Gordon v. Social Security Administration, Commissioner
MEMORANDUM OPINION AND ORDER Because Gordon has not satisfied the requirements of Fed. R. Civ. P. 59(e), her motion for new trial or to alter or amend the judgment and her motion to remand pursuant to Sentence Six based on a subsequent fully favorable decision are DENIED. The parties shall bear their own costs. Signed by Judge William M Acker, Jr on 9/22/14. (SAC )
2014 Sep-22 AM 11:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social }
CIVIL ACTION NO.
MEMORANDUM OPINION AND ORDER
Before the court are two motions: a motion by plaintiff, Lynn
Gordon, for new trial or to alter or amend the judgment of July 25,
2014, and her motion to remand pursuant to Sentence Six based on a
subsequent fully favorable decision. For the reasons explained
below, both motions will be denied.
The memorandum opinion and order being challenged were issued
on July 25, 2014. They affirmed the Commissioner’s denial of social
security benefits to Gordon. “The Federal Rules of Civil Procedure
provide two vehicles by which a party may seek relief in a
postjudgment motion, Fed. R. Civ. P. 59(e) and Fed. R. Civ. P.
60(b).” Melendez v. Sayer, No. 8:10-cv-467-T-30AEP, 2011 WL 254728,
*1 (M.D. Fla. Jan. 25, 2011). Gordon’s motions, then, must be
brought either under Rule 59 or under Rule 60. “[T]he style of a
motion is not controlling.” Finch v. City of Vernon, 845 F.2d 256,
258 (11th Cir. 1988). “In classifying postjudgment motions, this
court has drawn a substantive/collateral distinction: ‘Rule 59
applies to motions for reconsideration of matters encompassed in a
decision on the merits of the dispute, and not matters collateral
to the merits.’” Id. (quoting Lucas v. Fla. Power & Light Co., 729
F.2d 1300, 1302 (11th Cir. 1984)). The nature of the relief sought
in the motion is the controlling consideration; if the motion seeks
to set aside a decision on the merits, it is properly considered to
be a motion under Rule 59(e), even if the specific issue being
raised was not previously addressed. See Mays v. U.S. Postal Serv.,
122 F.3d 43, 46 (11th Cir. 1997) (treating a post-judgment motion
seeking to set aside a grant of summary judgment as a motion under
Rule 59(e)); Gordon v. Heimann, 715 F.2d 531, 537 (11th Cir. 1983)
(finding a request for attorney’s fees to be outside the scope of
Rule 59(e)). Because Gordon’s second or alternative motion for a
remand to the Commissioner seeks relief intrinsically tied to and
dependent upon the merits of her challenge to the denial of
benefits itself, both motions will be analyzed under Rule 59(e).
There is nothing presented by Gordon that would trigger an inquiry
under Rule 60.
newly-discovered evidence or manifest errors of law or fact.’”
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). The movant “cannot
use a Rule 59(e) motion to relitigate old matters, raise argument
or present evidence that could have been raised prior to the entry
of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla.,
408 F.3d 757, 763 (11th Cir. 2005).
Employing this standard, Gordon’s motion for new trial or to
alter or amend the judgment is due to be denied. In her motion,
Gordon cites ten pieces of evidence that she contends support a
remand to the Appeals Council. This evidence, however, is contained
entirely in the record already reviewed by the Appeals Council and
by this court. Therefore, Gordon has submitted no new evidence that
could justify an alteration of or amendment to the judgment.
Similarly, Gordon has not shown the existence of any “manifest
erro[r] of law or fact,” Arthur, 500 F.3d at 1343. Gordon’s primary
consider new and relevant evidence presented to it, and that it
failed to show in its denial of review that it adequately evaluated
the new evidence. (Doc. 14). This court has already considered and
rejected these arguments. (Doc. 12 at 14-15). “When a claimant
properly presents new evidence, and the Appeals Council denies
review, the Appeals Council must show in its written denial that it
has adequately evaluated the new evidence,” Flowers v. Comm’r of
Soc. Sec., 441 Fed. App’x 735, 745 (11th Cir. 2011), but “the AC is
review,” Burgin v. Comm’r of Soc. Sec., 420 Fed. App’x 901, 903
(11th Cir. 2011). All that is required is that the Appeals Council
show in writing that it did evaluate the evidence and denied
review. See Ingram v. Comm’r of Soc. Sec. Admin., 486 F.3d 1253,
1262 (11th Cir. 2007). The AC did exactly that in this case; the
record shows that the Appeals Council considered Gordon’s “new
evidence” (listing all 12 new exhibits) but found it insufficient
to disturb the ALJ’s decision. (R. at 1, 5-6).
Because Gordon is unable to show manifest error of law or
fact, and is simply trying “to relitigate old matters,” Michael
Linet, 408 F.3d at 763, her motion for new trial or to alter or
amend the judgment is due to be denied.1
Gordon’s motion to remand pursuant to Sentence Six based on a
subsequent fully favorable decision must also be denied. Gordon
points out that the Commissioner issued her a fully favorable
decision on June 26, 2012, finding her disabled as of November 17,
2009, eleven days after the ALJ’s denial of benefits in this
action. (Doc. 15 at 1). Gordon now argues for the first time that
this later decision warrants a remand to the Commissioner under
what is known as Sentence Six of 42 U.S.C. § 405(g). Sentence Six
To the extent that Gordon actually seeks a new trial, that aspect of
the motion is also denied, as no trial took place. See D’Antignac v. Deere &
Co., No. CV 110–116, 2013 WL 6383113 (S.D. Ga. Dec. 5, 2013) (“Rule 59(a)
applies ‘after a jury trial’ or ‘after a nonjury trial.’ As there was no trial
in this case, Rule 59(a) is inapplicable.”) (internal citations omitted).
Further, a motion for new trial in a nonjury case should be granted only upon
a manifest error of law or fact, the same standard evaluated above, so the
motion should be similarly denied. See Tampa Port Auth. v. M/V Duchess, 65 F.
Supp. 2d 1303, 1305 (M.D. Fla. 1988).
The court may . . . at any time order additional evidence
to be taken before the Commissioner of Social Security,
but only upon a showing that there is new evidence which
is material and that there is good cause for the failure
to incorporate such evidence into the record in a prior
proceeding . . . .
42 U.S.C. § 405(g) (2012).
Gordon’s motion fails because it does not meet the standards
of Rule 59(e), which, as explained above, will be applied to both
motions. A motion to alter or amend is only to be granted upon a
finding of “newly-discovered evidence or manifest errors of law or
fact.” Arthur, 500 F.3d at 1343. “[W]here a party attempts to
reconsider, the court should not grant the motion absent some
showing that the evidence was not available during the pendency of
the motion.” Mays, 122 F.3d at 46. The subsequent decision relied
upon by Gordon was and is in fact new evidence, since it is being
presented to this court for the first time and was not evaluated by
the Appeals Council. This showing, however, is not sufficient to
require a remand, because Gordon has not demonstrated why she did
not present the evidence to the court before her postjudgment
motion. The evidence was available prior to this court’s memorandum
opinion. The Commissioner’s decision was issued over two years
before the opinion, and it was issued more than two months before
Gordon submitted her initial brief to this court, wherein Gordon
failed to mention it, much less argue it. Because Gordon has not
shown that the evidence was unavailable before this court’s order
affirming the Commissioner’s decision, the court will not consider
it as new evidence upon which it could grant Gordon’s Rule 59(e)
Because a remand was not warranted prior to the judgment,
there was no manifest error of law or fact in refusing to remand
the action. As stated, Gordon never presented the present argument
in support of remand prior to this court’s decision now being
attacked. To be entitled to remand under Sentence Six, Gordon must
show that “(1) new, noncumulative evidence exists, (2) the evidence
is material such that a reasonable possibility exists that the new
evidence would change the administrative result, and (3) good cause
exists for the applicant's failure to submit the evidence at the
appropriate administrative level.” Falge v. Apfel, 105 F.3d 1320,
1323 (11th Cir. 1998). The subsequent determination was admittedly
new evidence, because it was issued after the Appeals Council’s
decision to deny review. Good cause exists for not presenting it to
the Appeals Council because it was not yet in existence, but good
cause did not exist for not presenting it to this court earlier
than in post-judgment proceedings.
Gordon has failed to demonstrate that an ALJ’s subsequent
requirement is satisfied if a reasonable possibility exists that
the new evidence would change the administrative result.” Archer v.
Comm’r of Soc. Sec., 170 Fed. App’x 80, 82 (11th Cir. 2006).
For evidence to be new and noncumulative, it must relate
to the time period on or before the date of the ALJ's
previously-considered condition may subsequently entitle
a claimant to benefit in a new application, but it is not
probative of whether a person was disabled during the
specific period under review. By contrast, evidence of a
condition that existed prior to the ALJ hearing, but was
not discovered until after the ALJ hearing, is new and
Leiter v. Comm’r of Soc. Sec. Admin., 377 Fed. App’x 944, 950 (11th
Cir. 2010) (internal citations omitted). See also Carroll v. Soc.
Sec. Admin. Comm’r, 453 Fed. App’x 889, 892 (11th Cir. 2011)
(“Evidence is irrelevant and immaterial when it relates to a time
period after the eligibility determination at issue.”).
disability is immaterial and does not warrant remand. In Carroll,
the Eleventh Circuit found that a subsequent favorable decision
with an effective date eighteen months after the original denial
did not warrant a Sentence Six remand of the original case. Id. The
court based its decision on the amount of time between the two
decisions and the fact that the plaintiff relied on nothing more
than the subsequent decision to support her motion to remand. Id.
Like the plaintiff in Carroll, Gordon essentially relies only upon
the subsequent decision to justify a Sentence Six remand.2 The gap
In her reply brief, Gordon also contends that the evidence previously
submitted to the Appeals Council warrants a Sentence Six remand. This is
improper because a Sentence Six remand is only appropriate when it concerns
new evidence not submitted to the Appeals Council. See Ingram, 496 F.3d at
1269 (“Sentence six allows the district court to remand to the Commissioner to
in time was much more substantial in Carroll than in this case, but
this does not automatically call for a remand. In Moland v. Astrue,
this court found that a subsequent decision deemed effective the
day after a previous denial did not warrant a Sentence Six remand
of the original denial. No. CV–11–S–1155–M, 2012 WL 4815472 (N.D.
Ala. Oct. 9, 2012). The court focused on the fact that the original
denial spanned a period of three years (June 28, 2006, to August 5,
2009), so the determination of disability as of August 6, 2009, had
no real bearing on the plaintiff’s condition over that three-year
span. Id. at *2.
This case is substantially similar to Moland. The original
denial of benefits covers the time frame of April 2, 2007, to
substantial evidence supported the denial of benefits for that
period. While the subsequent decision found Gordon to be disabled
beginning November 17, 2009, this has little or no probative value
on her condition in 2007. See Wilson v. Apfel, 179 F.3d 1276, 1279
(11th Cir. 1999) (holding that, while a medical opinion subsequent
to the ALJ’s denial of benefits “may be relevant to whether a
deterioration in [the plaintiff’s] condition subsequently entitled
her to benefits, it is simply not probative of any issue in this
consider previously unavailable evidence; it does not grant a district court
the power to remand for reconsideration of evidence previously considered by
the Appeals Council.”).
The ALJ’s later and differing determination mentions the
following evidence, dated on or before November 6, 2009 (the date
of the denial in this case): a history of chronic neck pain dating
confirmed by a 2008 examination by Dr. Stehr; reports of headaches
and neck, shoulder, and joint pain to Quality of Life Health
Services from May 2008 to August 2009; medical records from Yoyen
Lau, D.O., containing diagnoses of depression and anxiety in 2007;
a May 2008 psychological evaluation by Dr. Jack L. Bentley, Jr.,
trichotillomania, shingles, and chronic cervical pain; and records
from CED Mental Health Center showing that Gordon was followed for
major depressive disorder, insomnia, anxiety, and trichotillomania
since January 2009. (Doc. 15-1 at 8-9). All of this evidence is in
the record and was considered by the ALJ and the Appeals Council
prior to the appeal to this court. Therefore, the subsequent
determination presents nothing new regarding Gordon’s condition
during the time frame of the original denial and does not support
evaluations by Dr. Wilson in January 2010 and Dr. Prince in March
2010. (Doc. 15-1 at 8-9). This court has already determined that
these specific records do not warrant remand. (Doc. 12 at 22-26).
The only other evidence mentioned by the ALJ is an examination by
Dr. David Brower in April 2010. (Doc. 15-1 at 8). Gordon, however,
has not demonstrated how this examination in any way relates to her
condition from April 2007 to November 2009, so this evidence is
immaterial. Gordon, then, has failed to demonstrate that the
subsequent favorable decision is material to this case.
Because Gordon has not satisfied the requirements of Fed. R.
Civ. P. 59(e), her motion for new trial or to alter or amend the
judgment and her motion to remand pursuant to Sentence Six based on
a subsequent fully favorable decision are DENIED.
The parties shall bear their own costs.
DONE this 22nd day of September, 2014.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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