Mac Ewen v. Astrue

Filing 25

ORDER (1) 24 ADOPTING REPORT AND RECOMMENDATION; denying Plaintiff's 12 Motion for Summary Judgment; and (3) denying Defendant's 18 Motion for Summary Judgment: The case is hereby REMANDED to the Administrative Law Judge for further proceedings consistent with this ruling. Signed by Judge Janis L. Sammartino on 11/2/11.(lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DALE A. MAC EWEN,

CASE NO. 10CV1263 JLS (MDD)
Plaintiff,

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ORDER (1) ADOPTING REPORT
AND RECOMMENDATION;
(2) DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT; AND (3) DENYING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

vs.

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MICHAEL J. ASTRUE, Commissioner of
Social Security,

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(ECF Nos. 12, 18, 24)

Defendant.

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Presently before the Court are Plaintiff’s motion for summary judgment, (ECF No. 12),

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Defendant’s motion for summary judgment, (ECF No. 18), and Magistrate Mitchell D. Dembin’s

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report and recommendation (“R&R”) recommending that the Court deny both Plaintiff’s and

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Defendant’s motions, (ECF No. 24).1

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district court’s

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duties in connection with a magistrate judge’s R&R. The district court must “make a de novo

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determination of those portions of the report to which objection is made,” and “may accept, reject,

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or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”

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The Court notes that the caption of the R&R erroneously states that Defendant’s motion for
summary judgment should be granted, when in fact the recommendation is that it be denied. (R&R
1, ECF No. 24)
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10cv1263

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28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United

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States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely

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objection, the Court “need only satisfy itself that there is no clear error on the face of the record in

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order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing

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Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

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Here, neither party has filed objections to Magistrate Judge Dembin’s R&R. Having

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reviewed the R&R, the Court finds that it is thorough, well reasoned, and contains no clear error.

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Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Dembin’s R&R, (2) DENIES

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Plaintiff’s motion for summary judgment, and (3) DENIES Defendant’s motion for summary

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judgment. The case is hereby REMANDED to the Administrative Law Judge for further

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proceedings consistent with this ruling.

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IT IS SO ORDERED.

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DATED: November 2, 2011
Honorable Janis L. Sammartino
United States District Judge

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10cv1263