The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT
ORDER REMANDING CASE PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g) ORDER DIRECTING THE CLERK TO ENTER JUDGMENT IN FAVOR OF PLAINTIFF ROSARIO I. COTA AND AGAINST DEFENDANT COMMISSIONER OF SOCIAL SECURITY
Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the Magistrate Judge to conduct all proceedings in this matter, including ordering the entry of final judgment.*fn1 Pending before the Court is Defendant's motion for relief, filed on April 13, 2009, from the judgment previously filed in this matter on March 31, 2009. Plaintiff filed opposition, and Defendant filed a reply.
By decision and order dated March 31, 2009, the Court determined that remand to the agency was required because the ALJ had made errors in the course of findings concerning the medical opinion of treating physician Dr. Berry and the credibility of the claimant.
Fed. R. Civ. P. 59(e) provides:
A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.*fn2 A motion to amend a judgment under rule 59(e) is granted in a district court's discretion upon the following grounds: 1) the motion is necessary to correct manifest errors of law or fact upon which the judgment is based; 2) the moving party presents newly discovered or previously unavailable evidence; 3) the motion is necessary to prevent manifest injustice; or 4) there is an intervening change in controlling law. Turner v. Burlington Northern Santa Fe R. Co., 338 F.3d 1058, 1063 (9 th Cir. 2003). The remedy provided is extraordinary and is to be used sparingly in the interests of finality and conservation of judicial resources. Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9 th Cir. 2000). With respect to errors of law or fact, clear error is required. Id. Such a motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. Id.
Defendant challenges the Court's conclusion that substantial evidence did not support the ALJ's finding that Plaintiff was only partially credible, arguing that the Court did not review the finding and record under the proper standard of review. Defendant argues that the Court overlooked evidence that supported the ALJ's conclusions and focused primarily on evidence that could support a finding of disability. Defendant asserts that because the evidence supported more than one rational interpretation, the Court manifestly erred.
Defendant cites to page fourteen, lines nineteen through twenty-six of the decision. The Court determined in substance that although there was evidence that Plaintiff occasionally could perform the stated activities of daily living, substantial evidence did not support the ALJ's implicit conclusion that such evidence was inconsistent with Plaintiff's claimed limitations, which Plaintiff asserted precluded her from spending a substantial portion of her day engaged in work activities or activities transferable to a work setting.
Defendant cites to page twenty-one, lines twelve through nineteen of the decision. The Court determined in substance that although there was a report that pain medication had helped Plaintiff at one point (A.R. 194, March 2006), additional evidence in the record covering an extended period reflected continued complaints of significant pain and need for adjustment of medications; thus, the reasoning concerning Plaintiff's pain medication being relatively effective in controlling her symptoms was not clear and convincing. (See, e.g., A.R. 205 [April 2005, complaints of pain all over, report that pain medications did not help symptoms]; A.R. 202-03 [May 2005, body aches all over, report that pills only worked for a while and the pain did not resolve, complaint of severe pain in the shoulders, arms, legs, and neck]; A.R. 199 [June 2005, complaint of joint pain despite Tylenol No. 3 (i.e., Tylenol with Codeine)]; A.R. 152 [June 2005, complaints of constant body pain and pain in the joints, neck, and low back]; A.R. 197 [July 2005, complaint of pain all over the body]; A.R. 195 [January 2006, complaints of generalized body aches and pains]; A.R. 193 [April 2006, complaint of arthralgias]; A.R. 191 [September 2006, frequent headaches]; A.R. 190 [September 2006, severe pain]; A.R. 186 [March 2007, arthralgias].)
Defendant cites to page sixteen, lines nineteen through twenty-one. The Court reviewed the evidence, which reflected that Plaintiff persistently and often sought treatment.
Defendant cites to page eighteen, lines ten through eleven. The Court essentially concluded that given the fact that atrophy or loss of strength was not shown to have been associated with fibromyalgia, the ALJ's reliance on the absence of muscle atrophy or loss of strength as a basis for rejecting her claim of fatigue or weakness due to fibromyalgia was not clear and convincing.
Defendant cites to page 22, lines seven through eight. The ALJ had concluded that there was no evidence of sleep deprivation due to pain. The Court stated that there was mixed support for that reason but noted that Plaintiff had reported that she had severe pain and tossed and turned at night. The Court essentially concluded that the statement that there was no evidence of sleep deprivation due to pain was not supported by the record.*fn3
In engaging in the foregoing analysis, the Court used the appropriate standard of review. The Court did not overlook the evidence that supported the ALJ's findings; instead, the Court looked at the totality of the evidence and evaluated it pursuant to the correct standards.
The ALJ's credibility findings relied in part on the assertion that none of Plaintiff's physicians had opined that she was totally and permanently disabled from any kind of work. (A.R. 20.) In the decision, the Court addressed that reasoning and noted that Dr. Berry in 2005 had repeatedly indicated that Plaintiff was disabled from her previous, heavy, physical labor; in 2006 and 2007, Dr. Berry had indicated that Plaintiff was unable to work due to fibromyalgia. (Decision and Order, p. 22, l. 14 through p. 23, l. 3.) The Court concluded that in view of the consistency of Dr. Berry's ...