-JLT (SS) Rodriguez v. Commissioner of Social Security, No. 1:2009cv00380 - Document 31 (E.D. Cal. 2011)

Court Description: 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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1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 9 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. 10 11 12 13 14 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 15 16 17 II and XVI of the Social Security Act. Plaintiff seeks to challenge the findings of the administrative law judge (“ALJ”), 18 who found Plaintiff’s knee impairment was not severe, and that 19 Plaintiff was not compliant with treatment for his diabetes. 20 addition, Plaintiff alleges he received ineffective assistance of 21 counsel at the administrative hearings, and that the ALJ 22 23 24 25 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 26 Defendant’s motion for summary judgment be granted. Doc. 26. 27 The Magistrate Judge found Plaintiff’s contentions of errors at 28 the administrative hearing and by the ALJ were without merit. 1 1 Id. at 16. 2 his determination that Plaintiff’s knee injury was not severe 3 4 Further, the Magistrate Judge found the ALJ supported with objective medical evidence, and used proper legal standards in determining Plaintiff failed to comply with his treatment. 5 Although Plaintiff was granted 14 days from March 11, 2011, 6 7 or until March 25, 2011, to file objections to the Magistrate’s 8 Judges Findings and Recommendations, he did not do so. 9 28, 2011 Order adopted the Findings and Recommendations of the 10 Magistrate Judge in full. 11 denied, Defendant’s motion for summary judgment was granted, and 12 13 14 15 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 16 17 Reconsideration,” claiming that he never received a copy of the 18 Findings and Recommendations.1 19 Findings and Recommendations were served on Plaintiff on March 20 21 11, 2011, by U.S. mail. The docket reveals that the See docket entry dated 3/11/2011. However, Plaintiff claims that he first learned of the Findings 22 23 24 and Recommendations on March 30, 2011, when he received a copy of the Order Adopting, dated March 28, 2011. See Doc. 30. He then 25 called and spoke with an employee of the Court, who sent him a 26 copy of the Findings and Recommendations. 27 1 28 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.” 2 1 “I live in an [apartment] complex, and this is not the first time 2 that I did not receive mail from the Eastern [District] Court[].” 3 4 Id. Although it is not the Court’s responsibility to ensure 5 6 7 delivery once a document is placed in the U.S. Mail, in an abundance of caution, Plaintiff will be afforded one additional 8 opportunity to file objections to the Findings and 9 Recommendations, a copy of which he now claims to possesses. 10 such objections shall be filed within fourteen days of service of 11 this order. Any No further extensions will be granted. 12 I. CONCLUSION 13 14 For the reasons set forth above: 15 1. Plaitniff’s motion for reconsideration is GRANTED. 16 2. The Order Adopting the Findings and Recommendations is 17 18 19 20 21 22 VACATED. 3. The Clerk of Court is directed to VACATE the Judgment and REOPEN this case. 4. Plaintiff shall have fourteen days from service of this order to file objections to the Findings and Recommendations. 23 24 25 26 27 28 IT IS SO ORDERED. Dated: May 19, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE DEAC_Signature-END: emm0d64h 3