Goodwin v. Commissioner of Social Security Administration
Filing
33
ORDER GRANTING IN PART AND DENYING IN PART THE COMMISSIONER'S 31 MOTION FOR RELIEF FROM ORDER PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60(B): "On the basis of the foregoing, the Commissioner's Motion for Relief from Order Pursu ant to Federal Rule of Civil Procedure 60(b), filed July 5, 2011, is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED to the extent that this Court will issue an amended Order clarifying the scope of the remand, and the Motion is DENI ED in all other respects. IT IS SO ORDERED."</i"> Signed by District JUDGE LESLIE E. KOBAYASHI on September 26, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notific ations received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STELLA GOODWIN,
)
)
Plaintiff,
)
)
vs.
)
)
COMMISSIONER OF SOCIAL
)
SECURITY ADMINISTRATION,
)
)
Defendant.
)
_____________________________ )
CIVIL NO. 09-00469 LEK-BMK
ORDER GRANTING IN PART AND DENYING IN PART
THE COMMISSIONER’S MOTION FOR RELIEF FROM ORDER
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60(B)
On May 31, 2011, this Court issued its Order Reversing
the Commissioner of Social Security’s Decision to Deny Plaintiff
Social Security Disability Insurance Benefits and Supplemental
Security Income (“Order”).1
Before the Court is Defendant
Commissioner of Social Security Administration’s (“the
Commissioner”) Motion for Relief from Order Pursuant to Federal
Rule of Civil Procedure 60(b) (“Motion”), filed on July 5, 2011.
Pro se Plaintiff Stella Jane Goodwin (“Plaintiff”) did not
respond to the Motion.
The Court finds this matter suitable for
disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).
After careful
consideration of the Motion and the relevant legal authority, the
1
The Court’s Order is available at 2011 WL 2160497.
Commissioner’s Motion is HEREBY GRANTED IN PART AND DENIED IN
PART for the reasons set forth below.
The Motion is GRANTED
insofar as this Court will issue an amended Order clarifying the
scope of remand.
The Motion is DENIED in all other respects.
BACKGROUND
The parties and the Court are familiar with the factual
and legal history of this case, and the Court will only repeat
the history that is relevant to the instant Motion.
In the instant case, Plaintiff sought judicial review
of the Commissioner’s July 30, 2009 decision denying Plaintiff
social security disability insurance benefits and supplemental
security income (“the Decision”).
Administrative Law Judge Henry
M. Tai (“the ALJ”) conducted a hearing on March 22, 2007 and, on
May 25, 2007, issued his decision finding that Plaintiff was not
disabled (“the ALJ Decision”).
The Appeals Council declined to
review the ALJ Decision, rendering it the Commissioner’s final
Decision.
The instant action followed.
Order, 2011 WL 2160497,
at *1-2.
In the Order, this Court noted that an ALJ evaluating a
claim for social security disability benefits applies a five-step
analysis.
Id. at *5 (citing 20 C.F.R. § 404.1520; Parra v.
Astrue, 481 F.3d 742, 746 (9th Cir. 2007)).
This Court also
noted that neither party contested: the ALJ’s step one finding
that Plaintiff had not engaged in substantial gainful activity
2
since her alleged onset date; the ALJ’s step two finding that
Plaintiff suffered from a severe combination of impairments; or
the ALJ’s step three finding that Plaintiff’s combination of
impairments did not meet or equal one of the impairments listed
in Appendix 1 to Subpart P, Regulation 4.
Id. at *7.
As to the
fourth step, whether Plaintiff has the residual functional
capacity (“RFC”) to do her past relevant work, this Court found
that the ALJ’s adverse credibility determination was not
supported by substantial evidence in the record because the ALJ’s
reasons for the adverse credibility determination were not clear
and convincing.
Further, this Court ruled that the ALJ’s finding
that Plaintiff has the RFC to perform simple repetitive tasks,
which was based upon the erroneous credibility determination, was
not supported by substantial evidence in the record.
The Court
also ruled that the ALJ erred in the fifth step, where he found
that Plaintiff could perform jobs that exist in significant
numbers in the national economy in light of her age, education,
and work experience, because this finding was also based on the
erroneous RFC finding.
Id. at *11-12.
The Court therefore reversed the ALJ’s finding that
Plaintiff was not disabled.
Id. at *12.
The Court remanded the
case to the ALJ and directed the ALJ to find that Plaintiff was
disabled as of the date of the ALJ Decision, but directed the ALJ
to conduct further proceedings on the following: 1) determination
3
of Plaintiff’s onset date of disability; and 2) determination of
Plaintiff’s eligibility for benefits based on her onset date of
disability; and 3) if Plaintiff is eligible for benefits based on
her onset date, calculation of benefits.
Id. at *14.
In the instant Motion, the Commissioner argues that
this Court should reconsider its findings regarding Plaintiff’s
RFC and affirm the Decision.
In the alternative, if this Court
still concludes that a remand is necessary, the Commissioner
argues that this Court should reconsider the scope of the remand.
The Commissioner argues that this Court misapplied
Ninth Circuit precedent when it ruled that the ALJ erred in
considering: “Plaintiff’s presentation during medical
examinations as a basis for finding her capable of concentrating,
maintaining persistence and pace, and performing simple
repetitive tasks[;]” [Motion at 3;] “Plaintiff’s daily
activities, including driving, pet care, working on puzzles and
preparing simple meals, to find her capable of simple work
throughout a work day[;]” [id. at 4 (citation omitted;] and
“Plaintiff’s ability to shop, interact with family and interact
with medical examiners to conclude that Plaintiff had only
minimal restrictions on her ability to interact with others while
at work” [id. at 5 (citation omitted)].
The Commissioner also
argues that Plaintiff’s ability to travel to Las Vegas to visit
her daughter was a valid credibility factor and that the
4
conservative medical treatment of Plaintiff’s mental health
condition is, standing alone, sufficient to support an adverse
credibility determination.
The Commissioner reiterates that, at
times during the period in question, Plaintiff worked part-time
or attempted to look for employment.
Further, no doctor assessed
Plaintiff with any physical functional limitations.
The
Commissioner argues that, even if the record could support either
affirming or reversing an ALJ’s Decision, a district court cannot
substitute its judgment for the ALJ’s.
If the Court will not reconsider its reversal of the
Decision, the Commissioner argues that the Court must reconsider
the scope of remand.
This Court cannot require the ALJ to find
on remand that Plaintiff was disabled as of the date of the ALJ’s
Decision because the record does not establish that Plaintiff’s
alleged impairments satisfied the duration requirement by
preventing her from engaging in substantial gainful activity for
twelve consecutive months or more.
The Commissioner asserts that
this Court must allow the ALJ on remand to determine whether
Plaintiff was disabled.
Plaintiff did not file a response to the Motion.
STANDARD
Local Rule 60.1 states, in pertinent part: “Motions
seeking reconsideration of case-dispositive orders shall be
governed by Fed. R. Civ. P. 59 or 60, as applicable.”
5
The
Commissioner seeks relief from the Order pursuant to Fed. R. Civ.
P. 60(b)(6) and Local Rule 60.1.
[Motion at 1-2.]
In general,
“[a] motion for reconsideration must ‘[f]irst . . . demonstrate
some reason why the court should reconsider its prior decision.
Second, a motion for reconsideration must set forth facts or law
of a strongly convincing nature to induce the court to reverse
its prior decision.’”
In re O’Kelley, CV No. 10-00356 DAE-LEK,
2010 WL 4176540, at *4 (D. Hawai`i Oct. 19, 2010) (quoting White
v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw. 2006) (some
alterations in O’Kelley)).
In particular, “Rule 60(b)(6) . . .
grants federal courts broad authority to relieve a party from
final judgment ‘upon such terms as are just,’ provided that the
motion is made within a reasonable time and is not premised on
one of the grounds for relief enumerated in clauses (b)(1)
through (b)(5).”
Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847, 863 (1988).
DISCUSSION
I.
Plaintiff’s Failure to Respond to the Motion
On July 7, 2011, this Court issued an order stating
that Plaintiff’s response to the Motion was due on or before
July 26, 2011 and that the Commissioner was not permitted to file
a reply.
[Dkt. no. 32.]
Plaintiff, however, did not respond to
the Motion.
The Court is not aware of any binding case law which,
6
in light of a pro se plaintiff’s failure to respond to a motion
for reconsideration of an order ruling on an administrative
appeal, requires the court to: grant reconsideration; vacate the
order ruling in the plaintiff’s favor; and issue a new decision
in the defendant’s favor.
Although a litigant’s pro se status
cannot excuse her from complying with the procedural or
substantive rules of the court, King v. Atiyeh, 814 F.2d 565, 567
(9th Cir. 1987), a pro se litigant is generally held to less
stringent standards than those of her legal counterparts.
See
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Jackson
v. Carey, 353 F.3d 750, 757 (9th Cir. 2003).
Plaintiff has
previously demonstrated her intent to prosecute the instant
appeal, and this Court will not construe her failure to respond
to the Motion as a failure to prosecute.
Cf. Jackson v. Carey,
353 F.3d 750, 756-57 (9th Cir. 2003) (“In civil rights cases
where the plaintiff appears pro se, the court must construe the
pleadings liberally and must afford plaintiff the benefit of any
doubt.” (citation and quotation marks omitted)).
The Court therefore turns to the merits of the Motion.
II.
Residual Functional Capacity
The Commissioner’s first argument is that this Court
erred in rejecting the ALJ’s finding that Plaintiff had the RFC
to perform simple repetitive tasks.
As to this argument, the
Motion focuses on the Court’s rejection of the ALJ’s adverse
7
credibility determination, which was critical to the ALJ’s RFC
finding.
First, the Court notes that, insofar as there was no
finding or evidence of malingering, the ALJ was required to
provide “clear and convincing reasons” for his adverse
credibility determination.
Order, 2011 WL 2160497, at *9
(quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).
The majority of the Motion’s arguments on this issue merely
express the Commissioner’s disagreement with the Court’s analysis
of the facts in this case.
The Court agrees with the
Commissioner that, as a general rule, an ALJ evaluating a
claimant’s credibility can consider clinical observations of the
claimant and the claimant’s life activities.
A court, however,
must consider the observations and activities in the context of
the record as a whole, and must consider both the physical and
mental impairments.
This Court, after such consideration, found
that the ALJ’s reasons for his adverse credibility determination
were not clear and convincing.2
To the extent that the Motion
argues that observations of Plaintiff during her medical
appointments and some of her activities were sufficient to
2
The Court notes that some of the specific facts that the
Commissioner emphasizes in his Motion - Plaintiff’s attempts to
work and her travel to Las Vegas to visit her daughter - may be
relevant to the duration of Plaintiff’s alleged disability, see
infra, but, in light of the record as a whole, do not alter this
Court’s findings regarding Plaintiff’s RFC.
8
support the ALJ’s adverse credibility determination, the
Commissioner merely disagrees with this Court’s analysis of the
facts, even though the Commissioner has stated that the Motion is
based on errors of law.
[Motion at 2.]
“Mere disagreement with
a previous order is an insufficient basis for reconsideration.”
White, 424 F. Supp. 2d at 1274 (citation omitted).
The Commissioner argues that this Court improperly
substituted its judgment about the evidence for the ALJ’s
findings, which were reasonably supported by the record.
at 10.]
[Motion
In the Order, this Court recognized that “where the
evidence can reasonably support either affirmance or reversal,
the district court may not substitute its judgment for the
ALJ’s.”
2011 WL 2160497, at *5 (citing Parra v. Astrue, 481 F.3d
742, 746 (9th Cir. 2007)).
This Court ultimately found that the
evidence did not reasonably support affirmance of the Decision.
The Commissioner’s disagreement with this ruling is not grounds
for reconsideration.
The Commissioner also argues the Court committed legal
error in ruling that the ALJ could not rely on Plaintiff’s
conservative treatment to reject her testimony about the severity
of her mental impairments.
[Motion at 6-7.]
In the Order, the
Court stated:
Fourth, the ALJ found that Plaintiff had “no
episodes of deterioration due to any mental
impairment.” [AR at 24.] In support of this
finding, the ALJ stated only that Plaintiff “has
9
been treated conservatively with medications and
therapy, and has not required any inpatient mental
care.” [Id.] The ALJ improperly rejected
Plaintiff’s subjective testimony about the
severity of her mental impairments based solely
upon a lack of medical evidence corroborating the
full extent of Plaintiff’s claimed impairments.
See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir.
2005).
2011 WL 2160497, at *11.
The Commissioner argues that this an
inaccurate statement of the law because “[a] claimant’s
conservative course of treatment is a credibility factor that is
separate from the lack of objective evidence factor.”
[Motion at
6-7 (citing 20 C.F.R. § 404.1529(c)(2), (3)(iv) & (v)) (emphasis
in original).]
Although § 404.1529 discusses conservative
treatment and objective medical evidence in separate subsections,
both are part of the evaluation of the intensity and persistence
of the claimant’s symptoms and the determination whether they
limit the claimant’s ability to work.
§ 404.1529(c).
The
Commissioner has not established that this Court committed legal
error by considering these factors together.
The Commissioner also relies upon the Ninth Circuit’s
recognition that “evidence of ‘conservative treatment’ is
sufficient to discount a claimant’s testimony regarding severity
of an impairment.”
Parra, 481 F.3d at 751 (citing Johnson v.
Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)).
Based on Parra,
the Commissioner argues that it was proper for the ALJ to rely on
Plaintiff’s “conservative treatment” in assessing her
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credibility.
The ALJ’s description of Plaintiff’s care for her
mental impairments as “conservative treatment” does not
automatically require this Court to automatically affirm the
ALJ’s adverse credibility determination.
The Court must evaluate
Plaintiff’s “conservative treatment” in the context of the record
as a whole.
In the Decision, the ALJ stated that Plaintiff “has
been treated conservatively with medications and therapy, and has
not required any inpatient mental health care.
Therefore, she
can be considered as having no episodes of deterioration due to
any mental impairment.”
(emphasis added).]
[Administrative Record (“AR”) at 24
Thus, although the ALJ recognized that
Plaintiff’s mental impairments were treated with prescription
medications and therapy, the ALJ deemed this “conservative”
essentially because Plaintiff was never admitted for inpatient
mental health care.
The Commissioner has not identified any
authority for the proposition that mental health care is
“conservative” unless it involves inpatient care.
The
Commissioner cited Parra, in which the claimant’s “physical
ailments were treated with an over-the-counter pain
medication[,]” 481 F.3d at 751, and Johnson, where there was an
“absence of medical treatment for claimant’s back problem between
1983 and October 23, 1986,” even though the claimant alleged
suffered “debilitating pain”, 60 F.3d at 1434.
Other courts have
rejected an ALJ’s characterization of mental health care as
11
“conservative treatment” because it was inconsistent with the
record as a whole.
See, e.g., Merker v. Astrue, No. CV 10–4058
JCG, 2011 WL 2039628, at *7
(C.D. Cal. May 25, 2011) (“However,
based on Plaintiff’s treatment history of having weekly therapy
sessions and using medication, the Court cannot conclude that
Plaintiff’s treatment was conservative when viewed holistically,
and on this record.”).
Similarly, the Order rejected the ALJ’s
characterization of Plaintiff’s treatment as “conservative”
because it was inconsistent with the record as a whole.
For
example, Plaintiff’s mental health provider, John Hibscher,
Ph.D., stated in a January 23, 2006 report that Plaintiff had
seen him biweekly since December 9, 2003, and he treated her with
cognitive and behavioral psychotherapy and daily medications.
[AR at 331-31A.]
Thus, the Commissioner has failed to establish
that this Court committed legal error in ruling that the alleged
“conservative treatment” of Plaintiff’s mental impairments was
not a clear and convincing reason to support the ALJ’s adverse
credibility determination.
Finally, the Commissioner argues that this Court erred
in rejecting the ALJ’s RFC finding because, as a matter of law,
“Plaintiff’s subjective statements, alone, cannot establish
disability.”
[Motion at 8 (citing 42 U.S.C. § 423(d)(5)(A); 20
C.F.R. § 404.1529(a)).]
The Court’s RFC finding, however, was
not based solely upon Plaintiff’s subjective statements.
12
The
following are examples of other evidence that this Court
considered in rejecting the ALJ’s RFC finding:
•statements by Plaintiff’s daughter that: she regularly reminds
Plaintiff to do things like feed her cats, bathe, and take
her medicine; she tries to tell Plaintiff to keep the house
clean, but Plaintiff only “makes an effort” when she “bug[s]
her about it[;]” and Plaintiff no longer has the desire to
spend time with her grandchildren and severed ties with her
other family members and friends; [AR at 123-31 (Function
Report Adult - Third Party, dated 1/9/06 by Jessica Alip);]
•Dr. Hibscher’s diagnosis that Plaintiff suffered from major
depression and his recognition that, when depressed, she
needs assistance with her activities of daily living; [AR at
331-34 (Report of Treating Mental Health Provider, dated
1/23/06);]
•Dr. Hibscher’s opinion that she could not adapt or cope with a
low-demand, entry-level job because: although she could
understand simple work instructions, she could not remember
them consistently, which would cause her to panic and become
anxious, leading to mistakes at work; she could not maintain
regular job attendance and could not persist at simple,
repetitive tasks because of her depression, anxiety, and
other cognitive difficulties; and she could not consistently
get along with co-workers and supervisors as a function of
her depression; [id.;] and
•the opinion by Rodger Kollmorgan, M.D., who Plaintiff saw for
counseling at West Hawaii Mental Health Center, that
Plaintiff could not work because of her depression, anxiety,
and a possible attention deficit disorder [AR at 466 (letter
dated 8/31/06)].3
3
The Court acknowledges that the opinions of Plaintiff’s
treating physicians as to the ultimate issue of disability are
not conclusive. See Thomas v. Barnhart, 278 F.3d 947, 956 (9th
Cir. 2002). The Court, however, notes that treating physicians’
opinions are, as a general rule, entitled to “substantial
weight.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228
(9th Cir. 2009) (citation and quotation marks omitted). To the
extent that the ALJ discounted these opinions, the Court finds
that his reasons were not supported by substantial evidence in
the record. See id. (“When evidence in the record contradicts
the opinion of a treating physician, the ALJ must present
specific and legitimate reasons for discounting the treating
physician’s opinion, supported by substantial evidence.”
(continued...)
13
In summary, having considered all of the Motion’s
arguments alleging that this Court erred in rejecting the ALJ’s
RFC finding, this Court CONCLUDES that the Commissioner has not
established grounds to reconsider that portion of the Court’s
Order.
The Court therefore DENIES the Commissioner’s Motion as
to the RFC issue.
III. Scope of Remand
The Commissioner next argues that, even if the Court
will not reconsider its decision to remand the case to the ALJ,
the Court must reconsider its ruling on the scope of the remand.
In the conclusion of the Order, this Court reversed the Decision,
stating that:
The Court FINDS that, on remand, the ALJ must find
that Plaintiff was disabled, for purposes of the
Social Security Act, as of the date of the ALJ
Decision. Further, the Court REMANDS the instant
case to the Social Security Administration for
further proceedings on the following: 1)
determination of Plaintiff’s onset date of
disability; and 2) determination of Plaintiff’s
eligibility for benefits based on her onset date
of disability; and 3) if Plaintiff is eligible for
benefits based on her onset date, calculation of
benefits.
2011 WL 2160497, at *14.
The Commissioner argues that this Court
erred in ruling that the ALJ on remand must find that Plaintiff
is disabled because the duration requirement is still at issue.
It is clear from section III. of the Order that the
3
(...continued)
(footnote, citation, and internal quotation marks omitted)).
14
Court was aware that the duration requirement was still at issue.
See, e.g. id. at *13 (“There is, however, an outstanding issue
that must be resolved before a final determination of Plaintiff’s
entitlement to disability benefits.
Although it is clear that
Plaintiff was disabled as of the date of the ALJ Decision —
May 25, 2007, it is not clear whether Plaintiff was disabled from
her alleged onset date — June 30, 2002.” (emphasis added)).
The
Court, however, acknowledges that the Order is erroneous to the
extent that it suggests that the ALJ must make a finding of
disability even if Plaintiff does not satisfy the duration
requirement.
See 42 U.S.C. § 423(d)(1)(A) (defining “disability”
as “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than 12 months” (emphasis added)).
The Commissioner’s Motion is therefore GRANTED to the
extent that this Court will issue an amended Order clarifying the
scope of the remand.
The Court, however, reiterates its finding
that the only issue which is not clear from the existing record
is the duration requirement.
Thus, the Court, in the exercise of
its discretion, limits the scope of the additional evidence that
the ALJ may accept on remand to the duration requirement.
See
Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (“[T]he
15
decision whether to remand the case for additional evidence or
simply to award benefits is within the discretion of the court .
. . .
Remand is appropriate where additional administrative
proceedings could remedy defects[.]” (citations and internal
quotation marks omitted)).
CONCLUSION
On the basis of the foregoing, the Commissioner’s
Motion for Relief from Order Pursuant to Federal Rule of Civil
Procedure 60(b), filed July 5, 2011, is HEREBY GRANTED IN PART
AND DENIED IN PART.
The Motion is GRANTED to the extent that
this Court will issue an amended Order clarifying the scope of
the remand, and the Motion is DENIED in all other respects.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 26, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
STELLA JANE GOODWIN V. COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION; CIVIL NO. 09-00469 LEK-BMK; ORDER GRANTING IN
PART AND DENYING IN PART THE COMMISSIONER’S MOTION FOR RELIEF
FROM ORDER PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60(B)
16
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