James Drew Lockhart v. Nancy A. Berryhill, et al, No. 2:2017cv03550 - Document 35 (C.D. Cal. 2019)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge James V. Selna for Report and Recommendation (Issued), 25 . IT THEREFORE IS ORDERED that judgment be entered in the Commissioner's favor. (See document for details.) (sbou)
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James Drew Lockhart v. Nancy A. Berryhill, et al Doc. 35 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 JAMES DREW LOCKHART, Plaintiff, 13 14 v. 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 17 18 Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. CV 17-3550-JVS (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE Pursuant to 28 U.S.C. § 636, the Court has reviewed the 19 Complaint, Joint Stipulation, Administrative Record, and all 20 other records on file as well as the Report and Recommendation of 21 U.S. Magistrate Judge. On September 5, 2018, Plaintiff filed 22 Objections to the R. & R. Defendant filed a Reply on September 23 26. The Court has made a de novo determination of those portions 24 of the R. & R. to which Plaintiff objected. 25 For the most part, as he did in the Joint Stipulation, 26 Plaintiff simply restates principles of law without applying them 27 to the specific facts of this case. Where he does specifically 28 find fault in the Magistrate Judge’s factual findings or 1 Dockets.Justia.com 1 analysis, his arguments are not convincing. 2 For example, Plaintiff contends that certain factual 3 findings the Magistrate Judge made about his ejection fractions 4 were erroneous and therefore that he qualified under Listing 5 4.02. (See Objs. at 6.) But the Magistrate Judge found that the 6 ALJ “likely erred” in finding that Plaintiff could not satisfy 7 the portion of 4.02 concerning ejection fractions but that he 8 could not show that he met the listing’s other requirements. 9 & R. at 39.) (R. Accordingly, any factual error by the Magistrate 10 Judge was harmless. 11 Plaintiff objects that the ALJ’s rejection of his subjective 12 symptom testimony was not properly analyzed, in part because he 13 has “subsequently” been assessed as falling into Class III of the 14 American Heart Association’s heart-failure categories, indicating 15 marked limitation in physical activity. (See Objs. at 9.) But 16 as the Magistrate Judge noted, at all relevant times Plaintiff 17 was found to fall into Class I or II, the latter indicating only 18 “slight limitation of physical activity.” 19 n.9; see also id. at 14, 16, 17, 40.) (See R. & R. at 15 That Plaintiff’s condition 20 may have deteriorated at some point after the ALJ’s decision is 21 of no moment. 22 Plaintiff also takes issue with the Magistrate Judge’s 23 statement that he did not point to any error in the reasons the 24 ALJ gave for discounting the credibility of his symptom 25 statements (R. & R. at 6, 20-27), asserting that “the Joint 26 Stipulation repeatedly references testimony and treatment records 27 in support of a finding that Plaintiff’s symptoms were . . . 28 2 1 credible.”1 (Objs. at 10 (citing J. Stip. at 16 & 41).) But 2 page 16 falls in Plaintiff’s section of the Joint Stipulation 3 concerning the ALJ’s evaluation of the doctors’ opinions, not the 4 credibility of Plaintiff’s statements. It simply recounts a 5 particular doctor’s functional-limitation findings for Plaintiff. 6 Similarly, page 41 is in Plaintiff’s portion of the Joint 7 Stipulation addressing the ALJ’s RFC finding, not the part 8 challenging his assessment of Plaintiff’s credibility. 9 Plaintiff’s “hindsight attempt to string together an argument 10 from quotes scattered throughout [his] opening brief” is 11 insufficient to preserve an issue for appeal. See Christian 12 Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 487-88 13 (9th Cir. 2010); see also Stewart v. Colvin, No. CV 13-0105-GF14 BMM, 2015 WL 275737, at *8 n.1 (D. Mont. Jan. 22, 2015) (“A court 15 will not do an appellant’s work for it, either by manufacturing 16 its legal arguments, or by combing the record on its behalf for 17 factual support.” (citation omitted)), aff’d, 674 F. App’x 634 18 (9th Cir. 2017). 19 For all these reasons as well as those pointed out in 20 Defendant’s Reply to Plaintiff’s Objections, the Magistrate Judge 21 did not err. Having reviewed the record, the Court concurs with 22 and accepts the Magistrate Judge’s recommendations. IT THEREFORE 23 IS ORDERED that judgment be entered in the Commissioner’s favor. 24 25 DATED: 2/11/2019 JAMES V. SELNA U.S. DISTRICT JUDGE 26 27 28 1 Plaintiff actually wrote “were not credible” in his Objections, but that appears to have been a scrivener’s error. 3
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