Shaw v. Saul

Opinion

1 2 FILED IN THE 3 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 4 Mar 10, 2020 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON

9 KRISTINE S., No. 1:18-CV-03208-JTR

10 Plaintiff, 11 ORDER DENYING DEFENDANT’S 12 v. MOTION TO ALTER JUDGMENT

13 ANDREW M. SAUL, 14 COMMISSIONER OF SOCIAL SECURITY, 15

16 Defendant.

17 BEFORE THE COURT are Defendant’s Motion to Alter Judgment under 18 Fed. R. Civ. P. 59(e) and Plaintiff’s Response to Defendant’s Motion. ECF No. 17, 19 18. After reviewing the arguments filed by the parties, the Court DENIES 20 Defendant’s Motion. 21 BACKGROUND 22 Plaintiff filed a civil action in this Court on October 26, 2018, following 23 Defendant’s denial of her application for Disability Insurance Benefits. ECF No. 1. 24 Following briefing by the parties, this Court issued an Order and Judgment on 25 February 4, 2020, remanding the claim for further proceedings based on the ALJ’s 26 failure to offer clear and convincing reasons for discounting Plaintiff’s subjective 27 symptom complaints. ECF No. 15, 16. On February 7, 2020, Defendant filed a 28 1 Motion to Alter Judgment, asserting the Court committed a clear error of law in 2 finding the record did not contain affirmative evidence of malingering. ECF No. 3 17. 4 STANDARD 5 Federal Rule of Civil Procedure 59(e) allows a party, within 28 days after 6 the entry of judgment, to file a motion to alter or amend the judgment. FED. R. CIV. 7 P. 59(e). Such a motion may be granted if “(1) the district court is presented with 8 newly discovered evidence, (2) the district court committed clear error or made an 9 initial decision that was manifestly unjust, or (3) there is an intervening change in 10 controlling law.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); 11 Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). The rule offers 12 an “extraordinary remedy, to be used sparingly in the interest of finality and 13 conservation of judicial resources.” 12 James Wm. Moore et al., Moore's Federal 14 Practice § 59.30[4] (3d ed.2000). 15 ANALYSIS 16 Defendant argues the Court committed clear error in finding the record did 17 not contain affirmative evidence of malingering that would negate the ALJ’s duty 18 to provide clear and convincing reasons for discounting the claimant’s subjective 19 symptom complaints. ECF No. 17. Defendant asserts in the current context 20 “affirmative” evidence “means active and explicit, not persuasive, well-supported 21 or unassailable,” and faults the Court for evaluating the reliability of Dr. Leonard- 22 Pagel’s evaluation in context of the remainder of the record. Id. at 3-4. 23 The Court finds no clear error. Defendant offers no support for his assertion 24 that the Court is not to consider the persuasiveness of the evidence in considering 25 whether there is affirmative evidence of malingering. While Defendant points to an 26 unpublished Ninth Circuit case that found affirmative evidence of malingering 27 based on a rule-out diagnosis, the case in question specifically noted the diagnosis 28 was made by more than one doctor and also noted the record included “three 1 instances in which [the claimant’s] symptoms disappeared after arriving at the 2 emergency room with her son.” Mohammad v. Colvin, 595 Fed. App’x 696, 697-98 3 (9th Cir. 2014). The Court can find no support for the notion that courts may not 4 look beyond the appearance of the word “malingering” in a diagnostic report to 5 consider whether such a diagnosis is affirmative evidence of the condition. On the 6 contrary, the Ninth Circuit has done just that: in Cha Yang v. Commissioner of 7 Social Security Administration, the court held a doctor’s notation “to R/O [rule out] 8 malingering” was “not a clear, affirmative diagnosis that [the claimant] was 9 actually malingering” because that doctor “failed to follow up on his suspicions 10 and none of [the claimant’s] other treating or examining doctors suggested that [the 11 claimant] might be malingering.” 488 Fed. App’x. 203, 205 (9th Cir. 2012). The 12 Court therefore finds it did not commit clear error in evaluating Dr. Leonard- 13 Pagel’s diagnosis within the context of the greater record and finding it to be 14 insufficient to constitute affirmative evidence of malingering. 15 Defendant further argues the Court erred in noting the ALJ did not rely on 16 malingering as a basis for her rejection of Plaintiff’s subjective statements. ECF 17 No. 17 at 4-5. Defendant argues that an express finding of malingering by the ALJ 18 is not required. Id. The Court notes that the Order accurately reflect the law, and 19 the Court did not find that the ALJ was required to make such a finding. The fact 20 that the ALJ did not find malingering to be a medically-established impairment and 21 did not rely on Dr. Leonard-Pagel’s assessment in her rejection of Plaintiff’s 22 statements are merely additional facts in support of the finding that the record does 23 not contain affirmative evidence of malingering. 24 Accordingly, IT IS ORDERED that Defendant’s Motion to Alter Judgment, 25 ECF No. 17, is DENIED. 26 /// 27 /// 28 /// 1 The District Court Executive is directed to file this Order and provide a copy 2 || to counsel for Plaintiff and Defendant. 3 IT IS SO ORDERED. 4 DATED March 10, 2020.

6 -—s« JOHNT.RODGERS 7 Ve UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28