Wright v. Colvin

Filing 27

ORDER denying 23 Motion to Alter or Amend Judgment. Signed by Magistrate Judge Katherine P. Nelson on 8/1/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KENNETH A. WRIGHT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 14-00465-N

ORDER
This action is before the Court on the motion to alter or amend the judgment
under Federal Rule of Civil Procedure 59(e) (Doc. 23) filed by the Defendant
Commissioner of Social Security (“the Commissioner”).

Plaintiff Kenneth A.

Wright has timely filed a response (Docs. 25, 26) in opposition to the motion. The
Commissioner was given an opportunity to filed a reply to the response (see Doc. 24)
but did not do so. The Rule 59(e) motion is now under submission and is ripe for
disposition. Upon consideration, the Court finds that the motion to alter or amend
(Doc. 23) is due to be DENIED.
I.

Legal Standards

“The only grounds for granting [a Rule 59] motion are newly-discovered
evidence or manifest errors of law or fact.” In re Kellogg, 197 F.3d 1116,
1119 (11th Cir. 1999). “[A] Rule 59(e) motion [cannot be used] to
relitigate old matters, raise argument or present evidence that could
have been raised prior to the entry of judgment.” Michael Linet, Inc. v.
Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (per curiam).Accord, e.g.,
Hamilton v. Sec’y, Fla. Dep’t of Corr., 793 F.3d 1261, 1266-67 (11th Cir. 2015) (per

curiam), cert. denied, 136 S. Ct. 1661 (2016).
II.

Background

Wright brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking
judicial review of a final decision of the Commissioner denying him benefits under
the Social Security Act.

On February 26, 2016, the Court reversed the

Commissioner’s decision, remanded Wright’s case to the Commissioner under
sentence four of § 405(g) for further proceedings, and entered final judgment
accordingly. (Docs. 21, 22). In so doing, the Court sustained Wright’s lone claim of
error: that the Administrative Law Judge (“ALJ”) “reversibly erred in failing to give
significant weight to opinion of Plaintiff’s treating physician, Mark Pita, M.D., who
offered an opinion on the severity of the claimant’s pain.”

(Doc. 21 at 7 (quoting

Doc. 14 at 1)).
Specifically, the Court noted that “[t]he ALJ assigned ‘no substantial weight’
to [Dr. Pita’s] opinion because it was ‘inconsistent with the examination notes and
reports in Exhibits B10F and B16F.’ ”

(Doc. 21 at 12 (record citations omitted)).

The Court, agreeing with Wright, held that “standing alone, this summary citation
to two exhibits, collectively consisting of over seventy pages of medical records, is
insufficient, as the Court is unable to determine what inconsistencies the ALJ relied
on to justify assigning less than substantial weight to the opinion.”

(Id.).

On March 22, 2016, the Commissioner timely filed1 the present motion to
alter or amend the judgment, requesting that the Court vacate its previous
1

I.e., within “28 days after the entry of judgment.”

Fed. R. Civ. P. 59(e).

judgment and affirm the Commissioner’s decision under §§ 405(g) and 1383(c)(3).
(Doc. 33).
III.

Analysis

In finding insufficient the ALJ’s articulated reason for assigning less than
substantial weight to Dr. Pita’s opinion, the Court noted: “The Commissioner’s brief
provides a more in-depth discussion of Exhibits B10F and B16F, citing numerous
sections of those records purporting to support the ALJ’s decision, and also cites
other record evidence that is contrary to Dr. Pita’s opinion. However, the Court
cannot affirm based on such post hoc reasoning.”

(Doc. 21 at 13 n.7).

The

Commissioner argues that the Court committed “a clear error of law” by
“affirmatively ignor[ing] record evidence that was purportedly not discussed in the
ALJ’s decision” (Doc. 23-1 at 2), thus contravening longstanding Eleventh Circuit
precedent holding that courts “must scrutinize the record as a whole to determine if
the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted).
See also, e.g., Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997) (“We will
not disturb the Commissioner's decision if, in light of the record as a whole, it
appears to be supported by substantial evidence. See 42 U.S.C. § 405(g); MacGregor
v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).”).
The Commissioner also argues, in the alternative, that the ALJ’s stated
reason for discounting Dr. Pita’s opinion was adequately explained by the ALJ’s
more specific references to portions of Exhibits B10F and B16F noted elsewhere in

his decision.

Thus, the Commissioner argues, the Court made a “clear error of fact”

in determining that the ALJ’s made only a “summary citation” to those exhibits in
assigning weight to Dr. Pita’s opinion.
The “substantial evidence” “standard of review applies only to findings of fact.
No similar presumption of validity attaches to the [Commissioner]’s conclusions of
law, including determination of the proper standards to be applied in reviewing
claims.”

MacGregor, 786 F.2d at 1053 (quotation omitted). Accord, e.g., Wiggins v.

Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals
from the administrative denials of Social Security benefits dictates that ‘(t)he
findings of the Secretary as to any fact, if supported by substantial evidence, shall be
conclusive ....’ 42 U.S.C.A. s 405(g) (West Supp. 1982) (emphasis added). As is plain
from the statutory language, this deferential standard of review is applicable only to
findings of fact made by the Secretary, and it is well established that no similar
presumption of validity attaches to the Secretary’s conclusions of law, including
determination of the proper standards to be applied in reviewing claims.” (footnote
and some citations and quotation marks omitted)).

“ ‘A determination that is

supported by substantial evidence may be meaningless ... if it is coupled with or
derived from faulty legal principles.’ ”

Chester v. Bowen, 792 F.2d 129, 131 (11th

Cir. 1986) (per curiam) (quoting Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir.
1983)). This Court “review[s] de novo the Commissioner’s conclusions of law … ‘The
[Commissioner]’s failure to apply the correct law or to provide the reviewing
court with sufficient reasoning for determining that the proper legal

analysis has been conducted mandates reversal.’ ”

Ingram v. Comm'r of Soc.

Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (emphasis added) (quoting
Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)). Accord Keeton v.
Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
In this Circuit, it is well-established that, “[a]bsent ‘good cause,’ an ALJ is to
give the medical opinions of treating physicians substantial or considerable weight.
Good cause exists when the: (1) treating physician's opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating physician's
opinion was conclusory or inconsistent with the doctor's own medical records.

With

good cause, an ALJ may disregard a treating physician’s opinion, but he must clearly
articulate the reasons for doing so.”

Winschel v. Comm'r of Soc. Sec., 631 F.3d

1176, 1179 (11th Cir. 2011) (citations and quotations omitted).

Accord, e.g.,

Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
Moreover, the ALJ must state with particularity the weight given to different
medical opinions and the reasons therefor. Sharfarz v. Bowen, 825 F.2d 278,
279 (11th Cir. 1987) (per curiam). “In the absence of such a statement, it is
impossible for a reviewing court to determine whether the ultimate decision
on the merits of the claim is rational and supported by substantial evidence.”
Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). Therefore, when the
ALJ fails to “state with at least some measure of clarity the grounds for his
decision,” we will decline to affirm “simply because some rationale might have
supported the ALJ's conclusion.” Owens v. Heckler, 748 F.2d 1511, 1516 (11th
Cir. 1984) (per curiam). In such a situation, “to say that [the ALJ’s] decision is
supported by substantial evidence approaches an abdication of the court’s
duty to scrutinize the record as a whole to determine whether the conclusions
reached are rational.” Cowart, 662 F.2d at 735 (quoting Stawls v. Califano,
596 F.2d 1209, 1213 (4th Cir. 1979)) (internal quotation marks omitted).
Winschel, 631 F.3d at 1179 (emphasis added).

The Commissioner argues that the Court improperly expanded the scope of
the Owens holding repeated in Winschel, see supra, in declining to consider the
record evidence cited in her brief.2

The Commissioner points out that the Owens

holding was announced in the context of an “ALJ’s failure to make any finding at all
on the credibility of the testimony relating to [an] issue” in dispute, Owens, 748 F.2d
at 1515, whereas here the ALJ did state the weight given to Dr. Pita’s opinion and a
reason therefore, however conclusory it may have been. The Commissioner also
argues that Winschel “doe not purport to expand [Owens’s] scope.”

(Doc. 23-1 at 5).

In declining to consider the Commissioner’s post hoc citation of evidence that
she asserts supports the ALJ’s statement of “good cause” in discounting Dr. Pita’s
opinion, the Court cited two Eleventh Circuit cases that, in turn, each relied on
Owens in declining affirm an ALJ’s deficient express reasoning based on post hoc
rationales advanced for the first time on judicial review. (See Doc. 21 at 13 n.7).
In Hubbard v. Colvin, No. 15-12920, 2016 WL 624403 (11th Cir. Feb. 17, 2016) (per
curiam) (unpublished), the district court, despite “identifying multiple ‘careless’
errors” in the ALJ’s reasoning, relied on its own analysis of record evidence of to
affirm the decision. 2016 WL 624403, at *3. The Eleventh Circuit stated that, “in

Indeed, the Commissioner appears to disagree with the reasoning of Owens itself,
particularly its reliance SEC v. Chenery Corp., 318 U.S. 80 (1943), a non-Social-Security
decision which the Commissioner asserts “cannot be read as instructing a reviewing court to
ignore record evidence in a Social Security case.” (Doc. 23-1 at 5 n.1). Whatever the
wisdom of Owens’s reliance on Chenery Corp., it is not the province of the district court to
question the binding reasoning of a circuit court, and Rule 59(e) motions “are neither appeal
substitutes nor a ‘dry run’ to test arguments in anticipation of a forthcoming appeal.” Lee
v. Thomas, Civil Action No. 10-0587-WS-M, 2012 WL 3137901, at *2 (S.D. Ala. Aug. 1, 2012)
(Steele, C.J.).

2

relying on evidence of Hubbard’s ability ‘to perform basic personal tasks,’ the district
court affirmed based on its own post hoc rationale[,]” and it “decline[d] to affirm
using reasoning that ‘might have supported the ALJ’s conclusion’ but was not offered
by the ALJ himself.”

Id. (quoting Owens, 748 F.2d at 1516).

In Dempsey v.

Commissioner of Social Security, 454 F. App'x 729, 732 (11th Cir. 2011) (per curiam)
(unpublished), the Eleventh Circuit rejected the Commissioner’s post hoc rationale
that ‘might have supported the ALJ’s conclusion[]’ ” to reject a treating physician’s
opinion when “the ALJ did not offer this explanation in his decision.”

454 F. App’x

at 733 (quoting Owens, 748 F.2d at 1516).3
The Commissioner does not attempt to distinguish Dempsey or Hubbard,
instead dismissing them as “lack[ing] precedential value (because they are
unpublished)” and claiming that they, like Winschel, do not “purport[] to expand
See also Tavarez v. Comm'r of Soc. Sec., No. 15-11860, 2016 WL 75424, at *7 (11th Cir.
Jan. 7, 2016) (per curiam) (unpublished) (“[W]e conclude that the ALJ’s clearly articulated
grounds for his decision to discredit Tavarez’s medical opinion evidence are not supported by
substantial evidence. See Winschel, 631 F.3d at 1179. To the extent that the Commissioner
identifies other record evidence that supports the ALJ’s decision, we do not know whether
this evidence formed the basis of the ALJ's determinations, and we will not affirm ‘simply
because some rationale might have supported the ALJ's conclusions.’ See id. at 1179.”). But
see McGriff v. Comm'r, Soc. Sec. Admin., No. 15-14585, 2016 WL 3553213, at *3 (11th Cir.
June 30, 2016) (per curiam) (unpublished) (“McGriff contends that the district court wrongly
‘correct[ed] or rehabilitate[d] the [ALJ's] decision,’ instead of reviewing it. In support of
that argument, she points to the following portion of the magistrate judge's report and
recommendation: ‘The ALJ accorded little weight to the opinion of [McGriff's treating
physician], stating that “they are inconsistent with his own findings on examination and are
unsupported by the weight of the evidence of record.” (Tr. 86). This is a broad, generalized
statement made all the more unhelpful by the fact that the ALJ did not bother to point to
any particular records of [McGriff's treating physician] which were inconsistent with his
opinion.’ Immediately after the portion of the report and recommendation that McGriff
quotes, the magistrate judge goes on to state that his review of the administrative record
confirmed that the treating physician's opinion was in fact inconsistent with his own
medical records and the records of another physician, which supported the ALJ's
conclusions. We can discern no error in that reasoning.”).

3

[Owens’s] scope.”

(Doc. 23-1 at 5). While the Commissioner is correct that neither

Dempsey nor Hubbard is binding on this Court, they may be, and in this case have
been, cited as persuasive authority supporting a more expansive application of
Owens than the Commissioner would like.

See 11th Cir. R. 36-2; Henry v. Comm'r

of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam).

The

Commissioner has cited no authority that clearly contradicts Dempsey or Hubbard,
and her arguments for a more limited application of Owens amount to a mere
disagreement over how existing precedent should be interpreted, which does not rise
to the level of a “manifest error of law” justifying relief under Rule 59(e).4

See, e.g.,

Lee v. Thomas, Civil Action No. 10-0587-WS-M, 2012 WL 3137901, at *2 (S.D. Ala.
Aug. 1, 2012) (Steele, C.J.) (“manifest error” not shown where movant simply
disagrees with the court’s reasoning or conclusions).
The Court also disagrees that it committed a “manifest error of fact” in
characterizing the ALJ’s explanation as a “summary citation” to Exhibits B10F and
B16F. As has already been explained, an ALJ “must clearly articulate the reasons”
for assigning less than substantial weight to a treating physician’s opinion.

Here,

the ALJ found that Dr. Pita’s opinion was “inconsistent with the examination notes

To the extent the Commissioner argues that Owens, Winschel, Dempsey, and Hubbard are
in conflict with “prior panel precedent” in this Circuit requiring scrutiny of the record as a
whole, this argument is meritless. As has been explained, the duty to scrutinize the record
as a whole applies to determining whether an ALJ’s factual determinations are supported by
substantial evidence. On the other hand, the failure to clearly state “good cause” for
assigning less than substantial weight to a treating physician’s opinion is an error of law
that mandates reversal because, in the absence of such a statement, it is impossible for a
reviewing court to determine whether the ultimate decision on the merits of the claim is
rational and supported by substantial evidence.

4

and reports in Exhibits B10F and B16F” but failed to “clearly articulate” how any
portion of those exhibits, collectively consisting of over seventy pages of medical
records, was in fact inconsistent with Dr. Pita’s opinion. While the Commissioner is
correct that the ALJ more extensively discussed specific portions those two exhibits
elsewhere in his decision, the ALJ’s failure to clearly link any of it to his discussion
of Dr. Pita’s opinion means the Court can only speculate (and, thus, engage in
impermissible post hoc rationalization) as to which of these specific portions, if any,
formed the basis of the ALJ’s reasoning regarding Dr. Pita’s opinion. The Court
also cited two persuasive decisions finding that similar conclusory statements are
insufficient to show “good cause” for rejecting a treating physician’s opinion, see
Perez v. Comm'r of Soc. Sec., 625 F. App'x 408, 417-18 (11th Cir. 2015) (per curiam)
(unpublished)

(“[T]he ALJ stated Dr. Hasbun's opinion about Perez's limitations

contradicted Dr. Hasbun’s own contemporaneous treatment notes; however, this
statement was conclusory, because the ALJ did not identify any contradictions. The
ALJ listed several medical findings after making this statement, but those findings
all came from consulting the report of the examining physician, Dr. Meruelo.

To

the extent the ALJ relied upon a purported contradiction between Dr. Hasbun's
treatment notes and assessment of Perez's abilities, the explanation is insufficient.
See Phillips, 357 F.3d at 1241.”); Kahle v. Comm'r of Soc. Sec., 845 F. Supp. 2d 1262,
1272 (M.D. Fla. 2012) (“[C]onclusory statements by an ALJ to the effect that an
opinion is inconsistent with or not bolstered by the medical record are insufficient to
show an ALJ's decision is supported by substantial evidence unless the ALJ

articulates factual support for such a conclusion.”), and the Commissioner has cited
no binding authority clearly contradicting those decisions.

Thus, no “manifest

error” has been shown in this regard.
IV.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s motion to alter or amend the judgment under Federal Rule of Civil
Procedure 59(e) (Doc. 23) is DENIED.
DONE and ORDERED this the 1st day of August 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE