Young v. Colvin

Filing 25

ORDER by Judge Kandis A. Westmore denying the Commissioner's 23 Motion to Amend/Correct. (kawlc1, COURT STAFF) (Filed on 2/2/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARIAN BETTY YOUNG,

Case No. 4:15-cv-01029-KAW

Plaintiff,
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ORDER DENYING DEFENDANT'S
MOTION TO AMEND ORDER UNDER
FED. R. CIV. P. 59(e)

v.
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CAROLYN W. COLVIN,

Re: Dkt. No. 23

Defendant.

United States District Court
Northern District of California

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On March 5, 2015, Plaintiff Marian Betty Young filed this lawsuit seeking judicial review

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of the Commissioner of the Social Security Administration’s (the “Commissioner’s”) final

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administrative decision denying her disability benefits. On September 27, 2016, the Court granted

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Plaintiff's motion for summary judgment, denied the Commissioner’s cross-motion for summary

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judgment, and remanded the case for further proceedings, in which the opinions of Drs. Wilson,

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Brusatori, and Plaintiff’s social worker were to be credited as true. (Order, Dkt. No. 21.) The

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Court then entered judgment for Plaintiff. (Judgment, Dkt. No. 22.)

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On October 25, 2016, the Commissioner filed a motion to alter or amend the September 27

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order pursuant to Federal Rule of Civil Procedure 59(e). (Def.’s Mot., Dkt. No. 23.) On

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November 7, 2016, Plaintiff filed an opposition. (Pl.’s Opp’n, Dkt. No. 24.)

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Upon review of the moving papers, the Court finds this matter suitable for resolution

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without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below,

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DENIES the Commissioner’s motion to alter or amend the order.

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I.

LEGAL STANDARD

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Under Federal Rule of Civil Procedure 59(e), a party may move to alter or amend an order

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or judgment where: (1) the district court is presented with newly discovered evidence or evidence

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that was previously unavailable; (2) the district court committed clear error or the initial decision

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was manifestly unjust; or (3) there is an intervening change in controlling law. Turner v.

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Burlington Northern Santa Fe R.R., 338 F.3d 1058, 1063 (9th Cir. 2003) (citations omitted).

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Rule 59(e) “offers an extraordinary remedy, to be used sparingly in the interests of finality

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and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890

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(9th Cir. 2000). “A district court has considerable discretion when considering a motion to amend

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a judgment under Rule 59(e).” Turner, 338 F.3d at 1063.

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II.
A.

DISCUSSION

Motion to Alter or Amend

On September 27, 2016, the Court remanded the case “to step three to include the

United States District Court
Northern District of California

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limitations identified by Drs. Wilson and B[r]usatori in Plaintiff’s residual functional capacity

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[(“RFC”)], as their opinions must be taken as true, and to conduct a new administrative hearing to

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obtain additional vocational expert testimony.” (Order at 18.)

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Now, the Commissioner seeks to alter or amend the order “remanding this matter to the

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Commissioner and ‘crediting as true’ the opinion of two physicians and one social worker” on the

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grounds that requiring that the opinions of Drs. Brusatori and Wilson, and Plaintiff’s social worker

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be credited as true upon remand is a manifest error of law. (Def.’s Mot. at 1.)

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In support of the motion, the Commissioner relies on Treichler v. Comm'r of Soc. Sec.

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Admin., 775 F.3d 1090, 1100-01 (9th Cir. 2014), and Dominguez v. Colvin, 808 F.3d 403, 409 (9th

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Cir. 2015), as amended (Feb. 5, 2016), for the proposition that the credit-as-true doctrine is

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discretionary. (Def.’s Mot. at 3.) While there is some discretion, the cases cited concern the

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propriety of remanding a case for an immediate award of benefits rather than for further

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proceedings, which is frequently referred to as the Varney II rule. See Dominguez, 808 F.3d at 409

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(citing Treichler, 775 F.3d at 1105); see also Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.

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2014)(citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)).

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While the Court recognizes that generally the credit-as-true rule is used to remand for an

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immediate award of benefits, here, the case was remanded for further proceedings, because the

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step five determination required consideration of vocational expert testimony regarding a
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hypothetical that included an RFC with all of Plaintiff’s limitations. (See Order at 16-18.) Indeed,

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despite discounting their medical opinions, the ALJ generally agreed with the medical opinions of

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Drs. Wilson and Brusatori, including Dr. Wilson’s diagnosis of PTSD, which went glaringly

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undiagnosed by the consulting physician whose medical opinion was afforded the greatest weight.

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(Order at 8-12.) As a result, the Court found that the treating sources’ opinions must be credited

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as true. “Where the Commissioner fails to provide adequate reasons for rejecting the opinion of a

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treating or examining physician, we credit that opinion ‘as a matter of law.’ ” Harman v. Apfel,

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211 F.3d 1172, 1178 (9th Cir. 2000) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).

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Despite the Commissioner’s arguments to the contrary, as other courts in this district have held,

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Treichler and the more recent cases cited, do not alter this analysis. See Potter v. Colvin, No. 14-

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United States District Court
Northern District of California

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cv-02562-JSC, 2015 WL 3992944, at *5 (N.D. Cal. June 30, 2015); Page v. Colvin, No. 14-CV-

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02870-DMR, 2016 WL 6835075, at *5 (N.D. Cal. Nov. 20, 2016).

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Furthermore, the ALJ erroneously afforded the greatest weight to Dr. Kiefer, the

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consulting physician, even though he had no medical records to review, missed two mental

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impairments the ALJ found significant (PTSD and affective disorder), and had opinions that were

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not consistent with the other evidence in the record. (Order at 13.) Thus, after crediting the

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opinions of Drs. Wilson and Brusatori, and Plaintiff’s social worker as true, and discounting Dr.

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Kiefer’s opinion, the Court found that the only evidence that needed to be obtained to make a

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disability determination was new vocational expert testimony to inform the ALJ’s analysis at step

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five. Thus, there is no reason to remand with an “open record.” (See Def.’s Mot. at 4.)

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In light of the foregoing, the Court DENIES the Commissioner’s motion to amend or alter
the September 27, 2016 order.

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B.

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There appears to be some confusion as to the scope of the Court’s order for further

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proceedings. (See Def.’s Mot. at 4 n. 3.) To clarify, the Court was instructing the Commissioner

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to include the limitations identified in Plaintiff’s RFC, which occurs between steps three and four

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of the sequential evaluation. (See Order at 18.) Since the ALJ determined that Plaintiff was unable

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to perform past relevant work with fewer limitations at step four, the ALJ may proceed directly to

Scope of Remand

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step five to obtain vocational expert testimony to determine whether there are positions that exist

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in significant numbers in the national economy that may be performed by someone with Plaintiff’s

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residual functional capacity. See id.

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III.

CONCLUSION

For the reasons set forth above, Defendant’s motion to amend the September 27, 2016
order granting Plaintiff’s motion for summary judgment is DENIED.
IT IS SO ORDERED.
Dated: February 2, 2017
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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