Jensen v. Colvin

Filing 38

ORDER denying 35 PLAINTIFF'S POST JUDGMENT MOTION TO ALTER OR AMEND JUDGMENT OR RELIEF FROM JUDGMENT ON THE PLEADINGS - Signed by District Judge Louise Wood Flanagan on 7/30/2018.(Certified copy served via U.S. Mail upon Michelle Lynn Jensen, 307 Island View Drive, Newport, NC 28570) (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:16-CV-272-FL
MICHELLE LYNN JENSEN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This matter is before the court on pro se plaintiff’s motion for reconsideration filed pursuant
to Federal Rules of Civil Procedure 59(e) and 60(b). (DE 35). The issues raised have been briefed
fully and are ripe for ruling. For the reasons that follow, plaintiff’s motion for reconsideration is
denied.
BACKGROUND
This matter earlier came before the court on the memorandum and recommendation
(“M&R”) of United States Magistrate Judge Robert B. Jones, Jr.

The magistrate judge

recommended the court deny plaintiff’s motion for reconsideration of the court’s June 13, 2017
order denying plaintiff’s motion to supplement the record, grant plaintiff’s motion for judgment on
the pleadings, deny defendant’s motion for judgment on the pleadings, and remand to defendant for
further consideration or award of benefits. Defendant filed objections to the M&R, but plaintiff did
not.1

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Plaintiff alleges she did not receive defendant’s objections in the mail and therefore did not file a response.
(DE 33; DE 37 at 3-4).

For the reasons stated in the court’s order dated March 29, 2018, the court rejected the
M&R, denied plaintiff’s motions, and granted defendant’s motion. Judgement was entered
according to the court’s order on March 29, 2018. Following grant of extension of time to so file,
plaintiff filed the instant motion for reconsideration on May 21, 2018. Defendant filed response on
June 28, 2018, to which plaintiff replied on July 11, 2018.
DISCUSSION
A.

Standard of Review
Because plaintiff’s motion was filed beyond the 28-day period provided in Rule 59(e), the

court construes plaintiff’s motion as brought pursuant to Rule 60(b). See Fed.R.Civ.P. 6(b)(2). Rule
60(b) authorizes the court to “relieve a party . . . from a final judgment, order, or proceeding for .
. . . mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b). Under Rule 60(b),
a movant first must demonstrate that the movant acted promptly, that the movant has a meritorious
claim or defense, and that the opposing party will not suffer prejudice by having the judgment set
aside. See Nat’l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993); Augusta
Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 811 (4th Cir. 1988) (per
curiam). If those three threshold conditions are met, the court then must determine whether the
movant has satisfied “one of the six enumerated grounds for relief under Rule 60(b).” Nat’l Credit
Union, 1 F.3d at 266.
B.

Analysis
One of Rule 60(b)’s threshold requirements is that the movant demonstrate a meritorious

claim or defense. Here, plaintiff seeks the court’s reconsideration of its order upholding the
Commissioner’s final decision on multiple but intertwined grounds.

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First, regarding the ALJ’s step three listing determination, plaintiff argues that the “ALJ
disregarded the plaintiff’s multiple mention of fatigue and consistent reports at her medical visits
with having poor concentration, forgetfulness her fatigue and need for naps during the day,” and that
regarding Listing 12.02, paragraph B criteria, as found in Listing 11.09B, plaintiff meets all four
criteria if her fatigue is properly assessed.

(DE 35 at 4, 7-8). Second, regarding the ALJ’s

credibility determination, plaintiff argues that the “ALJ discredited her testimony and [supporting]
evidence and fail to incorporate the plaintiff’s subjective complaints” and “did not specify which
testimony he did not find credible.” (DE 35 at 4; DE 37 at 2). Third, regarding the ALJ’s step five
determination, plaintiff argues that the ALJ discounted plaintiff’s testimony of frequent absenteeism
and supporting evidence. (DE 35 at 8). Finally, plaintiff makes brief and unsupported argument that
she seeks reconsideration of the court’s order denying plaintiff’s motion to supplement the record.
(Id. at 19).
The court addressed and rejected each of these arguments in its March 29, 2018 order. See
Jensen v. Berryhill, No. 4:16-CV-272-FL, 2018 WL 1542237, at *5 (E.D.N.C. Mar. 29, 2018)
(noting ALJ referenced plaintiff’s testimony concerning fatigue and holding “[t]he above evidence
is substantial support for the ALJ’s determination that plaintiff does not meet Listing 12.02B, and
therefore Listing 11.09B . . . .”); id. at *8-10 (“Plaintiff argues that the ALJ erred in his credibility
determination regarding plaintiff and by ignoring plaintiff’s testimony regarding her absenteeism.
. . . In sum, the court finds the ALJ’s credibility assessment of plaintiff, including plaintiff’s
testimony regarding her absenteeism, to be supported by substantial evidence”); id. at *6-7
(addressing plaintiff’s motion to supplement the record, finding no “good cause” exists to grant the
motion and that even if good cause existed, evidence submitted is neither new or material).

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Each of plaintiff’s arguments, except regarding her motion to supplement the record, is at
its root an argument that the ALJ improperly assessed plaintiff’s testimony alleging disabling fatigue
as further evidenced by plaintiff’s absenteeism from her former employment. However, as
previously stated by the court:
Although plaintiff argues the ALJ is incorrect and the medical evidence
“substantiates all [of plaintiff’s] claims,” the ALJ determination otherwise is
supported by substantial evidence. The record does support the conclusion that
plaintiff missed work in her previous position as a pharmacist, but as pointed out by
the ALJ, “the issue here is not whether the claimant can be restored to full heath, or
even rendered free from pain” but “what the individual can do despite his or her
limitations.”. . . . The court notes that none of the opinion evidence indicates that
plaintiff’s symptoms are as debilitating as claimed. Plaintiff cites extensively to the
plaintiff’s medical records to substantiate her own credibility. However, plaintiff’s
citations are predominately evidence not from health care providers but her
self-reported symptoms submitted to those providers, particularly with regard to
plaintiff’s symptoms of fatigue and low energy. This evidence confirms plaintiff’s
subjective complaints of symptoms, but the ALJ was not required to accept this
evidence to the extent it was inconsistent with the evidence provided by plaintiff’s
medical care providers . . . .
Id. at *8-10 (citations omitted).
Plaintiff has failed to raise a meritorious claim, and the motion for relief from final judgment
must be denied.
CONCLUSION
Based on the foregoing, plaintiff’s motion for relief from final judgment (DE 35) is
DENIED.
SO ORDERED this the 30th day of July, 2018.

LOUISE W. FLANAGAN
United States District Judge
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