United States District Court, D. Oregon, Eugene Division
LEE J. FISCHER, Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.
OPINION AND ORDER
PATRICIA SULLIVAN United States Magistrate Judge
Lee J. Fischer brought this action pursuant to the Social
Security Act (the “Act”), 42 U.S.C. §
405(g), to obtain judicial review of a final action of the
Commissioner of Social Security (the
“Commissioner”) denying plaintiff Disabled
Child's Insurance Benefits under Title II of the Act,
§ 202(d)(1)(B)(ii), as amended, 42 U.S.C.
§ 402(d)(1)(B)(ii). Plaintiff requested a determination
that she became disabled before her twenty-second birthday,
and thus was entitled to Disabled Child's benefits. The
Administrative Law Judge (“ALJ”) had found that
plaintiff became disabled beginning April 2, 2012, after her
twenty-second birthday, but not before. The ALJ found that
plaintiff was disabled due to the severe impairments of major
depressive disorder, generalized anxiety disorder, and panic
disorder. On February 24, 2017, this Court issued an Opinion
and Order reversing the Commissioner's decision,
determining that plaintiff became disabled by these mental
impairments at least December 1, 2009, when plaintiff was
twenty-one years old, and reversing and remanding for
calculation and immediate award of benefits with a disability
onset date of December 1, 2009. (Docket No. 15). The
Commissioner now timely moves for the Court to amend or
correct its judgment under Fed.R.Civ.P. 59(e) and to remand
for a new hearing. (Docket No. 17). Plaintiff opposes.
(Docket No. 18). For the following reasons, the Court DENIES
the Commissioner's Motion.
Court detailed the factual and procedural background of this
action more fully in its February 24, 2017, Opinion and Order
(Docket No. 15), and so provides only an abbreviated version
here. On April 29, 2016, plaintiff commenced this action,
seeking review of the Commissioner's decision denying her
Disabled Child's Insurance Benefits, asking the Court to
reverse the ALJ's decision and remand for immediate
calculation and payment of benefits, or in the alternative,
for further administrative proceedings. See Compl.,
Pl.'s Br. (Docket Nos. 1, 8). The Commissioner opposed
plaintiff's Complaint in part, and requested that the
Court remand for further administrative proceedings.
See Def.'s Br. (Docket No. 13). The Court
determined that the ALJ erred in two respects in his
decision, and, exercising its discretion under the
“credit-as-true” doctrine, ” see,
e.g., Garrison v. Colvin, 759 F.3d 995, 1020
(9th Cir. 2014), found that the record compelled the
determination that plaintiff's disability began December
1, 2009. Op. & Order, at 21-23 (Docket No. 15). The Court
thus reversed the ALJ's decision and remanded for the
immediate calculation and award of benefits. Id. at
24. The Commissioner now asks the Court to amend or correct
that decision and remand for further proceedings, rather than
for an immediate award of benefits. (Docket No.
The Commissioner argues that the Court committed clear error
in its Opinion and Order.
Fed.R.Civ.P. 59(e), a party may move to alter or amend a
judgment, that is, the party may move for reconsideration.
Kona Enters., Inc. v. Estate of Bishop, 229 F.3d
877, 890 (9th Cir. 2000). Such a motion is an
“extraordinary remedy, to be used sparingly in the
interests of finality and conservation of judicial
resources.” Id.; see also Van Derheydt v.
County of Placer, 32 F. App'x 221, 223 (9th Cir.
2002) (“Rule 59(e) is intended to afford relief only in
extraordinary circumstances, and not to routinely give
litigants a second bite at the apple.”). “Under
Rule 59(e), a motion for reconsideration 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.” 389 Orange St. Partners v.
Arnold, 179 F.3d 656, 665 (9th Cir. 1999). The court
does not review de novo the legal basis for its earlier
decision, but rather reviews only for clear error.
McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir.
district court has considerable discretion when considering a
motion to amend a judgment under Rule 59(e).”
Turner v. Burlington N. Santa Fe R. Co., 338 F.3d
1058, 1063 (9th Cir. 2003). “A Rule 59(e) motion may
not be used to raise arguments or present evidence
for the first time when they could reasonably have been
raised earlier in the litigation.” Kona
Enters., 229 F.3d at 890 (emphasis in original). A
motion for reconsideration is properly denied where it
presents only arguments that were already raised and rejected
by the court. See Backlund v. Barnhart, 778 F.2d
1386, 1388 (9th Cir. 1985); Century Indem. Co. v. Marine
Grp., LLC, No. 3:08-cv-1375-AC, 2016 WL 96147, at *2 (D.
Or. Jan. 7, 2016) (“The motion to reconsider should not
be used to ask the court to rethink matters already
decided.”). “[A] motion for reconsideration
should accomplish two goals: (1) it should demonstrate
reasons why the court should reconsider its prior decision
and (2) set forth law or facts of a strongly convincing
nature to induce the court to reverse its prior
decision.” Romtec Utils. Inc. v. Oldcastle Precast,
Inc., No. 08-06297-HO, 2011 WL 690633, at *8 (D. Or.
Feb. 16, 2011) (emphasis added).
Commissioner argues that the Court erred in its Opinion and
Order in two regards: one, that the Court erred in not
finding the opinion of treating physician John Ford, M.D., in
conflict with other evidence in the record and in crediting
it as true; and two, that the Court erred in the sequential
application of the credit-as-true doctrine by which it
determined that the ALJ was required to find plaintiff
disabled as of December 1, 2009.
Dr. John Ford's Opinion
Opinion and Order, the Court found that the ALJ erroneously
determined that the opinion of treating physician John Ford,
M.D., merited no weight as it applied to the time before he
began treating plaintiff. Op. & Order, at 15-17 (Docket
No. 15). The Court held that this was a legally insufficient
reason to disregard Dr. Ford's statements, because the
law clearly holds that retrospective opinions are competent
evidence, and that to disregard a retrospective opinion
merely because it is retrospective is legal error.
Id. at 16-17. The Court held that the ALJ should
have credited Dr. Ford's testimony regarding
plaintiff's disabling mental impairments dating back to
December 2009. Id. at 17.
footnote, the Court also addressed a secondary argument that
the Commissioner had raised in arguing that Dr. Ford's
testimony should not be credited as true, namely, because
there were certain conflicts as to that testimony. The Court
first analyzed the purported conflicts and found that there
were no such conflicts. The Court then went on to observe
that the ALJ himself had not noted or based his decision on
the purported conflicts that the Commissioner raised, namely,
a conflict as to the onset date of plaintiff's
gastrointestinal problems. (These gastrointestinal problems
were symptoms of plaintiff's mental impairments and grew
in severity after plaintiff first became disabled in 2009,
but they were not the basis of the finding that plaintiff was
disabled-the aforementioned mental impairments were.) The
Court thus stated:
The court may not affirm an ALJ's decision on grounds on
which the ALJ did not rely. Orn [v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007)]. Accordingly, there is no
conflict with regard to Dr. Ford's testimony, and even if
there were, it ...