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Cynthia Sosa v. Michael J. Astrue

August 3, 2011

CYNTHIA SOSA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING DEFENDANT'S ) MOTION TO ALTER OR AMEND JUDGMENT (Document 19)

BACKGROUND

On September 20, 2010, this Court issued its Order Regarding Plaintiff's Social Security Complaint wherein the agency's decision was reversed and the matter remanded for further proceedings. (Doc. 17.) On September 22, 2010, Defendant, Michael Astrue ("Defendant or Commissioner") moved to amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (Doc. 19). Plaintiff filed an opposition to the motion on December 20, 2010. (Doc. 20).

SCOPE OF REVIEW

Rule 59(e) of the Federal Rules of Civil Procedure states "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of judgment." A district court has considerable discretion when considering a motion to amend a judgment under Rule 59(e). Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011); Turner v. Burlington Northern Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). There are four grounds upon which a Rule 59(e) motion may be granted: 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." Id.

In the instant action, Defendant timely moved to amend the judgment by filing a motion within the twenty-eight day period and has alleged a manifest error of law. (Doc. 19 at pg.1). Upon a review of the pleadings, the Court denies Defendant's motion.

DISCUSSION

The issue raised in this motion is whether the ALJ properly rejected Dr. Levins' opinion dated July 17, 2008. AR 108-109. Dr. Levins is Plaintiff's orthopedic surgeon who performed surgery on Plaintiff's right knee in November 2005. AR 283-288. Although Plaintiff initially appeared to be doing well after her surgery (Doc.19 at pg. 6 citing AR 191), she was seen by Dr. Grozdeva, another physician, in March 2007 and January 2008, and complained of increased pain. (Doc. 19 at pg. 6-7 citing AR 122-139).

On July 17, 2008, Dr. Levins completed the assessment in question. (Doc. 17 at pg. 7 citing AR 108-109). Based on x-rays and unpredictable locking and popping, he opined that Plaintiff could lift less than ten pounds, could stand and/or walk less than two hours a day, and could sit less than six hours. AR 108-109. Dr. Levins also indicated that Plaintiff required the use of her upper extremities for support. (AR 108-109).

The ALJ rejected Dr. Levins' opinion based on the following:: As for the opinion evidence, the State agency medical consultants concluded that the claimant retains the residual functional capacity to lift and carry 20 pounds occasionally, and 10 pounds frequently and stand, walk and sit 6 hours in an 8-hour workday with occasional climbing, balancing, stooping, kneeling, crouching and crawling.

Orthopedic surgeon, Dr. Levins opined that the claimant could lift and carry less than 10 pounds, stand and walk less than 2 hours and sit less than 6 hours in an 8-hour workday and with no climbing, balancing, stooping, kneeling, crouching and crawling. Very little weight [is] given to Dr. Levins opinion as it is not supported by clinical findings and is not consistent with other medical evidence. For example, right knee x-rays performed in December 2006 showed only mild tricompartmental degenerative joint disease. A medical report in March 2007 indicated mild osteoarthritis of the right knee. Furthermore, the record indicates that the claimant has received minimal right knee treatment since her surgery and has seen Dr. Levins on [sic] a couple of times. The State agency medical opinion [sic] that the claimant can perform light work is given very little weight as they did not have the opportunity of examining the claimant.

AR 14. (internal citations omitted).

This Court found that the ALJ's rejection of the specialist's opinion was improper because there was not sufficient medial evidence in the record to support the ALJ's finding that the Plaintiff could perform her past work or other work. (Doc. 17 at pg. 12). In doing so, this Court determined that the reasons the ALJ gave to reject this specialist's opinion were not legitimate and specific because the medical record was ambiguous. Id. In particular, the Court reasoned that although the ALJ relied on the fact that Plaintiff had not seen Dr. Levins regularly over the course of her treatment and had received minimal treatment for her knee, there was evidence in the medical record that Plaintiff had a recurring knee problem. In particular, Ms. Sosa had been treated and evaluated by Dr. Grozdeva in 2007 and 2008, and had complained of knee pain. Id. During these evaluations, Dr. Grozdeva noted that there was minimal lipping along the joint lines medially and laterally, a slight sharpening of the tibial spines, and what appeared to be some narrowing of the patellofemoral joint. Id. Dr. Grozdeva indicated that if Plaintiff's symptoms did not improve, she would refer Plaintiff for another orthopedist evaluation. Id.

Plaintiff was subsequently evaluated by her specialist, Dr. Levins. At the time of the assessment, Dr. Levins identified significant impairments. AR 108-109. This Court noted the Dr. Levins' report was insufficient because it was a check box format, however, it also noted Dr. Levins was a specialist whose opinion is entitled to deference. (Doc. 17 at pg. 12-13). Since the medical record indicated that a thorough examination of Plaintiff's knee had not been completed since 2005, the ...


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