1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THOMAS CLARK,

Plaintiff,

v.

NANCY A. BERRYHILL,

Defendant.

Case No. 17-cv-00371-JCS 

ORDER DENYING MOTION TO 

ALTER OR AMEND JUDGMENT

Re: Dkt. No. 26

I. INTRODUCTION

In this appeal of an adverse social security disability determination, the Court previously 

entered judgment in favor of Plaintiff Thomas Clark, with an instruction that Defendant Nancy 

Berryhill, Acting Commissioner of Social Security (the “Commissioner”), award benefits to Clark 

on remand rather than conduct additional administrative proceedings. The Commissioner now 

moves to alter or amend judgment. For the reasons discussed below, the motion is DENIED.1

II. BACKGROUND

This order assumes for the parties’ familiarity with the facts and procedural history of the 

case. A more detailed summary of Clark’s medical history and the procedural background of his 

efforts to obtain Social Security benefits is included in the Court’s previous order granting Clark’s

motion for summary judgment. See generally Order on Mots. for Summ. J. (“S.J. Order,” dkt. 

23).2 In brief, Clark suffered from mental and physical impairments, and an administrative law 

judge (the “ALJ”) denied his application for disability benefits. The Court held that the ALJ erred 

 

1 The parties have consented to the jurisdiction of the undersigned magistrate judge for all 

purposes pursuant to 28 U.S.C. § 636(c).

2 Clark v. Berryhill, No. 17-cv-00371-JCS, 2018 WL 3659052 (N.D. Cal. Aug. 2, 2018). Citations 

herein to the Court’s previous order refer to page numbers of the version filed in the Court’s ECF 

docket.
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

in rejecting testimony from a treating doctor, Dr. Raj, and examining doctor, Dr. Franklin, among 

other errors. The Court remanded the case for an award of benefits. 

The Commissioner now moves to alter judgment, arguing that the instruction to award 

benefits rather than allow further administrative proceedings was manifest error. See Mot. to Alter 

J. (dkt. 26). The Commissioner does not challenge on this motion the Court’s determination that 

the ALJ erred. Id. Clark opposes the motion, Opp’n to Alter J. (dkt. 27), and the Commissioner 

did not file a reply brief. 

III. ANALYSIS

A. Legal Standard

Rule 59(e) provides that a party may file a “motion to alter or amend a judgment.” Fed. R. 

Civ. P. 59(e). The Ninth Circuit has explained the standard for a motion under Rule 59(e) as 

follows:

“Since specific grounds for a motion to amend or alter are not listed 

in the rule, the district court enjoys considerable discretion in granting 

or denying the motion.” McDowell v. Calderon, 197 F.3d 1253, 1255 

n.1 (9th Cir. 1999) (en banc) (per curiam) (internal quotation marks 

omitted). But amending a judgment after its entry remains “an 

extraordinary remedy which should be used sparingly.” Id. (internal 

quotation marks omitted). In general, there are four basic grounds 

upon which a Rule 59(e) motion may be granted: (1) if such motion 

is necessary to correct manifest errors of law or fact upon which the 

judgment rests; (2) if such motion is necessary to present newly 

discovered or previously unavailable evidence; (3) if such motion is 

necessary to prevent manifest injustice; or (4) if the amendment is 

justified by an intervening change in controlling law. Id.

Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1112 (9th Cir. 2011). This Rule “may not be used to 

relitigate old matters, or to raise arguments or present evidence that could have been made prior to 

the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (citation 

omitted). In this case, the Commissioner relies on the first avenue for relief, claiming manifest 

error. See Mot. to Alter J. at 1.

B. Rule 59(e) Relief Is Not Warranted

As a starting point, the Commissioner’s present motion is procedurally improper, because 

each argument raised therein either was or could have been raised in her earlier motion for 

summary judgment. The motion is therefore DENIED on the basis that Rule 59(e) “may not be 
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

used to relitigate old matters, or to raise arguments or present evidence that could have been made 

prior to the entry of judgment.” Exxon Shipping, 554 U.S. at 485 n.5. The Court nevertheless 

briefly addresses some of the Commissioner’s arguments below.3

Questions as to Clark’s credibility do not establish sufficient grounds to reject the opinions 

of his treating doctors. The Commissioner argues that the opinions of Drs. Raj and Franklin 

“rested upon the faulty foundation of [Clark’s] unreliable statements.” Mot. to Alter J. at 1. As a 

starting point, the ALJ did not identify those doctors’ reliance on Clark’s statements as a reason to 

reject their opinions. The full extent of the ALJ’s stated reasons for rejecting the opinions is as 

follows:

No weight is given to Dr. Raj’s findings regarding the claimant’s 

ability to meet the mental demands of work. His findings were based 

upon a short-term treatment relationship and the limitations he 

identified are out of proportion to the findings that he reported and 

that have been reported by other mental health clinicians. Finally, no 

weight is given to Dr. Franklin’s conclusions as she did not review 

and consider the claimant’s prison medical records and her 

conclusions are not consistent with the claimant’s history, including 

the evidence of stabilization of the claimant’s psychiatric symptoms 

when he has been incarcerated and consistently maintained on 

psychotropic medication.

Admin. Record (“AR,” dkt. 15) at 28–29. Nor did the ALJ’s summary of those doctors’ opinions 

provide any indication that the ALJ believed they improperly relied on Clark’s self-reported 

statements. See id. at 26–28.

A district court may “review only the reasons provided by the ALJ in the disability 

determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison v. 

Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). Moreover, the purpose of the Ninth Circuit’s creditas-true rule is to prevent the sort of “‘unfair “heads we win; tails, let’s play again” system of 

disability benefits adjudication.’” that would result from “allowing the ALJ to revisit the medical 

opinions and testimony that [the ALJ] rejected for legally insufficient reasons.” Id. at 1021–22 

(quoting Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004)). Granting the Commissioner’s 

 

3 Because the procedural posture of the case is reason enough to deny the present motion, this 

order does not specifically address every argument raised therein. The Court stands by its 

previous holdings even as to those issues not discussed again here.
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

motion to allow the ALJ to consider Drs. Raj and Franklin’s reliance on Clark’s statements for the 

first time on remand would contradict that rule.

Even if the Court were to provide such an opportunity, the adverse credibility finding 

against Clark would not be a sufficient reason to disregard Drs. Raj and Franklin’s conclusions. 

Such an approach is appropriate where a doctor’s opinion “is based ‘to a large extent’ on a 

claimant’s self-reports that have been properly discounted as incredible.” Tommasetti v. Astrue, 

533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 

595, 602 (9th Cir. 1999)). Here, both Dr. Raj and Dr. Franklin conducted their own tests and 

relied on their own observations, not only Clark’s self-reports, to reach their conclusions. See AR 

at 579, 590, 980–87. Addressing similar circumstances, the Ninth Circuit has cautioned against 

extending a claimant’s lack of credibility to disregard the opinions of mental health professionals:

“A physician’s opinion of disability premised to a large extent upon 

the claimant's own accounts of his symptoms and limitations may be 

disregarded where those complaints have been properly 

discounted.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 

602 (9th Cir. 1999) (internal quotation marks and citation omitted).

Dr. Kenderdine’s opinion was based in part on Buck’s self-report that 

he had trouble keeping a job. However, Dr. Kenderdine also 

conducted a clinical interview and a mental status evaluation. These 

are objective measures and cannot be discounted as a “self-report.”

Moreover, as two other circuits have acknowledged, “[t]he report of 

a psychiatrist should not be rejected simply because of the relative 

imprecision of the psychiatric methodology . . . .” Blankenship v. 

Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (quoting Poulin v. 

Bowen, 817 F.2d 865, 873–74 (D.C. Cir. 1987)). Psychiatric 

evaluations may appear subjective, especially compared to evaluation 

in other medical fields. Diagnoses will always depend in part on the 

patient’s self-report, as well as on the clinician’s observations of the 

patient. But such is the nature of psychiatry. See Poulin, 817 F.2d at 

873 (“[U]nlike a broken arm, a mind cannot be x-rayed.”). Thus, the 

rule allowing an ALJ to reject opinions based on self-reports does not 

apply in the same manner to opinions regarding mental illness. In the 

context of this case, Dr. Kenderdine’s partial reliance on Buck’s selfreported symptoms is thus not a reason to reject his opinion.

Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (emphasis added). Much like the 

psychologist in Buck, Drs. Raj and Franklin conducted a mental capacity examination, a clinical 

interview, and other tests. See AR at 579–81, 980–87. Discounting Dr. Franklin’s opinions based 

on Clark’s lack of credibility would be particularly inappropriate, as Dr. Franklin herself
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

acknowledged that Clark was not a reliable narrator and took that into account in reaching her 

conclusions. See AR at 985 (discussing concerns regarding possible malingering); id. at 986 

(discussing “[t]he issue of his telling the truth”).

The Commissioner relies on the Ninth Circuit’s decisions in Treichler v. Commissioner of 

Social Security Administration, 775 F.3d 1090 (9th Cir. 2014), and Dominguez v. Colvin, 808 F.3d 

403 (9th Cir. 2015), to argue that this case should be remanded for further proceedings rather than 

for an award of benefits. See Mot. to Alter J. at 3–6. For one thing, both of those decisions 

discussed the question as a matter of discretion, and neither held that a district court erred in 

remanding for an award of benefits. Dominguez, 808 F.3d at 408 (considering “whether the 

district court abused its discretion” in remanding for further proceedings, and holding that it did 

not); Treichler, 775 F.3d at 1103 (after determining that the district court erred in affirming the 

Commissioner, considering as a matter of the panel’s discretion whether to require remand for 

further proceedings or for an award of benefits). That procedural posture alone makes it difficult 

to see how either of those cases would establish the sort of “manifest error” in this Court’s 

previous order sufficient to support the “extraordinary remedy” of relief under Rule 59(e). See 

Allstate, 634 F.3d at 1112.

The facts of both Treichler and Dominguez are distinguishable from the present case. In 

Treichler, the panel determined that the claimant’s testimony, which he sought to credit as true, 

conflicted with his treating urologist and nurses’ “uniform[]” observations to the contrary. 775 

F.3d at 1104. In Dominguez, the panel determined that the doctor’s opinion that the claimant 

sought to credit was inconsistent with that doctor’s own treatment notes and with the opinion of at 

least one other treating physician. 808 F.3d at 408–09. Here, the contrary opinion on which the 

ALJ primarily relied was from an examining but non-treating psychologist, Dr. El Sokkary, whose 

opinion was subject to some of the same limitations as Drs. Raj and Franklin. See S.J. Order at 51 

(“It is worth noting that Dr. El Sokkary, like Dr. Franklin, relied on information provided by Clark 

and did not review Clark’s prison records.”). Unlike in Treichler and Dominguez, precedent 

establishes a clear hierarchy between Dr. Raj’s opinion as a treating source and Dr. El Sokkary’s 

opinion as merely an examining source. See Garrison, 759 F.3d at 1012 (“[T]he opinion of a 
6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

treating physician is thus entitled to greater weight than that of an examining physician . . . .”). 

That distinction, combined with the fact that Dr. Raj’s opinions are generally supported by Dr. 

Franklin’s opinions, leaves the Court with no doubt that the ALJ would have been required find 

Clark disabled if the ALJ had applied the correct analytical framework to those opinions.

As the Commissioner argues in her present motion, Mot. to Alter J. at 3 the analytical 

framework for determining whether to remand for further proceedings has three steps, to be 

considered in order: (1) whether the ALJ failed to provide sufficient reasons for rejecting opinions 

or testimony; (2) whether the record has been fully developed or whether outstanding issues, 

including “conflicts and ambiguities,” remain to be resolved; and (3) whether, if the opinions at 

issue were credited as true, there would be no uncertainty as to the outcome. Treichler, 775 F.3d 

at 1100–01, 1103–05.

First, as addressed in the Court’s previous order and not challenged by the Commissioner’s 

present motion, the ALJ failed to provide sufficient reasons for rejecting Drs. Raj and Franklin’s 

opinions. See S.J. Order at 45–51. 

Second, further proceedings would serve no useful purpose. This Court does not interpret 

the “conflicts and ambiguities” language sometimes used in this step as requiring further 

proceedings whenever any medical opinion differs from the opinions sought to be credited as true, 

as such a rule would conflict with precedent. See, e.g., Garrison, 759 F.3d at 1013 (noting that a 

consulting doctor’s opinion conflicted with the opinion ultimately credited as true); Varney v. Sec. 

of Health & Human Servs., 859 F.2d 1396, 1400 (9th Cir. 1988) (citing with approval Winans v. 

Bowen, 853 F.2d 643, 647 (9th Cir. 1988), as a decision where the Ninth Circuit properly 

remanded for benefits where the “evaluations of the [Social Security Administration’s] examining 

physicians had differed from that of the treating physician” and the “ALJ erred by not giving 

specific reasons for disregarding the opinion of a treating physician”). The Commissioner relies 

here on Drs. El Sokkary and Bilik’s opinions to create a purported conflict requiring further 

proceedings. Mot. to Alter J. at 5. Dr. El Sokkary is a non-treating source whose opinion suffers 

from the same limitations—failure to review prison medical records and partial reliance on Clark’s 

own statements—that the ALJ cited to discount Dr. Franklin’s testimony. See S.J. Order at 51. 
7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

Dr. Bilik was a consultant who never met Clark and whose opinions were not specifically 

identified in the ALJ’s decision. See AR at 28 (giving “great weight to the opinion of the State 

Agency medical consultant . . . as that opinion is supported by the record as a whole,” citing an 

exhibit including opinions of multiple consultants). In considering the remedy for an ALJ’s 

erroneous decision to disregard a treating doctor’s opinion (Dr. Raj), which was supported by 

another examining doctor’s opinion (Dr. Franklin), Drs. El Sokkary and Bilik’s opinions would 

not be sufficient for the ALJ to disregard Drs. Raj and Franklin’s opinions on remand, and these 

are certainly not the sort of conflicts that require further proceedings such that this Court’s 

exercise of discretion to award benefits was a manifest error. See Varney, 859 F.2d at 1400 (citing 

Winans, 853 F.2d at 647). 

Finally, the last step is whether the ALJ would be required to find Clark disabled if the 

opinions at issue were credited, and the Commissioner’s present motion does not challenge the 

Court’s conclusion on that point. See S.J. Order at 59 (discussing how Drs. Raj and Franklin’s 

opinions establish that Clark satisfied the criteria for certain listed impairments). Remand with 

instruction to award benefits therefore was and remains the appropriate outcome. 

IV. CONCLUSION

For the reasons discussed above, the Commissioner is not entitled to the “extraordinary 

remedy” of relief under Rule 59(e). See Allstate, 634 F.3d at 1112. The motion to alter judgment 

is DENIED.

IT IS SO ORDERED.

Dated: March 20, 2019

______________________________________

JOSEPH C. SPERO

Chief Magistrate Judge