Riley v. SSA

Filing 21

MEMORANDUM OPINION & ORDER: Plaintiffs motion for relief pursuant to Fed. R. Civ. P. 59(e), DE 19 , is hereby DENIED. Signed by Judge Joseph M. Hood on 5/24/12.(MJY)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
JERRY D. RILEY,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Action No. 7:11-cv-71-JMH

MEMORANDUM OPINION AND ORDER

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On April 12, 2012, the Court denied Plaintiff’s motion for
summary

judgment

judgment,

and

thereby

determination

with

granted

Defendant’s

affirming
respect

to

the

the

Court

upon

Plaintiff’s

Federal Rule of Civil Procedure 59(e).

for

Commissioner’s

Plaintiff’s

Supplemental Security Income (“SSI”).
before

motion

adverse

application

[DE 17].
motion

summary

for

[DE 19].

for

This matter is
relief

under

The Defendant

has filed a response, [DE 20], and this matter is now ripe for
review.

For the following reasons, the Plaintiff’s motion will

be denied.
This Court will grant a motion under Rule 59(e) only where
the Court has committed a clear error of law, reconsideration is
warranted based on newly discovered evidence or to accommodate
an intervening change in the controlling law, or to otherwise

prevent manifest injustice.

Intera Corp. v. Henderson, 428 F.3d

605, 620 (6th Cir. 2005).

By rehashing his previous argument

based on Drummond v. Commissioner of Social Security, 126 F.3d
837

(6th

Cir.

1997),

Plaintiff

apparently

contends

that

the

Court committed a clear error of law in denying his motion for
summary judgment.

As stated in this Court’s prior opinion,

however, Plaintiff’s 1996 RFC of “sedentary” was abrogated by
the

Commissioner’s

2001

decision

in

which

determined to have the RFC for light work.

Plaintiff

was

While Plaintiff

concedes that he did not seek judicial review of that decision,
he contends that it is properly before this Court because, at
the time of the decision, Plaintiff was unrepresented and had
“mental impairment issues.”

In so arguing, Plaintiff relies on

Social Security Ruling 90-4(4), which “applies only to cases in
which the claimant resides in Maryland, North Carolina, South
Carolina,
record

Virginia,

reveals

that

or

West

Virginia.”

Plaintiff

lived

in

The

administrative

Kentucky

during

the

relevant time period, and Plaintiff does not contend otherwise.
Further, SSR 90-4(4) requires claimants relying upon that ruling
to present a prima facie case of mental incompetence, which
Plaintiff

failed

to

address

in

both

his

motion

for

summary

judgment and his 59(e) motion.
The

Court

now

turns

to

Plaintiff’s

objections

to

the

Commissioner’s reliance on the interrogatory responses of Dr.
2

Stuart

Gitlow,

the

half-brother

of

ALJ

William

Gitlow,

who

issued an adverse ruling on Plaintiff’s SSI application in 2005.
Contrary to Plaintiff’s assertion, Dr. Gitlow’s involvement in
this matter does not amount to the “undeniable appearance of
impropriety.”
fact

that

hearing

This is especially evident when one considers the

ALJ

Chwalibog

testimony

gave

because,

little

weight

to

that

point,

Dr.

at

Dr.

Gitlow’s

Gitlow

had

obtained knowledge of his half-brother’s prior involvement in
Plaintiff’s case.

While Plaintiff may be convinced that “blood

is thicker than water,” it is unreasonable to speculate that Dr.
Gitlow somehow communicated with ALJ Gitlow concerning events
that

transpired

despite

his

in

Plaintiff’s

apparently

SSI

credible

claim

testimony

two

years

that

he

prior,
had

no

knowledge of his half-brother’s involvement in Plaintiff’s case
until the day of the hearing at which he testified.

Further,

the provisions relied upon by Plaintiff describe conflicts of
interest between examining consultants and their practices and,
therefore, are not applicable with respect to the use of Dr.
Gitlow’s opinion, as he did not examine Plaintiff and Plaintiff
has

alleged

no

conflict

psychological practice.
Additionally,
improperly

with

respect

to

Dr.

Gitlow’s

See 20 C.F.R. §§ 404.1519q, 416.919q.

while

Plaintiff

contends

“cherry

pick[ed]”

Dr.

that

Gitlow

the
from

Commissioner
outside

the

designated region for Plaintiff’s application, he provides no
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legal support for this contention, nor any facts or law that
would indicate that the Court has misapplied the law or that
manifest injustice has occurred.
For the foregoing reasons, IT IS ORDERED that Plaintiff’s
motion for relief pursuant to Fed. R. Civ. P. 59(e), [DE 19], is
hereby DENIED.
This the 24th day of May, 2012.

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