Dabney v. Commissioner of Social Security

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 UNDRA DABNEY, Case No. C18-1733 TLF 7 Plaintiff, v. ORDER 8 COMMISSIONER OF SOCIAL SECURITY, 9 Defendants. 10

11 This matter is before the Court on defendant’s motion to alter or amend judgment 12 under Federal Rule of Civil Procedure (FRCP) 59(e). For the reasons set forth below, 13 the Court finds the motion should be denied. 14 Under FRCP 59(e), “a motion for reconsideration should not be granted, absent 15 highly unusual circumstances, unless the district court is presented with newly 16 discovered evidence, committed clear error, or if there is an intervening change in the 17 controlling law.” 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 18 1999). The Court “has considerable discretion when considering a motion to amend a 19 judgment under Rule 59(e).” Turner v. Burlington Northern Santa Fe Railroad Co., 338 20 F.3d 1058, 1063 (9th Cir. 2003). It may grant a motion under FRCP 59(e) when 21 “‘necessary to correct manifest errors of law or fact upon which the judgment is based.’” 22 Id. (emphasis in the original) (citation omitted). 23 Defendant argues that there is no categorical rule in the Ninth Circuit finding 24 1 harmful error when the ALJ fails to discuss a medical option, and that such an error may 2 be found harmful only after a review of the omitted opinion’s significance in relation to 3 the whole record. Dkt. 19, at 1. Defendant argues that the Court’s reasoning did not 4 include an appropriate review under the harmless error standard, and that the Court

5 therefore erred by reversing and remanding the matter for reconsideration based upon 6 the ALJ’s error in failing to evaluate Dr. Eisenhauer’s opinion. Id. at 2-3. 7 The defendant argues that the Court in its decision had failed to “look beyond the 8 four corners of the ALJ’s decision when considering harmless error,” and merely 9 determined that the ALJ’s analysis had been insufficient before finding the error not 10 harmless. Dkt. 19, at 3. The defendant asserts that the Court had not considered 11 whether the faulty analysis was inconsequential to the ALJ’s determination of the 12 outcome. Id. (citing Molina v. Astrue, 674 F.3d 1104, 1114-23 (9th Cir. 2012). 13 Furthermore, defendant notes that Dr. Eisenhauer was a reviewing physician, whose 14 opinion was based on a properly discounted report by Dr. Widlan. Id. at 4.

15 The defendant cites three cases to demonstrate that an unaddressed medical 16 opinion need not constitute harmful error. In the first case, Marsh v. Colvin, 792 F.3d 17 1170,1173 (9th Cir. 2015), the Ninth Circuit pronounced that a failure to address a 18 medical opinion was error subject to review for harmless, and that there should be no 19 “rigid rule” regarding the certainty of the harmless error analysis. Yet in that case, the 20 Ninth Circuit also directed that the analysis should revolve around the seriousness of 21 the ALJ’s error – such as, whether the omitted opinion entirely precluded the plaintiff’s 22 ability to work – rather than the opinion’s incongruity with reasons found by the District 23 Court to support a finding of non-disability. Id.

24 1 Defendant’s second proffered decision, Foote v. Berryhill, 747 F. Appx. 636, 637 2 (9th Cir. 2019) is an unpublished disposition and therefore is not binding precedent. 3 Ninth Circuit Rule 36-3. In the Foote case, the Court applied harmless error to a 4 physician’s letter because the ALJ had applied equally legitimate reasons to invalidate

5 the same physician’s other opinion. Defendant also cites to another case from this 6 district finding harmless error in the failure to discuss a reviewing physician’s opinion 7 that was entirely based on another physician’s properly discounted letter. Dkt. 19, at 4 8 (citing Smith v. Colvin, No. C14-1530-TSZ, 2016 WL 8710029, at *7 (W.D. Wash. Oct. 9 14, 2016)). Defendant notes that this Court found that Dr. Widlan’s opinion had been 10 properly discounted, so a failure to discuss Dr. Eisenhauer’s opinion, which was based 11 on Dr. Widlan’s, should constitute merely harmless error. Dkt. 19, at 5. 12 As cited by defendant, the Ninth Circuit directs a District Court to consider the 13 magnitude of the error in omitting analysis of a physician’s opinion. In considering the 14 magnitude of the error here, where Dr. Eisenhauer’s opinion found marked limitations

15 based on the medical record before her and the ALJ failed to acknowledge the severity 16 of her findings, the Court finds this error of substantial seriousness – that the failure to 17 acknowledge this opinion might have skewed the ALJ’s review of the medical record. 18 See Court’s Order, Dkt. 17, at 16. 19 20 21 22 23

24 1 2 For this reason, the Court DENIES the defendant’s motion to amend, and as the 3 Ninth Circuit did in Marsh, the Court reverses and remands the ALJ’s decision with the 4 directions given in its February 2020 order, including the instruction “specifically to invite

5 the ALJ to comment” on Dr. Eisenhauer’s opinion. Marsh v. Colvin, 792 F.3d 6 1170,1173-74 (9th Cir. 2015). 7 Dated this 17th day of September, 2020. 8 9 A 10 Theresa L. Fricke 11 United States Magistrate Judge

12 13 14 15 16 17 18 19 20 21 22 23 24