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Douglas R. Bennion v. Michael J. Astrue

September 10, 2012


The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge


Currently pending before this Court is Defendant's Motion to Amend Judgment Under FRCP 59(e) (Docket No. 31). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:


Following the February 4, 2009 hearing and the ALJ's March 25, 2009 decision denying Plaintiff's claims, on February 9, 2010, Plaintiff submitted new evidence to the Appeals Council as part of his formal Request for Review, including (1) a Functional Capacity Evaluation ("FCE") from Jay Ellis, P.T., and (2) an Independent Medical Evaluation/Opinion ("IME") from Stewart Curtis, D.O., M.P.H. (AR 4-45). On February 17, 2010, the Appeals Council denied Plaintiff's Request for Review. (AR 1-3). In its September 28, 2011 Memorandum Decision and Order relative to Plaintiff's Petition for Review (Docket No. 2), this Court questioned whether the Appeals Council evaluated the above-referenced evidence in denying Plaintiff's Request for Review and, accordingly remanded the action on this discrete issue only. See 9/28/11 MDO, pp. 18-22 (Docket No. 28) ("On remand, the Commissioner must conduct such further administrative proceedings as are necessary to determine the effect of the FCE and IME on Petitioner's [residual functional capacity] and his ability to perform any work other than his past relevant work.").

Through the at-issue Motion, Defendant argues that, in ordering that the action be remanded, the Court committed clear errors, warranting relief under FRCP 59(e). Specifically, Defendant contends that (1) the Appeals Council already considered the new evidence, (2) the new evidence was not material in any event, and (3) Plaintiff lacked good cause to obtain judicial relief based upon the new evidence. See Def.'s Mem. in Supp. of Mot. to Am., pp. 2-14 (Docket No. 32). Defendant therefore requests that the undersigned (1) enter an amended order and judgment denying Plaintiff's request for review, and (2) dismiss the case. See id. at p. 2.


The Court understands Defendant's Motion to represent a request that the Court reconsider its September 28, 2011 Memorandum Decision and Order. "Reconsideration of a court's prior ruling under FRCP 59(e) is appropriate 'if (1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law.'" Hurst v. IHC Health Servs., Inc., 2012 WL 3113214, *1 (D. Idaho 2012) (quoting S.E.C. v. Platforms Wireless Int'l Corp., 617 F.3d 1072, 1100 (9th Cir. 2010) (citation omitted)). "If the motion to reconsider does not fall within one of these three categories, it must be denied." Hurst, 2012 WL 3113214 at *1.

Here, Defendant alleges that the September 28, 2011 Memorandum Decision and Order contains "clear errors warranting relief under [FRCP] 59(e) . . . ." See Def.'s Mem. in Supp. of Mot. to Am., p. 2 (Docket No. 32). According to Defendant, clear error exists here because (1) the Appeals Counsel already considered the evidence at issue, (2) the evidence was not immaterial regardless, and (3) Plaintiff did not have good cause to obtain judicial relief, premised upon the new evidence. See id at pp. 2-14. Defendant has not met its burden.

A. The Appeals Council's Consideration of Plaintiff's New Evidence

Speaking to situations involving new evidence submitted to the Appeals Council for the first time, 20 C.F.R. § 404.970(b) states:

If new and material evidence is submitted, the Appeals Council . . . shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently in the record. Defendant does not dispute that the Appeals Council was required to "consider" and "evaluate" Plaintiff's new evidence. See id. at p. 4. Instead, Defendant argues that the Appeals Council, in fact, considered such evidence before denying Plaintiff's Request for Review. See id. at p. 3. This may very well be true; however, the record does not establish as much.

While Defendant states matter-of-factly that the Appeals Council "already considered the evidence at issue" (see id. at p. 3), an actual examination of the "Notice of Appeals Council Action" reveals a less certain reality. Its language states only: "In looking at your case, we considered the reasons you disagree with the decision. We found that this information does not provide a basis for changing the Administrative Law Judge's decision." (AR 1-2). As stated previously, "there is no reference to [Plaintiff's] new evidence and although the appeals Council's otherwise seemingly boilerplate language may be intended to subsume anything and everything provided to it by [Plaintiff], it nonetheless remains unclear as to whether the Appeals Council actually considered that new evidence." See 9/28/11 MDO, p. 19 (Docket No. 28). Compare with Woodsum v. Astrue, 711 F. Supp. 2d 1239, 1245 & 1250 (W.D. Wa. 2010) ("In its decision denying plaintiff's request for review, the Appeals Council stated it had 'considered the reasons' she disagreed with the ALJ's decision 'and the additional evidence' submitted, but found it did 'not provide a basis for changing the' ALJ's decision. . . . . That is, there is no indication in Newton [v. Apfel, 209 F.3d 448 (5th Cir. 2000)] that the failure of the Appeals Council consisted of anything other than the Appeals Council's failure to actually note it addressed that evidence.") (emphasis added).

Contrary to Defendant's understandable arguments, it cannot be said to this Court's satisfaction that the Appeals Council in this case considered and evaluated Plaintiff's new evidence. There is no reference to the new evidence and no reference that such evidence was actually considered in denying Plaintiff's Request for Review -- separate and distinct from any substantive explanation of the Appeals Council's decision (which this Court does not hold is required). This is a fine line, indeed, but one that must be satisfied in the Court's mind before upholding the ALJ's decision. This is an issue that the Appeals Council could answer in short order, by a few sentences or paragraphs, either of new cloth or a modification of what appears to be otherwise purely boilerplate language.

Because questions still remain as to whether the Appeals Council fulfilled its duties, remand for the limited purposes identified in the Court's September 28, 2011 Memorandum Decision and Order remains ...

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