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Moore v. Berryhill

United States District Court, W.D. Kentucky, Owensboro Division

May 11, 2018

CARL E. MOORE PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER BACKGROUND

          H. BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendant's motion[1] (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.[2]

         STANDARD OF REVIEW

         Rule 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. Ohio 1998).

         DISCUSSION Waiver

         DEFENDANT 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 relief.)).

         The 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.”).

         (DN 13 PageID # 651-52).

         This is why the Court responded to Defendant's argument with the following analysis:

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.

         (DN 14 PageID # 672-73).

         Thus, 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 ...


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