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Budnik v. Colvin

United States District Court, W.D. Washington, Tacoma

January 31, 2017

WARREN WESLEY BUDNIK, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO AMEND JUDGMENT UNDER FEDERAL RULE OF CIVIL PROCEDURE 59(e)

          Karen L. Strombom, United States Magistrate Judge.

         This matter is before the Court on defendant's motion to alter or amend judgment under Federal Rule of Civil Procedure (FRCP) 59(e). For the reasons set forth below, the Court finds the motion should be granted in part and denied in part.

         Under FRCP 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 Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). The Court “has considerable discretion when considering a motion to amend a judgment under Rule 59(e).” Turner v. Burlington Northern Santa Fe Railroad Co., 338 F.3d 1058, 1063 (9th Cir. 2003). It may grant a motion under FRCP 59(e) when “‘necessary to correct manifest errors of law or fact upon which the judgment is based.'” Id. (emphasis in the original) (citation omitted).

         In her motion, defendant argues the record demonstrates plaintiff “feigned his symptoms” and “[a]t bottom, the VA disability rating and the treatment records were tainted by plaintiff's admitted misrepresentations about his symptoms and, as such, provide no basis for remand.” Dkt. 16, pp. 1-2. Accordingly, defendant argues the Court committed manifest error by reversing and remanding the matter for reconsideration based upon the ALJ's error in evaluating plaintiff's VA disability rating. Dkt. 16, pp. 2-3. Defendant also argues the Court erred by directing the Commissioner to reconsider newly submitted evidence that the ALJ had not considered, and that was submitted after the ALJ issued his decision. Dkt. 16, pp. 3-6.

         For the reasons set forth below, the Court agrees the newly submitted evidence did not constitute a valid basis for reversing and remanding this matter, and therefore defendant's motion as to this basis for reversing and remanding the ALJ's decision is GRANTED. However, the Court finds defendant has not demonstrated that the Court committed a manifest error of law in reversing and remanding the ALJ's decision on the basis of the ALJ's error in evaluating the VA disability rating. Accordingly, defendant's motion to amend as to this issue is DENIED, and this matter hereby is reversed and remanded on that basis.

         A. The ALJ's Failure to Properly Consider the VA Disability Rating

         Defendant essentially argues that the Court should not have found the ALJ committed legal error because the plaintiff lied about his symptoms. The Court declines defendant's invitation to disregard the ALJ's error of law with respect to the VA disability rating, simply because defendant believes plaintiff has admitted to lying about his symptoms. Indeed, defendant's argument is deficient for two reasons. A claimant can be disabled even if he is a malingerer, given that while malingering is a valid basis for discounting a claimant's credibility, the medical evidence in the record can still show the claimant is disabled. See, e.g., Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (noting the ALJ could not reject a medical opinion after determining plaintiff's self-reports were not credible, because “when an opinion is not more heavily based on a patient's self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion”).

         Moreover, defendant argues that because evidence of plaintiff's alleged malingering undermined the VA disability rating, the ALJ properly rejected the VA disability rating. Dkt. 16, pp. 2-3. Defendant then outlines the evidence she believes undermines the VA disability rating. However, “[l]ong-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and actual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm'r of SSA, 554 F.3d 1219, 1225-26 (9th Cir. 2009) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (other citation omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (“we may not uphold an agency's decision on a ground not actually relied on by the agency”) (citing Chenery Corp, supra, 332 U.S. at 196).

         Here, the ALJ did not rely upon the evidence cited by defendant to discount the VA disability rating. Indeed, the ALJ made no mention of plaintiff's credibility, or lack thereof, in rejecting the VA disability rating. AR 26. Rather, as noted in the Court's order reversing and remanding this matter, the ALJ rejected the VA disability rating by (1) reciting case law and noting that that rating did not provide a function-by-function analysis; and (2) finding that the problems noted in the rating had all been translated by the medical sources in the record into specific work-related limitations and incorporated into the ALJ's RFC. Dkt. 14; AR 26. Neither of these reasons are persuasive, specific, or valid. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002).

         First, the mere fact that the VA disability rating in this case did not assess plaintiff's functional limitations in the same manner as the Social Security Administration, ignores the substantial similarity of the two federal programs, and the importance of giving “great weight” to the VA's disability rating even though the criteria for determining disability “are not identical.” Id. Second, the ALJ found plaintiff had the mental RFC to understand, remember, and carry out simple instructions in a predictable setting where he works primarily with objects rather than people, and where he has no public contact or teamwork assignments. AR 17. These limitations, though, do not necessarily fully accommodate or encompass the “near-continuous panic” and “near-continuous depression” that the ALJ noted the VA found affected plaintiffs “ability to function independently, appropriately and effectively, ” and would cause difficulties in adapting to work and a work-like setting or to stressful circumstances. AR 26, 151. Not noted by the ALJ was the VA's determination that plaintiff also suffered from:

• Difficulty in establishing and maintaining effective work and social relationships;
• Impairment of short- and long-term memory;
• Impaired judgment;
• Forgetting to complete ...

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