Opinion
CV-21-00291-TUC-DCB
11-08-2022
Lorina Tinker Rodriguez, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
ORDER
Hon. David C. Bury United Stales District Judge
On September 23, 2022, the Court adopted the recommendation by Magistrate Judge Kimmins to remand this case to the Commissioner for Social Security for an award of disability benefits. The Court entered Judgment for the Plaintiff. On October 21, 2022, the Defendant filed a Motion to Alter or Amend Judgment Pursuant to Federal Rule of Civil Procedure 59(e).
A district court has considerable discretion when considering a motion to amend a judgment under Rule 59(e). “There are four grounds upon which a Rule 59(e) motion may be granted: 1) the motion is ‘necessary to correct manifest errors of law or fact upon which the judgment is based'; 2) the moving party presents ‘newly discovered or previously unavailable evidence'; 3) the motion is necessary to ‘prevent manifest injustice'; or 4) there is an ‘intervening change in controlling law.'”McDowellv. Calderon, 197 F.3d 1253, 1254 n. 1 (9th Cir.1999) (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1 (2d ed.1995)). “As is abundantly clear, ‘amending a judgment after its entry remains an extraordinary remedy[.]'” Teamsters Loc. 617 Pension & Welfare Funds v. Apollo Grp., Inc., 282 F.R.D. 216, 218 (D. Ariz. 2012) (quoting Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir.2011)). The Ninth Circuit has repeatedly cautioned that amendment under Rule 59(e) “should be used sparingly.” Id. (cleaned up). Defendant has a “high hurdle” to jump to reach this remedy. Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir.2001).
The Defendant argues that reconsideration is necessary in this case to correct a manifest error of law and fact. The Defendant asserts that the Court's Order contains both because the Court placed too much emphasis on the relationship between the Plaintiff and her medical sources and did not properly assess whether the facts in this case justify the extraordinary remedy of remand for benefits. According to the Defendant, the Court misapplied both the revised medical evidence regulation and the credit-as-true rule.
As evidence of manifest error, the Defendant cites to the Court's explanation that the Administrative Law Judge's preference for the nontreating state agency physician opinions was error given Nurse Practitioner (NP) Oldfather's “longitudal” treatment history with the Plaintiff. (Rule 59(e) Motion (Motion) (Doc. 31) at 3 (citing Order (Doc. 29) at 4)). Defendant argues this “shows that the Curt was relying on the nature of the relationship between doctor and patient as the primary factor determining the persuasiveness of a medical opinion.” (Motion (Doc. 31) at 3.)
The Defendant points out this case must be decided under new regulations that require an ALJ to determine the persuasiveness of a medical opinion based on its supportability and consistency with the record as a whole. Id. (citing 20 C.F.R. § 416.920c(a)). The Defendant accuses the Magistrate Judge and this Court of applying the old “treating-source” rule that preferred treating physician opinions; based on the relationship between doctor and patient, a Court simply preferred that opinion over the opinions of nontreating state-agency physicians. Defendant cries foul because “[i]n promulgating the revised regulations, the agency intended to eliminate the ‘built-in evidentiary bias in favor of treating physicians.'” Id. (quoting Woods v. Kijakazi, 32 F.4th785, 791 (9th Cir. 2022)).
According to the Defendant, the Court compounded this error in law by apply the credit-as-true rule, which is an extraordinary remedy not appropriate under the facts of this case. In short, the Defendant argues the Court should have remanded the case for further development of the record to resolve the conflict between the nontreating state-agency physician's opinions of moderate disability and NP Oldfather's opinion of disability. The Defendant criticizes the Magistrate Judge's Report and Recommendation (R&R) and this Court's Order for finding disability exists because if the opinions of the nontreating physicians' opinions fall away, the Court may credit-as-true the opinion of NP Oldfather that Plaintiff is disabled. According to the Defendant, this application of the credit-as-true rule fails to consider the record as a whole. To apply the rule, “the record as a whole should not leave ‘the slightest uncertainty as to the outcome of [the] proceeding.'” Id. at 5 (quoting Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2018) (amended opinion) (describing remand for payment as “a rare and prophylactic exception to the well-established ordinary remand rule”) (emphasis added, internal quotation and citations omitted). “A ‘claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled no matter how egregious the ALJ's errors may be.'” Id. (quoting Strauss v. Comm'r of Soc. Sec., 635 F.3d 1135, 1138 (9th Cir. 2011)). The Defendant argues that the Court's improper application of the credit-as-true rule makes the finding of disability an error in fact.
First, the Court notes that the Defendant's arguments of manifest error are the same arguments made in objection to the R&R. The Court attempted in its Order adopting the R&R to explain the deficiencies in these arguments. Because the Court expressly considered these arguments in the Order of remand, it is not clear that reconsideration is appropriate. “‘Ultimately, a party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.'” Teamsters Pension & Welfare Funds, 282 F.R.D. at 219-21 (quoting Cachil Dehe Band of Wintun Indians v. California, 649 F.Supp.2d 1063, 1070 (E.D.Cal.2009) (citation and internal quotation marks omitted)). Nevertheless, the Court will try one more time to explain why it adopted the recommendation to remand for an award of benefits.
Neither the Magistrate Judge nor this Court applied the “old” treating-source preference to conclude that NP Oldfather's opinion of disability should be credited as true and the nontreating state-agency physician's opinions should fall away. Instead, the Court did precisely what Defendant accuses it of failing to do. It looked at the record as a whole, including COPE's treatment records and NP Oldfather's treatment records. The Court referred to these treatment records, which extended over several years, as Plaintiff's longitudal medical treatment records. (Order (Doc. 29) at 4.) The Court found that the Magistrate Judge expressly considered the record as a whole, i.e., the Plaintiff's longitudal treatment records. As evidence that the record as a whole was considered, this Court referred to the Magistrate Judge's summary of daily living activities as impacted by Plaintiff's mental illness, including side effects of her medications, and most importantly that record reflected the Plaintiff was not a reliable taker of medications. (Order (Doc. 29) at 4 (citing (R&R (Doc. 23) at 12.) See also (R&R (Doc. 23) at 3-8.) In short, the Court found the Plaintiff's treatment records were consistent with and supported the opinion of disability given by NP Oldfather. The nontreating agency physician opinions were not consistent with or supported by the record as a whole, especially because the record reflected she was not a reliable taker of medications.
The Court did not prefer NP Oldfather's opinion of disability based on the outdated treating physician preference. There was no legal error caused by the Court's consideration of Plaintiff's treatment records. When the unsupported and inconsistent opinions of the nontreating agency physicians fall away and the supported and consistent opinions of NP Oldfather and Plaintiff's mother are credited as true, there is no serious doubt that the Plaintiff is clearly disabled. There is no factual error in the Court's conclusion that the record is complete and needs no further development. The Court remanded for an award of benefits to prevent the Commissioner from having the advantage of “an unfair ‘heads we win; tails, let's play again' system of disability benefits adjudication.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004). The Court exercised its discretion to remand for an award of benefits because on the facts of this case, giving the Commissioner a second bite at the apple would make a shambles of the credit-as-true rule. The Court finds no error of law in its application of the credit-as-true rule to the facts of this case.
The Defendant has not satisfied the exceedingly stringent standards under Rule 59(e) to warrant the “extraordinary remedy” of amending a judgment after its entry. Herron, 634 F.3d at 1111.
Accordingly,
IT IS ORDERED that the Motion to Amend/Correct Judgement (Doc. 31) is DENIED.