Young v. Colvin

Northern District of California, cand-4:2015-cv-01029

ORDER by Judge Kandis A. Westmore denying the Commissioner's {{23}} Motion to Amend/Correct. (kawlc1, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MARIAN BETTY YOUNG, 7 Case No. 4:15-cv-01029-KAW Plaintiff, 8 ORDER DENYING DEFENDANT'S v. MOTION TO AMEND ORDER UNDER 9 FED. R. CIV. P. 59(e) CAROLYN W. COLVIN, 10 Re: Dkt. No. 23 Defendant. 11 12 Northern District of California United States District Court 13 On March 5, 2015, Plaintiff Marian Betty Young filed this lawsuit seeking judicial review 14 of the Commissioner of the Social Security Administration's (the "Commissioner's") final 15 administrative decision denying her disability benefits. On September 27, 2016, the Court granted 16 Plaintiff's motion for summary judgment, denied the Commissioner's cross-motion for summary 17 judgment, and remanded the case for further proceedings, in which the opinions of Drs. Wilson, 18 Brusatori, and Plaintiff's social worker were to be credited as true. (Order, Dkt. No. 21.) The 19 Court then entered judgment for Plaintiff. (Judgment, Dkt. No. 22.) 20 On October 25, 2016, the Commissioner filed a motion to alter or amend the September 27 21 order pursuant to Federal Rule of Civil Procedure 59(e). (Def.'s Mot., Dkt. No. 23.) On 22 November 7, 2016, Plaintiff filed an opposition. (Pl.'s Opp'n, Dkt. No. 24.) 23 Upon review of the moving papers, the Court finds this matter suitable for resolution 24 without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below, 25 DENIES the Commissioner's motion to alter or amend the order. 26 I. LEGAL STANDARD 27 Under Federal Rule of Civil Procedure 59(e), a party may move to alter or amend an order 28 or judgment where: (1) the district court is presented with newly discovered evidence or evidence 1 that was previously unavailable; (2) the district court committed clear error or the initial decision 2 was manifestly unjust; or (3) there is an intervening change in controlling law. Turner v. 3 Burlington Northern Santa Fe R.R., 338 F.3d 1058, 1063 (9th Cir. 2003) (citations omitted). 4 Rule 59(e) "offers an extraordinary remedy, to be used sparingly in the interests of finality 5 and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 6 (9th Cir. 2000). "A district court has considerable discretion when considering a motion to amend 7 a judgment under Rule 59(e)." Turner, 338 F.3d at 1063. 8 II. DISCUSSION 9 A. Motion to Alter or Amend 10 On September 27, 2016, the Court remanded the case "to step three to include the 11 limitations identified by Drs. Wilson and B[r]usatori in Plaintiff's residual functional capacity 12 [("RFC")], as their opinions must be taken as true, and to conduct a new administrative hearing to Northern District of California United States District Court 13 obtain additional vocational expert testimony." (Order at 18.) 14 Now, the Commissioner seeks to alter or amend the order "remanding this matter to the 15 Commissioner and 'crediting as true' the opinion of two physicians and one social worker" on the 16 grounds that requiring that the opinions of Drs. Brusatori and Wilson, and Plaintiff's social worker 17 be credited as true upon remand is a manifest error of law. (Def.'s Mot. at 1.) 18 In support of the motion, the Commissioner relies on Treichler v. Comm'r of Soc. Sec. 19 Admin., 775 F.3d 1090, 1100-01 (9th Cir. 2014), and Dominguez v. Colvin, 808 F.3d 403, 409 (9th 20 Cir. 2015), as amended (Feb. 5, 2016), for the proposition that the credit-as-true doctrine is 21 discretionary. (Def.'s Mot. at 3.) While there is some discretion, the cases cited concern the 22 propriety of remanding a case for an immediate award of benefits rather than for further 23 proceedings, which is frequently referred to as the Varney II rule. See Dominguez, 808 F.3d at 409 24 (citing Treichler, 775 F.3d at 1105); see also Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 25 2014)(citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). 26 While the Court recognizes that generally the credit-as-true rule is used to remand for an 27 immediate award of benefits, here, the case was remanded for further proceedings, because the 28 step five determination required consideration of vocational expert testimony regarding a 2 1 hypothetical that included an RFC with all of Plaintiff's limitations. (See Order at 16-18.) Indeed, 2 despite discounting their medical opinions, the ALJ generally agreed with the medical opinions of 3 Drs. Wilson and Brusatori, including Dr. Wilson's diagnosis of PTSD, which went glaringly 4 undiagnosed by the consulting physician whose medical opinion was afforded the greatest weight. 5 (Order at 8-12.) As a result, the Court found that the treating sources' opinions must be credited 6 as true. "Where the Commissioner fails to provide adequate reasons for rejecting the opinion of a 7 treating or examining physician, we credit that opinion 'as a matter of law.' " Harman v. Apfel, 8 211 F.3d 1172, 1178 (9th Cir. 2000) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 9 Despite the Commissioner's arguments to the contrary, as other courts in this district have held, 10 Treichler and the more recent cases cited, do not alter this analysis. See Potter v. Colvin, No. 14- 11 cv-02562-JSC, 2015 WL 3992944, at *5 (N.D. Cal. June 30, 2015); Page v. Colvin, No. 14-CV- 12 02870-DMR, 2016 WL 6835075, at *5 (N.D. Cal. Nov. 20, 2016). Northern District of California United States District Court 13 Furthermore, the ALJ erroneously afforded the greatest weight to Dr. Kiefer, the 14 consulting physician, even though he had no medical records to review, missed two mental 15 impairments the ALJ found significant (PTSD and affective disorder), and had opinions that were 16 not consistent with the other evidence in the record. (Order at 13.) Thus, after crediting the 17 opinions of Drs. Wilson and Brusatori, and Plaintiff's social worker as true, and discounting Dr. 18 Kiefer's opinion, the Court found that the only evidence that needed to be obtained to make a 19 disability determination was new vocational expert testimony to inform the ALJ's analysis at step 20 five. Thus, there is no reason to remand with an "open record." (See Def.'s Mot. at 4.) 21 In light of the foregoing, the Court DENIES the Commissioner's motion to amend or alter 22 the September 27, 2016 order. 23 B. Scope of Remand 24 There appears to be some confusion as to the scope of the Court's order for further 25 proceedings. (See Def.'s Mot. at 4 n. 3.) To clarify, the Court was instructing the Commissioner 26 to include the limitations identified in Plaintiff's RFC, which occurs between steps three and four 27 of the sequential evaluation. (See Order at 18.) Since the ALJ determined that Plaintiff was unable 28 to perform past relevant work with fewer limitations at step four, the ALJ may proceed directly to 3 1 step five to obtain vocational expert testimony to determine whether there are positions that exist 2 in significant numbers in the national economy that may be performed by someone with Plaintiff's 3 residual functional capacity. See id. 4 III. CONCLUSION 5 For the reasons set forth above, Defendant's motion to amend the September 27, 2016 6 order granting Plaintiff's motion for summary judgment is DENIED. 7 IT IS SO ORDERED. 8 Dated: February 2, 2017 __________________________________ 9 KANDIS A. WESTMORE 10 United States Magistrate Judge 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4