United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART MOTION TO ALTER OR AMEND
J. Pechman United States District Judge.
MATTER comes before the Court on Defendant's Motion to
Alter or Amend Judgment Pursuant to Federal Rule of Civil
Procedure 59(e). (Dkt. No. 23.) Having considered the Motion,
the Response (Dkt. No. 24) and all related papers, the Court
GRANTS IN PART the Motion.
February 2018, the Court entered judgment reversing the
denial of Plaintiff's application for Social Security
Disability Insurance (“SSDI”) benefits and
remanding for calculation of an award of benefits. (Dkt. No.
21.) Defendant contends that the Court erred by (1) failing
to defer to the Administrative Law Judge's (ALJ)
interpretation of the medical evidence and lay testimony; (2)
finding the ALJ's failure to question the vocational
expert (VE) about conflicts with the Dictionary of
Occupational Titles (DOT) was harmful; and (3) erroneously
applying the credit-as-true rule in determining the scope of
remand. (Dkt. No. 23.)
Court may alter or amend a judgment under Rule 59(e) where it
has committed clear error. See Carroll v. Nakatani,
342 F.3d 934, 945 (9th Cir. 2003). Rule 59(e) provides an
extraordinary remedy that should be used sparingly in the
interests of finality and conservation of judicial resources.
Defendant contends that “[t]he court committed clear
error by faulting the ALJ for adopting the testimony of Dr.
Genest over the opinions of Drs. Coor, Ma and Rack.”
(Dkt. No. 23 at 2.) This contention was previously raised by
Defendant and rejected by the Court. (See Dkt. Nos.
17, 21.) In any event, the Court finds it unavailing. The ALJ
committed reversible error when he adopted an RFC that was
inconsistent with the limitations set forth by Drs. Coor and
Ma, whose opinions he accorded great weight. Drs. Coor and Ma
each opined that Plaintiff could stand and walk for two hours
in an eight hour day. (AR 853, 854.) Despite according these
opinions great weight, the ALJ adopted an RFC limiting
standing and walking to six hours in an eight hour day. (AR
850.) This error was harmful because the ALJ found Plaintiff
not disabled without accounting for the two hour standing and
walking limitation. Further, Defendant's contention that
the ALJ properly gave more weight to Dr. Genest's opinion
is unfounded. Dr. Genest is a non-examining physician and as
such, his opinion by itself cannot constitute substantial
evidence that justifies the rejection of the opinion of
examining physicians such as Drs. Coor and Ma. Pitzer v.
Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990);
Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir.
Defendant contends the Court “committed clear error in
reviewing the lay testimony.” (Dkt. No. 23 at 6.) This
contention also was previously raised and rejected by the
Court. Defendant claims the testimony given by
Plaintiff's husband and friend “did not describe
any limitations not already described by Plaintiff, ”
and that the Court did not review the ALJ's weighing of
the lay testimony under a harmless error standard.
(Id. at 7-8.) This contention is unavailing.
Plaintiff's husband provided important evidence of the
frequency of Plaintiff's seizures during the critical
period, evidence which was not provided by Plaintiff and
otherwise does not appear clearly in the record.
(See AR 67-72.) The ALJ mischaracterized this
evidence, and stated that “Mr. Houpt . . . could not
remember the frequency of [Plaintiff's] seizures in
1997.” (AR 854.) While it is true that Mr. Houpt could
not specify the exact number of seizures Plaintiff suffered
during the critical period, he testified that that Plaintiff
could go only “three or four days without [a seizure],
” that she had “not really” gone “any
lengthy periods of time” without having a seizure, and
that her condition had not changed materially since the
critical period. (AR 67-68, 71.) Similarly, Plaintiff's
friend stated that she has known Plaintiff since 1994, and
that “since I have known [Plaintiff] she has had
seizures.” (AR 1046.) Thus, the ALJ's rejection of
the lay testimony constituted error as a matter of law and
was not harmless. Stout v. Comm'r, Social Sec.
Admin., 454 F.3d 1050, 1056 (9th Cir. 2006).
Defendant contends that the Court erred “by finding the
ALJ's failure to ask the VE about any conflict was
harmful error.” (Dkt. No. 23 at 8.) Because the ALJ
harmfully erred in assessing the medical evidence and lay
testimony, the matter must be remanded and the Court need not
address Defendant's arguments concerning the VE's
Defendant contends that the Court erred in remanding the case
with instructions to calculate an award of benefits. (Dkt.
No. 23 at 9-12.) The Court finds that there are outstanding
issues which must be resolved, and that the case should be
remanded for further administrative proceedings under
sentence four of 42 U.S.C. § 405(g).
Court GRANTS IN PART Defendant's Motion to Alter or Amend
Judgment, and ORDERS: This case is remanded for further
administrative proceedings under sentence four of 42 U.S.C.
§ 405(g). On remand, the ALJ shall apply the standing
and walking limitations identified by Drs. Coor and Ma in
assessing Plaintiff's ability to work. The ALJ shall
reevaluate the lay testimony and further develop the record
regarding the frequency with which Plaintiff suffered
seizures during the ...