McCollough v. Colvin

Filing 20

ORDER (1) Adopting 19 Report and Recommendation; (2)Denying Plaintiff's 15 Motion for Summary Judgment; And (3) Granting Defendant's 17 Motion for Summary Judgment. It is ordered that this order ends the litigation in this matter. Signed by Judge Janis L. Sammartino on 8/2/2017. (dxj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH ALLEN MCCOLLOUGH, III, Case No.: 16-CV-1166 JLS (WVG) Plaintiff, 12 13 14 ORDER (1) ADOPTING R&R; (2) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND (3) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 17 (ECF Nos. 15, 17, 19) 18 Presently before the Court is Magistrate Judge William V. Gallo’s Report and 19 Recommendation (“R&R”) recommending that the Court (1) deny Plaintiff’s Motion for 20 Summary Judgment, and (2) grant Defendant’s Cross Motion for Summary Judgment. 21 (ECF No. 19.) No party filed an objection or a reply to Judge Gallo’s R&R. For the 22 following reasons, the Court (1) ADOPTS Judge Gallo’s R&R in its entirety, (2) DENIES 23 Plaintiff’s Motion for Summary Judgment, (ECF No. 15), and (3) GRANTS Defendant’s 24 Cross Motion for Summary Judgment, (ECF No. 17). 25 /// 26 /// 27 /// 28 /// 1 16-CV-1166 JLS (WVG) 1 BACKGROUND 2 Judge Gallo’s R&R contains a thorough and accurate recitation of the factual and 3 procedural histories underlying the instant Motions for Summary Judgment. (See R&R 6– 4 20.1) This Order incorporates by reference the background as set forth therein. 5 LEGAL STANDARD 6 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 7 court’s duties regarding a magistrate judge’s report and recommendation. The district court 8 “shall make a de novo determination of those portions of the report . . . to which objection 9 is made,” and “may accept, reject, or modify, in whole or in part, the findings or 10 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United 11 States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely objection, 12 however, “the Court need only satisfy itself that there is no clear error on the face of the 13 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 14 note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)). 15 ANALYSIS 16 As discussed, neither Plaintiff nor Defendant filed an objection or a reply to Judge 17 Gallo’s R&R. And after review of the moving papers and Judge Gallo’s R&R, the Court 18 finds “that there is no clear error on the face of the record” and thus the Court may “accept 19 the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell, 510 20 F.2d at 206). Additionally, the Court agrees with Judge Gallo’s conclusions that the 21 Administrative Law Judge’s (“ALJ”) determination was not erroneous because (1) the 22 decision was based on substantial evidence, (R&R 20–30), and (2) the ALJ did not err in 23 rejecting Plaintiff’s subjective testimony, (id. at 30–40). Accordingly, the Court ADOPTS 24 Judge Gallo’s R&R and thus DENIES Plaintiff’s Motion for Summary Judgment, and 25 GRANTS Defendant’s Cross Motion for Summary Judgment. 26 27 28 1 Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each page. 2 16-CV-1166 JLS (WVG) 1 CONCLUSION 2 For the foregoing reasons, the Court (1) ADOPTS Judge Gallo’s R&R in its entirety, 3 (2) DENIES Plaintiff’s Motion for Summary Judgment, (ECF No. 15), and (3) GRANTS 4 Defendant’s Cross Motion for Summary Judgment, (ECF No. 17). This Order ends the 5 litigation in this matter. Accordingly, the Clerk of Court SHALL close the file. 6 7 IT IS SO ORDERED. Dated: August 2, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16-CV-1166 JLS (WVG)

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