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Hamilton v. Berryhill

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

May 17, 2018

TIM HAMILTON PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          H. Brent Brennenstuhl United States Magistrate Judge

         BACKGROUND

         Before the Court is Defendant's motion[1] (DN 27) to alter or amend the judgment entered on March 14, 2018 (DN 23). 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 27). Defendant seeks entry of judgment in her favor and dismissal of Plaintiff's complaint (DN 27-1). Plaintiff has responded (DN 28), 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 its 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 27 PageID # 2082-85). Defendant contends that the Court's unfavorable ruling on its “waiver” argument was clearly erroneous in light of established case law within the Sixth Circuit (Id. 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, although citing different cases, Defendant is merely rehashing the unsuccessful “waiver” argument set forth in its fact and law summary (compare DN 21 PageID # 2032-33 with DN 27 PageID # 2082-85) and addressed in the March 14, 2018 Order (DN 22 PageID # 2059-61). A motion under Rule 59(e) is not intended to be utilized to relitigate issues previously considered. Whitehead v. Bowen, 301 Fed.Appx. 484, 489 (6th Cir. 2008); Helton v. ACS Group, 964 F.Supp. 1175, 1182 (E.D. Tenn. 1997) (citing Keweenaw Bay Indian Cmty. v. State of Michigan, 152 F.R.D. 562, 563 (W.D. Mich. 1992)). Further, the cases DEFENDANT now cites in support of its “waiver” argument, like the cases advanced unsuccessfully in its fact and law summary, do not address the unique circumstances before the Court. As the Court previously explained:

Obviously, to refine the vocational expert's testimony through cross-examination, Plaintiff's counsel would have needed to conduct research on the DOT and O*NET after the vocational expert identified the . . . jobs. However, it would be unrealistic to expect Plaintiff's counsel to conduct such research during the hearing. Thus, this part of Defendant's waiver argument is without merit because it places an unreasonable burden on Plaintiff's counsel.

         (DN 22 PageID # 2060-61, quoting Johnson v. Commissioner, No. 4:16-CV-00106-HBB, 2017 WL 2454326, at *5 (W.D. Ky. June 6, 2017)). In sum, the Court concludes that Defendant cannot use its Rule 59(e) motion to rehash its “waiver” argument.

         O*NET

         Additionally, Defendant contends the Court made a clear error of law when it (1) presumed that O*NET qualifies as a source of reliable job information for purposes of the Social Security disability determination process, and (2) found that the ALJ was required to cross-check the vocational expert's testimony against O*NET (DN 27 PageID # 2085-89). In support of its position, Defendant relies on SSR 00-4p and an accusation that the Court cited no authority requiring an ALJ to test a vocational expert's testimony against O*NET (Id.). Defendant also contends that the agency has declined to use O*NET for disability determination because it is intended for “career development and exploration purposes” (Id. citing Content Model and Classification Recommendations for the Social Security Administration Occupational Information System, at pp. 7-9, Sept. 2009[3]). Further, Defendant asserts when the Court imposed the requirement that the ALJ cross-check the vocational expert's testimony against O*NET, “the Court completely ignored the agency's discussion of its inability to use O*NET in its disability determination process” (Id.).

         The Court will begin with the observation that most of Defendant's argument is merely a rehash of the unsuccessful O*NET argument set forth in its fact and law summary (compare DN 21 PageID # 2028-33 with DN 27 PageID # 2085-89) and addressed in the March 14, 2018 Order (DN 22 PageID # 2060-61). Again, Rule 59(e) motions are not intended to be utilized to relitigate issues previously considered. Whitehead, 301 Fed.Appx. at 489; Helton, 964 F.Supp. at 1182 (citing Keweenaw Bay Indian Cmty., 152 F.R.D. at 563). All that remains is Defendant's ...


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