On September 10, 2009, plaintiff filed a complaint seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Social Security benefits. Dckt. No. 1. On September 29, 2011, the court issued an order upholding the denial of plaintiff's application, and judgment was entered in the Commissioner's favor. Dckt. Nos. 34, 35. Presently before the court is plaintiff's motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). Dckt. No. 36. The Commissioner opposes the motion. Dckt. No. 37. For the following reasons, plaintiff's motion is denied.
Federal Rule of Civil Procedure 59(e) provides that "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." The United States Court of Appeals for the Ninth Circuit has identified four grounds for providing relief under Rule 59(e): (1) to correct manifest errors of law or fact upon which the judgment is based, (2) to present newly discovered or previously unavailable evidence, (3) to apply an intervening change in the law, and (4) to prevent manifest injustice. McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (per curiam and en banc). A district court has considerable discretion in ruling on a motion brought pursuant to Rule 59(e). Id. "While Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an extraordinary remedy, to be used sparingly in the interest of finality and conservation of judicial resources." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (internal quotations omitted). When seeking reconsideration, a party is not permitted to "raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Id.
Plaintiff argues that relief under Rule 59(e) is warranted to correct the errors of law on which the court's judgment is based. Pl.'s Mem. of P & A ISO Mot. to Alter or Am. J., Dckt. No. 36-1 at 2. Specifically, plaintiff argues that the court erred by failing to apply the proper legal standard in finding that (1) the ALJ provided clear and convincing reasons for not crediting plaintiff's testimony, and (2) the ALJ articulated legally adequate reasons for rejecting plaintiff's treating physician's opinion. Id. at 2, 18.
Plaintiff first contends that the court erred in failing to apply the proper legal standards in evaluating plaintiff's credibility. Dckt. No. 36-1 at 2. In his decision, the ALJ gave three reasons for discrediting plaintiff's testimony: 1) plaintiff's alleged limitations were not supported by the objective medical evidence to the extent claimed; 2) examination showed that plaintiff was not putting out her full effort, and perceived herself to be more limited than she actually was; and 3) Dr. Goodwin, plaintiff's treating physician, recommended conservative care to plaintiff, but she did not follow all of his recommendations.
This court found that the first two proffered reasons were clear and convincing. Dckt. No. 34 at 7-8. Because the ALJ first two reasons were clear and convincing, the court declined to rule on whether the last reason was legally sufficient. Id. at 8.
Plaintiff argues that the court erred in finding that the first reasons was a sufficient basis for discrediting plaintiff's testimony because, under Ninth Circuit precedent, an adverse credibility finding cannot be premised wholly on a lack of medical evidence supporting the allegations of pain. Dckt. No. 36-1 at 3. See Light v. Social Sec. Admin, 119 F.3d 789, 792 (1997) ("[A] finding that the claimant lacks credibility cannot be premised wholly on a lack of medical support for the severity of his pain."). The court, however, did not find that the ALJ rejected plaintiff's testimony based wholly on the ALJ's finding that record did not support plaintiff's allegations of pain. Rather, the court also found that the ALJ properly discredited plaintiff's testimony based on her failure to put forth her full effort during examination.
Plaintiff further contends that the ALJ failed to consider the record as a whole in determining whether the medical evidence supported plaintiff's allegations of pain. Dckt. No. 34 at 7. The court's September 29, 2011 order discussed the evidence that supported the ALJ's first reason for discrediting plaintiff's testimony:
[T]he ALJ explained that an MRI of plaintiff's spine showed minimal abnormalities; an xray of the spine on the date of plaintiff's injury was normal; and her treating physician, Dr. Mott, thought that she could perform light work. [AR] at 523. Dr. Michelson found that plaintiff had grossly normal range of motion testing with the exception of "slight muscle tenderness" to palpitation over the lower back, and there was no muscle spasm and muscle tome was equal throughout. Id. Dr. Goodwin found that no Waddell's signs were present, although plaintiff had 14 of 18 trigger points, consistent with a diagnosis of fibromyalgia. Id. Thus, the objective medical evidence did not corroborate the severe limitations plaintiff attested to.
Dckt. No. 34; see also AR 470.
Plaintiff cites to other evidence in the record that could possibly support a contrary finding. Dckt. No. 36-1 at 5. However, it is the ALJ's responsibility to weigh the medical evidence and "[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The evidence relied upon by the ALJ supports his determination that the plaintiff's allegations of pain were not as severe as alleged. Accordingly, the court may not disturb this finding.*fn1
The undersigned also found that the second reason provided by the ALJ--that examination showed that plaintiff was not putting out her full effort, and perceived herself to be more limited than she actually was--was a ...