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J. V. v. Berryhill

United States District Court, N.D. California, San Jose Division

May 1, 2017

J. V., a minor, by and through her Guardian ad Litem Arthur Tan, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Defendant.

          ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT RE: DKT. NO. 24

          HOWARD R. LLOYD United States Magistrate Judge.

         Violeta Duran sought disability insurance benefits and supplemental security income, alleging disability since June 1, 2009 due to a Nissen fundoplication surgery (i.e., stomach surgery to prevent reflux) and complications stemming from that procedure; Chronic Fatigue Syndrome (CFS); depression (grief); hiatal hernia in the stomach; stomach pain; diarrhea; nausea; vomiting; gastroparesis; and hypothyroidism. The administrative law judge (ALJ) concluded that most of these alleged ailments were not supported by the medical evidence (or had been resolved) and were not severe. There was, however, no dispute that Duran suffered from CFS and that her condition was a severe impairment. Although the ALJ found that Duran was unable to perform any past relevant work, he concluded that she had the residual functional capacity (RFC) to perform a modified range of sedentary work. In making that determination, the ALJ gave little weight to the opinion of Dr. Jose Montoya, the treating physician who diagnosed Duran's CFS and opined that her condition was disabling. The ALJ also discredited Duran's allegations as to the intensity, persistence and limiting effects of her symptoms to the extent they were inconsistent with the assessed RFC. Instead, the ALJ gave significant weight to the opinion of medical expert, Dr. Gerber, who testified at the administrative hearing that plaintiff can perform sedentary work.

         Pursuant to 42 U.S.C. § 405(g), Violeta Duran appealed the Commissioner's decision to deny benefits, arguing that the ALJ erred in giving Dr. Montoya's opinion little weight and crediting that of Dr. Gerber instead. She also contended that the ALJ improperly discredited her subjective complaints. The court granted Duran's motion for summary judgment, denied the Commissioner's cross-motion for summary judgment, and remanded the case for payment of benefits. Judgment was entered accordingly.[2]

         Pursuant to Fed.R.Civ.P. 59(e), the Commissioner moves to alter or amend the judgment. She does not challenge the decision to remand this case. Instead, she contends that the court erred in applying the credit-as-true doctrine and remanding for benefits, rather than for further administrative proceedings. The matter is deemed suitable for determination without oral argument. Upon consideration of the moving and responding papers, the court denies the motion.

         LEGAL STANDARD

         Fed. R. Civ. P. 59(e) provides that a party may move to have the court amend its judgment. “‘Since specific grounds for a motion to amend or alter are not listed in the rule, the district court enjoys considerable discretion in granting or denying the motion.'” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 n. 1 (9th Cir. 1999)). Generally, there are four grounds upon which a Rule 59(e) motion may be granted: “(1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to present newly discovered or previously unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an intervening change in controlling law.” Id. Even so, amending a judgment is an extraordinary remedy that should be used sparingly. Id. Additionally, Rule 59(e) “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been made prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (citation omitted).

         DISCUSSION

         The Commissioner argues that the court committed manifest error in applying the credit-as-true doctrine and remanding for payment of benefits, rather than for further proceedings. For the record, the Commissioner states that she disagrees with Ninth Circuit precedent allowing a reviewing court to apply the credit-as-true doctrine. This court is nonetheless bound by that precedent. In the Ninth Circuit, a court may credit evidence that was rejected during the administrative process and remand for an immediate award of benefits where: (1) the ALJ failed to provide legally sufficient reasons to reject a claimant's testimony or a medical opinion; (2) the record has been fully developed; and (3) if the evidence were credited, the ALJ would be required to find the claimant disabled on remand. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even when all three criteria are met, the court retains discretion to remand for further proceedings if “the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021; see also Treichler, 775 F.3d at 1102.

         Inasmuch as the Commissioner does not challenge the decision to remand the case, this court finds no issue as to whether the ALJ failed to provide legally sufficient reasons to discount Duran's testimony or Dr. Montoya's opinion. Indeed, the Commissioner appears to acknowledge that the ALJ did not properly assess the record evidence, particularly as to the opinions of Drs. Montoya and Gerber. (Dkt. 29, Reply at 4-5). The Commissioner instead argues that the matter should be remanded for further proceedings so that the ALJ can fully develop the record to correct his errors. For the reasons to be discussed, the Commissioner has not persuasively argued that there are outstanding issues to be resolved or that further administrative proceedings would be useful for any other purpose.

         First, the Commissioner argues that this court erroneously concluded that testifying medical expert Dr. Gerber did not consider any evidence other than records from Dr. Montoya. The Commissioner apparently challenges the following portion of this court's order:

The ALJ adopted Dr. Gerber's opinion, stating that he found it to be consistent with the record as a whole. But, the ALJ did not identify what evidence, if any, contradicts Dr. Montoya's clinical findings. Indeed, the record indicates that Dr. Montoya and Dr. Gerber simply reached different conclusions based on the same findings. At the hearing, when asked “what's going on in [plaintiff's] file physically?” Dr. Gerber identified Dr. Montoya's November 30, 2010 letter as the most important piece of evidence: “Well, the --- I think the most important factor in the file is the extensive and detailed letter from the treating physician, Dr. Montoya. . . . He does document the elements of chronic fatigue syndrome, and he does, in his letter, I think appropriately mention refraining from strenuous physical activity.” (AR 83). “When an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not ‘substantial evidence.'” Orn, 495 F.3d at 632. In this case, Dr. Gerber did not even examine Duran and his conclusions are not based on any independent findings.

(Dkt. 22, Summary Judgment Order at 7-8).

         Pointing out (as it did on summary judgment) that Dr. Gerber considered Exhibits 1F-18F, the Commissioner contends that this court erred in concluding that Dr. Gerber based his testimony only on Dr. Montoya's medical records and treating those records as “the paramount or solely dispositive piece of evidence in the record.” (Dkt. 24, Mot. at 7). Firstly, this court did not single out Dr. Montoya's records. Dr. Gerber is the one who testified that he found those records to be the most salient in Duran's file. While Duran alleged a number of impairments, her CFS was the only one at issue in this appeal; and, records pertinent to Duran's CFS came from Dr. Montoya. The Commissioner does not identify anywhere in the record where Dr. Gerber cited evidence that conflicted with Dr. Montoya's opinion---save for Dr. Gerber's own disagreement as to the degree of limitations about which Dr. Montoya opined.

         The Commissioner nevertheless argues that remand for further proceedings (not benefits) is required under Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090 (9th Cir. 2014) and Burrell v. Colvin, 775 F.3d 1133 (9th Cir. 2014). As discussed above, under the credit-as-true doctrine, a district court has discretion to remand a case for further administrative proceedings or for a finding of disability and award of benefits. “‘Treichler does not disturb this longstanding principle, and in fact, reiterates that the remand for benefits is discretionary.'” Page v. Colvin, No. 14-cv-02870-DMR, 2016 WL 6835075, at *5 (N.D. Cal., Nov. 20, 2016) (quoting Rustamova v. Colvin, 111 F.Supp.3d 1156, 1163 (D. Or. 2015)). In Treichler, the Ninth Circuit clarified that at the second step of the credit-as-true analysis, the court assesses “whether there are outstanding issues requiring resolution before” crediting the claimant's testimony as true. 775 F.3d at 1105-06. An ALJ's legal error, standing alone, does not require a court to accept a claimant's testimony as true. Id. at 1106. Rather, “[w]here there is conflicting evidence, and not all essential factual ...


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