, 2009, the ALJ issued a written decision finding that Plaintiff has not been under a disability, as defined in the Social Security Act, since the Plaintiff's alleged disability onset date of February 4, 2000. On September 18, 2009, the Appeals Council denied Plaintiff's request for further review.

On October 14, 2009, Plaintiff, represented by counsel, commenced this action seeking judicial review of Defendant's decision pursuant to 42 U.S.C. § 405(g). On March 31, 2010, Plaintiff filed the Motion for Summary Judgment. (Doc. # 13). On April 13, 2010, Defendant filed the Cross-Motion for Summary Judgment. (Doc. # 14).

On July 30, 2010, the Magistrate Judge issued the Report and Recommendation. (Doc. # 18). The Report and Recommendation recommends that Plaintiff's Motion for Summary Judgment be denied and Defendant's Cross-Motion for Summary Judgment be granted. The Report and Recommendation concludes:

IT IS HEREBY ORDERED that any written objections to this Report must be filed with the Court and served on all parties no later than August 16, 2010. The document should be captioned 'Objections to Report and Recommendation.'

IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than August 23, 2010. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order.

Id. at 18 (citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991)).

The docket reflects that no objections to the Report and Recommendation have been filed.

REVIEW OF THE REPORT AND RECOMMENDATION

The duties of the district court in connection with a 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).

A court "will disturb the denial of benefits only if the decision contains legal error or is not supported by substantial evidence." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quotation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The evidence must be more than a mere scintilla but not necessarily a preponderance." Id. (quotations omitted).

After review of the Report and Recommendation, the March 3, 2009 written opinion of the administrate law judge, the administrative record, and the submissions of the parties, the Court concludes that the Magistrate Judge correctly found that the decision to deny benefits is free of legal error and is supported by substantial evidence.

CONCLUSION

IT IS HEREBY ORDERED that: (1) the Report and Recommendation (Doc. # 18) is ADOPTED in its entirety; (2) Plaintiff's Motion for Summary Judgment (Doc. # 13) is DENIED; and (3) Defendant's Cross-Motion for Summary Judgment (Doc. # 14) is GRANTED. The Clerk shall enter judgment for Defendant and against Plaintiff.

20100826

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