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James Mckillip v. Michael J. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 11, 2011

JAMES MCKILLIP,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, 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 (ECF No. 17) issued by United States Magistrate Judge William V. Gallo, recommending that Plaintiff's Motion for Summary Judgment (ECF No.14) be denied and Defendant's Cross-Motion for Summary Judgment (ECF No. 15) be granted.

BACKGROUND

On May 1, 2007, Plaintiff filed applications for disability insurance benefits and supplemental social security income. Plaintiff's was claim denied initially and upon reconsideration. On June 25, 2009, a hearing was held at which Plaintiff appeared before an administrative law judge On September 18, 2009, the ALJ issued a written decision finding that Plaintiff was not disabled. The ALJ's decision became the final decision of the Commissioner of Social Security when the Appeals Council denied Plaintiff's request for review.

On November 18, 2009, Plaintiff, represented by counsel, commenced this seeking judicial review of Defendant's decision pursuant to 42 U.S.C. § 405(g). On July 26, 2010, Plaintiff filed a Motion for Summary Judgment. On August 23, 2010, Defendant filed a Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment. On September 7, 2010, Plaintiff filed a Reply to Defendant's Cross-Motion for Summary Judgment.

On December 13, 2010, the Magistrate Judge issued the Report and Recommendation. (ECF No. 17). 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 ORDERED that no later than January 14, 2011, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." ... 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 19 (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 judge." 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); United States 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).

After review of the Report and Recommendation, the written opinion of the ALJ, the administrative record, and the submissions of the parties, the Court concludes that the Magistrate Judge correctly recommended that Plaintiff's Motion for Summary Judgment be denied and Defendant's Cross-Motion for Summary Judgment be granted.

CONCLUSION IT IS HEREBY ORDERED that: (1) the Report and Recommendation (ECF No. 17) is ADOPTED in its entirety; (2) Plaintiff's Motion for Summary Judgment (ECF No. 14) is DENIED; and (3) Defendant's Cross-Motion for Summary Judgment (ECF No. 15) is GRANTED. The Clerk shall enter judgment for Defendant and against Plaintiff.

United States District Judge WILLIAM Q. HAYES

20110211

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