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Michelle D. Snovelle v. Michael J. Astrue

January 26, 2012

MICHELLE D. SNOVELLE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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

ORDER

The matters before the court are the Report and Recommendations filed by United States Magistrate Judge Barbara L. Major recommending that the Motion for Summary Judgment filed by Plaintiff be granted in part and the Cross-Motion for Summary Judgment filed by Defendant be denied (ECF No. 75), and recommending that the Motion for Remand with Contingencies filed by Plaintiff be denied (ECF No. 76).

BACKGROUND

On April 28, 2003, Plaintiff filed applications for supplemental security income benefits and disability insurance benefits with the Commissioner of Social Security Administration. Plaintiff's claim was denied at the initial level and again upon reconsideration. On November 17, 2004, an administrative hearing was held at which Plaintiff appeared with counsel and testified before an administrative law judge ("ALJ"). On February 2, 2005, the ALJ issued a written decision finding that Plaintiff was not disabled. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review.

On January 13, 2006, Plaintiff commenced this action seeking judicial review of Defendant's decision pursuant to 42 U.S.C. § 405(g). (ECF No. 1). On March 30, 2011, Plaintiff filed a Motion for Summary Judgment. (ECF No. 44). On May 23, 2011, Defendant filed a Cross-Motion for Summary Judgment. (ECF No. 50). On August 4, 2011, Plaintiff filed a Motion for Remand with Contingencies. (ECF No. 63).

On November 30, 2011, the Magistrate Judge issued a Report and Recommendation regarding the Motions for Summary Judgment (ECF No. 75) and a Report and Recommendation regarding the Motion for Remand (ECF No. 76). The Reports recommend that Plaintiff's Motion for Summary Judgment be granted in part, Defendant's Cross-Motion for Summary Judgment be denied, and Plaintiff's Motion for Remand be denied. Both Report and Recommendations conclude:

IT IS HEREBY ORDERED that any written objections to this Report and Recommendation must be filed with the Court and served on all parties no later than December 21, 2011....

IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than January 12, 2012.

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. (ECF No. 75 at 37; ECF No. 76 at 18) (citing Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998)). The docket reflects that no objections to either 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) (enbanc).

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).

I. Report and Recommendation (ECF No. 75)

After reviewing the Report and Recommendation, the administrative record, and the submissions of the parties, the Court finds that the Magistrate Judge correctly stated: "Even when the treating doctor's opinion is contradicted by the opinion of another doctor, the ALJ may properly reject the treating physician's opinion only by providing 'specific and legitimate reasons' supported by substantial evidence in the record for doing so.... This can be done by 'setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [his] interpretation thereof, and making findings.'" (ECF No. 75 at 22)(citations omitted). The Magistrate Judge correctly stated "that the ALJ failed to provide the requisite specific and legitimate reasons, supported by substantial evidence, for rejecting [treating physician] Dr. Mills' assessment [of ...


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