Case 2:21-cv-03691-FWS-MRW Document 23 Filed 10/24/22 Page 1 of 5 Page ID #:708

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE R., Case No. 2:21-CV-03691-FWS-MRW

12 Plaintiff, ORDER ACCEPTING FINDINGS, 13 v. CONCLUSIONS AND RECOMMENDATIONS OF UNITED 14 KILOLO KIJAKAZI, Acting STATES MAGISTRATE JUDGE Commissioner of Social 15 Security,

16 Defendant. 17 18

19 I. Introduction 20 21 Before the Court is an “an appeal from a final administrative 22 decision denying plaintiff’s claim” resulting from the “decision 23 of the Commissioner of Social Security terminating plaintiff’s 24 supplemental security income disability benefits for lack of 25 disability” (the “Appeal”), filed by Plaintiff Jose R. 26 (“Plaintiff”) on April 30, 2021. (Dkt. 1 at 1.) On December 22, 27 2021, Defendant Kilolo Kijakazi, Acting Commissioner of Social 28 Case 2:21-cv-03691-FWS-MRW Document 23 Filed 10/24/22 Page 2 of 5 Page ID #:709

1 Security (“Defendant”), filed an Answer to the Appeal, (Dkt. 14) 2 (the “Answer”), as well as the Certified Administrative Record, 3 (Dkt. 15) (the “CAR”). On May 23, 2022, Plaintiff and Defendant 4 filed a Joint Stipulation for Disposition of Claim from Relief from 5 Decision of the Commissioner (the “Joint Stipulation”). (Dkt. 19.) 6 On July 27, 2022, the Magistrate Judge issued the Report and 7 Recommendation (the “Report and Recommendation”), indicating that 8 any objections to the Report and Recommendation were due on or 9 before August 10, 2022. (Dkts. 21, 22.) On August 10, 2022, 10 Defendant filed an Objection to the Report and Recommendation (the 11 “Objection”). (Dkt. 22.) 12 13 Pursuant to

, the Court has reviewed 14 the Appeal, the Answer, the CAR, the Joint Stipulation, the 15 Report and Recommendation, and the other records of the case. 16 After conducting a de novo determination of the portions of the 17 Report and Recommendation to which the Objection was directed, 18 the Court concurs with and accepts the findings and conclusions 19 of the Magistrate Judge. 20 21 II. Analysis 22 23 “A judge of the court may accept, reject, or modify, in 24 whole or in part, the findings or recommendations made by the 25 magistrate judge.”

(b)(1)(C); see also Fed. R. 26 Civ. P. 72(b)(3) (stating “[t]he district judge must determine de 27 novo any part of the magistrate judge’s disposition that has been 28 properly objected to,” and “[t]he district judge may accept,

2 Case 2:21-cv-03691-FWS-MRW Document 23 Filed 10/24/22 Page 3 of 5 Page ID #:710

1 reject, or modify the recommended disposition; receive further 2 evidence; or return the matter to the magistrate judge with 3 instructions”). Proper objections require “specific written 4 objections to the proposed findings and recommendations” of the 5 magistrate judge. Fed. R. Civ. P. 72(b)(2). “A judge of the 6 court shall make a de novo determination of those portions of the 7 report or specified proposed findings or recommendations to which 8 objection is made.”

(b)(1)(C); see also United 9 States v. Reyna-Tapia,

(9th Cir. 2003) (“The 10 statute makes it clear that the district judge must review the 11 magistrate judge’s findings and recommendations de novo if 12 objection is made, but not otherwise.”). Where no objection has 13 been made, arguments challenging a finding are deemed waived. 14 See

(b)(1)(C) (“Within fourteen days after being 15 served with a copy, any party may serve and file written 16 objections to such proposed findings and recommendations as 17 provided by rules of court.”). Moreover, “[o]bjections to a R&R 18 are not a vehicle to relitigate the same arguments carefully 19 considered and rejected by the Magistrate Judge.” Chith v. 20 Haynes,

, at *1 (W.D. Wash. Oct. 12, 2021). 21 22 In the Report and Recommendation, in summary, the Magistrate 23 Judge “concludes that the ALJ failed to state an adequate reason 24 for disbelieving Plaintiff’s testimony about his physical 25 symptoms and limitations,” and “recommend[s] that the agency’s 26 determination be vacated and the case remanded for further 27 proceedings.” (Dkt. 20-1 at 2.) In the Objection, Defendant 28 objects to the Magistrate Judge’s conclusion finding “that the

3 Case 2:21-cv-03691-FWS-MRW Document 23 Filed 10/24/22 Page 4 of 5 Page ID #:711

1 ALJ did not provide legally sufficient reasons for discounting 2 Plaintiff’s subjective allegations.” (Dkt. 22 at 2.) Defendant 3 “submits that the ALJ provided specific reasons supported by 4 substantial evidence in the record for his analysis of 5 Plaintiff’s allegations, and that [the ALJ’s decision] should 6 therefore be upheld.” (Dkt. 22 at 3.) 7 8 In this case, after conducting a de novo review of the 9 issues presented in the Objection on their merits, the Court 10 agrees with each of the findings of fact and conclusions of law 11 set forth in the Report and Recommendation, including the 12 findings of facts and conclusions of law related to the 13 Objection. Specifically, based on the record, the court concurs 14 with the Magistrate Judge’s recommendations concluding: (1) “the 15 ALJ failed to identify any other clear, convincing, and supported 16 reason to disbelieve Plaintiff’s testimony about his exertional 17 abilities”; (2) “[i]f the ALJ fully credited Plaintiff’s 18 testimony, the RFC might well have included those limitations”; 19 and (3) “[t]he appropriate remedy is to remand the case on an 20 open record.” (Dkt. 20-1 at 8-9.) Accordingly, the Objection is 21 OVERRULED on its merits. 22 23 III. Conclusion 24 25 Based on the state of the record, as applied to the 26 applicable law, the Court adopts the Report and Recommendation, 27 including each of the findings of fact and conclusions of law 28 therein. Accordingly,

4 Case □□□□□□□□□□□□□□□□□□□□□ Document 23 Filed 10/24/22 Page5of5 Page ID #:712

1 IT IS ORDERED that Judgment be entered in favor of Plaintiff 2] and the matter be remanded to the Social Security Administration 3 on an open record for further proceedings. IT IS FURTHER ORDERED that the Clerk serve copies of this

7 Order, the Magistrate Judge’s Report and Recommendation, and the g || Judgment herein on counsel for Plaintiff and counsel for 9 Defendant. 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 | DATED: October 24, 2022 13 LM [//-— 14 Hon. Fred W. Slaughter 15 UNITED STATES DISTRICT JUDGE

16 17 18 19 20 21 22 23 24 25 26 27 28