Fischer v. Commissioner of Social Security

Filing 32

ORDER DENYING 30 MOTION to Vacate and DENYING 25 MOTION to Amend/Correct filed by Commissioner of Social Security. Signed by Magistrate Judge Donald G. Wilkerson on 9/30/2019. (anb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KELLY E. FISCHER,

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Plaintiff,
vs.
COMMISSIONER of SOCIAL
SECURITY,
Defendant.

Civil No. 18-cv-00989-DGW

MEMORANDUM and ORDER
WILKERSON, Magistrate Judge:
The following motions are before the Court: 1) defendant’s Motion to Vacate
Order for Attorney’s Fees (Doc. 30) and 2) defendant’s earlier motion pursuant to
Federal Rule of Civil Procedure 59(e) or, alternatively, Fed. R. Civ. P. 60. (Doc.
25).
Rule 59(e) motions are “not appropriately used to advance arguments or
theories that could and should have been made before the district court rendered
a judgment.” Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012)
(quoting LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir.
1995)). Altering or amending a judgment through Rule 59(e) is an “extraordinary
remed[y] reserved for the exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584
(7th Cir. 2008).

Rule 59 motions are for the limited purpose of correcting a

“manifest error,” and “[a] ‘manifest error’ is not demonstrated by the
disappointment of the losing party”; rather, “[i]t is the wholesale disregard,

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misapplication, or failure to recognize controlling precedent.” Oto v. Metropolitan
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation and internal quotations
omitted). Defendant’s argument simply relitigates his own interpretation of case
law from his brief. Additionally, defendant is not seeking to alter or amend the
judgment of the Court in any way. Defendant incorrectly used 59(e), and thus, his
motion to alter or amend judgment is DENIED.
Further, even if defendant’s motion was correctly presented under Rule
59(e), or Rule 60 for that matter, it still fails substantively.

As stated in the

Court’s order, with emphasis added, “[t]he Seventh Circuit has been very clear
that a limitation to simple instructions or simple, routine tasks does not
adequately account for a moderate limitation in maintaining concentration,
persistence, or pace.” (Doc. 23). “The ability to stick with a given task over a
sustained period is not the same as the ability to learn how to do tasks of a given
complexity.”

O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010).

Said in another way, the skill level of a position is not necessarily related to the
difficulty an individual will have in meeting the demands of the job. SSR 85-15. 1
Defendant conflates the two concepts incorrectly in a far-flung attempt to gain
miniscule ground in the continuing battle between plaintiffs and ALJs over the
language that ALJs use in their RFC findings to correctly encapsulate limitations.
The defendant’s Motion to Vacate Order for Attorney’s Fees is also
DENIED. Since the defendant did not challenge the attorney’s fees found in the
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This finding has been bolstered by more recent cases as well. See Crump v. Saul, 932 F.3d 567,
570 (7th Cir. 2019); Winsted v. Berryhill, 923 F.3d 472, 477 (7th Cir. 2019).
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Court’s order granting attorney’s fees, now that the motion to vacate is denied, the
Court’s order granting attorney’s fees is not premature.
IT IS SO ORDERED.
DATE: September 30, 2019.
DONALD G. WILKERSON
U.S. MAGISTRATE JUDGE

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