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Gutierrez v. Berryhill

United States District Court, D. Montana, Great Falls Division

May 24, 2019

CHARLES A. GUTIERREZ, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          BRIAN MORRIS, UNITED STATES DISTRICT COURT JUDGE

         INTRODUCTION

         Plaintiff Charles Alan Gutierrez filed an application for social security disability benefits on December 3, 2015. (Doc. 5 at 217-18.) The administrative law judge (“ALJ”) concluded that Gutierrez did not qualify for disability or disability insurance benefits on June 7, 2017. Id. at 26. The Social Security Administration (“Administration”) denied Gutierrez's request to have the Administration review the ALJ's decision. Id. at 1-3, 102. Gutierrez filed the instant action on November 28, 2017. (Doc. 1.)

         Gutierrez filed a Motion for Partial Summary Judgment (Doc. 9) on April 27, 2018. United States Magistrate Judge John Johnston entered Findings and Recommendations regarding the instant motion on March 1, 2019. (Doc. 28.) Judge Johnston ultimately recommended that the Court deny Gutierrez's Motion for Partial Summary Judgment and affirm the Acting Commissioner of Social Security Administration (“Commissioner”)'s decision to deny benefits to Gutierrez. Id. at 16. Gutierrez timely filed objections to Judge Johnston's Findings and Recommendations on March 15, 2019. (Doc. 29.) Because the parties are familiar with the facts, the Court will not recite them here.

         STANDARD OF REVIEW

         The Court reviews de novo Findings and Recommendations to which a party timely objects. 28 U.S.C. § 636(b)(1). “A party makes a proper objection by identifying the parts of the magistrate's disposition that the party finds objectionable, and presenting legal argument and supporting authority, such that the district court is able to identify the issues and the reasons supporting a contrary result.” Montana Shooting Sports Ass'n v. Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18, 2010) (citation omitted). The Court reviews for clear error findings and recommendations to which no party objects. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

         Where a party's objections constitute perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original response the Court likewise will review the applicable portions of the findings and recommendations for clear error. Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014) (internal citations omitted). Clear error exists if the Court is left with a “definite and firm conviction that a mistake has been committed.” United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).

         DISCUSSION

         Gutierrez submitted seven objections to Judge Johnston's Findings and Recommendations. (Doc. 29 at 1-8.) Gutierrez contends (1) that there is no support in the record that Gutierrez has been diagnosed with alcohol addiction; (2) that the conclusion that Gutierrez's TBI is “mild” proves contrary to the opinion of the treating psychologist; (3) that the ALJ gave “short shrift” to its analysis before rejecting the Veteran Affair's disability decision; (4) that Judge Johnston erred in determining that medical evidence contradicted the opinion of Gutierrez's treating psychologist; (5) that substantial evidence exists that does not support Judge Johnston's conclusion that Gutierrez's daily activities were not limited; (6) that the hypotheticals posted by the ALJ to the vocational expert have no evidentiary value; and (7) that Gutierrez did not waive his right to attack the ALJ's appointment on review. Id. That Court will address each objection in turn.

         1. Alcohol Addiction

         Gutierrez contends that the record does not support the determination that Gutierrez suffers from an alcohol addiction. (Doc. 29 at 2.) Judge Johnston does not rely in his Findings and Recommendations on the ALJ's determination that Gutierrez suffers from an alcohol addiction. See (Doc. 28 at 1-17.) Judge Johnston merely recites the ALJ's determination that “Gutierrez possessed the following severe impairments: depression, PTSD, and alcohol addiction.” (Doc. 28 at 5.) The Court overrules Gutierrez's objection.

         2. Determination that Gutierrez's TBI is “Mild”

         Judge Johnston determined that the “ALJ reasonably concluded that Gutierrez's traumatic brain injury was not severe.” Id. Judge Johnston reasoned that the “MRI of Gutierrez's brain in April 2012 showed abnormalities indicative of a mild brain injury.” (Doc. 28 at 9.) Judge Johnston further explained that Dr. Robert Bateen, the examining psychologist in this case, noted that “Gutierrez's brain injury had no impact on his ability to work.” Id. Gutierrez claims that Judge Johnston concluding that medical evidence supports a determination that Gutierrez's TBI was “mild” proves contrary to the opinion of Gutierrez's treating physician. (Doc. 29 at 2.)

         Gutierrez fails to provide legal authority in support of his objection. The Court remains unable to decipher Gutierrez's supporting reasons that Judge Johnston reached a contrary result in his Findings and Recommendations. Gutierrez's objection to this portion of Judge Johnston's Findings and Recommendations proves improper. See Montana Shooting Sports Ass'n, 2010 WL 4102940, at 2. The Court will review for clear error ...


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