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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSEPH ALLEN MCCOLLOUGH, III,

Case No.: 16-CV-1166 JLS (WVG)

Plaintiff,

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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,

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Defendant.

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(ECF Nos. 15, 17, 19)

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Presently before the Court is Magistrate Judge William V. Gallo’s Report and

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Recommendation (“R&R”) recommending that the Court (1) deny Plaintiff’s Motion for

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Summary Judgment, and (2) grant Defendant’s Cross Motion for Summary Judgment.

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(ECF No. 19.) No party filed an objection or a reply to Judge Gallo’s R&R. For the

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following reasons, the Court (1) ADOPTS Judge Gallo’s R&R in its entirety, (2) DENIES

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Plaintiff’s Motion for Summary Judgment, (ECF No. 15), and (3) GRANTS Defendant’s

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Cross Motion for Summary Judgment, (ECF No. 17).

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16-CV-1166 JLS (WVG)

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BACKGROUND

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Judge Gallo’s R&R contains a thorough and accurate recitation of the factual and

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procedural histories underlying the instant Motions for Summary Judgment. (See R&R 6–

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20.1) This Order incorporates by reference the background as set forth therein.

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LEGAL STANDARD

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

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court’s duties regarding a magistrate judge’s report and recommendation. The district court

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“shall make a de novo determination of those portions of the report . . . to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United

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States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely objection,

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

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record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s

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note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)).

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ANALYSIS

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As discussed, neither Plaintiff nor Defendant filed an objection or a reply to Judge

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Gallo’s R&R. And after review of the moving papers and Judge Gallo’s R&R, the Court

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finds “that there is no clear error on the face of the record” and thus the Court may “accept

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the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell, 510

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F.2d at 206). Additionally, the Court agrees with Judge Gallo’s conclusions that the

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Administrative Law Judge’s (“ALJ”) determination was not erroneous because (1) the

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decision was based on substantial evidence, (R&R 20–30), and (2) the ALJ did not err in

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rejecting Plaintiff’s subjective testimony, (id. at 30–40). Accordingly, the Court ADOPTS

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Judge Gallo’s R&R and thus DENIES Plaintiff’s Motion for Summary Judgment, and

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GRANTS Defendant’s Cross Motion for Summary Judgment.

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Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each
page.
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16-CV-1166 JLS (WVG)

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CONCLUSION

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For the foregoing reasons, the Court (1) ADOPTS Judge Gallo’s R&R in its entirety,

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(2) DENIES Plaintiff’s Motion for Summary Judgment, (ECF No. 15), and (3) GRANTS

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Defendant’s Cross Motion for Summary Judgment, (ECF No. 17). This Order ends the

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litigation in this matter. Accordingly, the Clerk of Court SHALL close the file.

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IT IS SO ORDERED.
Dated: August 2, 2017

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16-CV-1166 JLS (WVG)