Lucero v. Colvin

Filing 32

ORDER that Defendant's motion to amend the judgment (ECF No. 29 ) is granted; Plaintiff's motion for reversal or remand (ECF No. 15 ) is denied; Defendant's cross-motion to affirm (ECF No. 19 ) is granted; Clerk instructed to vacate the judgment entered on November 2, 2017 (ECF No. 28 ); Clerk further instructed to enter judgment in favor of Defendant in accordance with this order and close this case. Signed by Judge Miranda M. Du on 8/17/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CARMEN LUCILLE LUCERO,

Case No. 3:15-cv-00496-MMD-VPC

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Plaintiff,

ORDER

v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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I.

SUMMARY

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This action concerns an appeal of a Social Security Administration (“SSA”) denial

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of benefits. In a previous order (“Order”), the Court granted Plaintiff’s motion to reverse in

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part and remand for further proceedings. (ECF No. 27.) Pending before the Court is

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Defendant’s motion to amend the judgment (“Motion”) (ECF No. 29.) The Court has

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reviewed Plaintiff’s response (ECF No. 30) and Defendant’s reply (ECF No. 31). For the

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reasons discussed herein, the Motion is granted.

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II.

BACKGROUND

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The Court’s Order acknowledged that the “Magistrate Judge found that the

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[administrative law judge (ALJ)] made certain mistakes but that these mistakes were

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harmless.” (ECF No. 27 at 3.) Nonetheless, the Court found that remand was appropriate

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on three bases: first, the ALJ’s residual functioning category (“RFC”) finding did not

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account for Plaintiff’s limitations in social functioning and concentration; second, the ALJ

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failed to provide an explanation for rejecting Dr. Wildman’s opinion; and, finally, the ALJ

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failed to address conflicting evidence in the record with regards to classification of a prior

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job as non-composite. (Id.) Defendant moves for amendment of this decision on the basis

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of legal error.

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III.

LEGAL STANDARD

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“There are four grounds upon which a Rule 59(e) motion may be granted: 1) the

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motion is necessary to correct manifest errors of law or fact upon which the judgment is

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based; 2) the moving party presents newly discovered or previously unavailable evidence;

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3) the motion is necessary to prevent manifest injustice; or 4) there is an intervening

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change in controlling law.” Turner v. Burlington N. Santa Fe R.R., 338 F.3d 1058, 1063

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(9th Cir. 2003). A motion to reconsider must set forth “some valid reason why the court

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should reconsider its prior decision” and set “forth facts or law of a strongly convincing

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nature to persuade the court to reverse its prior decision.” Frasure v. United States, 256

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F.Supp.2d 1180, 1183 (D. Nev. 2003).

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IV.

DISCUSSION

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Defendant argues that the Court committed numerous manifest errors. The Court

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finds that two errors warrant reversal of its prior decision. The Court therefore grants

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Defendant’s Motion on the basis of legal error.

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First, Defendant argues that this Court erred by finding reversible error relating to

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examining source Dr. Wildman’s opinion without considering whether such error was

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harmless. (See ECF No. 29 at 6.) The Court agrees and finds that even with the ALJ’s

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failure to explicitly reject Dr. Wildman’s finding of moderate as opposed to mild mental

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limitations, the record does not reflect that Plaintiff would be prevented from performing

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her past relevant work as a social worker/case worker. (See id.) Thus, this error was

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inconsequential to the ultimate non-disability determination such that remand was not

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appropriate. See Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012).
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Second, Defendant points out that in the Order the Court determined that the ALJ

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did not err in finding that Plaintiff could perform her past relevant work as a social

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worker/caseworker as generally performed. (ECF No. 29 at 2.) Defendant then points to

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a regulation that states that if the SSA finds that the applicant has the RFC to perform

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past relevant work—here, work as a social worker/case worker—then the SSA will

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determine that the applicant can still do her past relevant work and is therefore not

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disabled. (Id. at 3 (citing 20 C.F.R. § 416.960(b)(3)).) Thus, the Court agrees with

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Defendant that its prior finding of error regarding Plaintiff’s other past relevant work as a

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project manager/graphic designer would be harmless and not alter the ALJ’s ultimate

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finding that Plaintiff was not disabled.
The Court therefore finds good cause to amend the Order and enter judgment in

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favor of Defendant.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of

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Defendant’s Motion.

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It is therefore ordered that Defendant’s motion to amend the judgment (ECF No.
Plaintiff’s motion for reversal or remand (ECF No. 15) is denied.

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29) is granted.

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Defendant’s cross-motion to affirm (ECF No. 19) is granted.

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The Clerk is instructed to vacate the judgment entered on November 2, 2017 (ECF

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No. 28). The Clerk is further instructed to enter judgment in favor of Defendant in

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accordance with this order and close this case.

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DATED THIS 17th day of August 2018.

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________________________________
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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