Dickey v. Colvin

Filing 35

ORDER by Judge William H. Orrick denying 26 Motion to Alter Judgment and 31 Motion to Strike. Plaintiff's 27 Motion for Attorney Fees is not premature. If the Commissioner wants to oppose plaintiff's motion on its merits, she must file an opposition on or before February 24, 2015. Plaintiff may file a reply on or before March 10, 2015. (jmdS, COURT STAFF) (Filed on 2/10/2015)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KYLE DICKEY, Case No. 14-cv-00629-WHO Plaintiff, 8 v. 9 10 CAROLINE COLVIN, Defendant. ORDER ON MOTION TO AMEND OR ALTER JUDGMENT AND MOTION FOR ATTORNEYS FEES Re: Dkt. Nos. 26, 27, 31 United States District Court Northern District of California 11 12 Caroline Colvin, the Commissioner of the Social Security Administration, asks that I alter 13 or amend the judgment remanding this case to the Social Security Administration for payment of 14 benefits to plaintiff because I committed clear error in remanding for payment of benefits, rather 15 than for further proceedings. Having reviewed the record again, I disagree with the 16 Commissioner’s contention that it contains ambiguities and inconsistencies that need to be 17 resolved, or that it raises serious questions whether the plaintiff is disabled. Docket No. 26. The 18 Commissioner’s motion under Federal Rule of Civil Procedure 59(e) is DENIED. 19 I. MOTION TO ALTER OR AMEND THE JUDGMENT 20 A Rule 59(e) may be brought to alter or amend a judgment if: (1) the district court is 21 presented with newly discovered evidence, (2) the district court committed clear error or made an 22 initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law. 23 United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). In the Ninth 24 Circuit, after a court determines an ALJ erred, a case may be remanded to the agency for payment 25 of benefits only where: “(1) the record has been fully developed and further administrative 26 proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient 27 reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the 28 improperly discredited evidence were credited as true, the ALJ would be required to find the 1 claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). If all three 2 factors are met, then a court can “credit-as-true” the improperly rejected testimony. Id. at *36-37. 3 As to the first factor, as the Ninth Circuit recently explained, in evaluating whether the 4 record has been fully developed, courts “consider whether the record as a whole is free from 5 conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and whether the 6 claimant’s entitlement to benefits is clear under the applicable legal rules.” Treichler v. Comm’r 7 of SSA, 2014 U.S. App. LEXIS 24463, *30 (9th Cir. Or. Dec. 24, 2014). “Where there is 8 conflicting evidence, and not all essential factual issues have been resolved, a remand for an award 9 of benefits is inappropriate.” Id. at *23, 35 (remanding where the record contained significant 10 United States District Court Northern District of California 11 factual conflicts between plaintiff’s testimony and objective medical evidence). Even where the credit-as-true factors are met, the district court retains “flexibility” and 12 may remand for further proceedings “when the record as a whole creates serious doubt as to 13 whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” 14 Garrison, 759 F.3d at 1020; see also Burrell v. Colvin, 2014 U.S. App. LEXIS 24654, 20 (9th Cir. 15 Ariz. Dec. 31, 2014) (remanding where evidence in the record that the ALJ did not address or 16 consider suggested that claimant may not be credible). 17 In support of the argument that there are ambiguities and inconsistencies in the record that 18 need to be resolved, the Commissioner points to evidence that (she contends) suggests plaintiff’s 19 emotional lability is not related to the removal of his brain tumor, but is instead related to his 20 general attitude and to family dynamics. Motion at 4-5; Reply [Docket No. 33] at 4-5. This 21 argument is not persuasive. 22 I note first that the evidence the Commissioner relies on now was largely not discussed in 23 the briefing on the cross-motions for summary judgment. More importantly, it does not create 24 ambiguities or inconsistencies in the record that necessitate a remand for further proceedings. 25 With respect to the cites in the record that plaintiff was “doing well,” those generally relate to the 26 undisputed fact that there was no recurrence of plaintiff’s tumor. AR 334-335, 624. They also 27 relate to plaintiff’s general physical health (coordination and other physical capabilities) instead of 28 plaintiff’s well-documented and ongoing history of emotional lability following the diagnosis and 2 1 removal of his tumor. See AR 334, 335, 587; but see AR 366-369 (report from 2000 noting 2 parental complaints of aggressive behavior, and reported complaints of difficulty concentrating, 3 controlling impulses, and problems with attention which were possibly related to removal of 4 tumor); AR 626 (2005 report noting plaintiff’s felt he was in “good health” and that his primary 5 complaint was his continuing mood lability which may be related to tumor removal). The 6 citations the Commissioner relies on to blame plaintiff’s emotional lability on family dynamics are 7 also dated and do not shed light on family dynamics since 2000. See, e.g., AR 365-366, 373 8 (noting family’s discord in 1997/1998 and 2000); AR 388 (family dynamics in 1998); AR 394 9 (report from 1998). Instead, the record reflects that plaintiff has continually had emotional lability issues since 10 United States District Court Northern District of California 11 the tumor was discovered and removed. AR 365 (1997, 1999); AR 366-69 (2000); 626 (2005); 12 see also 611 (2011 report citing medical literature finding significant long-term problems for 13 attention, processing speed, interference and uncontrolled temper tantrums in patients who had 14 undergone tumor removal similar to plaintiff). The Commissioner ignores this evidence. The 15 portions of the record the Commissioner now relies on do not create ambiguities or 16 inconsistencies, nor do they conflict with the conclusions of Dr. Murray and Schwartz regarding 17 plaintiff’s impairments that were improperly discredited by the ALJ.1 Reviewing the record as a whole, with particular focus on the citations the Commissioner 18 19 relies on in her 59(e) motion, I find that the record does not create “serious doubt as to whether the 20 claimant is, in fact, disabled within the meaning of the Social Security Act.” Garrison, 759 F.3d 21 at 1020.2 22 1 23 24 25 26 27 28 The arguments the Commissioner makes about Dr. Dunn’s report from 2003 are addressed in my prior Order (Docket No. 24 at 12-14) and there is no reason to repeat them again here. 2 The Commissioner argues that Dr. Murray’s reports contain inconsistencies which cast doubt on plaintiff’s disability; specifically Dr. Murray’s finding that plaintiff’s IQ dropped, plaintiff’s statement that he suffered from rages he could not recall, and that plaintiff suffered from debilitating migraines. Motion at 6. With respect to migraines, the record is replete with evidence that plaintiff suffered intermittently from headaches, sometimes severe. With respect to rages, the record is likewise replete with references to plaintiff’s uncontrollable rage/irritability. The fact that Dr. Murray may have been the first to note that plaintiff sometimes could not recall these episodes does not create any inconsistency. Finally, Dr. Murray’s finding as to plaintiff’s IQ, while not explained in detail, could be supported by uncontested evidence that plaintiff’s grades decreased and he was no longer considered “gifted” after the tumor removal. In any event, 3 1 Finally, I reject the Commissioner’s argument that in the summary judgment Order I 2 committed legal error by impermissibly giving “controlling weight” to non-treating physicians. 3 Motion at 3-4; Reply at 6. There is no dispute that in this case there is little evidence about 4 plaintiff’s asserted impairments from treating physicians. The evidence the ALJ primarily relied 5 on to support her decision was from examining and non-examining physicians. In my prior Order, 6 I found that the ALJ improperly discredited two of plaintiff’s examining physicians (Schwartz and 7 Murray) and improperly relied on the significantly older report from a different examining 8 physician (Dunn). See, e.g., Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996) (“The opinion 9 of an examining doctor, even if contradicted by the opinion of another doctor, can only be rejected for specific and legitimate reasons that are supported by the record.”) (internal quotations and 11 United States District Court Northern District of California 10 citation omitted). 12 Having concluded that the ALJ erred on multiple, significant grounds in discounting the 13 opinions of Murray and Schwartz and applying well-established Ninth Circuit precedent, I 14 credited those opinions at true. However, crediting those opinions as true does not, as the 15 Commissioner argues, give de facto controlling weight to non-treating physicians. Under Ninth 16 Circuit precedent the credit as true doctrine can be applied both to medical opinions and claimant 17 testimony. See, e.g., Garrison, 759 F.3d at 1020. Here, where there were no treating physicians 18 to opine on the conditions that Drs. Murray and Schwartz found significant and limiting, it was not 19 error to credit those examining opinions as true.3 20 For the foregoing reasons, the Commissioner’s Rule 59(e) motion is DENIED.4 21 22 23 24 25 26 27 28 because the drop in IQ was not relied upon in Dr. Murray’s conclusions as to plaintiff’s limitations – although Dr. Murray’s test results of plaintiff’s current IQ were – this issue does not create any ambiguity or inconsistency in the record requiring further proceedings. 3 The Commissioner argues that I cannot credit as true the testimony of Dr. Chapman – plaintiff’s step-father who is also a licensed counselor and clinical psychologist – because his testimony was lay opinion. In granting plaintiff’s motion for summary judgment and remanding for payment of benefits, it was not necessary for me to credit-as-true Dr. Chapman’s ignored testimony. The ALJ’s failure to address Dr. Chapman’s testimony, on the other hand, was an egregious error. 4 In his Opposition brief, plaintiff asks me to issue an order to show cause for sanctions against the Commissioner for filing a frivolous motion under Rule 59(e). Docket No. 32 at 7-8. That request is DENIED. 4 1 II. PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND DEFENDANT’S MOTION TO STRIKE THE SAME 2 Plaintiff has moved for an order awarding attorney’s fees pursuant to the Equal Access to 3 Justice Act, 28 U.S.C. § 2412(d). Docket No. 27. Defendant does not oppose that motion on its 4 merits, but instead moves to strike it as premature because the motion was filed before the 5 expiration of the time for the government to appeal. Docket No. 31. However, as the Ninth 6 Circuit recognized in Auke Bay Concerned Citizen’s Advisory Council v. Marsh, 779 F.2d 1391 7 (9th Cir. 1986); “Section 2412(d)(1)(B) establishes a clear date after which applications for 8 attorney fees must be rejected as untimely; 30 days after final judgment. The statute is less clear 9 about a time before which applications must be rejected.” Id. at 1393. The Auke Bay Court concluded that a plaintiff may move for an award of EAJA fees prior to the expiration of the time 11 United States District Court Northern District of California 10 for appeal and held that a motion for EAJA is timely, “if (1) the applicant files no more than 30 12 days after final judgment, and (2) the applicant is able to show that he or she ‘is a prevailing party 13 and is eligible to receive an award under this subsection.’ 28 U.S.C. § 2412(d)(1)(B).” Id.; see 14 also Shalala v. Schaefer, 509 U.S. 292, 302 (1993) (“An EAJA application may be filed until 30 15 days after a judgment becomes ‘not appealable’ -- i.e., 30 days after the time for appeal has 16 ended.”) (emphasis added)). 17 I conclude that plaintiff’s motion for fees is not premature and DENY the motion to strike. CONCLUSION 18 19 Accordingly, the Commissioner’s motion to alter or amend the judgment is DENIED. Her 20 motion to strike plaintiff’s motion for attorney’s fees is also DENIED. If the Commissioner wants 21 to oppose plaintiff’s motion on its merits, she must file an opposition on or before February 24, 22 2015. Plaintiff may file a reply on or before March 10, 2015. 23 24 25 26 IT IS SO ORDERED. Dated: February 10, 2015 ______________________________________ WILLIAM H. ORRICK United States District Judge 27 28 5

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