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Furtado v. Colvin

United States District Court, N.D. California

April 14, 2017

KATHLEEN FURTADO, Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

          ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT INTERIM ORDER RE: PLAINTIFF'S MOTION FOR ATTORNEY FEES RE: DKT. NOS. 26, 29

          HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE

         Defendant Commissioner of the Social Security Administration (“Commissioner”) moves pursuant to Federal Rule of Civil Procedure 59(e) to alter or amend this court's judgment remanding claimant Kathleen Furtado's (“Claimant”) case for payment of benefits. The Commissioner argues that the court erred in its application of the credit-as-true doctrine and in its determinations that the ALJ erred. After completing a second review of the record, the court concludes that remand for payment of benefits is the appropriate remedy and denies the Commissioner's motion.

         DISCUSSION

         The Commissioner asserts that the court made various errors in its order granting Claimant's motion for summary judgment and denying the Commissioner's cross-motion. Principally, the Commissioner argues that the court incorrectly applied the Ninth Circuit's credit-as-true doctrine in light of several recent cases, including Treichler v. Colvin, 775 F.3d 1090 (9th Cir. 2014). Under Treichler, the Commissioner states, the court should not have credited the claimant's testimony as true until after it evaluated whether the record as a whole raised “crucial questions” or created “serious doubt” as to whether Claimant was disabled. The Commissioner further argues that the court committed legal error by determining that the ALJ improperly rejected the treating physician's opinion. Finally, the Commissioner suggests that the court incorrectly determined that the ALJ erred in finding Claimant's testimony to be not credible.

         In response, Claimant challenged the propriety of the Commissioner's motion under the civil local rules-because the Commissioner did not notice a hearing under Civil Local Rule 7-2-and under Federal Rule of Civil Procedure 59(e). Claimant asserts that the Commissioner, who does not challenge the court's decision to remand, but only the decision to remand with instructions to pay benefits, did not allege legal error. Claimant also disagreed with the Commissioner's interpretation of Treichler and its effect on the credit-as-true doctrine.

         1. Civil Local Rules 7-2 and 16-5 and Federal Rule of Procedure 59(e).

         The court first addresses Claimant's procedural arguments. Procedures applicable to reviews of administrative decisions are dictated by Civil Local Rule 16-5, which allows for decisions without oral argument. Civil Local Rule 16-5 is expressly adopted by the procedural order in this case. Dkt. No. 5. Civil Local Rule 7-2 is therefore not a valid grounds for denying the Commissioner's motion as procedurally improper.

         The Commissioner's motion is also properly brought pursuant to Rule 59(e). 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.'” Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). Contrary to Claimant's characterization, the Commissioner's motion asserts that the court erred in applying the credit-as-true doctrine and in determining that the ALJ erred by discrediting the treating physician's opinion. These errors, Commissioner asserts, meant that the court's decision to remand for payment of benefits was also legal error. The Commissioner's motion properly asserts that the first of the four grounds for relief under Rule 59(e) applies, [1] and so the court will proceed with an analysis of whether Commissioner's claims of legal error have merit.[2]

         2. Commissioner's Claims of Legal Error.

         Under the Ninth Circuit's credit-as-true doctrine, “the district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Even when these three elements are satisfied, courts must remand cases for further proceedings when “an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled.” Garrison v. Colvin, 750 F.3d 995, 1020 (9th Cir. 2014). In Treichler v. Colvin, the Ninth Circuit clarified that, in the second step, the court assesses “whether there are outstanding issues requiring resolution before” crediting the claimant's testimony as true. 775 F.3d 1090, 1105-06 (9th Cir. 2014). The court explained that an ALJ's legal error, in and of itself, does not require a court to accept the claimant's testimony as true. Id. at 1106. Rather, “[w]here there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate.” Id. at 1101.

         In evaluating whether the order on the cross-motions for summary judgment contained legal errors, the undersigned reviewed his prior order and the entire administrative record in this case.

         The court again determines that the ALJ erred by failing to provide specific, clear, and convincing reasons for his adverse credibility finding. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (describing the standard applicable to ALJ credibility determinations).

         The Commissioner argues that the ALJ provided two valid reasons supporting his adverse credibility finding. Neither reason is convincing. First, the Commissioner argues that the ALJ noted that he found Claimant not credible because she was laid off from her last job. Claimant testified, however, that she was already experiencing difficulties and pain in her work toward the end of her employment, and that her termination was “a relief” because her work “was getting very hard.” AR 78-80. Absent other evidence casting the circumstances surrounding her departure from employment in doubt, the mere fact that a claimant was laid off before her disability affirmatively prevented her from working is not a convincing reason to discredit her testimony.[3] The timing of her termination also lessens its potential adverse effect on the credibility of her testimony. Claimant was laid off in 2005, but her last insured date was not until 2009. Her treating physician's functional report states that her condition “existed and persisted with the restrictions” he described “at least since” 2006-that is, after her termination date. AR 490. And her testimony responded to questions about her symptoms as she specifically experienced them “in 2009.” AR 87, 89, 90, 93. In light of these facts, Claimant's termination is not a convincing reason for an adverse credibility finding.

         Second, the Commissioner argues that the ALJ found Claimant's testimony not credible because he found it inconsistent with her reported activity level. The Commissioner further objected to the court's characterization of Claimant's activity level as “low.” But the court, having reviewed the record with particular attention to the documents cited by the Commissioner, again determines that the ALJ erred by mischaracterizing Claimant's testimony. An ALJ errs when he or she mischaracterizes a claimant's testimony by ignoring reports that daily activities are conducted with assistance, with great pain, or with limitation-related disruptions. See Garrison v. Colvin, 759 F.3d 995, 1016 (ALJ erred by mischaracterizing testimony stating that the claimant's daily activities were performed with assistance and were regularly disrupted by pain); Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (ALJ erred by failing to note that the claimant's daily activities were “quite limited and carried out with difficulty”); Rawa v. Colvin, No. 14-17154, 2016 WL 7107990, at *1 (9th Cir. Dec. 6, 2016) (ALJ erred by omitting “a number of salient and dispositive facts and details when recounting [the claimant's] activity level.”). An ALJ also errs by discrediting a claimant's testimony because of purported inconsistencies with her activities when the activities reported, performed in the manner described, are consistent with the claimant's ...


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