Blea v. Colvin

Filing 29

ORDER that the Motion to Reconsider ECF No. 26 is GRANED; case is REMANDED to the SSA for further proceedings consistent with the settlement. Signed by Judge Robert C. Jones on 2/14/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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ANDREA BLEA,
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Plaintiff,
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vs.
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NANCY A. BERRYHILL,
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Defendant.
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3:14-cv-00582-RCJ-VPC
ORDER

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On June 23, 2011, Plaintiff protectively filed claims for Social Security Disability

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Insurance and Supplemental Security Income benefits under Titles II and XVI of the Social

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Security Act, respectively. The state agency denied the claims on October 27, 2011 and denied

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reconsideration on March 29, 2012. On January 16, 2013, Plaintiff and her attorney appeared

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before an Administrative Law Judge (“ALJ”) of the Social Security Administration (“SSA”).

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The ALJ ruled on April 23, 2013, finding that Plaintiff had not been disabled at any time

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between June 9, 2010 and the date of the decision. The Appeals Council denied review on

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September 18, 2014, and the ALJ’s decision became the final decision of the Commissioner.

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Plaintiff filed the present Complaint for judicial review in this Court on December 18,

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2014. The Commissioner answered, Plaintiff moved to remand, and the Commissioner moved to

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affirm. The Magistrate Judge recommended affirmance, and the Court adopted the

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recommendation on January 5, 2016. Plaintiff did not appeal but has now asked the Court to

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reconsider under Rule 60(b)(6), arguing that she is eligible for a new hearing before the ALJ

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according to a recent notification she received from the Commissioner. Specifically, in Hart v.

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Colvin, 3:15-cv-623 (N.D. Cal.), a plaintiff class sued the Commissioner arguing that Dr. Frank

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Chen’s consultative examination reports were flawed. As part of a settlement, the Commissioner

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has agreed to provide new hearings to claimants who were examined by Dr. Chen between

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January 1, 2011 and December 31, 2013 and who received unfavorable decisions. Plaintiff

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underwent a consultative examination by Dr. Chen on September 30, 2011. The ALJ in this case

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noted that she assigned “great weight” to Dr. Chen’s assessment, obviating any potential

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harmless error issues. The notice sent from the Commissioner to Plaintiff indicates that if she

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had filed an appeal to federal court and lost, as here, she had 90 days from the date she received

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the notice to file a motion for relief from judgment. The notice is dated September 25, 2017, and

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the present motion was timely filed December 20, 2017. The Commissioner has not timely

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responded to the present motion.
CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 26) is GRANTED,

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and the case is REMANDED to the SSA for further proceedings consistent with the settlement.

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IT IS SO ORDERED.

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February January,
Dated this 4th day of14, 2018. 2018.

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_____________________________________
ROBERT C. JONES
United States District Judge

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