Rodriguez v. Commissioner of Social Security

Filing 31

ORDER Granting Plaintiff's Motion for Reconsideration 30 , VACATING Order Adopting Findings and Recommendations 28 , VACATING Judgment 29 , and Reopening Case, signed by Judge Oliver W. Wanger on 5/19/11. CASE REOPENED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JIMMY RODRIGUEZ,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,

1:09-cv-00380 OWW JLT
ORDER GRANTING PLAINTIFF’S
MOTION FOR RECONSIDERATION
(DOC. 30), VACATING ORDER
ADOPTING FINDINGS AND
RECOMMENDATIONS, VACATING
JUDGMENT, AND REOPENING CASE.

Defendant.

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Plaintiff Jimmy Rodriguez asserts this action against the
Commissioner of Social Security (“Defendant”), seeking review of
an administrative decision denying his claims for disability
insurance benefits and supplemental security income under Titles

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II and XVI of the Social Security Act.

Plaintiff seeks to

challenge the findings of the administrative law judge (“ALJ”),

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who found Plaintiff’s knee impairment was not severe, and that

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Plaintiff was not compliant with treatment for his diabetes.

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addition, Plaintiff alleges he received ineffective assistance of

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counsel at the administrative hearings, and that the ALJ

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In

“prejudged” him at the time of the hearing.
On March 11, 2011, the Magistrate Judge recommended
Plaintiff’s social security appeal be denied, and that

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Defendant’s motion for summary judgment be granted.

Doc. 26.

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The Magistrate Judge found Plaintiff’s contentions of errors at

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the administrative hearing and by the ALJ were without merit.
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Id. at 16.

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his determination that Plaintiff’s knee injury was not severe

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with objective medical evidence, and used proper legal standards

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Further, the Magistrate Judge found the ALJ supported

in determining Plaintiff failed to comply with his treatment.

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Although Plaintiff was granted 14 days from March 11, 2011,

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or until March 25, 2011, to file objections to the Magistrate’s

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Judges Findings and Recommendations, he did not do so.

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28, 2011 Order adopted the Findings and Recommendations of the

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Magistrate Judge in full.

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denied, Defendant’s motion for summary judgment was granted, and

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Doc. 28.

A March

Plaintiff’s appeal was

the Clerk of Court was directed to enter judgment in favor of

Id. at 4.

Defendant and against Plaintiff.

The case was then

closed.
On March 31, 2011, Plaintiff filed a “Motion for

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Reconsideration,” claiming that he never received a copy of the

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Findings and Recommendations.1

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Findings and Recommendations were served on Plaintiff on March

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11, 2011, by U.S. mail.

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The docket reveals that the

See docket entry dated 3/11/2011.

However, Plaintiff claims that he first learned of the Findings

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and Recommendations on March 30, 2011, when he received a copy of
the Order Adopting, dated March 28, 2011.

See Doc. 30.

He then

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called and spoke with an employee of the Court, who sent him a

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copy of the Findings and Recommendations.

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Plaintiff explains:

As judgment has already been entered, Plaintiffs’ motion also constitutes a
request under Fed. R. Civ. P. 60(b)(6), which permits a court to relieve a
party from a final order or judgment for “any...reason that justifies relief.”

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“I live in an [apartment] complex, and this is not the first time

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that I did not receive mail from the Eastern [District] Court[].”

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Id.

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Although it is not the Court’s responsibility to ensure

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delivery once a document is placed in the U.S. Mail, in an
abundance of caution, Plaintiff will be afforded one additional

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opportunity to file objections to the Findings and

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Recommendations, a copy of which he now claims to possesses.

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such objections shall be filed within fourteen days of service of

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this order.

Any

No further extensions will be granted.

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I. CONCLUSION

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For the reasons set forth above:

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1.

Plaitniff’s motion for reconsideration is GRANTED.

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2.

The Order Adopting the Findings and Recommendations is

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VACATED.
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The Clerk of Court is directed to VACATE the Judgment

and REOPEN this case.
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Plaintiff shall have fourteen days from service of this

order to file objections to the Findings and Recommendations.

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IT IS SO ORDERED.
Dated:

May 19, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

DEAC_Signature-END:

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