United States District Court, N.D. California, San Jose Division
J. V., a minor, by and through her Guardian ad Litem Arthur Tan, Plaintiff,
NANCY A. BERRYHILL, Defendant.
ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT RE:
DKT. NO. 24
R. LLOYD United States Magistrate Judge.
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
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.
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.
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).
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.
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
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).
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.
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 ...