Gutierrez v. Colvin

Filing 21

ORDER denying 20 Motion for Reconsideration. Signed by Judge David G Campbell on 9/12/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Juana Gutierrez,

No. CV-13-02168-PHX-DGC
Plaintiff,

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v.

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ORDER

Carolyn W. Colvin,

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Defendant.

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Plaintiff Juana Gutierrez has filed a motion for reconsideration (Doc. 20) of the

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Court’s August 25, 2014 order remanding the case for further proceedings (Doc. 19).

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The Court will deny the motion.

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Plaintiff argues that the case should have been remanded for an award of benefits

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based on the “credit-as-true” rule rather than for further proceedings. Doc. 20 at 2.

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Plaintiff argues that the opinions of Drs. Moya and Suarez, if credited as true, would

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establish disability as a matter of law and would not require interpretation by a vocational

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expert. Doc. 20 at 2. Plaintiff cites SSR 96-8p for the proposition that “an individual

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who cannot sustain a full time work pace – 8 hours a day, 5 days a week – is disabled[.]”

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Id. The Court is not convinced that Plaintiff accurately reads the regulation, nor is it

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convinced that the limitations assessed by Drs. Moya and Suarez would preclude all work

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for Plaintiff.

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In Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996), the Ninth Circuit held

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that evidence should be credited and an action remanded for an immediate award of

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benefits when the following three factors are satisfied: (1) the ALJ has failed to provide

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legally sufficient reasons for rejecting evidence; (2) there are no outstanding issues that

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must be resolved before a determination of disability can be made; and (3) it is clear from

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the record that the ALJ would be required to find the claimant disabled were such

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evidence credited. Plaintiff correctly notes that even where the requirements of the

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credit-as-true rule are met, the Court may “remand for further proceedings when the

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record as a whole creates serious doubt as to whether the claimant is, in fact, disabled.”

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Garrison v. Colvin, -- F.3d --, 2014 WL 3397218, at *21 (9th Cir. 2014).

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An analysis of the opinions of Drs. Moya and Suarez demonstrates the existence

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of outstanding issues and provides serious doubt as to whether the record establishes that

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Plaintiff is disabled. Dr. Suarez opined that Plaintiff had no restrictions on standing or

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walking (A.R. 230), while Dr. Moya opined that Plaintiff could sit for more than four

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hours but less than six and stand or walk for less than 2 hours (A.R. 333). The vocational

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expert was asked a hypothetical about a person that could stand, sit, and walk for six

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hours per day and based her opinion on those restrictions. A.R. 40. She did not consider

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the limitations assessed by Dr. Suarez. Assuming the opinion of Dr. Suarez regarding

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Plaintiff’s unlimited ability to stand and walk were credited as true, the Court cannot

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conclude that an award of benefits would be required. This evidence creates serious

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doubt as to whether Plaintiff is disabled and is precisely the type of outstanding issue for

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which further proceedings would serve a useful purpose. Accordingly, the Court will not

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reconsider its decision to remand the case for further proceedings.

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IT IS ORDERED that Plaintiff’s motion for reconsideration (Doc. 20) is denied.

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Dated this 12th day of September, 2014.

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