Nelson v. Berryhill

Filing 35

ORDER Denying 29 Plaintiff's Motion to Alter or Amend Judgment. Having reviewed its previous ruling and the parties' briefing on the instant motion, the Court is satisfied that it committed no error. Plaintiff has not shown that the Court 's Order adopting Judge Block's Report and Recommendation was based on a manifest error of law or fact. Accordingly, the Court denies Plaintiff's Motion to Alter or Amend Judgment pursuant to Federal Rule of Civil Procedure 59(e). Signed by Judge Michael M. Anello on 9/12/2018. (rmc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

JENNETTE N. NELSON,

Case No.: 17cv1258-MMA (RNB)
Plaintiff,

12
13

v.

14

ORDER DENYING PLAINTIFF'S
MOTION TO ALTER OR AMEND
JUDGMENT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

15
16

Defendant.

[Doc. No. 29]

17
18

Following an unfavorable decision in her Social Security appeal, Plaintiff Jennette

19

N. Nelson (“Plaintiff”) filed a Motion to Alter or Amend Judgment. Doc. No. 29.

20

Defendant has opposed the motion. Doc. No. 34. Plaintiff did not file a reply brief. See

21

Docket. The Court, in its discretion, decides the matters on the papers submitted and

22

without oral argument, pursuant to Civil Local Rule 7.1.d.1. For the reasons stated

23

herein, the Court DENIES Plaintiff’s motion.

24
25

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On June 20, 2017, Plaintiff filed this social security appeal challenging the denial

26

of her applications for a period of disability and disability insurance benefits and for

27

Supplemental Social Security Income. Doc. No. 1. The parties filed motions for

28

summary judgment [Doc. Nos. 19, 20], and the Honorable Robert N. Block, United
1
17cv1258-MMA (RNB)

1

States Magistrate Judge, issued a Report and Recommendation recommending the Court

2

deny Plaintiff’s motion and grant Defendant’s cross-motion [Doc. No. 22]. The Report

3

and Recommendation gave the parties fourteen days to serve and file specific written

4

objections. See Doc. No. 22 at 7. Neither party objected within the fourteen-day period.

5

See Docket. Having received no objections, the Court adopted Judge Block’s Report and

6

Recommendation in its entirety, denied Plaintiff’s motion for summary judgment, and

7

granted Defendant’s cross-motion for summary judgment. Doc. No. 24. That same day,

8

the Clerk of Court entered judgment in favor of Defendant. Doc. No. 25. On August 3,

9

2018, Plaintiff filed the instant motion to alter or amend the judgment in this action. Doc.

10

No. 29.

11

LEGAL STANDARD

12

Federal Rule of Civil Procedure 59(e) authorizes a motion to alter or amend a

13

judgment. Fed. R. Civ. P. 59(e). A motion to reconsider a judgment under Rule 59(e)

14

seeks “a substantive change of mind by the court.” Tripati v. Henman, 845 F.2d 205, 206

15

n.1 (9th Cir. 1988). In the Ninth Circuit, a Rule 59(e) reconsideration motion is an

16

“‘extraordinary remedy, to be used sparingly in the interests of finality and conservation

17

of judicial resources.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (quoting

18

Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). Rule 59 may

19

not be used to relitigate old matters, raise new arguments, or present evidence that could

20

have been raised prior to entry of the judgment. Exxon Shipping Co. v. Baker, 554 U.S.

21

471, 485 n.5 (2008).

22

“A motion for reconsideration under Rule 59(e) ‘should not be granted, absent

23

highly unusual circumstances, unless the district court is presented with newly discovered

24

evidence, committed clear error, or if there is an intervening change in the controlling

25

law.’” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (emphasis in

26

original) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).

27

A district court may also grant a Rule 59(e) motion to “prevent manifest injustice.”

28

Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). To
2
17cv1258-MMA (RNB)

1

carry the burden of proof, a moving party seeking reconsideration must show more than a

2

disagreement with the Court’s decision or a recapitulation of the cases and arguments

3

previously considered by the court. United States v. Westlands Water Dist., 134 F. Supp.

4

2d 1111, 1131 (E.D. Cal. 2001).

5

DISCUSSION

6

Plaintiff moves the Court to alter or amend its Order adopting Judge Block’s

7

Report and Recommendation to correct manifest errors of law or fact upon which the

8

judgment is based.1 Doc. No. 29 at 3. As an initial matter, Plaintiff did not object to

9

Judge Block’s Report and Recommendation. See Docket. Absent any objections,

10

Plaintiff was not entitled to de novo review of the Report and Recommendation.2 See 28

11

U.S.C. § 636(b)(1)(C). However, the Court considered the pleadings and memoranda of

12

the parties as well as the administrative record, and made a review and determination in

13

accordance with the requirements of 28 U.S.C. § 636 and applicable case law. Doc. No.

14

24 at 2. After doing so, the Court adopted Judge Block’s Report and Recommendation in

15

its entirety. See id. Thus, the instant motion appears to be an untimely effort to object to

16

the Report and Recommendation. See Doc. No. 29. Nonetheless, the Court will address

17

the merits of Plaintiff’s motion.
Plaintiff challenges the Court’s finding that the Administrative Law Judge (“ALJ”)

18
19

proffered two legally sufficient reasons for rejecting the opinion of treating physician

20

Doctor Michael MacMurray, M.D. Id. at 4. Specifically, Plaintiff contends the ALJ

21

improperly rejected Dr. MacMurray’s opinion as inconsistent with the Vista Clinic

22
23
1

24
25
26
27
28

Plaintiff does not argue that there is newly discovered evidence or that there is an intervening change
in controlling law. See Doc. No. 29. As such, the Court only addresses manifest errors of law or fact in
this Order.
2
Plaintiff’s counsel explains that she did not timely object to the Report and Recommendation because
she went on a two week vacation and because her father became ill and passed away on the day she was
supposed to return to the office. Doc. No. 29 at 4. While the Court is sympathetic, the Court notes that
Plaintiff’s counsel was due to return to the office one day before objections were due and that counsel’s
firm “did not calendar the response required following Judge Block’s report and recommendation.” Id.
at 5.
3
17cv1258-MMA (RNB)

1

progress notes and with Plaintiff’s ability to care for her children, drive a car, attend

2

church, and engage in moderate activity levels. Id. at 6-9. Contradiction between a

3

treating physician’s opinion and his treatment notes and between a treating physician’s

4

opinion and a plaintiff’s level of activity are both legally sufficient reasons for rejecting a

5

treating physician’s opinion. See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,

6

692-93 (9th Cir. 2009); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).
The Court finds no reason to disturb its Order adopting Judge Block’s Report and

7
8

Recommendation as it was not manifest error to find that the ALJ provided two legally

9

sufficient reasons to reject Dr. MacMurray’s opinion. In December of 2014, Dr.

10

MacMurray opined that Plaintiff had extreme pain and extreme limitations in nearly all

11

areas of functioning.3 Administrative Record (“AR”) at 1626-34. Doctors John Lane,

12

M.D., Massoud Hertzel Soumekh, M.D., and Afsaneh Maghsoudy, M.D., each made

13

moderate or normal findings after examining Plaintiff. See AR at 1642-43 (noting that

14

Plaintiff had “painful range of motion of the lumbar spine,” but that “it is very hard to

15

make a recommendation based on the three-year-old MRI” in Dr. Soumekh’s

16

possession); AR at 1645-47 (making normal findings with respect to Plaintiff’s spine and

17

knee); AR at 1649 (finding “[n]o acute fracture,” with “no significant degenerative

18

changes,” and “no evidence of abnormal joint effusion,” with unremarkable soft tissues).

19

Moreover, Dr. MacMurray’s own progress notes indicate less than extreme limitations of

20

functioning. See AR at 1651-85 (noting Plaintiff self-reported “[m]oderate activity

21

level,” but that she “[n]ever exercises,” and “encourage[ing Plaintiff] to exercise”).

22

Plaintiff presented with pain on April 8, 2014, June 13, 2014, September 4, 2014,

23

November 5, 2014, February 3, 2015, April 20, 2015, May 27, 2015, and June 4, 2015.

24

AR at 1651-77, 1702-09, 1722-33, 1738-41. Dr. MacMurray’s progress notes from these

25

examinations indicate findings of tenderness in Plaintiff’s lumbar spine and knee, reveal

26
27
Dr. MacMurray opined Plaintiff is “markedly impaired” with respect to her ability to make simple
work-related decisions and to ask simple questions. AR at 1632-33
3

28

4
17cv1258-MMA (RNB)

1

that he refilled or changed Plaintiff’s pain medication, and evince that he recommended

2

that Plaintiff exercise. See id.
Further, the ALJ accorded “significant weight” to Doctor Erik Stark, M.D., who

3
4

limited Plaintiff to “20 pounds of weightlifting and no kneeling or squatting” in

5

November of 2010. AR at 24, 372-73, 526-28. Conversely, Dr. MacMurray opined that

6

Plaintiff can neither sit, stand, nor walk for more than two hours in an eight-hour working

7

day, can occasionally lift less than ten pounds, rarely lift ten to twenty pounds, and never

8

lift fifty pounds or more, and can rarely twist, stoop, crouch/squat, climb ladders, or

9

stairs. AR at 1628-29. Plaintiff contends Dr. Stark’s opined limitations support Dr.

10

MacMurray’s opined limitations.4 Doc. No. 29 at 8. Despite Plaintiff’s argument, the

11

Court finds these limitations support the ALJ’s finding that Dr. MacMurray’s opined

12

limitations are “exaggerated.”5 See AR at 25.
Accordingly, the medical record does not support Dr. MacMurray’s opinion that

13
14

Plaintiff had extreme limitations in nearly all areas of functioning. As a result, the ALJ’s

15

decision to accord no weight to Dr. MacMurray as inconsistent with the medical record is

16

a sufficient legal reason supported by substantial evidence in the record. See Batson v.

17

Comm’r of the SSA, 359 F.3d 1190, 1195 (9th Cir. 2004) (“An ALJ may discredit treating

18

physicians’ opinions that are conclusory, brief, and unsupported by the record as a whole,

19

. . . or by objective medical findings.”).

20
21
22
23
24
25
26
27
28

4

Plaintiff also contends that the opinion Doctor James E. McSweeney, M.D., is consistent with, and
therefore supports, Dr. MacMurray’s opinion. Doc. No. 29 at 8. However, the ALJ accorded “little
weight” to Dr. McSweeney as “vague, unsupported with clinical findings, . . . inconsistent with the
medical record as a whole[, and] inconsistent with [his] own physical examination findings.” AR at 24.
Moreover, Plaintiff does not challenge the ALJ’s rejection of Dr. McSweeney’s opinion. See Doc. No.
19. Accordingly, Dr. McSweeney’s opinion is of little relevance to the ALJ’s rejection of Dr.
MacMurray’s opinion.
5
Importantly, Dr. Stark’s opinion is dated November 16, 2010 – four months after a surgery to repair
the medial retinaculum of Plaintiff’s left knee and over four years before Dr. MacMurray listed the
above-opined limitations. AR at 372-73; 1626-30.
5
17cv1258-MMA (RNB)

1

Plaintiff also contends the Court improperly found that Dr. MacMurray’s opinion

2

is inconsistent with Plaintiff’s activity levels. Doc. No. 29 at 8. The ALJ noted that

3

Plaintiff cares for her children, drives a car, attends church, and engages in moderate

4

activity levels, which is inconsistent with Dr. MacMurray’s opinion that Plaintiff is

5

extremely limited in all areas of functioning. AR at 25; see AR at 300-07 (reporting that

6

Plaintiff changes her baby’s diaper, feeds and cleans her, watches her 13-year-old twins,

7

does minimal vacuuming and sweeping, folds laundry, drives a car, and goes to church

8

once a week); AR at 41-55 (testifying that Plaintiff sometimes grocery shops on her own;

9

can do the laundry; can cook meals; drives; can sit for thirty to sixty minutes before

10

needing to stand up, move, or lay down; stands or walks for less than a “fourth of [her]

11

day[;]” and can stand or walk for up to twenty minutes at a time). Plaintiff also reported

12

that on “some days [she] can’t walk or move from [her] bed or [the] ground,” and that on

13

most days she “must rest.” AR at 301-02. She also reported that she can walk for fifteen

14

minutes or less before needing to rest and then must rest for thirty minutes or more before

15

she can resume walking. AR at 306.

16

The Court finds that Dr. MacMurray’s opinion of extreme limitations in nearly all

17

areas of functioning is contradicted by Plaintiff’s self-reported limitations. For example,

18

Dr. MacMurray opined that Plaintiff could not walk a single city block or sit for more

19

than fifteen minutes at a time, whereas Plaintiff reports being able to walk for fifteen to

20

twenty minutes before needing rest and being able to sit for thirty to sixty minutes at a

21

time. Compare AR at 306 (Plaintiff reporting she can walk for fifteen minutes or less

22

before needing rest), and AR at 48, 52-53 (Plaintiff testifying she can sit for thirty to

23

sixty minutes and walk or stand for up to twenty minutes at a time), with AR at 1627-28

24

(Dr. MacMurray opining that Plaintiff cannot walk a single city block and can only sit for

25

fifteen minutes at a time). Additionally, Dr. MacMurray opined that Plaintiff is

26

extremely impaired in the ability to understand, remember, and carry out simple

27

instructions, to interact with the public in general or get along with co-workers or peers,

28

while Plaintiff self-reported getting along well with authority figures, following written
6
17cv1258-MMA (RNB)

1

instructions well and spoken instructions “average,” and that she can socialize while

2

sitting. Compare AR at 306-07 (Plaintiff’s self-reported limitations), with AR at 1632-33

3

(Dr. MacMurray’s opined psychiatric limitations). Accordingly, there is substantial

4

evidence in the record supporting the ALJ’s decision to reject Dr. MacMurray’s opinion

5

due to its inconsistency with Plaintiff’s self-reported activity levels. See Bayliss v.

6

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (stating that an ALJ may reject the

7

opinion of a treating physician where there is an inconsistency between the opinion and a

8

plaintiff’s daily activities); Rollins, 261 F.3d at 856 (same).
CONCLUSION

9
10

Having reviewed its previous ruling and the parties’ briefing on the instant motion,

11

the Court is satisfied that it committed no error. Plaintiff has not shown that the Court’s

12

Order adopting Judge Block’s Report and Recommendation was based on a manifest

13

error of law or fact. Accordingly, the Court DENIES Plaintiff’s Motion to Alter or

14

Amend Judgment pursuant to Federal Rule of Civil Procedure 59(e).

15
16

IT IS SO ORDERED.
Dated: September 12, 2018

17
18
19
20
21
22
23
24
25
26
27
28
7
17cv1258-MMA (RNB)