Clarke v. Astrue

Filing 22

ORDERED that the Report and Recommendation 21 is adopted as the opinion of the Court. ORDERED that the Motion for Summary Judgment 13 is GRANTED IN PART AND DENIED IN PART and the case is remanded for further proceedings consistent with the Report and Recommendation. ORDERED that the Clerk of the Court shall enter judgment accordingly. Signed by Judge David C Bury on 4/16/10.(SGG)

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA William Robert Clarke, ) ) Plaintiff, ) ) v. ) ) Michael J. Astrue, Commissioner of Social) Security, ) ) Defendant, ) _______________________________________)

CV 08-604 TUC DCB(BPV) ORDER

Standard of Review The duties of the district court, when reviewing a Report and Recommendation of a

17 Magistrate Judge, are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 18 U.S.C. § 636(b)(1). The district court may "accept, reject, or modify, in whole or in part, the 19 findings or recommendations made by the magistrate judge." Fed.R.Civ.P. 72(b), 28 U.S.C. § 20 636(b)(1). When the parties object to a Report and Recommendation (R&R), "[a] judge of the 21 [district] court shall make a de novo determination of those portions of the [R&R] to which 22 objection is made." 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). 23 When no objections are filed, the district court does not need to review the R&R de novo. Wang 24 v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 25 1114, 1121-22 (9th Cir.2003) (en banc). 26 27

Report and Recommendation On March 31, 2010, the Honorable Bernardo P. Velasco, United States Magistrate Judge,

28 filed a R&R in this action. The R&R advises the Court to reverse the Administrative Law

Judge's decision and remand the matter for further administrative proceedings. The Magistrate

1 Judge found the Administrative Law Judge's decision was not supported by substantial evidence 2 and remand is necessary for the Administrative Law Judge to obtain a vocational expert's 3 testimony to determine if Petitioner's limitations preclude him from performing jobs that exist 4 in sufficient numbers in the national and local economy. 5

The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. §

6 636(b), they had 14 days to file written objections to the R&R. See also, Federal Rule of Civil 7 Procedure 72(b) (party objecting to the recommended disposition has ten (10) days to file 8 specific, written objections). To date, no objections have been filed. 9

Pursuant to 28 U.S.C. § 636(b), this Court makes a de novo determination as to those

10 portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1)(C) ("A judge of the 11 court shall make a de novo determination of those portions of the report or specified proposed 12 findings and recommendations to which objection is made.") To the extent that no objection has 13 been made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); see also, Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation). The Court has reviewed the R&R and considers it to be thorough and well-reasoned; it is neither clearly erroneous nor contrary to law. United States v. Remsing, 874 F.2d 614, 617618 (9th Cir. 1989). The R&R shall, therefore, be accepted pursuant to 28 U.S.C. § 636(b)(1). The Court adopts the recommendation of the Magistrate Judge. For the reasons stated in the R&R, the Court grants in part and denies in part the Motion for Summary Judgment filed by Plaintiff. Accordingly, IT IS ORDERED that the Report and Recommendation [Doc. # 21] is adopted as the opinion of the Court.

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IT IS FURTHER ORDERED that Motion for Summary Judgment [Doc. # 13] is

2 GRANTED IN PART AND DENIED IN PART and the case is remanded for further 3 proceedings consistent with the Report and Recommendation. 4

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment DATED this 16th day of April, 2010.

5 accordingly. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-