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Fenton v. Colvin

United States District Court, D. Oregon

May 13, 2015

DONA C. FENTON, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

Alan Stuart Graf, Floyd, VA, Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States Attorney, UNITED STATES ATTORNEYS OFFICE, District of Oregon, Portland, OR, Lisa Goldoftas, Special Assistant United States Attorney, OFFICE OF THE GENERAL COUNSEL, Social Security Administration, Seattle, WA, Attorneys for Defendant.

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

On March 9, 2015, the Court reversed the decision of the Commissioner of Social Security ("Commissioner") and remanded this case for an award of benefits. Dkts. 18 and 19. On April 6, 2015, the Commissioner filed a motion under Federal Rule of Civil Procedure 59(e), requesting that the Court amend or correct its Opinion and Order and Judgment remanding the case for an award of benefits. Dkt. 20.

Under Federal Rule of Civil Procedure 59(e), a court has discretion to alter or amend a judgment if: (1) it is presented with newly discovered evidence; (2) it committed clear error or made an initial decision that was manifestly unjust; or (3) there is an intervening change in controlling law. Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011), cert. denied, 133 S.Ct. 424 (2012); see also McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) ("A motion for reconsideration under Rule 59(e) should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.") (citation and quotation marks omitted). Reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quotation marks and citation omitted).

The Commissioner argues that an amended or corrected opinion and judgment are appropriate in this case because the Court erroneously relied on the date that certain medical records were printed as the date the medical records were created. The correct dates of the medical records demonstrate that Plaintiff had very long periods of time with no symptoms and during which time she did not seek treatment and thus, the Commissioner argues, demonstrate that the ALJ did not err in her credibility determinations. Plaintiff argues that the Court's mistaken review of the evidence should not affect the Court's rejection of the ALJ's credibility determinations.

The Court agrees with the Commissioner that the Court's misunderstanding of the dates of the medical evidence rendered the Opinion and Order erroneous and unjust. The Court therefore amends the Discussion section of its March 9, 2015 Opinion and Order as set forth below.

DISCUSSION

A. Headache Treatment Summary

Considering the correct dates of the medical evidence, Plaintiff's headache and treatment history with Dr. Mia Schreiner are as follows:

• June 2009: Dr. Schreiner begins treating Plaintiff for daily headaches. AR 269-73.
• July 21, 2009: Plaintiff reports that her headaches are now episodic instead of daily and Dr. Schreiner notes that Plaintiff's headaches are now approximately four headaches in every 10-12 days.[1] AR 261-63.
• August 2009: Plaintiff has two visits with Dr. Schreiner, reporting continuing episodic headaches. Dr. Schreiner notes that she would like Plaintiff to continue not working because Plaintiff has a "very strenuous job" and exertion makes Plaintiff's headaches worse. AR 255-60.
• September 22, 2009: Plaintiff reports only four headaches in the last three weeks, but reports dizziness from her medication. Dr. Schreiner notes that she would like Plaintiff to continue not working because of the dizziness, which Dr. Schreiner expects will resolve in a few weeks. AR 252-54.
• October 15, 2009: Plaintiff reports no headaches since her last visit, her dizziness from the medication has resolved, and she thinks she can return to work. Dr. Schreiner gives Plaintiff a release back to work. AR 250-51.
• December 4, 2009: Plaintiff reports only two mild headaches since her last visit, both of which were precipitated by lifting something heavy at work and that she continues to do well on her medication. Plaintiff reports her headaches are doing well and her job has been mostly stress-free. Dr. Schreiner does not mention any work restrictions. AR 248-49.
• December 15, 2009: Plaintiff reports a headache lasting four days triggered by the stress of having to work the cash register at work. Dr. Schreiner administers a right greater occipital nerve block. Dr. Schreiner writes a note to Plaintiff's job regarding the stress of having Plaintiff work the cash register triggering headaches. AR 245-47.
• March 5, 2010: Plaintiff reports daily headaches occurring for the previous three weeks, after weeks of relief from the nerve block administered on December 15, 2009. Dr. Schreiner administers another right greater occipital nerve block. ...

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