Wilkinson v. Astrue

Filing 27

MEMORANDUM DECISION AND ORDER RE: PETITIONER'S 25 MOTION to Alter or Amend a Judgment Under Rule 59(e). It is hereby ORDERED that Michelle A. Wilkinson's Motion to Alter or Amend a Judgment Under Rule 59(e) (Docket No. 25 ) is GRANTED.Signed by Judge Ronald E. Bush(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

MICHELLE A. WILKINSON

Case No.: 1:12-cv-00225-REB

Petitioner,

MEMORANDUM DECISION AND
ORDER RE: PETITIONER’S
MOTION TO ALTER OR AMEND A
JUDGMENT UNDER Rule 59(e)

vs.
MICHAEL J. ASTRUE, Commissioner of Social
Security

(Docket No. 25)

Respondent.

Now pending before the Court is Michelle A. Wilkinson’s Motion to Alter or Amend a
Judgment Under Rule 59(e). Having carefully reviewed the record and otherwise being fully
advised, the undersigned enters the following Memorandum Decision and Order:1
RELEVANT BACKGROUND
1.

Petitioner Michelle A. Wilkinson’s (“Petitioner”) claim for Social Security

Disability Insurance benefits and Supplement Security Income was initially denied on July 12,
2007 and, again, on reconsideration on December 18, 2007.
2

Petitioner timely requested a hearing before an administrative law judge (“ALJ”)

and, on January 6, 2010, ALJ Paul Hebda held a hearing in Spokane, Washington.
3.

On January 29, 2010, ALJ Hebda issued a decision denying Petitioner’s claims,

finding that Petitioner was not disabled within the meaning of the Social Security Act.

1

The instant Motion has been pending for a considerable amount of time. The Court
regrets that a decision was not rendered earlier on, and extends an apology to the parties for the
delay.
MEMORANDUM DECISION AND ORDER - 1

4.

Petitioner requested review from the Appeals Council on April 9, 2010 and, on

October 22, 2010, the Appeals Council granted Petitioner’s request for review, vacated ALJ
Hebda’s January 29, 2010 decision, and remanded the case to an ALJ for further administrative
proceedings.2
5.

On remand, a hearing was held on March 24, 2011 before ALJ Marie Palachuk in

Clarkston, Washington.
6.

On May 13, 2011, ALJ Palachuk issued a decision denying Petitioner’s claims,

again finding that Petitioner was not disabled within the meaning of the Social Security Act.
7.

Petitioner requested review from the Appeals Council on July 16, 2011 and, on

March 12, 2012, the Appeals Council denied Petitioner’s request for review, making ALJ
Palachuk’s May 13, 2011 decision the final decision of the Commissioner of Social Security.
8.

Having exhausted her administrative remedies, on May 10, 2012, Petitioner

brought this action, arguing that ALJ Palachuk’s decision was “without foundation, not
supported by substantial evidence, and is, in fact, contrary to the evidence presented.” Pet. for
Review, p. 3 (Docket No. 1). Specifically, Petitioner contended that (1) the ALJ failed to
provide a fair hearing, (2) the residual functional capacity (“RFC”) finding and hypothetical
question to the vocational expert did not include all of Petitioner’s impairments, (3) the ALJ

2

Within the “Order of Appeals Council Remanding Case to Administrative Law Judge”
(“Remand Order”), Administrative Appeals Judges David E. Clark and Robert Goldberg directed
the ALJ to (1) give consideration to non-treating source opinions; (2) give further consideration
to Petitioner’s maximum RFC, including any exertional limitations, based on the expanded
record; (3) further evaluate Petitioner’s subjective complaints and provide rationale in
accordance with disability regulations; (4) address the lay witness testimony and written
statements of record; and (5) make appropriate findings as to whether the claimant had any past
relevant work and, if so, compare the work demands of that work with Petitioner’s RFC. (AR
128-132).
MEMORANDUM DECISION AND ORDER - 2

failed to give proper weight to treating and examining provider opinions, and (4) the ALJ failed
to properly evaluate Petitioner’s credibility. See Pet.’s Mem., p. 2 (Docket No. 20). Petitioner
therefore requested that this Court reverse ALJ Palachuk’s decision or, alternatively, remand the
case for further proceedings. See Pet. for Review, p. 3 (Docket No. 1).
9.

After considering the parties’ briefing on the issues presented within Petitioner’s

Petition for Review, on September 23, 2013, the undersigned found:
The evidence upon which the ALJ relied can reasonably and rationally support her
well-formed conclusions, despite the fact that such evidence may be susceptible to
a different interpretation. Accordingly, the ALJ’s decision concerning (1) the
sufficiency of the hearing, (2) the RFC finding and hypothetical question to the
vocational expert, (3) the opinions of Drs. Hammond, Alexander, and Gallaher, and
(4) Petitioner’s credibility are based on proper legal standards and supported by
substantial evidence. Therefore, the Commissioner’s determination that Petitioner
is not disabled within the meaning of the Social Security Act is supported by
substantial evidence in the record and is based upon an application of proper legal
standards.
9/23/13 MDO, pp. 22-23 (Docket No. 23). In accordance with such findings, the undersigned
issued a Judgment that same day, dismissing the action. See J. (Docket No. 24).
10.

On October 16, 2013, Petitioner filed the at-issue Motion, arguing that this Court

committed “clear error” when analyzing the ALJ’s consideration of Dr. Rebecca Alexander’s
July 11, 2007 evaluation of Petitioner and related questioning of the impartial vocational expert
at the March 24, 2011 hearing. See Pet.’s Mot. to Alter/Am., p. 3 (Docket No. 25) (“Petitioner
requests the hearing transcript be reviewed again and the error of fact in footnote 8 of the
Memorandum Decision and Order be corrected. Petitioner also requests the judgment be altered
to order remand of this claim to the Commissioner for a proper evaluation of Dr. Alexander’s
opinion and explanation of the weight it is given.”).

MEMORANDUM DECISION AND ORDER - 3

11.

Through its November 12, 2013 response to Petitioner’s Motion, Respondent

opposes any request to disturb the September 23, 2013 Memorandum Decision and Order’s
ultimate determination affirming the Commissioner’s decision in this case. See generally Def.’s
Resp. (Docket No. 26).
DISCUSSION
A.

Legal Standard for Rule 59(e) Motion
A court has “considerable discretion” in ruling upon a Rule 59(e) motion since specific

grounds for a motion to amend or alter a judgment are not listed in the Rule. See McDowell v.
Calderon, 197 F.3d 1253, 1255, n.1 (9th Cir. 1999). However, amending a judgment is “an
extraordinary remedy which should be used sparingly.” Id.
“In general, there are four basic grounds upon which a Rule 59(e) motion may be
granted: (1) if such motion is necessary to correct manifest errors of law or fact upon which the
judgment rests; (2) if such motion is necessary to present newly discovered or previously
unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the
amendment is justified by an intervening change in controlling law.” Allstate Ins. Co. v. Herron,
634 F.3d 1101, 1111 (9th Cir. 2011).
B.

The ALJ’s Consideration of Dr. Alexander’s Opinions and the Vocational Expert’s
Related Testimony Was Incomplete and Warrants Remand
Dr. Alexander’s July 11, 2007 treatment note following her evaluation of Petitioner,

indicated in relevant part:
Questions were occasionally repeated due to comprehension deficit . . . .
A significant weakness at the .05 level between the performance mean and the Digit
Symbol-Coding subtest suggests difficulties with on the spot learning of an

MEMORANDUM DECISION AND ORDER - 4

unfamiliar task, visual-motor dexterity, persistence in the face of boring tasks, and
clerical speed. . . . .
Ms. Wilkinson’s personal self care skills are moderate; she states she is able to cook,
do laundry and household chores. Based on cognitive/psychological functioning,
ability to understand and remember simple instructions is slightly to moderately
impaired. Ability to understand and remember complex instructions is moderately
to markedly impaired. Ability to sustain concentration and persist is moderately
impaired. Ability to interact appropriately in the workplace, understand social
norms, and adapt to change without interference from psychological difficulties is
moderately impaired.
(AR 357, 360-361). In turn, the ALJ outlined Dr. Alexander’s opinions about Petitioner, stating
in the May 13, 2011 decision that:
Dr. Alexander opined that the intelligence tests indicated the claimant’s cognitive
functioning was in the borderline range. The mental status examination showed the
claimant’s remote, recent and immediate memory was intact. Her fund of
information and ability to calculate math problems were below limits. Thinking was
concrete and her judgment simplistic. Her personal self-care skills were deemed
moderate. The claimant’s ability to understand and remember simple instructions
was slightly to moderately impaired. Her ability to understand and remember
complex instructions was moderately to markedly impaired and the claimant’s ability
to understand and remember complex instructions was moderately to markedly
impaired [sic]. Her ability to sustain concentration and persist was moderately
impaired. Her ability to interact appropriately in the workplace, understand social
norms and adapt to change without interference from psychological difficulties was
moderately impaired. Dr. Alexander might need help with job skills/learning.
(AR 25-26). The ALJ ultimately indicated that she assigned “some weight” to Dr. Alexander’s
opinions, before stating:
The record, Dr. Alexander’s assessment and the state support her opinion that the
claimant could understand and remember simple instructions and persist. Further,
the work questionnaire, completed by a former employer, stated the claimant could
remember and carry out instructions, she did not require special supervision and
generally could relate to coworkers; this is also consistent with the record. Overall,
the undersigned agrees there are some limitations from the claimant’s severe
impairments, particularly her learning problems but they do not rise beyond
moderate, as found by the state. Any limits have been addressed in the residual
functional capacity.
(AR 26). No other analysis of Dr. Alexander’s opinions is reflected in the May 13, 2011
decision.
MEMORANDUM DECISION AND ORDER - 5

Unclear from the ALJ’s review of Dr. Alexander’s opinions is why only “some weight”
was assigned thereto and not more? Stated slightly differently, what, within Dr. Alexander’s
opinions, was lent less weight (hence, only the overall “some weight”) for the purposes of the
ALJ’s disability determination? According to Petitioner, “[t]he weight given to Dr. Alexander’s
opinion is key because, when Dr. Alexander’s opinion as to limitations was presented to the
[vocational expert] in a hypothetical question, the [vocational expert] testified such limitations
would preclude sustained full time work.” Pet.’s Mem., p. 10 (Docket No. 20). That is,
Petitioner’s counsel incorporated Dr. Alexander’s opinions when posing the following
hypothetical to the testifying vocational expert:
ATTY:

Okay. Now, here’s a hypothetical, same age, education, work
experience and this is an individual described as very young acting
for her age, when she was asked questions occasionally they had to
be repeated due to comprehension deficits, she would have
difficulties with on the spot learning of unfamiliar tasks, difficulty
with visual motor dexterity, difficulty in persistence in the face of
boring tasks and clerical speed – that’s from Exhibit 1 of page 5, Dr.
Alexander’s observations. She offers this statement, “The ability to
understand and remember simple instructions is slightly to
moderately impaired. The ability to understand and remember
complex instructions is moderately to markedly impaired. The ability
to sustain concentration and persist is moderately impaired. The
ability to interact appropriately in the work place, understand social
norms an adapt to change without interference from psychological
difficulties is moderately impaired.” So, someone with those
impairments, would they be able to do any past work?

VOC:

I think that they would be able to do it, you know, obtain and do it.
But most likely in dealing with those, they would not be able to
sustain [substantial gainful activity].

ATTY:

Okay. Are there other jobs that deal with the sustained?

VOC:

No.

(AR 56-57).
MEMORANDUM DECISION AND ORDER - 6

The undersigned originally perceived the hypothetical as having been “presented to the
vocational expert by Petitioner’s attorney (not the ALJ), and assumed a certain number of
absences based upon Petitioner’s testimony about her alleged disabling condition.” 9/23/13
MDO, p. 16, n.8 (Docket No. 23). As a result, the Court found that the import any argument
concerning the significance of the vocational expert’s testimony to “turn[ ] on Petitioner’s
credibility,” addressing that latter subject elsewhere in the Memorandum Decision and Order.
Id. But, as is made clear above, the vocational expert’s testimony was not the product of
Petitioner’s subjective accounts of her limitations – it was elicited directly from Dr. Alexander’s
opinions concerning Petitioner’s abilities. On this point, the Court was mistaken and committed
error. See Def.’s Resp. to Mot. to Alter/Am., p. 1 (Docket No. 26) (Respondent conceding that
hypothetical posed to vocational expert “concerned Dr. Alexander’s opinion of her limitations”).
Circling back, the significance of such an error rests upon the ALJ’s consideration of Dr.
Alexander’s opinions. In other words, why wasn’t the vocational expert’s potentially dispositive
testimony about Petitioner’s apparent inability to work (based as it was upon Dr. Alexander’s
opinions (see supra)) assessed more fully? It is not enough to say (or imply) that such testimony
was premised upon Dr. Alexander’s opinions and those opinions were only given “some weight”
when the decision does not make clear which of Dr. Alexander’s opinions were accepted or
rejected and the reasons for so rejecting any such opinions (and, hence, the underlying basis for
assigning only “some weight” to the same). Owing to this ambiguity, it cannot be said that, in
rejecting Dr. Alexander’s opinions (to the extent those opinions were rejected insofar as yielding
the vocational expert’s testimony inapplicable), the ALJ provided specific and legitimate reasons
that are supported by substantial evidence in the record. For this reason, Petitioner’s Motion is

MEMORANDUM DECISION AND ORDER - 7

granted. The September 23, 2013 Judgement is set aside and the action is remanded to the
Commissioner “for a proper evaluation of Dr. Alexander’s opinions and explanation of the
weight it is given.” Pet.’s Mot. to Alter/Am., p. 3 (Docket No. 25).
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Michelle A. Wilkinson’s
Motion to Alter or Amend a Judgment Under Rule 59(e) (Docket No. 25) is GRANTED. The
September 23, 2013 Judgment is set aside and the action is remanded to the Commissioner “for a
proper evaluation of Dr. Alexander’s opinions and explanation of the weight it is given.” Pet.’s
Mot. to Alter/Am., p. 3 (Docket No. 25). The Court urges the Commissioner to make every
effort to move this case forward to a final decision as quickly as possible, given the length of
time that has passed since the original filing by Petitioner. In making that request, the Court
is mindful that the length of time taken by the Court to decide the instant Motion has been a
significant part of that length of time, which is regrettable.
DATED: September 23, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 8