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Fischer v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Eugene Division

May 10, 2017

LEE J. FISCHER, Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.


          PATRICIA SULLIVAN United States Magistrate Judge

         Plaintiff 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.


         The 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. 17).[1] The Commissioner argues that the Court committed clear error in its Opinion and Order.


         Under 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. 1999).

         “A 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).


         The 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.

         I. Dr. John Ford's Opinion

         In its 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.

         In a 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 ...

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