Gardner v. Commissioner, Social Security Administration, No. 6:2012cv00038 - Document 20 (D. Or. 2013)

Court Description: OPINION & ORDER: The Court DENIES the Commissioner's Motion 16 to Alter Judgment Pursuant to Fed. R. Civ. P 59(e). Signed on 07/29/2013 by Judge Anna J. Brown. (bb) Modified on 7/30/2013 to add opinion (kf).

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DONALD A. GARDNER, Plaintiff, 6:12-CV-00038-BR OPINION AND ORDER v. CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration,1 Defendant. KATHRYN TASSINARI BRENT WELLS Harder, Wells, Baron & Manning, P.C. 474 Willamette Suite 200 Eugene, OR 97401 (541) 686-1969 Attorneys for Plaintiff 1 Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted for Michael J. Astrue as Defendant in this case. No further action need be taken to continue this case by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405. 1 - OPINION AND ORDER S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204-2902 (503) 727-1003 DAVID MORADO Regional Chief Counsel JORDAN D. GODDARD Special Assistant United States Attorney Social Security Administration 701 Fifth Avenue, Suite 2900, M/S 221A Seattle, WA 98104 (206) 615-2733 Attorneys for Defendant BROWN, Judge. This matter comes before the Court on the Commissioner s Motion (#16) to Alter Judgment Pursuant to Fed. R. Civ. P 59(e). For the reasons that follow, the Court DENIES the Commissioner's Motion. The Commissioner seeks an order setting aside the Court's Judgment of Remand (#15) entered June 7, 2013. Although the Commissioner concedes the "ALJ did not give proper reasons for rejecting Plaintiff's VA disability rating," the Commissioner contends the ALJ's failure was harmless error. The Commissioner relies on Molina v. Astrue to support her argument. 674 F.3d 1104 (9th Cir. 2012). In Molina the court found the ALJ's failure to address laywitness testimony was harmless error because the lay-witness 2 - OPINION AND ORDER testimony did "not describe any limitations not already described by the claimant," who the court had found to be not credible. Id. at 1114-22. Here, however, the VA rating decision was made by another federal disability program that considered criteria beyond Plaintiff's complaints. Accordingly, Molina is not analogous. The Court concluded in is Opinion and Order issued June 7, 2013, that the ALJ failed to provide legally sufficient reasons supported by the record for rejecting Plaintiff's VA disability rating. The Court concludes the ALJ's error was not harmless and that the effect of the VA's disability rating must be properly evaluated on remand as directed by the Court in its June 7, 2013, Opinion and Order. Accordingly, the Court concludes there is not any "clear error" in its Opinion and Order (#14) issued June 7, 2013, or its Judgment entered June 7, 2013, and, therefore, the Court DENIES the Commissioner's Motion to Alter Judgment. CONCLUSION For these reasons, the Court DENIES the Commissioner s 3 - OPINION AND ORDER Motion (#16) to Alter Judgment Pursuant to Fed. R. Civ. P 59(e). IT IS SO ORDERED. DATED this 30th day of July, 2013. /s/ Anna J. Brown ANNA J. BROWN United States District Judge 4 - OPINION AND ORDER

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