United States District Court, W.D. Kentucky, Owensboro Division
CARL E. MOORE PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
MEMORANDUM OPINION AND ORDER BACKGROUND
BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's motion (DN 19) to alter or amend
the judgment entered on March 14, 2018 (DN 15). Defendant
argues the judgment should be amended because there are clear
errors of law in the Court's evaluation of whether
substantial evidence supported the step five finding of the
Administrative Law Judge (ALJ) (DN 19). Defendant seeks entry
of judgment in her favor and dismissal of Plaintiff's
complaint (DN 19-1). Plaintiff has responded (DN 20), and
this matter is ripe for review. For the reasons that follow,
the Defendant's motion is denied.
59(e) of the Federal Rules of Civil Procedure provides that
“[a] motion to alter or amend a judgment must be filed
no later than 28 days after entry of the judgment.” A
motion under Rule 59(e) to “alter or amend may be
granted if there is a clear error of law, . . . newly
discovered evidence, . . . an intervening change in
controlling law, . . . or to prevent manifest
injustice." GenCorp, Inc. v. American International
Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)
(rehearing and suggestion for rehearing en banc denied Jul.
26, 1999) (internal citations omitted). Granting a motion to
amend or alter a judgment has been described as "an
extraordinary remed[y] reserved for the exceptional
case." Foster v. DeLuca, 545 F.3d 582, 584 (7th
Cir. 2008). For this reason, such motions should be granted
sparingly. U.S. ex rel. American Textile Mfrs. Institute,
Inc. v. The Limited, Inc., 179 F.R.D. 541, 547 (S.D.
claims that her fact and law summary included an argument
that Plaintiff had waived his objection to the vocational
expert's testimony by failing to raise it during the
administrative hearing (DN 19 PageID # 696-98). Defendant
contends that the Court's unfavorable ruling on her
“waiver” argument was clearly erroneous in light
of established case law within the Sixth Circuit (DN 19
PageID # 696-98 citing Lyon v. Comm'r of Soc.
Sec., No. 1:11- cv-1104, 2013 WL 1149967 at *4 (W.D.
Mich. March 19, 2013) (citing Hammond v. Chater, 116
F.3d 1480 (table), 1997 WL 338719 at *3 (6th Cir. June 18,
1997) (plaintiff waived objections to jobs identified by the
vocational expert by failing to raise them during the
hearing); see also Beinlich v. Comm'r of Soc.
Sec., No. 08-4500, 345 Fed. App'x 163, 168-69 (6th
Cir. Sept. 9, 2009) (plaintiff's counsel had the
obligation to “bring out any conflicts with the”
DOT, and failure to do so will not now provide a basis for
Court will begin by observing that Defendant did not present
such a “waiver” argument in her fact and law
summary (compare DN 19 PageID # 696-98 with DN 13 PageID #
651-52). The argument actually set forth in Defendant's
fact and law summary was based on Social Security Ruling
00-4p and the ALJ's duties thereunder. Defendant's
argument, in its entirety, read as follows:
Notably, despite Plaintiff counsel's objections to the
vocational expert's testimony, she was present at the
administrative hearing and failed to raise any such concerns.
(Tr. 69) Indeed, Plaintiff's counsel did not make any
cross-examination of the vocational expert. (Tr. 69) Under
such circumstances, the ALJ was under no duty to conduct
further interrogation of the vocational expert. See
Martin v. Comm'r of Soc. Sec., 170 Fed.Appx.
369, 374 (6th Cir. 2006) (“Nothing in SSR 00-4p places
an affirmative duty on the ALJ to conduct an independent
investigation into the testimony of witnesses to determine if
they are correct.”).
PageID # 651-52).
why the Court responded to Defendant's argument with the
The purpose of this policy ruling is to emphasize that before
deciding whether a vocational expert's testimony supports
a disability determination, Administrative Law Judges must
identify and obtain a reasonable explanation for any
conflicts between the occupational evidence provided by the
vocational expert and information in the DOT, including its
companion publication, the Selected Characteristics of
Occupations Defined in the Revised Dictionary of Occupational
Titles (SCO). SSR 00-4p, 2000 WL 1898704, at *1 (Dec. 4,
2000); Martin, 170 Fed.Appx. at 374. In Martin, the Sixth
Circuit was addressing a conflict between the vocational
expert's testimony and the Specific Vocational
Preparation ratings (SVPs) of two positions identified in the
DOT. 170 Fed.Appx. at 374. Here, the Court is not dealing
with a conflict between occupational evidence provided by the
vocational expert and information in the DOT. Instead, the
Court is dealing with the reliability of the vocational
expert's evidence in light of his dependence on three
occupational descriptions in the DOT that were nearly 29, 35
and 37 years old. SSR 00-4p's plain language demonstrates
why it is inapplicable to this situation. The Agency
published the Ruling to address conflict between the DOT and
vocational experts, not to remedy obsolete and therefore
incorrect information in the DOT itself. As a result, the
Court concludes that Defendant's attempt to rebut
Plaintiff's argument with SSR 00-4p and the holding in
Martin, 170 Fed.Appx. at 374 is misguided.
PageID # 672-73).
it would appear that Defendant is attempting to use her
present motion to present a “waiver” claim that
she failed to raise in her fact and law summary. However, the
Sixth Circuit has instructed that a Rule 59(e) motion to
amend or alter a judgment should not be used “to raise
arguments which could, and should, have been made before
judgment issued.” Sault Ste. Marie Tribe of
Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th
Cir. 1998). Therefore, the Court concludes that Defendant
cannot use her Rule 59(e) motion to raise this
“waiver” argument that she could, and should,
have been made in her fact and law summary. Additionally,
Defendant has not ...