United States District Court, D. Arizona
A. Teilborg, Senior United States District Judge.
before the Court is Defendant Carolyn W. Colvin's Motion
to Amend/Correct, (Doc. 19), the Court's August 8, 2016,
Order reversing the decision of the Administrative Law Judge
(“ALJ”) and remanding for further proceedings.
(Doc. 17). Having considered the parties' filings, the
Court now rules on the motion.
purposes of adjudicating Defendant's motion, the Court
need not set forth the factual background underlying this
matter. Interested parties may obtain a full recitation of
the facts in the Court's August 8, 2016, Order. (Doc. 17
at 1-4). It is sufficient to note that the Court's
at-issue Order reversed the ALJ's decision denying
Plaintiff Kimberly Schwab's application for Social
Security disability benefits and remanded for further
proceedings. (Id. at 28). The Court's Order
affirmed the ALJ's decision on all issues raised in the
appeal, save for her finding that gave “no
weight” to the opinion of Dr. Shannon Tromp, a treating
physician for Plaintiff's mental and psychological
afflictions. (Id. at 23-26). With respect to Dr.
Tromp's opinion, the Court found that the ALJ erred by
focusing extensively on the fact that Dr. Tromp's medical
diagnosis was obtained through attorney referral in “an
effort to generate evidence for the current appeal.”
(Id. at 24-25). Finding this error harmful, but also
concluding that the record suggested there was “serious
doubt” as to whether Plaintiff was disabled, the Court
remanded the claim for further proceedings. (Id. at
filed the pending motion on August 16, 2016, and it has been
fully briefed. (Docs. 19, 20, 21).
Rule 59(e) permits a district court to reconsider and amend a
previous order, the rule offers an ‘extraordinary
remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.'” Kona
Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000) (citation omitted). “[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.”
Id. (quoting 389 Orange Street Partners,
179 F.3d 656, 665 (9th Cir. 1999)); see also Duarte v.
Bardales, 526 F.3d 563, 567 (9th Cir. 2008) (quoting
Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th
Cir. 2001)) (noting that a Rule 59(e) motion may be granted
where “the district court committed clear error or made
an initial decision that was manifestly unjust”). And
“[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
(citation omitted) (emphasis in original).
motion rests on the argument that the Court clearly erred in
reversing the ALJ's decision on the grounds that the ALJ
erred in giving treating physician Dr. Tromp's medical
opinion “no weight.” “Clear error occurs
when ‘the reviewing court on the entire record is left
with the definite and firm conviction that a mistake has been
committed.'” Smith v. Clark County School
Dist., 727 F.3d 950, 955 (9th Cir. 2013) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)). Defendant takes exception to this Court's
finding that the ALJ's decision to discount Dr.
Tromp's opinion was overly reliant on the fact that the
opinion was obtained through attorney referral and submitted
in an attempt to generate evidence in support of a disability
main thrust of Defendant's argument is that while the ALJ
did rely on the fact that Dr. Tromp's opinion was
obtained via attorney solicitation and used to support
Plaintiff's claim, in the context of the ALJ's
determination, reliance on this factor was not error.
Specifically, Defendant's argument is two-fold: (1) the
Court did not account for the ALJ's reasoning as a whole;
and (2) the ALJ provided a second specific and legitimate
reason for discounting the opinion. Thus, the Court's
August 8, 2016, Order is internally inconsistent, and would
require the ALJ to recite particular “magic
words” in her determination to avoid reversal, which is
contrary to Ninth Circuit case law. (Doc. 19 at 2-4).
Court finds that these bases for reconsideration amount to an
invitation to reconsider an argument previously raised by
Defendant and to rethink what the Court has already thought
through. In its opposition, Defendant acknowledged that
“it was error to discount [Dr. Tromp's] opinion
because it was performed at the request of Plaintiff's
counsel.” (Doc. 16 at 16 n.2). Defendant further
asserted that it was not a harmful error because the ALJ also
relied on “two other proper reasons for discounting the
opinion, ” focusing on the ALJ's reasoning as a
whole. (Id.). In its August 17, 2016, Order
reversing the determination of the ALJ, the Court gave due
consideration to Defendant's argument, the rationale set
forth by the ALJ in support of her determination-including
the specific language utilized-and the context in which it
was delivered. (Doc. 17 at 23-26). Defendant now asks the
Court to effectively re-analyze both the ALJ's language
and the other factors purportedly relied on and arrive at an
antithetical finding. “Rule 59 motions cannot be used
to ask the Court ‘to rethink what the court has already
thought through, ” merely because a [party] disagrees
with the Court's decision.” Stejic v. Aurora
Loan Servs., L.C.C., CV 10-1547-PHX-JAT, 2012
U.S. Dist. LEXIS 37134, at *11 (D. Ariz. March 20, 2012)
(quoting U.S. v. Bus. Recovery Servs., LLC,
No. CV 11-390-PHX-JAT, 2011 U.S. Dist. LEXIS 119973 (D. Ariz.
Oct. 17, 2011)); see also Kentera v. Fremont Inv. &
Loan, No. CV-10-8259-PCT-GMS, 2012 U.S. Dist. LEXIS
58258, at *6 (D. Ariz. April 26, 2012) (citation omitted).
Such a disagreement “should be dealt with in the normal
appellate process.” Stejic, 2012 U.S. Dist.
LEXIS 37134, at *11 (citation omitted). In light of the fact
that the Court has already given full consideration to both
the plain language of the ALJ's determination and
Defendant's arguments, the Court is not persuaded that
reconsideration under Rule 59(e) is
alternative, Defendant argues that even assuming it was error
for the ALJ to consider the fact that Dr. Tromp's opinion
was solicited by Plaintiff's legal representation, it
does not amount to harmful error, and the ALJ's
determination should be affirmed. (Doc. 19 at 5-6). Defendant
asserts that because the ALJ in the instant action provided a
second, valid reason for rejecting Dr. Tromp's medical
opinion, under Valentine v. Comm'r SSA,
574 F.3d 685, 695 (9th Cir. 2009), DeBerry v.
Comm'r of SSA, 352 Fed.Appx. 173, 177 (9th
Cir. 2009), and Howell v. Comm'r of Soc.
Sec., 349 Fed.Appx. 181, 185 (9th Cir. 2009), her error
was harmless, and the Court should amend the August 8 Order.
In Valentine, the case principally relied on by
Defendant, the Ninth Circuit reviewed a decision by the ALJ
in which the ALJ rejected a disability determination
proffered by the Department of Veterans' Affairs
(“VA”). 574 F.3d at 695. The ALJ rejected this
determination on two grounds, finding that the disability
inquiry for the VA differed from that of the Social Security
Administration (“SSA”)'s inquiry, and that
the determination “was not based on a comprehensive
evaluation of the evidence available to her.”
Id. The Ninth Circuit held that while the ALJ erred
in basing her rejection of the disability determination on
the incorrect grounds that the VA's and the SSA's
inquiries differed,  the ALJ also relied of a second, specific
and legitimate reason supported by substantial evidence.
Id. Thus, even accounting for the error, the
ALJ's decision was affirmed.
considered Defendant's alternative argument, the Court
finds that it is the flip side of the same coin when
considered with the principal argument. Initially, Defendant
asserted that the Court failed to consider the entire context
of the ALJ's reasoning, which relied on a second,
legitimate reason supported by substantial evidence,
rendering reliance on the genesis of Dr. Tromp's medical
opinion permissible. Defendant then argues that even if the
ALJ erred in considering one particular factor, a second
specific and legitimate reason was also cited, and that the
decision should be affirmed. In essence, this is the same
argument, framed differently. If the ALJ's purported
reliance on an additional factor was sufficient to render the
error harmless, it would similarly be sufficient to render
reliance of the origins of Dr. Tromp's opinion
permissible. The Court will not embark on a second
analysis of what it has already considered under these
circumstances. Stejic, 2012 U.S. Dist. LEXIS 37134,
at *11 (citation omitted).
Defendant asserts that allowing the Order to stand will
result in the claim for benefits being remanded to the ALJ so
that she may “simply delete three sentences, ” a
“manifestly unjust” result. (Doc. 19 at 7-8). The
Court does not opine as to what measures are necessary to
remedy the error that occurred, as such a determination falls
within the province of the ALJ. Regardless of what ...