Hazen v. Colvin, No. 2:2014cv00214 - Document 23 (E.D. Wash. 2015)
Court Description: DECISION AND ORDER denying ECF No. 21 Commissioner's Motion to Alter or Amend Judgment. Signed by Magistrate Judge Victor E. Bianchini. (TR, Intake Clerk)
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Hazen v. Colvin Doc. 23 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 Case No. 2:14-CV-00214-VEB 6 7 JAN HAZEN, 8 9 10 Plaintiff, DECISION AND ORDER vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 11 Defendant. 12 13 I. INTRODUCTION 14 In April of 2010, Plaintiff Jan Hazen applied for Supplemental Security 15 Income (“SSI”) benefits under the Social Security Act. The Commissioner of Social 16 Security denied the application. 17 Plaintiff, represented by Cory J. Brandt, Esq., commenced this action seeking 18 judicial review of the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§ 19 20 1 DECISION AND ORDER – HAZEN v COLVIN 14-CV-00214-VEB Dockets.Justia.com 1 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a United States 2 Magistrate Judge. (Docket No. 8). 3 On January 5, 2015, the Honorable Rosanna Malouf Peterson, Chief United 4 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 5 636(b)(1)(A) and (B). (Docket No. 16). 6 On March 16, 2015, this Court entered a Decision and Order granting Plaintiff 7 summary judgment and remanding this case for calculation of benefits. (Docket No. 8 19). The Clerk entered Judgment in favor of Plaintiff on that same date. (Docket 9 No. 20). On March 19, 2015, the Commissioner moved to alter or amend the 10 Judgment pursuant to Rule 59 (e) of the Federal Rules of Civil Procedure. (Docket 11 No. 21). Plaintiff opposed the motion on April 2, 2015. (Docket No. 22). 12 13 Familiarity with this Court’s prior Decision and Order is presumed. For the following reasons, the Commissioner’s motion is denied. 14 15 16 II. DISCUSSION A. Rule 59 (e) Standard 17 A court may alter or amend a judgment under Rule 59(e) of the Federal Rules 18 of Civil Procedure if “(1) the district court is presented with newly discovered 19 evidence, (2) the district court committed clear error or made an initial decision that 20 2 DECISION AND ORDER – HAZEN v COLVIN 14-CV-00214-VEB 1 was manifestly unjust, or (3) there is an intervening change in controlling law.” 2 Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). However, a 3 motion for reconsideration is not appropriately brought to present arguments already 4 considered by the court. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985). 5 In this case, the Commissioner does not argue that there is newly discovered 6 evidence or that controlling law has changed. Rather, the Commissioner contends 7 that this Court committed clear error by remanding for calculation of benefits, as 8 opposed to remanding for further proceedings. 9 B. Remand 10 In a case where the ALJ's determination is not supported by substantial 11 evidence or is tainted by legal error, the court may remand the matter for additional 12 proceedings or an immediate award of benefits. A remand for calculation of benefits 13 is warranted where “(1) the ALJ failed to provide legally sufficient reasons for 14 rejecting the evidence; (2) there are no outstanding issues that must be resolved 15 before a determination of disability can be made; and (3) it is clear from the record 16 that the ALJ would be required to find the claimant disabled were such evidence 17 credited.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)(quoting Smolen v. 18 Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). 19 20 3 DECISION AND ORDER – HAZEN v COLVIN 14-CV-00214-VEB 1 C. Analysis 2 As noted in the prior Decision and Order, the record contains numerous 3 assessments of severe mental health impairments, along with suggestions by 4 examining and non-examining providers that Plaintiff is exaggerating her symptoms 5 for secondary gain. 6 exaggerating her mental health issues and found that her mental health issues, while 7 limiting, did not render her disabled within the meaning of the Social Security Act. The ALJ credited the suggestions that Plaintiff was 8 In its decision, the Court recognized that it is the role of the Commissioner, 9 not this Court, to resolve conflicts in evidence. Magallanes v. Bowen, 881 F.2d 747, 10 751 (9th Cir. 1989); Richardson, 402 U.S. at 400. However, as discussed in the 11 Decision and Order, the evidence that Plaintiff’s impairments did not preclude 12 employment came largely from non-examining providers and was generally 13 contradicted by the treating and examining providers. 14 provided by the ALJ for accepting the non-examining providers’ opinions and 15 discounting the treating/examining providers’ assessments were legally insufficient. Moreover, the reasons 16 Dr. David Varnell (a treating provider) and Dr. Stephen Rubin (an examining 17 provider) conducted detailed mental status examinations and concluded that 18 Plaintiff’s mental health issues would preclude even basic work activities. (T at 526, 19 660-62). Dr. Varnell, in particular, was in the best position to evaluate Plaintiff’s 20 4 DECISION AND ORDER – HAZEN v COLVIN 14-CV-00214-VEB 1 impairments as her treating provider. The ALJ discounted Dr. Varnell’s opinion and 2 described his mental status examinations as “cursory.” (T at 28). However, this 3 conclusion could not be sustained. Dr. Varnell’s examinations were quite detailed 4 and his contemporaneous treatment notes documented consistent, severe 5 symptomology. (T at 535, 539, 541). 6 The ALJ also concluded that Dr. Varnell’s opinion “contrast[ed] sharly with 7 the other evidence of record . . . .” (T at 28). This finding likewise could not be 8 sustained. Dr. Varnell’s opinion is quite consistent with the findings of Dr. Rubin 9 and Dr. Ronald Page (another examining physican), both of whom assessed fairly 10 extreme mental health impairments. Dr. Rubin opined that Plaintiff had a marked 11 limitation with regard to her ability to learn new tasks, exercise judgment and make 12 decisions, relate appropriately to co-workers and supervisors, interact appropriately 13 in public contacts, respond appropriately to and tolerate the pressures and 14 expectations of a normal work setting, and maintain appropriate behavior in a work 15 setting. (T at 526). He opined that Plaintiff’s physical and interpersonal problems 16 would “probably” prevent her from maintaining full-time employment. (T at 530). 17 Although Dr. Page opined that Plaintiff was malingering, his assessment, considered 18 in context, generally support a conclusion that Plaintiff has disabling impairments. 19 For example, in his June 2009 report (which the ALJ afforded some weight), Dr. 20 5 DECISION AND ORDER – HAZEN v COLVIN 14-CV-00214-VEB 1 Page described her personality disorder as “fairly extreme” and suggested it might 2 “warrant consideration” for Social Security disability benefits. (T at 472). In his 3 August 2010 assessment, Dr. Page opined Plaintiff was malingering and indicated 4 that she would likely not qualify for disability benefits, although he nevertheless 5 believed she was suffering from a “fairly severe and debilitating character disorder 6 . . . .” (T at 467). 7 In contrast, the ALJ relied heavily on the opinions of Dr. Layton, the medical 8 expert who testified at the administrative hearing, and the assessments of Drs. Kester 9 and Gentile, non-examining State Agency review consultants. However, the opinion 10 of a non-examining physician does not, without more, justify the rejection of an 11 examining physician’s opinion. Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 12 1995)(citing Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)). 13 The Commissioner suggests that this Court should have remanded the matter 14 to the ALJ for reconsideration of the evidence. For example, the Commissioner 15 notes that this Court found Dr. Page’s assessments to be lacking in clarity and 16 contends that the ALJ should have been afforded an opportunity to resolve the 17 ambiguity. However, the Commissioner misapprehends this Court’s findings. As 18 noted above, although Dr. Page offered observations concerning malingering and 19 opinions concerning Plaintiff’s eligibility for benefits, his assessments generally 20 6 DECISION AND ORDER – HAZEN v COLVIN 14-CV-00214-VEB 1 support a conclusion that Plaintiff has severe mental health issues. Moreover, when 2 considered alongside the opinions of Dr. Varnell and Dr. Rubin (both treating 3 providers), Dr. Page’s assessments form part of an evidentiary record that leaves no 4 basis to doubt that Plaintiff is disabled under the Act. 5 The Commissioner suggests that a remand for further proceedings is the 6 appropriate remedy, but it is clear that such a remand would serve no useful purpose. 7 The record is fully developed. The ALJ did not provide legally sufficient reasons 8 for rejecting the evidence from Plaintiff’s treating and examining providers 9 concerning the severity of her mental health impairments. Although the non- 10 examining consultants opined that Plaintiff was not disabled, these opinions cannot, 11 without more, constitute substantial evidence sufficient to sustain the ALJ’s 12 decision. Dr. Varnell (the treating provider) and Dr. Rubin (an examining provider) 13 both assessed marked limitations and an inability to sustain basic work activities. 14 Under these circumstances“[a]llowing the Commissioner to decide the issue 15 again would create an unfair ‘heads we win; tails, let's play again’ system of 16 disability benefits adjudication.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 17 Cal. 2004). Moreover, “[r]emanding a disability claim for further proceedings can 18 delay much needed income for claimants who are unable to work and are entitled to 19 benefits, often subjecting them to ‘tremendous financial difficulties while awaiting 20 7 DECISION AND ORDER – HAZEN v COLVIN 14-CV-00214-VEB 1 the outcome of their appeals and proceedings on remand.’” Id. (quoting Varney v. 2 Sec’y of Health & Human Srvc., 859 F.2d 1396, 1398 (9th Cir. 1987)). 3 This Court finds no clear error in its Decision and Order. 4 5 6 7 8 9 10 11 12 IV. ORDERS IT IS THEREFORE ORDERED that: The Commissioner’s motion to alter or amend judgment, Docket No. 21 is DENIED. The District Court Executive is directed to file this Order and provide copies to counsel. DATED this 21st day of April, 2015. /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 8 DECISION AND ORDER – HAZEN v COLVIN 14-CV-00214-VEB
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